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State v Kialo [2014] PGNC 372; N6846 (26 September 2014)

N6846

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 968 of 2014

THE STATE

V

GALlS GIDEON KIALO

Buka: Injia, CJ
2014: 24 & 26 September

CRIMINAL LAW - Sentence- Murder - Injuries inflicted that caused death- vicious and brutal- Killing of a relative- Bush knife used to cut victim on left shoulder and chin area and severed right arm- Guilty plea- Appropriate sentence- Punitive and deterrent sentence - 12 years imprisonment- Criminal Code, s 300(1)(a)

Counsel:

P Kaluwin, for the State
F Pitpit, for the Prisoner

26^th September, 2014

1. INJIA, CJ: The prisoner pleaded guilty to one count of murder contrary to s 300 (l)(a) of the Criminal Code Act.

2. The offence carries a maximum penalty of imprisonment for life. The maximum punishment is reserved for the worst case of its kind on the facts and that the appropriate sentence to be imposed in a particular case depends on its own facts. I accept the submission of Mr Pitpit of counsel for the prisoner that although this is brutal and vicious killing, the existence of some extenuating circumstances that lessen the gravity of the killing removes this particular killing from the category of worst cases. Those extenuating circumstances include the following:

(1) The prisoner killed a close relative. The deceased and the prisoner are related by marriage in that they are married to two biological sisters. The deceased is a loss to both the prisoner's family of a wife and two children and a loss to the deceased's family of a wife and five children.

(2) The killing was unplanned. The killing followed a drinking spree involving the prisoner and the deceased and other persons who associated with them on the day of the killing. They drank home brew alcohol and were clearly under the influence of that intoxicating home-made liquor. Home brew alcohol is an illicit drink in PNG. The intoxicating liquor made the prisoner and the victim and everyone else who participated in the drinking spree do things that they normally would not do and small arguments spiral out of control.

• (3) The prisoner and the deceased got into an argument over a power adapter that developed into a fight between them that led to the deceased trying to set fire to the prisoner's bush material house. To stop him, the prisoner used a bush knife to cut him from the back on the area between the left shoulder and the chin and which severed the left arm, as a result of which the deceased died at the scene due to heavy loss of blood. The prisoner reacted violently to protect his property from being set alight by the deceased.
  

(4) In the circumstances referred to in the foregoing, there was de facto provocation from the deceased and de facto defence of property on the part of the prisoner, both in a non- legal sense.

4. There is little doubt that the killing was carried out in a vicious and brutal manner. The bush knife was used with such heavy brutal force that it inflicted lethal injuries around the victim's left shoulder and chin area and on his left hand that led to the victim's death shortly thereafter at the scene of the attack. The graphic pictures of the wounds inflicted bear testimony to the gravity and viciousness of the force used. Such force was unnecessary, unreasonable and uncalled for towards a relative as submitted by Mr Kaluwin of counsel for the State.

5. I do take into account in the prisoner’s favour the extenuating circumstances of the offence I have referred to here. In addition, I take into account in his favour all the mitigating factors referred to me by his counsel including the fact that the prisoner is a first time offender, he is relatively young person aged 22 years old, he is a man of prior good character, a Christian with a young family of a wife and two children. He has had some limited formal education at primary school level and engaged in meaningful private contract work. He freely admitted the offence to police, that he freely admitted the offence before this Court and saved this court's time and resources and those of the State and that in the process of admitting the offence before this court he freely choose to abandon any legal defences to the offence that he might have had in favour of non-legal defences for purpose of mitigating the sentence. He expressed genuine remorse in open court. I accept Mr Pitpit's submission that the aggregate of these extenuating circumstances and mitigating factors do deserve appropriate consideration and weight in deciding on the appropriate penalty.

6. At the same time, I accept Mr Kaluwin's submission that the sentence ultimately must fit the crime and not fit the offender or the wishes of the members of the families of the prisoner and the victim. A crime has been committed against the community. A life has been lost which will not be replaced by the offender. There must be imposed an appropriate sentence that will offer retribution, punishment and deterrence for all, otherwise the sanctity of human life and its protection is rendered meaningless by soft sentences that are tailored to fit the offender or the wishes of the family of the deceased and the offender, by reason of close affinity by marriage.

7. Having made these observations, I do agree with both counsel that the circumstances of this case fall into the third category in Manu Kovi v The State. I do not think it is in the interest of justice to imprison him for a very lengthy period which will deprive the prisoner of the opportunity to return to normal life in the community.

8. I consider that an appropriate sentence is one of twelve years imprisonment in hard labour and I impose the same. The pre-trial custody period of one (1) year 13 days is deducted thereby leaving a period of 10 years 11 months and 17 days to serve. The Correctional Services at Buka can make appropriate arrangements for the prisoner to serve his term at an appropriate jail in Buka or elsewhere in Papua New Guinea.

____________________________________________________________
Pondros Kaluwin, Public Prosecutor: Lawyer for the State
Frazer Pitpit, Public Solicitor: Lawyer for the Prisoner