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State v Huliya [2005] PGNC 77; N2872 (19 July 2005)

N2872

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 984 of 2005

THE STATE

V

PAUL POTAPE HULIYA

Mendi: Mogish, J
2005: July 12th & 19th

CRIMINAL LAW - Sentence- Murder- Plea of guilty-Prisoner threw a bottle filled with kerosene to a crowd watching a video show- Struck the deceased at the back of his head- Deceased died as a result of fractured skull-15 years imprisonment in hard labour.

Held:

1. Customary compensation should not be used as an excuse to let a guilty person escape punishment. The State v Rex Lilu [1988-89] PNGLR 449 adopted and applied.

2. The use of customary compensation to achieve this objective is tantamount to an offence of attempting to pervert justice pursuant s. 136 of the Criminal Code Act (Chapter No. 262) (hereinafter referred to as the Criminal Code Act). Those who advocate such an attitude can be liable to be prosecuted under this provision.

3. Customary compensation is a mitigating factor that can be taken into account in sentencing

Cases cited:
State v Joe Iroro [1980] PNGLR 1.
Lawrance Simbe v The State [1994] PNGLR 38.
Goli Golu v. State [1979] PNGLR 653.
The State v Rex Lilu [1988-89]PNGLR 449
Kesino Apo v The State [1988] PNGLR 182.

Counsel:
Mr. Ruari for the State
Mr. Kumo for the Prisoner

DECISION ON SENTENCE

MOGISH, J: The prisoner pleaded guilty to a charge of murder laid contrary to s. 300 (1) (b) of the Criminal Code Act. The facts are as follows. In the night of the 5th February 2005, the prisoner and other villagers were at Taparapa village watching a video show. The prisoner was intoxicated, having consumed alcohol at a club earlier in the day. During the show, he approached the owner of the video and asked him for some money. The owner refused and this made the prisoner angry. The prisoner then picked up a bottle filled with kerosene and which was used as a lamp and threw it towards the direction where the audiences were watching the video show. He intended the bottle to hit the post. Unfortunately the bottle missed the post and struck the deceased at the back of his head. The bottle shattered and lodged into the head of the deceased causing him to bled profusely. The deceased was taken to a health centre and later a hospital where attempts were made to help him. The deceased died two days later from the injuries he sustained to the back of his head.

The prisoner is 32 years old and comes from Wapua village, Tari in the Southern Highlands Province. He is married and has a child from that relationship. He belongs to the Catholic faith and has no prior convictions. The highest level of education he attained was Grade 10.

When I arraigned the prisoner, he admitted causing the death of the deceased but said it was an accident. He also said that he did not intend to kill the deceased. It appeared to me then that he was raising possible defences of accident and lack of intention to kill. I raised my concern with Mr. Kumo before reading the depositions whether his response during arraignment tainted his plea of guilty. State v Joe Iroro [1980] PNGLR 1. Mr. Kumo informed the court that he had considered the defences and discussed them with his client but submitted that the defence of accident could not be raised under the circumstances of the case. Similarly he submitted that lack of intent to kill the deceased was not an element to the charge of murder and therefore could not be successfully raised as a possible defence. On the basis of these responses I entered a provisional plea of guilty and then proceeded to read the court depositions. I subsequently confirmed his plea of guilty and convicted him on the charge of murder.

In his statement on allocatus, the prisoners stated that as he had paid compensation to the relatives of the deceased he should be released on a good behaviour bond and perform community work. He reasoned that he would be doubly punished if he was imprisoned. Mr. Kumo tendered by consent a Statement indicating that K36, 340.00 in cash and a total of 784 pigs had been paid to the relatives of the deceased. In that statement the relatives of the deceased accepted the compensation. All those involved stated that the prisoner should not be dealt further with in a court of law.

In mitigation I take into account the prisoner’s statement on allocatus, his plea of guilty, his expression of remorse, his lack of prior convictions, that compensation has been paid, that he is a young man with a young family, that he was drunk at the time of the offence, that he voluntarily surrendered to the police, that he cooperated with the police by admitting his role in the commission of this offence, that he did not plan to kill the deceased and that there has been some reconciliation between the deceased’s family and his family.

The maximum prescribed sentence for murder pursuant to s, 300 (1) of the Criminal Code Act is subject to s. 19, life imprisonment. It is one of the most serious offences in the Criminal Code Act. It is also one of the most prevalent offences committed in the country.

There are no hard and fast rules that a person convicted of murder should be sentenced to life imprisonment. Much depends on the circumstances of individual cases. Lawrance Simbe v The State [1994] PNGLR 38. It is a principle of law that the maximum prescribed sentence should be reserved for the worst type of murder cases. Goli Golu v. State [1979] PNGLR 653.

I consider the following to be the aggravating circumstances present in this case. The victim did not provoke the attack. He was watching the video show when he was struck at the back of his head with a bottle thrown towards his direction by the prisoner. The fact that the deceased did not intend to strike him with the bottle is irrelevant. Death was caused by means of an act done in the prosecution of an unlawful purpose and of such a nature as to be likely to endanger human lives. Section 300 (3) states that "in a case to which Subsection applies, it is immaterial the offender did not mean to hurt any person."

The prisoner threw the bottle towards a crowd of people who were watching the video show that night. The likelihood of the bottle hitting any of those persons and endangering their lives was a real possibility. He could not have successfully advanced a defence of accident under those circumstances. Nor could he raise the argument that he was intoxicated as self-induced intoxication is not a defence. Kesino Apo v The State [1988] PNGLR 182. Here the prisoner was plainly reckless. He did not care for the safety of those persons. He became aggressive and violent when the owner of the video did not give him some money. The argument that the owner owned his some favours does not exonerate his culpability.

In my view a custodial sentence is called for. A non custodial sentence is inappropriate given the fact that a life has been lost and also the circumstances surrounding the killing. The payment of compensation does not automatically guarantee a prisoner the right to a non custodial sentenced. The prisoner‘s concerns that he would be doubly punished if he is imprisoned is a fallacy about how the criminal justice system operates when the issue of compensation is raised in mitigation. Many people in Papua New Guinea think that once compensation is paid then that is the end of the matter. That is not correct. The person who commits the offence must still be dealt with by the court. Respect to the rule of rule must prevail over misguided views entrenched in the minds of the populous. Compensation should not be used as a means to let a guilty person escape punishment. The use of compensation to achieve this objective is tantamount to an offence of attempting to pervert justice pursuant to s. 136 of the Criminal Code Act. Those who advocate such an attitude can be liable to be prosecuted under that provision.

I accept the statement by Amet J (as he then was) in The State v Rex Lilu [1988-89]PNGLR 449 that "compensation payments, whilst an accepted customary method of restoring peace and harmony between relatives of disputing parties and whilst a relevant consideration in mitigation, however large or small cannot be used to exonerate an offender from liability to punishment for criminal offences." At p. 452 His Honour amplified those observations in the following terms:

"I want also to say something about customary compensation payments, their effect and the perceived intentions behind their payment. It is an honourable exercise and exchange to restore peace and harmony between the relatives of the parties involved. It is also taken into account as mitigation if the victim and/or the relatives consider it just, where death has or has not resulted. But it can never replace the punishment of the law of the land which stipulates the conduct to be against the law. The punishment will be balanced, taking into account this as well as the other principles earlier discussed and antecedent particulars.

I should stress categorically that compensation, however large or small, cannot exonerate the offender from criminal liability. Nor do I think that sentence will or should be reduced relative to the size of the compensation, such that it can be thought that the larger the compensation the greater the reduction in sentence should be. This cannot be the effect of compensation. If it is a genuine method of restoring peace and harmony by custom or tradition and whatever form and size it takes, it should not now be extended to obtain total exculpation of the offender. The natural flow-on effect of the acceptance of such a belief is obvious and would lead to the rich believing they can buy their way out of criminal responsibility, and the less rich feeling aggrieved if they do not receive the same treatment."

With respect I adopt and apply those observations to this case. The payment of compensation in it’s cultural context is a useful method of appeasing conflicting parties involved in a criminal case. This becomes more relevant when the parties are related to each other, as in this case. It is not something that can be brushed aside. And that is what the court here this jurisdiction have been approaching customary compensation. Under our criminal system of justice, customary compensation is a factor that can be taken into account by the Court in determining an appropriate sentence.

Taking into account all the factors that I have alluded, it is the judgment of this court that the prisoner be sentenced to 15 years imprisonment in hard labour. Pursuant to s. 19 (6) of the Criminal Code Act I order that 2 years be deducted from the head sentence. I further order that period of 3 month and 2 weeks be deducted from the head sentence for time spent in custody awaiting the completion of this case. The prisoner will serve the balance of 12 years 8 months 2 weeks at Buiabi Correctional Institution. At the completion the prisoner shall be placed on a good behaviour bond for 2 years.

Upon his request, I recommend that the Goal Commander consider transferring him to another Correctional Institution.

That is the judgment of the Court and I publish my judgment.

_______________________________________________________
Lawyer for the State: Public Prosecutor
Lawyer for the Prisoner: Public Solicitor