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State v Paison [2012] PGNC 314; N5608 (19 September 2012)

N5608

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 373 OF 2012

THE STATE

V

FRED PAISON

Alotau: Toliken, AJ.
2012: 19th September

CRIMINAL LAW – Sentence – Attempt to improperly interfere with human remains – Plea – Mitigating and aggravating factors considered – Maximum penalty inappropriate – Sentence – 12 months less time spent in pre-trial custody – Criminal Code Ch. 262, s 236 (b)

Cases Cited

Nil

Counsel

D. Kuvi, for the State
A. Kalandi, for the Defence

SENTENCE

19th September, 2012

1. TOLIKEN, AJ: Fred Paison, you pleaded guilty to an indictment charging you with one count of attempting to improperly interfere with the remains. This is an offence under Section 236 (b) of the Criminal Code Act Ch. 262 and carries a maximum penalty of 2 years imprisonment.

2. The indictment charged that:

" ... on the 17th of March 2011, Yo'o Village, Esa'ala, Milne Bay Province in Papua New Guinea [you] attempted to improperly interfere with human, remains by digging up and breaking the coffin of the late Joshua Kainamale."

3. The brief facts put to you are that on the morning of 17th of March 2011 you told your two small brothers to accompany you to your grandfather's garden to plant yam seedlings. You brought a metal digging pipe with you but when the three of you reached the garden you told your brothers that you will go and dig for wild fowl eggs instead. You then, however, went to the grave of the late Joshua Kainamale and you proceeded to dig the grave. When you reached the coffin you broke it open using the metal digging pipe. You were after a bagi necklace. As you were about to search the body for it someone shouted disturbing you and you ran away. The State said that you had manifested your intention to interfere with the remains when you dug up the grave and broke the coffin open.

4. I entered a provisional guilty plea which I confirmed after perusing the committal file. I then convicted you.

5. You are 23 years old. You are married with a three month old baby. Your father is still alive but your mother is deceased. You left school only after Grade 2 and you do not belong to any church. This is your first offence.

6. When asked to address the Court you had this to say:

"I apologise to the Court. I know that I have broken the Constitution of PNG. I apologise to my relatives and to the police and to the Church. I know that I have broken the law and I would like to ask the court to have mercy on me and give me good behaviour bond. That is all."

7. Your lawyer Mr. Kalandi submitted that this is not the worst offence of this kind so the maximum penalty should not be imposed. He said your offence is mitigated by the following factors. You pleaded guilty to the charged and are a first time offender. You also cooperated with the police from the beginning. He also said that lack of education could have contributed to your committing the offence. All that you were interested in was to retrieve a bagi from the deceased's body. An appropriate sentence, he said should be six months imprisonment.

8. Mr. Kuvi on the other hand conceded that the maximum penalty was not appropriate in the circumstances of your case as this was a mere attempt to interfere with the corpse. Despite that you attempted to interfere with human remains, an act that is unacceptable to Papua New Guineans who have great respect for the dead. He agreed with the sentence proposed by your lawyer and further advised the Court that you have been in custody for 7 months and 5 days. So what should be an appropriate sentence for you?

9. You promptly pleaded to the charge of attempting to interfere with the remains of the late Joshua Kainamale. Your intention there seems clearly to have been to take a bagi – a priced necklace in Milne Bay - from the coffin of the deceased. You did not succeed because you were disturbed.

10. The offence which you pleaded guilty to is a misdemeanour and carries a maximum penalty of two (2) years. You are not charged with having consummated your intention but you did manifest your intention by digging the grave and breaking open the coffin. Now in the process you have committed an offence against the State. But what perhaps is most important here from the stand point of the community is that what you did was sacrilegious to the deceased and his family and clan members. It is an insult deserving of utmost condemnation in every Papua New Guinean society where the dead are in most instances more respected then the living.

11. I take into account you mitigating factors. You are a first time offender, pleaded to charge, saving Court time, you co-operated with police from the beginning and you seem remorseful for your actions. You are also a simple illiterate and unsophisticated villager.

12. Against this is of course the fact that you attempted to desecrate the remains of the late Joshua Kainamale – something that cannot be taken lightly in our societies.

13. No cases have been cited to me to give me some insight into how this type of case has been treated by the courts. However, I think that the sentence which I shall impose will be one that will and must deter you and punish you out of anything else.

14. Now, you only attempted to interfere with the remains though you came frighteningly close to handling the bones of the deceased. Hence you were merely charged with attempt and that will be reflected in your sentence. I agree with the lawyers that the maximum penalty is not appropriate in the circumstances of your case. But as I said the sentence I will impose must serve to deter you personally and others from engaging in this kind of practice – which if I may be allowed to say – may be indeed be common in rural communities.

16. I think that a sentence of 12 months will be appropriate in the circumstances. I, therefore, impose a sentence of 12 months. Seven months and 5 days will be deducted for pre-trial custody period. The resultant sentence will be 2 months and 25 days. You will serve the balance of 2 months and 25 days at the Giligili Correctional Institution.

Orders accordingly.
__________________________________________
Public Prosecutor : Lawyer for the State
Public Solicitor : Lawyer for the prisoner