The State v Kabua Kove (2010) N4063

• Jurisdiction: Papua New Guinea
• Date: 15 July 2010
• Citation: (2010) N4063
• Docket Number: CR. 1274 OF 2008
• Court: National Court
• Year: 2010

Full Title: CR. 1274 OF 2008; The State v Kabua Kove (2010) N4063

National Court: David, J

Judgment Delivered: 15 July 2010

CRIMINAL LAW—sentence—murder—deceased having extra marital affair with prisoner’s mother - affair lasting twenty five years—prisoner using shotgun to shoot the deceased—deceased shot on chest—death instant - death resulted from gunshot wound—total of fourteen pellets penetrated lungs - guilty plea—no prior conviction—cooperation with police - events leading to commission of crime treated as extenuating circumstance—prisoner lacking sophistication—no pre-planning—prevalence of offence - strong intention to cause grievous bodily harm - sentence of twenty four years imprisonment imposed—s300 (1)(a) and s19 Criminal Code.

Cases cited:

Goli Golu v The State [1979] PNGLR 653; Avia Aihi v The State (No 3) [1982] PNGLR 92; Ure Hane v The State [1984] PNGLR 105; The State v Eddy Kava Laura (No 2) [1988–89] PNGLR 98; Lawrence Simbe v The State [1994] PNGLR 38; Triga Kakarabo v The State, SC Review No.23 of 2001, Unreported & Unnumbered Judgment of the Supreme Court (Jalina, Injia & Sawong) delivered on 3 October 2002 at Mt. Hagen; Max Java v The State (2002) SC701; Joseph Enn v The State (2004) SC738; Sakarowa Koe v The State (2004) SC739; Simon Kama v The State (2004) SC740; Kepa Wenege v The State (2004) SC742; Manu Kovi v The State (2005) SC789

SENTENCE

15 July, 2010

1. DAVID, J: INTRODUCTION: On 9 July 2010, the State presented an indictment charging the Prisoner that he on 24 June 2008 at Wasuma in Papua New Guinea murdered one Koro Gunina (the deceased) contravening s.300 (1)(a) of the Criminal Code. Upon arraignment, the Prisoner entered a guilty plea which the Court accepted and therefore convicted him of the charge.

BRIEF FACTS

2. For purposes of arraignment, the following brief facts were put to the Prisoner.

3. On 24 June 2008 at around 01:30 pm at Wasuma village, Rigo District in the Central Province, the Prisoner went to his garden with his mother and daughter. Whilst in the garden, the deceased was seen hiding in the bushes staring at his mother and daughter. The Prisoner took his gun, aimed at the deceased and fired a shot at him. He shot the deceased on the chest. The deceased ran into the bushes and died later as a result of the gun shot wound he sustained. When the Prisoner shot the deceased, he intended to cause grievous bodily harm to him.

THE EVIDENCE

4. The evidence contained in the depositions support the charge.

5. In the Record of Interview dated 26 June 2008, the Prisoner admits shooting the deceased with his shotgun on Tuesday, 24 June 2008.

6. The deceased is from Wasuma village, Rigo District in the Central Province aged fifty five years.

7. According to the Autopsy Report authored by Dr. Philip Golpak of the Port Moresby General Hospital dated 4 July 2008, he conducted a post mortem examination of the deceased at the Port Moresby General Hospital on 4 July 2008 at about 10:00 am.

8. The Autopsy Report confirms that the deceased died from a gunshot wound to the chest. This is consistent with the Prisoner’s answers to Questions 25 and 26 of the Record of Interview that he shot the deceased once with his shotgun. External examination revealed that the deceased received fourteen pellet wounds centered on the anterior chest mainly on the right side. Internal examination revealed twelve pellet wounds on the right lung anterior aspect on both the upper and the lower lobes. The left lung had two pellet wounds on the lower lobe of the anterior aspect. Two litres of free blood and blood clots was found in the right thoracic cavity.

ANTECEDENTS

9. The Prisoner is from Wasuma village, Rigo District in the Central Province and is a subsistence farmer. He is aged about thirty eight years. He is married and has six young children. He claims to have received no formal education. He is a Christian and is a baptised member of the Seventh Day Adventist Church. His parents are alive.

10. The Prisoner does not have any prior conviction.

ALLOCATUS

11. The Prisoner said that whilst he admitted committing the crime for which he is sorry, he asked the Court to exercise mercy on him by placing him on probation or on a good behaviour bond taking into account the circumstances in which the offence was committed. He said his mother had been involved in an extra marital affair for twenty five years with the deceased beginning from the time of his childhood and when his father became aware of that relationship, he laid a complaint in the District Court, but that action did not deter the deceased. He personally took up the matter with the village court as well, but nothing was achieved there. Therefore, when he saw the deceased at the garden stalking his mother to do “something bad”, he was angry and shot him.

THE LAW

12. Section 300 (1)(a) of the Code creates the offence and prescribes the penalty. The maximum penalty, subject to s19 of the Code is life imprisonment. I set out the relevant provision as follows:-

300. Murder.

(1) Subject...