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State v Talingapua [2019] PGNC 73; N7734 (6 March 2019)

N7734

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 791 OF 2018

THE STATE

V

KAKIU TALINGAPUA

Kimbe: Miviri J
2018: 5^th 9^th December
2019: 22^nd February

CRIMINAL LAW – PRACTICE AND PROCEDURE – Murder S300 – Plea –cut over face – bush knife dangerous weapon – retaliation over deceased attacking – prevalent offence – compensation paid – PSR MAR favourable to prisoner– enforcement of the rule of law – sanctity of life – strong punitive and deterrent sentence

Facts
Accused cut the face of the Deceased who had chased him and others with a bush knife. Accused escaped successfully and returned inflicting serious injuries and killing the deceased.

Held
Plea
Prevalent offence
Disputes to processes of law not without
Sanctity of life
20 years IHL.

Cases Cited
The State v Kwapena [1978] PNGLR 316
The State v Angitai [1983] PNGLR 185

The State v Kovi [2005] PGSC34; SC 789

The State v Hagei [2005] PGNC 60; N2913

The State v Tapi [2000] PGSC 2; SC635

The State v Kama [2004] PGSC 32; SC740
Counsel:

J. Apo, for the State
D. Kari, for the Defendant

SENTENCE

6^th March, 2019

1. MIVIRI J: This is the sentence of a man who pleaded guilty to cutting another man on his cheek causing bleeding from which he died.

Brief Facts on arraignment

2. On 22^nd January, 2018 at around 9 to 10 am, the Prisoner with two others were splitting coconuts at their village Nimbonde on Bali Island. As they did they consumed homebrewed alcohol. The Deceased, Philip Tapale armed with a bush knife approached them and started arguing with them. He accused that one of them was engaging in sexual intercourse with his daughter and so attacked them. They ran away and then returned armed with stones and a bush knife and confronted him stoning him. The Prisoner attacked him with a bush knife cutting him twice on his left cheek causing severe injuries thereby causing blood loss from which he died. He intended to do Grievous Bodily Harm from which he died.
   

Charge

3. The Indictment presented invoked Section 300 of the Criminal Code which is in following terms:
   
   • (1) Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder:–
     

(a) if the offender intended to do grievous bodily harm to the person killed or to some other person;

(b) if death was caused by means of an act–

(i) done in the prosecution of an unlawful purpose; and

(ii) of such a nature as to be likely to endanger human life;

(c) if the offender intended to do grievous bodily harm to some person for the purpose of facilitating–

(i) the commission of a crime other than a crime specified by a law (including this Code) to be a crime for which a person may only be arrested by virtue of a warrant; or

(ii) the flight of an offender who has committed or attempted to commit an offence referred to in Subparagraph (i);

(d) if death was caused by administering any stupefying or overpowering thing for a purpose specified in Paragraph (c);

(e) if death was caused by wilfully stopping the breath of a person for a purpose specified in Paragraph (c).

Penalty: Subject to Section 19, imprisonment for life.

(2) In a case to which Subsection (1) (a) applies, it is immaterial that the offender did not intend to hurt the particular person who was killed.

(3) In a case to which Subsection (1) (b) applies, it is immaterial that the offender did not intend to hurt any person.

(4) In a case to which Subsection (1) (c), (d) or (e) applies, it is immaterial that the offender–

(a) did not intend to cause death; or

(b) did not know that death was likely to result.

4. Here Section 300 (1) (a) was invoked that the Prisoner intended to cause Grievous Bodily Harm drawing the maximum penalty of life imprisonment. Given his facts and circumstances a determinate term of year’s imprisonment was in order.
   

Aggravation

5. Against the prisoner was that he had run away from the attack by the deceased and could have avoided if he had so remained. But he returned armed and prepared for the deceased, this time with a bush knife. He used it upon one of the most venerable part of the body, the face. Here the cheeks were cut from which the deceased bled to his death. Prior to that the deceased was stoned rendering him unarmed and disabled.
   

Reason for attack

6. Prisoner explained in his record of interview dated the 7^th February, 2018 that the deceased was cross with one Nick Baili who was there and who had had sexual intercourse with his daughter. He was drunk and holding a homebrewed alcohol container and a bush knife swearing when he came to where they were. He destroyed the house and cut the dog belonging to the owner of the house. Then he tried to cut one Nick Talingapua but was disturbed by the prisoner prompting the deceased to chase him with the bush knife. Prisoner picked up two large stones and stoned him hitting him on the cheek and the head. Diverting the deceased to run back to his house in the course dropping his homebrewed alcohol container and his bush knife. Prisoner picked it up and cut the deceased on the face across the cheek starting just at the right ear in a downward motion diagonal along to the mouth opening it up further with second blow to it. These facts suggest that there was no break in the way that the prisoner acted. One act led to the next the nexus was not broken.
   

Photographs No medical report

7. Six Colour photographs depict a very serious cut deep exposing the mouth and the teeth underneath the jaw line from the side to the front of the mouth. It extends in a back ward diagonal line up to just when the right ear canal is. The photographs were taken immediately after the cut when the deceased was being treated at the Unea Sub Health Centre unsuccessfully to revive and to save him. Clearly it was a ferocious attack and was destined as it did death of the deceased pursuant. The extent of the injuries depicted by the photographs is gruesome. The force used was such that the face was cut diagonally exposing the teeth and the interior of the mouth. Even though there is no medical evidence to establish the extent of the injury medically the photographs show very serious injuries that did not warrant survival as it did here. In a way setting out the level of medical professionalism and help available to a person in medical peril as did the deceased in that location. And it was grievous in the way it was inflicted. From the material on file deceased was already distracted from attacking Nick Talingapua by the stones that were hurled at him. It would appear that the stones hit him on the back of the head to cause him to fall to the ground whereupon his bottle of homebrewed alcohol fell so too the bush knife. He may have been disorientated enough to cause self defence in favour of the prisoner. But Prisoner picked it up and inflicted the injury throwing the defence out.
   

Self Defence Provocation Inapplicable

8. Given these facts within Kwapena v The State [1978] PNGLR 316 (1 September 1978) self- defence was in applicable so too provocation: Angitai v The State [1983] PNGLR 185. He may have acted lawfully in defence of Nick Talingapua but that ceased when the deceased fell to the ground together with his bottle of homebrewed alcohol and the bush knife. It showed that Nick Talingapua was out of the danger from that posed by the deceased. The persistence of the prisoner was over and above necessary to preserve the life of Nick Talingapua. There is intent to do grievous bodily harm. There was a dangerous weapon used with viciousness. It would fall into the second category of Kovi v The State [2005] PGSC34; SC 789(31 May 2005) spanning a range from 16 to 20 years imprisonment. There was strong intent to do grievous bodily harm. There is no extenuating circumstance within State v Hagei [2005] PGNC 60; N2913 (21^st September 2005).
   

Circumstances of the Killing

9. There was preplanning in the way he acted. And it was repeated and vicious attack in the way that he used the stones followed with the bush knife in addition and preceding. It would fall at the top end of category two and the lower end of category three and the submission by State counsel is confirmed in this regard given. But for the guilty plea and the reconciliation accompanied by the compensation paid the proportionate sentence would have been higher than the range under category two.
   
10. Violence the heart of all evil must be stopped. Good conscience reason logic and peaceful resolution of disputes must be maintained. Observance compliance of the rule of law respect for life and property must be maintained. Life is lived only once it is sanctified therefore must be protected. This is one of the most prevalent offences.
    

Personal Antecedents

11. This has been extensively covered in the presentence report that has been ordered. Prisoner is originally from Nimbonde village on Bali Island. He has lived there all his life. He is of the Catholic faith educated to grade 5 at Unea Primary School with no formal employment record. A 20 year old single first offender his presentence report confirms these facts. He had little experience in paid employment with New Britain Palm Oil Limited for two years in one of the plantations as a wheelie boy. He sustained himself in the village by subsistence farming and did not really have a sustained means to pay compensation but had reconciled the matter in the village with the help of relatives. A K 2470 cash money with two pigs valued at K1500 totalling to K5, 470 were given witnessed by village court magistrate. The presentence and means assessment reports both adequately cover this and I take due consideration of both reports. Given that the Prisoner had not initiated as he was working with the others cutting and preparing copra when set upon by the deceased over an allegation that one of them had sexual penetration of his daughter. And the knife was of the deceased after prisoner successfully disarmed him with stone to his body. It would draw in my view sentence at the upper end of category 2 but reduced on the basis that he has pleaded guilty which he has maintained all along when interviewed by Police. And both counsel urged similar due consideration is given here.
    

Issue

12. What is the appropriate sentence given?
    
13. The appropriate sentence proportionate to all set out above in my view is 20 years imprisonment in hard labour. Sentences have been increasing since Tapi v The State [2000] PGSC 2; SC635 (30 March 2000); Kama v The State [2004] PGSC 32; SC740 (1 April 2004) confirmed by Manu Kovi (supra). Murder cannot be likened to Manslaughter or wilful Murder and the sentence will reflect the intent and spirit of the legislature between as set out.
    
14. The present case does not present deviation from the tariff and range set. Like cases should be treated alike. The appropriate sentence is therefore 20 years IHL and I so impose that upon the prisoner for the murder of Philip Tapale committed on the 22^nd January 2018 at Nimbonde, Bali Island.
    
15. Time on remand is deducted forthwith. He will serve the balance in jail IHL.

Orders accordingly.

Public Prosecutor: Lawyer for the State

Public Solicitor : Lawyer for the Defendant