The State v Nitak Mangilonge Tagani of Tampitanis (1980) N270

• Jurisdiction: Papua New Guinea
• Judge: Narokobi AJ
• Judgment Date: 17 October 1980
• Court: National Court
• Citation: (1980) N270
• Year: 1980
• Judgement Number: N270

Full Title: The State v Nitak Mangilonge Tagani of Tampitanis (1980) N270

National Court: Narokobi AJ

Judgment Delivered: 17 October 1980

1 Criminal law—murder—observations on sentencing—relevance of custom and compensation

2 Public Prosecutor v Yapuna Kaso [1977] PNGLR 209, Acting Public Prosecutor v Tumu Waria of Yogos [1977] PNGLR 170, The State v Yale Gesie and Buamuwe Guluwe (1980) N254 referred to

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Introduction

Nitak Tagani pleaded guilty to the murder of a fellow clansman named Aubie Alu. Aubie Alu made an inadequate payment of compensation following a mistaken spearing of Nitak's father during an inter–tribal fight in May of last year. I convicted the accused on 16 October and adjourned the case for sentencing the next day. No application to enter a plea of not guilty was made. After reading the record of interview, I accepted the plea to murder, as I was satisfied no legal defence was available to him.

Primary Facts

The primary facts upon which the accused was charged and then called upon to plead to the alleged offence, are these: On 1 August 1980, Nitak and his line went to Tamanda Village in Sumunki Area to a moka ceremony where pigs were exchanged according to Enga custom. At the moka ceremony the deceased had made a payment of two piglets in compensation for the mistaken spearing of the accused's father who later died. The accused expressed dissatisfaction and was told by the deceased that he could take the two piglets or leave them and further, that if he wanted a fight, they would fight.

The accused thereupon picked up an axe and struck the deceased once on his back, penetrating the left shoulder blade and lacerating the lungs which collapsed. There was internal bleeding and the death followed at once. The cause of death, according to Dr Robert Wats' autopsy report, was a collapse of lungs and massive bleeding.

The murder took place at 3.00 pm. The deceased was axed on the back. On examination, there was a 15cm laceration on the back on the left side, penetrating through the

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large blood clots measuring 30 x 15cm were also observed and there was blood in the chest around both lungs. There were dark spots on the lungs due to smoking.

Circumstances Leading up to the Killing

As happens in most killings in this country, there were significant circumstances leading to the murder.

First, the life of the accused. He is a simple Enga man whose life is largely given to the traditional subsistence way of living. However, he, at the time, operated a family or clan trade store. His area has come under government influence. He is a young man, well built, aged 23. His patrol post is Sirunki in Laiagam district. The nearest church centre is within 1½ hours walking distance and it is a Lutheran church to which the accused is a member.

According to the antecedent report, the accused's character is good and he has a good family background. He has never received any formal schooling and has never been in any paid employment with the government, or a private enterprise. He is a single man, with no prior convictions, and has been in custody awaiting this trial for 2½ months.

Second, the compensation payment. The accused's father died in hospital some months after he was speared by a fellow clansman, under a mistaken belief that he was an enemy clansman. The accused belongs to the Kumalin clan. In late 1979, that tribe was at war with the Yuli tribe as well as the Aiyakani tribe. The accused's father had walked through the fighting ground at 7.00 pm. A Yuli tribesman had speared the accused's father, believing him, mistakenly, to be an Aiyakani tribesman. The accused's father was taken to the hospital but died in early 1980.

Custom in Relation to Compensation

The following custom was submitted by Mr Peter Kopunye on behalf of the accused. It was not challenged and I accept it as submitted by defence counsel.

Following a killing, whether intentional or not, compensation would be paid. In this case, both tribes were to pay compensation. The Yuli tribesmen would pay because they speared the accused's father, even though it was not intended that he be killed. The Aiyakani tribesmen would also pay because they were the enemy tribe that had been involved in the fight.

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father, the accused and his brothers would have to pay over compensation to their uncles, namely the brothers of their deceased father. This they did by paying K170.00 in cash and 183 pigs. Now, at the paying over and the receipt of this compensation, the Yuli and Aiyakani tribesmen agreed to receive this compensation and in exchange they would pay compensation to the accused and his tribesmen.

Bargaining is part of the whole process of compensation payment and up to the payment day, intense negotiations almost always take place. The receiving party would give some money or pigs, as a way to induce the giving party to give over–and–above the quantity and quality given by the receiving party.

At this stage, as shown in the record of interview, the accused gave K35.00 in cash to the man he was to later attack. The purpose of giving that K35.00 was clear, namely to induce the deceased, Aubie Alu, and his tribesmen to pay more in return or give a very large pig. This was on 31 July 1980.

On that day, the accused and his tribesmen went to the Aiyakani tribesmen, according to agreement, and received 75 pigs as compensation for the death of the accused's father. They were perfectly satisfied with the Aiyakani tribesmen.

The next day, which was to be the day of tragedy for Aubie Alu, fell on 1 August 1980. The accused and his tribesmen went to the Tuli tribesmen to collect what they anticipated was to be a satisfactory compensation in pigs and in cash. They were surprised, if not insulted, with an offer of two piglets. The accused and his clansmen refused to accept these small pigs.

The accused asked if the two piglets were to match his K35.00 or were they in full settlement for the death of his father. The reply from the deceased was that they were in settlement of his father's death, that the accused should take the small pigs and go away, and further, that if the accused cut him (the deceased), he too would cut the accused.

He, the accused, moved quickly when bitter words were exchanged. He picked up an axe and cut the deceased. Five men from the deceased's clan chased the accused but he sought refuge with the police.

Following the death of Aubie Alu, the accused's line paid out K1,102.00 and 160 pigs to the deceased’s line. Both sides agree that compensation with respect to this death is settled. The accused’s line feels that since compensation has been paid, all is settled and all should he forgotten. The deceased's line feels and expects the accused to be imprisoned for some time.

Sentencing Principles

Counsel appearing for the State, Mr WJ Karczewski, made no submissions to refute or challenge defence counsel's submissions. Instead, he referred me to the Supreme Court decision in Acting Public Prosecutor v Tumu Waria of Yogos [1977] PNGLR 170. That was an attempted murder case in which the trial judge's effective sentence of twenty–one months was set aside as being inadequate and a sentence of six years' imprisonment was substituted.

In that case, at p 172, the Supreme Court cautioned that an over–emphasis on the traditional ways of the community of the accused and the decree of his sophistication should not be stressed at the expense of an important role of the court in upholding the law as laid down in Parliament.

The Court pointed out that most cases of violence in Papua New Guinea are carried out when the offender is greatly angered. Life imprisonment is prescribed for attempted murder as for murder. Parliament laid down this punishment to ensure that violence shall not be tolerated and those who offend must be dealt with sternly. By such punishments, violence will be reduced. That case involved a dispute over karuka or pandanas nuts and the accused set up an ambush.

On 30 June 1977, the same Supreme Court consisting of Frost CJ, Prentice DCJ and Saldahna J in Public Prosecutor v Yapuna Kaso [1977] PNGLR 209 sentenced a prisoner who pleaded guilty to murder as for manslaughter. That was a case of an appeal against leniency. The Court substituted four years nine months for the trial judge's term of imprisonment for nineteen effective months. That case was from Goroka, a well settled district (per Prentice DCJ at p 4).

In that case, again the Supreme Court referred to the need for deterrence because of the abiding and everywhere present fact that a strong...