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State v Bauai [2024] PGNC 387; N11056 (21 October 2024)

N11056

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 64 OF 2023

THE STATE

V

STEVEN BAUAI

Waigani: Miviri J
2024: 20^th September, 09^th & 21^st October

CRIMINAL LAW – PRACTICE AND PROCEDURE – Murder S300 (1)(a) CCA – Plea – Reaction to Deceased Attacking Him – Knife of a Bystanders Used Fatally on Deceased – Stabbed on Right Side of Back – First-time Offender – Deceased Instigator Force Used Repelling Over & Above – Intention to Cause GBH – Death as A Result – Will of Legislature Protection of Life Sacred – 18 years IHL minus period in Remand.

Facts

Deceased attacked the prisoner. Prisoner stabbed the deceased with a knife of a bystander. He intended to cause grievous bodily harm from which he died.

Held

Plea
Unprovoked attack upon prisoner by Deceased while being drunk.
Intent to cause grievous bodily Harm.
Stabbed on back with knife of a bystander.
Sanctity of Life
Prevalent offence
PSR MAR considered
Non-custodial term disproportionate
18 years IHL minus time on remand.

Cases Cited:
Aihi v The State (No 3) [1982] PNGLR 92
Simbe v The State [1994] PNGLR 38
Aquila v Independent State of Papua New Guinea [2020] PGSC 113; SC2023
State v Hagei [2005] PGNC 60; N2913
The State v Kovi [2005] PGSC 34; SC789
Tardrew, Public Prosecutor [1986] PNGLR 91
Golu v The State [1979] PNGLR 653

Counsel:
S. Suwae, for the State
K. Watakapura, for the Defendant

SENTENCE

21^st October 2024

1. MIVIRI J: Steven Bauai of Givena Village in Goilala, Central Province appears to receive sentence of the murder of Henai Asi committed on the 06^th February 2022 at Rabiagini Settlement, Badili, National Capital District.
   
2. He was arraigned that on the 06^th February 2022 around 9.00am, he was at Rabiagini Settlement in Badili in the National Capital District. And was there to check on his children, but they were not there so he walked a bit further and bought a betel nut and chewed it. Whilst he was enquiring for his children the deceased with friends were drinking on the side of the road.
   
3. An altercation started between the deceased and the Accused. The deceased threw the first punch hitting the accused on his right side of his face causing him to fall down. Accused got up and they fought. Accused then got a kitchen knife from bystanders and stabbed deceased on the right side of his back. And he fell to the ground and died. Accused had intended to do grievous bodily harm from which the deceased died.
   
4. He was charged pursuant to Section 300 (1) (a) of the Criminal Code reading:
   
   • (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.”
  

5. This is an offence that could not have arisen had the deceased not being drinking alcohol in a publicly frequented area. It is a matter that is core to many instances of homicide that has come before this Court. Police and authorities do not enforce against public drinking as is the case here. It means citizens such as the prisoner must fend for themselves when drawn into a fight by drunken like the deceased. Who pay no heed of the dire consequences they erupt upon innocent law-abiding citizens such as the prisoner. His life could have continued had he been removed from where he was drinking by Police and relevant authorities. Sale of alcohol and illicit home brewed alcohol gives rise to opportunities as was demonstrated here. Citizens such as the prisoner must be protected from drunken taking their intoxicated stupor on innocent members of the public like the prisoner. This is a very uncontrollable behaviour rampant across the length and breadth of the country. Deceased contributed to his demise. The fault does not fall squarely upon the prisoner. His sentence will reflect this fact underlying that innocent members of the public going about their concerns and errands should not be entirely made to bear the brunt for the death of a drunken as is the case here. It is as if the deceased invited what was coming to him. It is not wrong to consume alcohol, but it is wrong to behave as did the deceased against the prisoner. It is not the normal case of murder that must draw stern deterrent and punitive sentence against. Leniency is due the prisoner in the sentence due.
   
6. Prisoner is 44 years old originally from Givena village, Goilala Central Province. A first-time offender married with three children left in his care because the wife has passed on. He is now married again with two children from his present wife. She is a housewife who is finding it difficult to look after the children because he was the bread winner. With his incarceration it is difficult to keep the children in school and their education has been affected seriously. He has education to Port Moresby Business College where he graduated with a diploma in Computing in 2015 to 2016. In 2017 he attended and graduated with a certificate in accounting. He secured his primary education in 1980 to 1988 up to grade 6 at Badili Primary School currently Saint Therese’s Primary School. He went on to high school at Tapini high school completing grade 10. But did not continue to grade 11. He has employment history with Avenell Engineering Systems Limited since 2018 up to the time of the commission of the offence. He was a general hand there and ceased employment there as of the 05^th February 2022. He was earning K500 fortnightly there.
   
7. These are details confirmed by the presentence report that was ordered by the court. In addition, K2000 was paid to the relatives of the deceased. This is from the prisoner’s interview for compilation of the report. It has not been confirmed with the relatives of the deceased who have not been located. He has indicated that he will seek to get his Nasfund savings to pay further compensation including sale of gold for this purpose. Reference from one Francis Havi peace mediator with the Guari Local level Government Goilala attests that the prisoner is a good person humble and hardworking who was committed to looking after his own family. He is very remorseful for the offence that he has committed. He is assessed by the presentence report as being not a threat to his community. That there is peace between the deceased and the prisoner’s family.
   
8. His guilty plea has been genuine given all set out above. It is not the worst case of murder given. And will draw a determinate term of years given: Avia Aihi v The State (No 3) [1982] PNGLR 92. The loss of life is serious. Considering that this are circumstances that have been forever prevalent despite sentences served by the Courts. And it is particularly serious considering the deceased was the instigator of his demise. It is an unthinkable act and disproportionate use of a knife to a venereal part of the body, the back. It is not a light matter to be considered on a scale but must draw its sentence from its facts and circumstances: Simbe v The State [1994] PNGLR 38.
   
9. K2000 was paid for mending of the relationship between the prisoner’s people and that of the deceased. But will not alleviate what the legislature has prescribed in his case in the penalty due. This view is very clear in Aquila v Independent State of Papua New Guinea [2020] PGSC 113; SC2023 (29 October 2020). Because by law, the Criminal Law (Compensation) Act is a maximum of K5000 and not more. But it is not verified so will not make any real bearing on the sentence due. There are extenuating and special circumstances that will draw appropriate sentence against the prisoner. And which is consistent with his presentence report. But will not be to the level of State v Hagei [2005] PGNC 60; N2913 (21 September 2005). The taking of human lives has been random undeterred and very prevalent as ever. No amount of sentence has had the rippling effect of deterring the crime. Here the deceased contributed to his own demise. And in the terms of Kovi v The State [2005] PGSC 34; SC789 (31 May 2005), these circumstances will be placed at 16 to 20 years in the second category. Because there is viciousness in the attack, a weapon is used, a kitchen knife, there is no strong intent to do grievous bodily harm. He reacted in the way he did because of what the deceased did to him.
   
10. I consider these applicable in all fours to this case. And I take due consideration of his personal antecedents including that he is a first-time offender who has pleaded guilty to the charge. In any case it would not have made any difference in the light of the fact that, section 19 (6) of the Criminal Code three broad categories can be summarized upon which suspension can be considered in sentence, (1) where suspension will promote personal deterrence or reformation or rehabilitation of the offender; (2) where suspension will promote the repayment or restitution of the stolen money; (3) where imprisonment will cause excessive degree of suffering to the particular offender; for example because of his bad health: Tardrew, Public Prosecutor [1986] PNGLR 91. In all respects in the case of the prisoner now with the Presentence Report the Means Assessment Report, I am not convinced that there is material to sway other than the custodial term due for murder at the lower end in the light of all set out above. It is my view given all above that the sentence must fit the crime: Golu v The State [1979] PNGLR 653.
    
11. The sentence is 18 years IHL. Time in custody is deducted forthwith. He will spend the balance in jail IHL.
    

Ordered Accordingly.
__________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor : Lawyer for the Defendant