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State v Hiwi (No 2) [2004] PGNC 255; N2506 (13 February 2004)

N2506

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE IN MADANG]

CR 1487 OF 2002

THE STATE

-V-

JACOB TUGUBE HIWI

MADANG : SAWONG J.
2004: 6TH, 10TH & 13TH FEBRUARY

CRIMINAL LAW - Murder - Trial - Sentence - s. 300(1)(a) Criminal Code Act, Ch. 262.

CRIMINAL LAW - Murder - Intention to cause grievous bodily harm - Sentence - 8 Years Imprisonment - IHL.

Counsel:

J. WALA, for the State

A. TURI, for the Accused

13th February, 2004

SENTENCE

SAWONG J: After a trial, you were found guilty and convicted on one count of murder contrary to s. 300(1)(a) of the Criminal Code Act, Ch. 262.

Much of the circumstances of the case are set out in my judgment on the verdict. It is not necessary to repeat them here. But for the purposes of sentencing you the relevant facts are these.

On the evening of 15 June 2002, you, the deceased and several other men were in a group gambling. As part of the gambling, you and the deceased had a side bet. During the course of the gambling you and the deceased had an argument as to who had won the side bet. Naturally words may have been uttered and this ended up eventually into a fight between you and the deceased. I found during the trial that you were the first one to assault the deceased several times on his facial area. I also found that when the deceased lay on the ground you kicked him several times in the left abdominal area. At the time you kicked him you were wearing safety boots and you used them. As a result the deceased suffered serous injuries to various parts of his body. The injuries included a rupture of spleen. It was normal. There were other bruises and collection of large blood on the outside of the skull. The evidence was that you had intended to cause him grievous bodily harm. The deceased died directly from the injuries you had inflicted upon him.

The Prisoner

You are aged about 35 years old. You were married to two women with whom you have five (5) children. As a result of this incident the two women have left you one has gone back to Southern Highlands with her children and the other has gone back to Simbu Province with her children. I have also taken note of your other personal antecedents. You are a first offender.

I have also taken into account what you had said. In particular I note that you said sorry to the court, and to deceased’s relatives for the death of the deceased. I have also noted that your relatives have paid a substantial amount of compensation. In regard to this aspect you said that if the court were to send you to jail, there would be, to use your own words, "big problem back in the village" in that your relatives would ask for the reimbursement of the compensation paid. I will make some remarks on this aspect a little later in this judgement.

Your lawyer has submitted that your case is not a worst type of murder case. She submitted that looking at the overall circumstance of the case, the sentence should be between 8 to 12 years imprisonment, taking into account the several mitigating factors in your favour. She referred me to the case of State v Laura (No. 2) [1988-89] PNGLR 98. In that case the late Chief Justice Kidu set out some sentencing guidelines for murder cases. In that case his Honour suggested a range of between 8 to 12 years in a contested case.

But it is correct to say, in my view, that generally speaking the range of sentence for murder have increased since that decision. A brief but useful decision of that range of sentence for murder cases may be found in State v Maria Er [1998] PNGLR 26.

In the present case, you kicked the deceased repeatedly with a pair of boots. This was not a one of kick. The deceased suffered several serious injuries. Death arose directly as a result of the injuries you had inflicted.

It is quite clear to my mind that considerable force was used with the intention of causing grievous bodily harm to the deceased. This was a trial over what I consider to be overwhelming evidence against you. It was your right to challenge the State’s case, but in doing so you lost any benefit you might have received had you pleaded guilty.

The offence is a serious crime of prevalence. It is a crime of violence with tragic consequences. Therefore in my view, unless there are exceptional circumstances, the crime calls for an immediate, punitive and deterrent custodial sentence. No other sentence in my view is appropriate.

In your favour I accept that you are first offender, that you have prior good character. I also accept that your relatives have paid a substantial amount of compensation. In regard to compensation I have noted earlier your comments about what would happen to that, if you were sent to jail. In my view, your comments show a lack of understanding of the Court’s duty in imposing sentence. The Court does take the payment of compensation as a mitigating factor – it cannot and does not amount to double punishment.

The payment of compensation is to be encouraged, but it cannot be a substitute for the penalty prescribed by law. To do so would not be proper, because it would amount to the Court not applying the law. That, the Court must not do.

I have also taken into account all the other relevant mitigating factors in your favour.

In all the circumstance you are convicted and sentenced to 8 years IHL. But I deduct the remand period of 1 year and 8 months leaving a balance of 6 years and 4 months IHL to serve.
___________________________________________________________________
LAWYER FOR THE STATE : PUBLIC PROSECUTOR

LAWYER FOR THE ACCUSED : PUBLIC SOLICITOR