The State v Issau Parao (2009) N3625

• Jurisdiction: Papua New Guinea
• Judge: Makail, J
• Judgment Date: 09 May 2009
• Citation: (2009) N3625
• Docket Number: CR NO 151 OF 2008
• Court: National Court
• Year: 2009
• Judgement Number: N3625

Full Title: CR NO 151 OF 2008; The State v Issau Parao (2009) N3625

National Court: Makail, J

Judgment Delivered: 9 May 2009

N3625

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 151 OF 2008

THE STATE

V

ISSAU PARAO

Minj & Mt Hagen: Makail, J

2009: 20th April & 9th May

CRIMINAL LAW - Murder - Guilty plea - Sentence - Prisoner’s version of events on allocutus different from or conflicts with brief allegations of fact - Defence of provocation raised but not pursued - Sentence based on version of events most favourable to prisoner - Criminal Code - Sections 19 & 300(1)(a).

Cases Cited:

Papua New Guinea Cases:

Koniel Alar & Hosea Biu -v- The State [1979] PNGLR 300

Imiyo Wamela -v- The State [1982] PNGLR 269

Roger Jumbo & Aidan Awatan -v- The State (1997) SC516

John Baipu -v- The State (2005) SC 796

Manu Kovi -v- The State (2005) SC789

Simon Kama -v- The State (2004) SC740

The State -v- Soeto Wembu: CR No 229 of 2008 (Unreported & Unnumbered Judgment of 16th May 2008)

The State -v- Laura (No 2) [1988-89] PNGLR 98

The State -v- Nande Gairepa: CR No 227 of 2008 (Unnumbered & Unreported Judgment of 16th May 2008)

The State -v- Tauseng Bange: CR No 973 of 2007 (Unnumbered & Unreported Judgment of 10th November 2008)

Joseph Enn -v- The State (2004) SC738

Lawrence Simbe -v- The State [1994] PNGLR 38

Overseas Cases Cited:

Law -v- Deed [1970] SASR 374

Counsel:

Mr. J Waine, for the State

Mr. P Kumo, for the Prisoner

SENTENCE

9 May, 2009

1. MAKAIL J: On 17th April 2009, I convicted the prisoner on one count of murder of one Andiat Toaps, who was then the Deputy Headmaster of Kandep Secondary School at Avi along the Okuk Highway in the Western Highlands Province on 25th September 2007 contrary to section 300(1)(a) of the Criminal Code on his guilty plea.

BRIEF ALLEGATIONS OF FACT

2. The brief allegations of fact upon which the prisoner pleaded guilty are these; on 25th September 2007 at about 11 o’clock in the morning, the prisoner with his co accuseds drove in 2 motor vehicles and staged a road block at Avi along the Okuk Highway. They held up a driver and passengers of Kandep High School truck. They accused the Deputy Headmaster of Kandep High School, being the deceased in this case of misusing the school truck.

3. At that time, the deceased and other teachers and their family members were on their way to Lae when they were confronted by the prisoner and his accomplices. The prisoner and his accomplices were armed with bush knives and homemade knives and threatened and robbed the passengers off their personal items, valuables and cash of K10,000.00. The accused and his accomplices turned on the deceased and tried to rob him but the deceased resisted their attempt by putting up a fight with them. The prisoner stabbed the deceased on his upper right chest with the homemade knife. Then, he stabbed the deceased on the left side of his back. The deceased died from the stabbed wounds as the homemade knife had penetrated the right lung.

3. The State alleges that when the prisoner did that, he intended to cause grievous bodily harm to the deceased and is a principal offender by virtue of section 7(1)(a)&(b) of the Criminal Code.

ALLOCUTUS

4. On his allocutus, he told the Court the following and I quote what he said in full hereunder:

“Yes your Honour. This problem when it wanted to start, I was at Avi Block at Western Highlands Province. In the morning at 10 o’clock, I got my clothes and went to the river. At that time, I did not bring bush knife with me. I was not armed with any weapons. I went and swam in the river called ‘Purn’. I went to the river and I saw a lot of people there. They too were washing there so I too went and wash there. I washed my clothes and also myself and later sat on the sand.

Later, some boys from Hagen and Chimbu came and sat down with me and told stories. At that time, it was 12 o’clock. A mother gave me a small knife and pineapple and told me to sharpen (peel) it and I did. After that, we ate the pineapple and I heard there was a noise on the road. We went up and saw that one Kandep High School truck was parked there. I stood there at the side of the road and saw Ismael Kunia calling my name. His my cousin. He asked me to fix the tyre. It was punctured.

I went and saw this group of people and they were drinking beer and shook their hands. They gave me wheel spanner, jerk and jerk handle and asked me to do the tyre. The tyre that got punctured was on the front left hand side. I went and jerk it and threw out the jerk handle. At this time, the deceased who died was sitting on the opposite side in the front. He also got drunk and as he wanted to go outside, he fell on the jerk handle.

At this point in time, he sustained injuries to his arm from the jerk handle. At this time, I came out and apologized to him. At that time, I was wearing a yellow ‘T’ Shirt, it was a yellow Trukai ‘T ’Shirt. At this time, he held me on my ‘T’ Shirt and punched me many times. I said sorry to him but he did not listen to me. He kept on punching me. I too felt pain so took out my small knife and poked him. It was unfortunate or mistakenly, the knife went through his heart. At this time, the deceased died. After this incident, I was afraid and I ran away. Next morning, I myself I surrendered to the police in Mt Hagen. I was in custody, my people paid compensation to the relatives of the deceased - K80,000.00. That is all. I say sorry”.

THE LAW

5. Section 300(1)(a) of the Criminal Code provides as follows:

“300. Murder.

(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) ……..;

(c) ……..;

(d) ……..;

(e) …….;

Penalty: Subject to Section 19, imprisonment for life.”

6. I note the maximum penalty under section 300(1)(a) of the Criminal Code for the crime of murder is life imprisonment.

PARTIES’ SUBMISSIONS

7. It is clear from the prisoner’s allocutus that the prisoner’s version of events is different from or conflicts with the allegations of fact on which he had pleaded guilty and convicted by the Court. It is also clear that the prisoner has raised a possible defence of provocation and I did raise it with the prisoner’s counsel who informed the Court that the prisoner’s guilty plea was consistent with his instructions and that provocation would be raised in mitigation on sentence.

8. That being the prisoner’s position, I proceeded to hear submissions on sentence. That immediately raised another issue and that is, which version of events should the Court accept when sentencing the prisoner? Is it the State’s version as per the brief allegations of fact or is it the prisoner’s version based on his allocutus?

9. The prisoner’s counsel urges me to accept the prisoner’s version as it is the most favourable version to him. If the Court is to accept the prisoner’s version, this would mean that the Court should reject the State’s version that the prisoner was involved in the armed robbery which led to the killing of the deceased. On the other hand, counsel for the State submits that the Court should accept the brief allegations of fact as presented by the State against the prisoner and which the prisoner pleaded guilty as the true events of 25th September 2007.

10. The law on this issue is quite settled in this jurisdiction. The Court shall accept the version most favourable to the prisoner. The Supreme Court in Koniel Alar & Hosea Biu -v- The State [1979] PNGLR 300 affirmed this and provided some guideline as to acceptance of facts in guilty plea cases particularly when there is a conflict in the version of facts for and against an accused. The Supreme Court cited with approval amongst others the following passage by Bray CJ, in Law -v- Deed [1970] SASR 374:

“The plea does not in itself admit any circumstances of aggravation which may be alleged by the prosecution; nor conversely does it in itself negative any circumstances of mitigation not amounting to exculpation which may be within the knowledge of the defendant alone. … [I]f a defendant disputes circumstances of aggravation alleged in sworn evidence from the prosecution, he must do so by sworn evidence from himself or someone else: if on the other hand the aggravating matter is not sworn to and is only alleged on the one hand, and denied on the other, in an unsworn form, then ‘it is the duty of the trial judge to act upon the version of the facts which, within the bounds of reasonable possibility, is most favourable to the accused’…………….

The court can reject the explanation if it passes the bounds of reasonable possibility, but I do not think it ought to take this course without giving that defendant an opportunity to support his story by his oath and that of any other witnesses he desires to call. Some stories which might appear incredible when related in oratio obliqua by counsel, or for that matter by the defendant himself, become believable, or at least appear as if there is a reasonable possibility that they might be true, when related on oath in the box and after surviving the test of cross-examination.”

11. Subsequent decisions of the Supreme Court such as the one in Imiyo Wamela -v- The State [1982] PNGLR 269 and Roger Jumbo &...