The State v Billy Kauwa

• Jurisdiction: Papua New Guinea
• Citation: [1994] PNGLR 503
• Date: 24 October 1994
• Court: National Court
• Year: 1994

National Court: Injia AJ

Judgment Delivered: 24 October 1994

1 Criminal law—sentence—manslaughter—killing in drunken brawl—mitigation—whether subsequent payback killing of accused's father and brother is mitigating factor—accused should have known payback killings likely consequence of his action—sentence 5 years IHL

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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 s302 of the Criminal Code. The maximum punishment is life imprisonment subject of course to s19 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 office 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 6.11.93, 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 5/11/93 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 house 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 15/11/93. 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. Sometimes 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 K98.00 per fortnight. I am told that his employer has temporarily laid him off work pending the outcome of this case. Th prisoner has no prior convictions. He has now been in custody for a total of 11 months in custody 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: see Post Mortem Report dated 22/11/93 (Exhibit "B"). 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 proceeding 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...