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State v Watakasi [2012] PGNC 266; N4597 (3 February 2012)

N4597

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO: 1050 OF 2011

THE STATE

-V-

GODFREY WATAKASI

Arawa: Maliku AJ
2012: 02nd, 03rd February

CRIMINAL LAW- Unlawful killing – section 302 Criminal Code Act.

CRIMINAL LAW- Sentencing - guilty of unlawful killing - No offensive weapon used - Accused first offender- Prevalence of unlawful killing in the community- Need to protect the community

Cases cited:

Goli Golu -v- The State [1979] PNGLR 653
Avia Aihi-v-The State (NO3 [1982] PNGLR 92
Rex Laliu -v- The State [1990] PNGLR 487

Counsels:

Mr Kivu, for the State
Mr Misil Yawip, for the Accused

SENTENCE

3rd February, 2012

1. MALIKU AJ: The accused was found guilty and was convicted for that he on the 20th of February 2011 at Bokalam No 2 village, Bana District, Bougainville Region did unlawfully kill one Theresia Wokongo thereby contravening Section 302 of the Criminal Code Act.
   

The issues

1. Issue1: Does this matter fall in the worst category of cases?
   
2. Issue2: What is the appropriate sentence to be imposed on the accused?
   

Fact

2. On the 20th of February of 2011 in the afternoon the accused was drinking alcohol with one other person at Bakalam No 2 village in the Bana District. As they were drinking an argument erupted between the accused and that other person namely Alphonse Mouto. A fight then took place between the accused and Alphonse Mouto. The deceased in this matter, Theresia Wokongo, the grandmother of the accused intervened to stop the fight. During the process of her intervention she was struck by the accused with a folded fist on her head. She was unconscious, fell to the ground and died instantly. The State alleges that the accused killed the deceased Theresia Mokongo without lawful excuse.
   

The allocutus

3. In his address on his allocutus the accused said:
   
   1. I say sorry to the Almighty God the father.
      
   2. I say sorry to the Court for what I have done.
      
   3. It is my first time to appear in Court for having committed such crime.
      
   4. I did not intend to kill her but intended to punch Alphonse Mouto.
      
   5. Having said these I ask the court to have mercy on me. I did pay compensation in the sum of K2 600 to preserve peace between our family and the relatives of the deceased and we are now living in peace.
      

The mitigating factors:

1. The accused had pleaded guilty to the crime which saved the court's time and other resources to conduct a trial.
   
2. His plea was genuine because he had maintained it throughout even from the record of interview he had with the police.
   
3. He had no prior convictions.
   
4. The punch was a single punch and was not planned nor intended to be effected on the deceased.
   

Personal Background:

1. The accused is 35 years old.
   
2. He is not married.
   
3. He comes from a family of four and he is third in the family.
   
4. He completed grade 8 at Sovele Primary School.
   
5. He completed grade 10 at Maviri high school in 1998.
   
6. At the time you committed this crime you were working at/or with the Alluvial Gold Mining at the Java River.
   

Aggravating factors:

1. The deceased was an elderly helpless woman who merely attempted to stop the fight.
   
2. The deceased had lost her life.
   
3. The prevalence of such crime in the community.
   

Guideline on sentencing

4. The guideline on sentencing is well settled in our jurisdiction in the case of Rex Lialu v The State [1990] PNGLR and is:
   

"Sentence in any given case will depend on its own peculiar facts.... the Court ought to have regard to all aggravated effects of all relevant considerations on matters which aggravate or mitigate the serious nature of the offence and then to decide an appropriate penalty".

I am bound to follow this guideline.

5. I agree with both counsel that maximum prescribed penalties are reserved for the worst type or worst category of cases. This was settled in the case of Goli Golu-v- The State [1979] PNGLR at page 653 and re stated in the case of Avia Aihi-v-The State (NO3 [1982] PNGLR 92 at page 96.
   

Does this matter fall in the worst category of unlawful killing?

6. Although this matter does not fall in the worst category of cases because it was not planned or intended it is still serious in that life was lost and even though the deceased was a grandmother of the accused. The law protects every person even the grandmother of the accused.
   
7. Unlawful killing in many instances is committed with violence and prevalent in the communities and is on the rise. The Court has a duty to impose sentences that will deter the accused from recommitting and others to commit similar offences in the future and ensure that everyone is safe and without fear of being attacked.
   

The appropriate sentence

8. The counsel for the accused submitted that the appropriate sentence for this matter is an imprisonment of a period between six (6) and seven (7) years while the State had submitted for a period of eight (8) to twelve (12) years imprisonment with hard labour.
   

Address to the accused

9. You pleaded guilty to unlawful killing of one Theresia Wakongo on the 20th of February in 2011 at Bokalam No 2 village, Bana District, Bougainville Region contravening Section 302 of the Criminal Code Act.
   
10. I heard what you told me in your allocutus.
    
11. I also heard what your counsel told the Court in your mitigating factors.
    
12. I was also told about your personal background by your counsel.
    
13. I also heard what the lawyer for the State said.
    

Conclusion:

14. In the present case the maximum for unlawful killing is life imprisonment. My view in taking into account the interest of the State and also of the accused put before me for consideration, the proper sentence is eight (9) years imprisonment. The accused shall serve the balance after the pre trial period in custody is deducted.
    

___________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused