The State v Roger Kivini (2004) N2576

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 29 April 2004
• Citation: (2004) N2576
• Court: National Court
• Year: 2004
• Judgement Number: N2576

Full Title: The State v Roger Kivini (2004) N2576

National Court: Kandakasi J

Judgment Delivered: 29 April 2004

1 CRIMINAL LAW—PRACTICE AND PROCEDURE—Arguments correctness of charge, plea and conviction after administration of allocatus—No indication of prior notice on that—Discussion between counsel not binding on Court—No proper basis established to quash indictment, vacate plea and set aside conviction and administration of allocatus—Good practice for counsel to raise any objection at appropriate stage.

2 CRIMINAL LAW—Sentence—Wilful Murder—Chopping of sister's neck using a bush knife—Provocation in the non–legal sense—Offence amounting to serious breach of trust—Guilty plea by first time offender—Prevalence of offence—deterrent sentence called for—Life imprisonment imposed—Criminal Code s19 and s299.

3 The State v Joe Ivoro [1980] PNGLR 1, Anton Yani v The State (1999) SC615, The State v Joe Butema Arua (2001) N2076, The State v Nelson Ngasele (2003) SC731, Roger Jumbo v The State [1998] PNGLR 197, Public Prosecutor v Tom Ake [1978] PNGLR 469, Avia Aihi v The State (No 3) [1982] PNGLR 92, The State v Andrew Aisa Keake (2000) N2003, Tony Imunu Api v The State (2001) SC684, The State v Yapes Paege and Relya Tanda [1994] PNGLR 65, The State v Godfrey Edwin Ahupa (1998) N1789, The State v Ian Napolean Setep [1997] PNGLR 428, The State v A'Aron Puli (2003) N2488, The State v Ben Simakot Simbu (No 2) (2004) N2546, The State v Ombusu (Unnumbered and Unreported National Court judgment of Doherty J, dated 17 February 1995), Charles Bougapa Ombusu v The State (No 1) [1996] PNGLR 335, The State v Steven Loke Ume, Charles Patrick Kaona and Greg Wawa Kavoa (Unnumbered and Unreported Decision of Woods J dated 7 February 1997), Steven Loke Ume, Charles Patrick Kaona and Greg Wawa Kavoa v The State (Unnumbered and Unreported Supreme Court Decision in SCRA 10 of 1997 and dated 4 May 2000), The State v Arua Maraga Hariki (2003) N2332, Simon Kama v The State (2004) SC740, Joseph Nimagi v The State (2004) SC741, The State v Fredinand Naka Penge (2002) N2244, Allan Peter Utieng v The State (2000) SCR15 of 2000 (Unreported and unnumbered judgment of the Supreme Court delivered in Wewak on 23 November 2000), The State v Kevin Anis (2003) N2360 referred to

___________________________

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 343 of 2004

THE STATE

-V-

ROGER KIVINI

POPONDETTA: KANDAKASI, J.

2004: 15th and 29th April

CRIMINAL LAW – PRACTICE & PROCEDURE – Arguments correctness of charge, plea and conviction after administration of allocatus – No indication of prior notice on that – Discussion between counsel not binding on Court - No proper basis established to quash indictment, vacate plea and set aside conviction and administration of allocatus – Good practice for counsel to raise any objection at appropriate stage.

CRIMINAL LAW- Sentence - Wilful Murder – Chopping of sister’s neck using a bush knife – Provocation in the non-legal sense – Offence amounting to serious breach of trust - Guilty plea by first time offender – Prevalence of offence – deterrent sentence called for - Life imprisonment imposed – Criminal Code ss. 19 and 299.

Cases cited:

The State v. Joe Ivoro and Gemora Yavura [1980] PNGLR 1.

Anton Yani v. The State (Unreported judgment delivered on 25/06/99) SC615.

The State v. Joe Butema Arua (Unreported judgment delivered on 28/03/01) N2076.

Nelson N. Ngasele v. The State (Unreported and yet to be numbered judgment delivered on 03/10/03) SC731.

Roger Jumbo and Aidan Awatan v. The State (Unreported judgment delivered 26/03/97) SC516.

Public Prosecutor v. Tom Ake [1978] PNGLR 469.

Avia Aihi (No.3) v. The State [1982] PNGLR 92.

The State v. Andrew Keake (Unreported judgment delivered on 20/11/00) N2003.

Tony Imunu Api v. The State (Unreported judgment delivered on 29/08/01) SC684.

The State v. Yapes Paege & Relya Tanda, [1994] PNGLR 65.

The State v. Godfrey Edwin Ahupa (Unreported judgment delivered on 20/05/98) N1789.

The State v. Ian Napoleon Setep (Unreported judgment delivered on 31/10/96) N1478.

The State v. A'Aron Puli (Unreported judgment delivered on 22/12/03) N2488.

The State v. Ben Simakot Simbu (No. 2) (Unreported judgment delivered 25/03/04) N2546.

The State v. Ombusu, unreported National Court Judgment, dated 17th February 1995.

Ombusu v. The State[1996] PNGLR 335.

The State v. Steven Loke Ume, Charles Patrick Kaona & Greg Wawa Kavoa, (per Woods J. in Kimbe) 7th February 1997.

Steven Loke Ume, Charles Patrick Kaona & Greg Wawa Kavoa v. The State, (Unreported Supreme Court decision delivered on 04/05/00) in SCRA 10 of 1997.

The State v. Arua Maraga Hariki (Unreported judgment delivered on 03/02/03) N2332.

Simon Kama v. The State (Unreported judgment delivered on 01/04/04) SC740.

David Bawai Laiam & Ors v. The State (Unreported judgment delivered on 01/04/04) SC741.

The State v Fredinand Naka Penge (Unreported judgment delivered 24/05/02) N2244.

Allan Peter Utieng v. The State (Unreported judgment of the Supreme Court delivered in Wewak 23/11/00) in SCR 15 of 2000.

The State v. Kevin Anis and Martin Ningigan (Unreported judgment delivered on 07/04/03) N2360.

Counsel:

P. Kaluwin for the State

P. Kumo for the Accused

29th April, 2004

KANDAKASI J: You pleaded guilty to one charge of wilfully murdering your sister, a Faith Koemba at Soputa, here in the Oro Province on 5th December 2003.

Preliminary Issue

Following your guilty plea, I entered a provisional plea of guilty and asked for appearance on your behalf. Your counsel, Mr. Kumo announced his appearance and indicated that he had no application to make. Thereafter the State admitted into evidence the District Court Committal Depositions without any object from you. The Court read the evidence contained therein and proceed to confirm your guilty plea and convict you on the charge presented by the Court as there was sufficient evidence supporting the charge and your guilty plea.

After having convicted you, the Court administered your right to address the Court and you exercised that right. You said sorry for what you have done and asked for a lighter punishment. Once you finished, the Court called on your counsel to make his submissions on your behalf. Before making his submissions, your counsel indicated that he had a difficulty with regard to the indictment presented. He said the presentation of the indictment charged you with wilful murder and that took him by surprise because he anticipated an indictment for the lower charge of murder based on a discussion and agreement or understanding he reached with the Counsel for the State.

Your counsel did not make it clear as to the purpose of raising that. I presumed however, that he was asking for a vacation of the plea and conviction. In a bid to get further assistance, I asked your lawyer to draw to the Court’s attention authorities on the correct procedure to follow in the given circumstances of your case. He was not able to assist the Court with any authority. At the same time, the Court asked him why it was not possible to raise his concerns as or immediately upon the presentation of the indictment and the process, your case went through up until your own address on sentence. Counsel said he simply did not pay any close attention to the wording of the indictment as the State Prosecutor showed him a copy of it quickly. Otherwise, he did not provide any reasonable explanation as to why he could not raise his concerns soon after the presentation of the indictment, your arraignment, your plea, the Court considering the evidence against you and confirmation of your plea and finally the administration of your right to address the Court.

Counsel for the prosecution on the other hand drew the Court’s attention to The State v. Joe Ivoro and Gemora Yavura [1980] PNGLR 1 and Anton Yani v. The State (Unreported judgment delivered on 25/06/99) SC615. Then later summed up the legal...