The State v Billy Kauwa

• Jurisdiction: Papua New Guinea
• Judge: Injia AJ
• Judgment Date: 24 October 1994
• Citation: [1994] PNGLR 503
• Court: National Court
• Year: 1994
• Judgement Number: N1277

National Court: Injia AJ

Judgment Delivered: 24 October 1994

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

BILLY KAUWA

Waigani

Injia AJ

24 October 1994

CRIMINAL LAW — Sentence — Manslaughter — Drunken brawl — Mitigating factors — Subsequent payback killing of the accused's father and brother — Compensation — Rejection of compensation by victim's relatives.

Facts

The accused and the deceased had a fight while drinking with a group of about 30 other men. The deceased was told to leave the scene, which he did. However, he returned some 15 minutes later, and the accused struck him on his head with a piece of timber. He was unconcious and taken to the Port Moresby General Hospital, where he died a few days later. The deceased's death led to a tribal fight between the relatives of the two men in which the prisoner's father and brother were killed by way of payback. The prisoner asked the Court for leniency because of, inter alia, the loss of his father and brother. He also offered substantial compensation.

Held

The prisoner's loss of his father and brother in a tribal fight following the killing is not a mitigating factor. Other mitigation was considered. The sentence was for five years imprisonment.

Cases Cited

Apo v The State [1988] PNGLR 182.

Lialu v The State [1990] PNGLR 487.

Counsel

C Sambua, for the State.

D Sakumai, for the accused.

24 October 1994

INJIA AJ: On 18 August 1994, I found the prisoner guilty and convicted him of unlawfully killing one Pakaitakali Mendokane at Morata No 3 on 6 November 1993. This offence is called manslaughter and it is found in s 302 of the Criminal Code (the Code). The maximum punishment is life imprisonment, subject of course to s 19 of the Code, which gives the Court discretion to impose a lesser term depending on the particular circumstances of each case.

On 18 August 1994, I received submissions from both lawyers on sentence and adjourned the matter to 26 September 1994 to enable the probation officers for NCD and Wabag to furnish me with a means assessment report on the matter of compensation as required by the Criminal Law (Compensation) Act 1991. On 26 September 1994, the report was not ready and so I adjourned the matter to 29 September 1994, on which date the report was furnished. I received further submissions on that date and adjourned the matter to today for sentence. I have read the report and will revert to it later.

The circumstances of the killing were set out in my written judgment which I delivered on 18 August 1994. In brief, the prisoner and the deceased both avail from Kompiam, Enga Province. They were living in Port Moresby at the material time. On the early hours of 6 November 1993, both men were among a group of about 30 very drunk men from Kompiam who converged at Joseph Lakipin's house to listen to their visiting village councillor, one Pius Gabriel Sapol, speak about events back at home. The deceased and the prisoner were also very drunk, the prisoner having continuously drunk commencing on the afternoon of 5 November 1993 at his place of work, after work. Whilst the men were assembled at Joseph's house, a fight broke out between the deceased and the prisoner in which the deceased punched the prisoner on his mouth which caused the prisoner's mouth to bleed and rendered him unconscious. The prisoner got up and tried to retaliate but he was separated from the deceased and the prisoner was led away to Joseph's huse whilst the deceased was told to leave Joseph's house, which he did. However, some 15 minutes later, the deceased returned to Joseph's house. His advance towards Joseph's house was blocked by one Leo Lewala who banged together the heads of the deceased and Jacob Tangula who had stepped in to assist the deceased. Upon seeing the return of the deceased, the prisoner who was standing on the verandah of Joseph's house sprang to the deceased and struck him on his head with a piece of stick or timber which caused the deceased to fall down unconscious with his head bleeding. Joseph's wife Agnes then poured water on him and he was taken to the Port Moresby General Hospital where he died on 15 November 1993. He died from head injuries, namely, "subdual haemorrhage in brain damage due to blunt injury to the head" caused by the head injury inflicted by the prisoner with the piece of stick or timber as described above.

The prisoner is a single man, aged about 22 years old. He comes from Kapal village, Kompiam, in the Enga Province. He attended Eki Vaki Community School at Hohola in the National Capital District. Thereafter, he attended Kila Kila High School and completed Grade 9 in 1984. He left school and found a job as a chef at Tabubil where he worked from 1986-1988. Sometime later he returned to Port Moresby. In 1993, he was employed as a Security Supervisor by Timakali Security Service and stationed at Papindo Supermarket at Gerehu until he was arrested for this offence. He was earning a salary of K98 per fortnight. I am told that his employer has temporarily laid him off work pending the outcome of this case. The prisoner has no prior convictions. He has now been in custody for a total of 11 months waiting for his trial.

The deceased was also a young man aged 22 years old at the time of his death. He was of average built and a normal person. There is no other information regarding the personal and other background of the deceased.

In considering the appropriate sentence, I take into account several factors, both in favour of and against the prisoner which are set out in the following paragraphs to the extent mentioned herein.

1. HIS YOUTH

He is a young man and single. Youth is always a mitigating factor. However, the weight to be attached to this factor is substantially reduced by the fact that his age falls well above the usual teen age group and that he was employed in a supervisory capacity which means independence of character and maturity.

2. HIS PREVIOUS GOOD PERSONAL BACKGROUND AND CHARACTER

He comes from a good family background and was of previous good character. This is a mitigating factor.

3. NO PRIOR CONVICTIONS

This is his first offence.

4. GUILTY PLEA

He pleaded not guilty. He gets no credit which would usually be available to one who pleads guilty. I should say that the fact that he pleaded not guilty is not an aggravating factor.

5. CO-OPERATION WITH THE POLICE

On the whole he co-operated with police in answering all their questions. He also surrendered himself to police at Waigani when the deceased's relatives were looking for him. These are mitigating factors. But the weight to be attached to these factors are limited to a large extent because he denied the commission of the offence whilst admitting that he fought with the deceased on the first fight. Also, he surrendered on 15 November 1993, some nine days after the incident. His surrender was prompted by the fact that the deceased's relatives were looking for him.

6. REMORSE

He gets no credit for expression of remorse because he maintained his innocence even after I found him guilty. The fact that on allocutus he said he was sorry for his own family is not genuine remorse for what he did. I do point out that failure to express genuine remorse is not an aggravating factor.

7. VOLUNTARY INTOXICATION

Voluntary intoxication is not a mitigating factor. As the Supreme Court said in Apo v The State [1988] PNGLR 182, per Kapi DCJ at p 183:

"... Anyone who voluntarily gets himself drunk, must know that his capacity to control himself will be impaired and it is no reasonable explanation by him after the event that his self-control was affected. On its own, it ought not be taken as a mitigating factor."

The prisoner gets no credit for the fact that he was drunk and behaved in the manner he did. Nor is it an aggravating factor, because he did not purposefully get drunk to kill the deceased.

8. KILLING OF A CLOSE RELATIVE

At the time of the offence, the prisoner and the deceased were living in Port Moresby away from their home district which is Kompiam. They knew each other and were gathered at Joseph's house to hear their Councillor. Although there is no evidence as to how closely related they are, at least they had a common Local Councillor in Pius Pakol and a common friend in Joseph Lakipin. There was also evidence at the trial that just before the first fight the deceased and the prisoner were seated next to each other on the same bench on the lawn and were conversing with each other.

The significance of killing a close relative for purposes of mitigating punishment was set out by Kapi DCJ in Apo v The State, supra, at p 183 in the following terms:

"Whether a person killed is a relative or an enemy has special significance in Papua New Guinea. The notion of payback is still practiced in many parts of the Highlands. The significance is that where a person other than a relative is killed, the victim's relatives would pay back by seeking to kill a member of the offender's family. This brings upon the killer and his line the risk of tribal war, death or destruction of property. There are also high compensation demands which would involve the whole clan.

Compared to this is the...