The State v Dilu Kimam (2011) N4323

• Jurisdiction: Papua New Guinea
• Judge: Kangwia, AJ
• Judgment Date: 30 June 2011
• Citation: (2011) N4323
• Docket Number: CR No 770 of 2008
• Court: National Court
• Year: 2011
• Judgement Number: N4323

Full Title: CR No 770 of 2008; The State v Dilu Kimam (2011) N4323

National Court: Kangwia, AJ

Judgment Delivered: 30 June 2011

N4323

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR No 770 of 2008

THE STATE

V

DILU KIMAM

Kundiawa: Kangwia, AJ.

2011: 14th & 30th June

CRIMINAL LAW – Sentence – Wilful Murder – use of knife – multiple injuries caused- pierced lung – damaged brain matter - unarmed unsuspecting victim - 30 years at time of offence - no prior convictions - no remorse-strong extenuating circumstance-payment of compensation to relatives of deceased- comparative verdicts for murder and manslaughter cases considered - case falls into second category of Manu Kovi tariffs for wilful murder-prevalence of offence - sentence to reflect deterrence and sanctity of life - sentenced to 20 years imprisonment minus the period spent in custody.

Cases cited:

The State v Billy Kauwa [1994] PNGLR 503

Goli Golu v The State [1979] PNGLR 653

Avia Aihi v The State [1982] PNGLR 92

Ure Hane v The State [1984] PNGLR 105

The State v Kandap Yakop (unreported judgement of Woods J) N1143

The State v Eliesa Kopeia Madiroto [1997] PNGLR 95

The State v Michael Gende (Unreported Judgement of Sawong J) N1678

The State v Sabu Wari (Unreported Judgement of Mogish J of 29 March 2011)

The State v Arua Maraga Hariki [2003] PNGLR 53

The State v Kepak Langa (2003) N2462

The State v Mark Porou (2004) N2655

Manu Kovi v The State (2005) SC789

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

Anna Max Maringi v The State (2000) SC702

John Elipa Kalabus v The State [1988] PNGLR 193

The State v Yapoko Imbuni & Ors (1998) N1558

The State v Yemola Mealo (2004) N2708

Pauline Pasinuk v The State (SCRA 54 of 2000)

The State v Peter Korak Siwi (2003) N2443

Max Java v The State (2002) SC701

Counsel:

D. Mark, for the State

M. Mumure, for the accused

30 June, 2011

1. KANGWIA AJ, The prisoner appeared before me for sentence by way of s576 (3) of the Criminal Code. He was found guilty and convicted on 23 October 2010 of the Wilful Murder of one Jakson Dilu Kua after he pleaded not guilty to the charge. The defence of self defence and provocation raised at trial were found to be not established from the evidence adduced.

2. The prescribed maximum penalty for wilful murder under S.299 (2) of the Criminal Code is death and is in the following terms;

S. 299 WILFUL MURDER

(1)...

(2) A person who commits wilful murder shall be liable to be sentenced to death.

3. The penalty is not mandatory. It is subject to the courts discretion pursuant to S. 19 of the Criminal Code which provides:

19. Construction of provisions of code as to punishments

(1) In the construction of this code, it is to be taken that, except when it is otherwise expressly provided-

(aa) “a person liable to death may be sentenced to imprisonment for life or for any shorter term”

4. The facts found on the conviction seem to be these. The prisoner and the deceased had prior differences arising out of an alleged rape or adulterous affair by the deceased on the prisoner’s wife. There was to be a village court hearing into one of their differences to which the deceased failed to turn up. After the deceased failed to appear in court the second time the prisoner went and found the deceased playing cards with others.

5. The prisoner attacked the deceased with a grass knife on the head. When the deceased stood up to defend himself he stabbed him in the chest with the same grass knife. The deceased was found to be unarmed and was caught by surprise. The deceased gave chase to retaliate but fell and died some minutes later from loss of blood.

6. The post mortem report concluded that the deceased died from severe Haemopnumothorax due to the open penetrative stab wound to the right anterior chest, piercing the lung tissue. Compounded to that was the associated compound fracture of his left temporal skull, resulting in severe brain damage. There were two fatal injuries inflicted on the deceased.

7. On his allocutus the prisoner asked for leniency with a minimum jail term as he was a first time offender. He stated that the deceased started fighting with him and they had a confrontation resulting in death. The deceased was the cause of the fight. After the homicide his property was destroyed and his family were physically attacked. He stated that he had respected the law and remained in custody even though there were two mass breakouts at the Barawagi Jail. He is now a reformed person after being in custody all this time.

8. The prisoner was aged 30 years when he committed the offence. He is now 33 years old and married with 3 children aged 7, 5 and 3. He is the eldest of seven children and both his parents are living except that his father is disabled. The prisoner is a villager who comes from a good family background and was educated up to grade 10 at Kerowagi High School. He surrendered to police after his relatives paid compensation and since then had cooperated with police during their investigation and has been in custody since April 2008.

9. Mr. Mumure submitted on his behalf that compensation was paid to the deceased’s relatives. A Village Court Settlement Form showed that K10, 000.00 and 19 pigs with a total value of K18, 200: 00 was paid on 7 August 2008 despite a demand for K25, 000: 00. Although there is no evidence of how much the prisoner contributed, I accept that the payment of compensation operates as a mitigating factor in line with the State v Billy Kauwa [1994] PNGLR 503 at 508 where Injia AJ (as he then was) determined that compensation payment over a death is a mitigating factor.

10. Compensation is a common means of settling animosity between disputing parties in the Highlands and many other parts of the country. Upon acceptance of compensation by a deceased’s relatives the offender is deemed absolved of any obligation for the death apart from any criminal proceedings against him. The offender would be deemed acceptable into normal society without the cloud of indebtedness hanging over him. Peace is restored through the payment and acceptance of compensation. Where compensation is not paid or offered but not accepted as adequate, troubles would flare up. Animosity still exists against the offender and his relatives as a whole until adequate compensation is offered or paid. The ultimate success to restoring peace between disputing parties through compensation over a death

should therefore operate in favour of the accused, as a mitigating factor.

11. Mr. Mumure presented a document as reference of good character and conversion to the SDA church. His generally good character, his respect for the law while in custody and the cooperation given to police are factors I find in his favour.

12. Also presented was another document dated 12 October 2010 showing treatment to injury to his arm while in custody. I am unable to ascertain why the latter document was tendered. If it was to maintain his defence of self defence I find it far belated as that defence was found not established on conviction .He expressed no remorse but maintained that the deceased was at fault for starting the fight, even after he was convicted. I give him no credit for this in mitigation.

13. The destruction to his property and injury to his family as presented in his allocutus cannot operate as a mitigating factor. These are in my view consequences of falling out of line with the law.

14. The offence committed was not a pre meditated attack. There is no evidence that the prisoner planned or schemed such an attack although differences between the prisoner and the deceased existed prior to the commission of the offence. However, it is quite possible that the prisoner went out in search of the deceased at the usual gathering place after he failed to attend the village court. This possibility seems real as the attack occurred not long after the village court disbanded for the day. Having said that, credit must go to the prisoner that this was not a pre meditated attack.

15. Counsel for defence submitted that there was provocation in the non legal sense. The deceased had allegedly raped his wife and then kicked her in the buttocks in public view. When he tried to intervene the deceased assaulted him. This chain of events caused the prisoner to initiate court proceedings in the village court but the deceased failed to appear on two occasions. On the second occasion that the deceased was absent from court, the prisoner found him playing cards with others. The deceased’s failure to attend court was not because of other pressing matters. He had deliberately stayed away from court. This was sufficient to make him angry.

16. The prisoner acted swiftly and chopped him first on the head. When the deceased stood up to defend himself he stabbed him in the chest. His deliberate absence from court attendance in my view was not only an affront to the established legal processes but intended to belittle the prisoner. I consider that the prisoner...