The State v Albert Tiki (Prisoner) (2013) N5219

• Jurisdiction: Papua New Guinea
• Judge: David J
• Judgment Date: 14 May 2013
• Citation: (2013) N5219
• Docket Number: CR No.811 of 2011
• Court: National Court
• Year: 2013
• Judgement Number: N5219

Full Title: CR No.811 of 2011; The State v Albert Tiki (Prisoner) (2013) N5219

National Court: David J

Judgment Delivered: 14 May 2013

N5219

PAPUA NEW GUINEA

IN THE NATIONAL COURT OF JUSTICE

CR No.811 of 2011

THE STATE

V

ALBERT TIKI

Prisoner

Mt. Hagen: David J

2013 : 12th March, 7th & 14th May

CRIMINAL LAW - sentence - manslaughter – conviction on alternative verdict after a trial on a charge of murder – killing by criminal negligence – killing occurred when prisoner pursued wife following an argument inside store operated by the prisoner – prisoner attempting to hit his wife with a brick-like object – prisoner held by a person to stop him from assaulting wife - deceased sitting nearby in front of shop operated by the prisoner – prisoner struck at the back of head – fractured skull – death due to severe subdural and intracranial bleeding - 8 years imprisonment in hard labour – Criminal Code, 302.

PNG cases cited

R v Tsagaroan-Kagobo (1965-66) PNGLR 122

The State v Mathew Marut (1979) PNGLR 181

Acting Public Prosecutor v John Airi (1981) SC214

The Public Prosecutor v Vangu’u Ame (1983) 424

Kesino Apo v The State [1988] PNGLR 182

Java Johnson Beraro v The State (1988–89) PNGLR 562

Rex Lialu v The State [1990] PNGLR 487

The State v Wallen Yamevi and Kem Dano (1990) N949

Ivoro Kaumin Lupu v The State, SCRA No.2 of 1997, Unreported & Unnumbered Judgment dated 13 June 1997

Manu Kovi v The State (2005) SC 789

The State v Amos Dickson (2011) N4539

The State v Grace Samuel Goi, CR No.238 of 2011, Unreported & Unnumbered Judgment delivered in Mt. Hagen on 21 October 2011

The State v Albert Tiki (2013) N5103, PGNC40

Overseas cases cited

R v Phillips (1985) 7 Cr App R (S) 235

Counsel

Joe Kesan for the State

Philip L. Kapi for the prisoner

SENTENCE

1. David J: A trial was conducted following the prisoner entering a plea of not guilty to a charge of murdering the deceased, Frank Wak at the Dobel Market, Mt. Hagen city on 21st April 2011 contrary to Section 300 (1)(a) of the Criminal Code. On 12th March 2013, I found the prisoner not guilty of murder, but found him guilty of manslaughter by criminal negligence pursuant to Section 539 (2) of the Criminal Code.

2. The prisoner appears before me for sentence from custody.

3. The short facts are that on 21st April 2011 at around 10:00 am and 11:00 am, the deceased and three other persons were in the vicinity of the Dobel Market outside Mt. Hagen city, but more particularly in the vicinity of the trade store operated by the prisoner telling stories. The deceased was sitting on a form with two others with their backs to the trade store while the fourth person was standing facing the store. The prisoner and his wife had an argument in the trade store. The prisoner’s wife then ran out of the trade store and was pursued by the prisoner. One of the persons sitting with the deceased grabbed the prisoner to prevent him from assaulting his wife. The prisoner managed to pick up a brick-like object from the ground and hurled it intending to hit his wife. The scuffle between the prisoner and the other person caused the brick-like object to ricochet of the wall of the store and hit the deceased with his back to the wall at the posterior skull base (back of the base of the skull). The deceased was admitted to the Mt. Hagen General Hospital following the incident and died at the hospital on 25th April 2011. He was then aged about 43 years. The deceased died as a result of cardiac arrest due to severe subdural and intracranial bleeding from the posterior skull base fracture. Death was caused accidentally or unintentionally. The prisoner and the deceased are from Dobel village and are related. Full reasons for my verdict have been published: see The State v Albert Tiki (2013) N5103, PGNC40.

4. Following his conviction, the prosecution tendered the prisoner’s antecedent report. The prisoner has no prior convictions.

5. On his allocutus, the prisoner said:

· the deceased was not his enemy therefore he did not plan to kill him;

· the killing was accidental and unintentional, his problem with his wife caused the incident;

· the welfare of his family including the education of his children was now greatly affected with his incarceration;

· Part compensation or belkol comprising K24,000.00 and eighteen pigs was paid to the deceased’s immediate family soon after the incident;

· He is willing to pay additional compensation in future through the coordination of the local Peace and Good Order Committee;

· following the incident, the deceased’s relatives destroyed his family property to the value of about K5,000.00 to K6,000.00;

· sorry to God, the Court and the deceased’s relatives and pleaded for mercy;

· he suggested that he be placed on a good behavior bond or on probation.

6. Following the administering of the allocutus, the prisoner made application for a pre-sentence report and a means assessment report to be complied and filed by the Probation Service, Mt. Hagen and that hearing of submissions on sentence be deferred pending the compilation and filing of the reports. I granted the application without any objection raised by the prosecution. The pre-sentence report was filed on 21st March 2013 whilst the means assessment report was filed on 27th March 2013. I thank Ms. Lilly Songoa and Ms. Theresa Puk, Probation Officers for producing both reports.

7. The primary issue for consideration and determination is, what is the appropriate sentence for the prisoner?

8. The prisoner is aged about 29 years now. He is from Dobel village which is situated just outside the city of Mt. Hagen in the Western Highlands Province. Until the incident, he was residing at his village and operating a trade store and also engaged in cash crop and subsistence farming. He has never been employed the formal sector. He is married and has four children from the marriage. His marriage has been dogged with problems and the incident giving rise to his conviction is testament to that fact. His parents are alive. There are five siblings in the family, three brothers and two sisters. He is a baptized member of the Roman Catholic Church. He obtained Grade 8 formal education from the Mt. Hagen Secondary School. He voluntarily surrendered to the police in Mt. Hagen two days after the incident on 23 April 2011. He has been in custody since that time and that works out to be 2 years and 3 weeks. He is currently physically and mentally healthy and fit and has no prior adverse medical history.

9. I have considered the matters contained in the pre-sentence report. It is generally not favourable to the prisoner. It recommends that a custodial sentence should be imposed based on interviews conducted with relatives of the deceased and the prisoner and other persons of standing in the community including Mr. Fox Wimbra currently Chairman of the Balg Village Court and Senior Pastor Steven Yara of the Reform Lutheran Church who is the Chairman of the Peace & Good Order Committee for the sake of maintaining peace, harmony and normalcy within the community. The report reports that the deceased’s relatives do not favour compensation to be paid to them although the prisoner’s relatives are willing to do so.

10. I have also considered the means assessment report. Just like what was reported in the pre sentence report, the means assessment report also reports that; the prisoner’s relatives paid belkol to the deceased’s relatives comprising K24,000.00 cash and 18 pigs; and the deceased’s relatives do not favour compensation to be paid to them although the prisoner’s relatives are willing to do so. It also reports that the prisoner; has about K1,000.00 in an account he operates with the Microfinance Bank in Mt. Hagen; and he does not own any asset of value now because all his properties and assets were destroyed and burnt to ashes perpetrated by the deceased’s relatives following the incident. The prisoner therefore does not have the means to pay compensation on his own without financial assistance from family members and other members of the community.

11. In mitigation, it was submitted by the prisoner through his counsel, Mr. Kapi that:

1. he is a first offender;

2. this was an accidental killing;

3. he expressed remorse;

4. he paid compensation comprising K24,000.00 and 18 pigs to the deceased’s relatives;

5. no dangerous weapon was used;

6. there was no planning; and

7. he voluntarily surrendered to the police soon after the incident.

12. In aggravation, the prosecution submitted that:

1. the killing was committed by criminal negligence of the highest degree given the brick-like object was swung negligently by the prisoner within a market place and hit the deceased;

2. the deceased was a young businessman whose death brought upon his family a lot of suffering because they heavily depended on him and his business fell apart.

13. The factors which mitigate the offence are:

1. the prisoner is a first offender;

2. this was an accidental killing;

3. this was a killing of a relative or tribesmen;

4. the object used in the killing was not a lethal weapon per se although the manner in which it was used...