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State v Gala [2018] PGNC 307; N7402 (22 June 2018)

N7402

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 252 OF 2017

THE STATE

V

JUNIOR THOMAS GALA

Kimbe: Miviri AJ
2018 : 08, 22 June

CRIMINAL LAW – Plea– Murder – S300 (1) (a) CCA – deceased hit with iron on head –internal injuries – death – serious violent crime – deceased drunk unsuspecting – punitive and deterrent sentence.

Facts

Prisoner was disturbed by the deceased who reacted with an iron rod and hit the head of the deceased causing internal injuries from which he died.

Held

1. Honest guilty plea
2. First time offender
3. Use of an iron rod to the head
4. Internal injuries death
5. 20 years IHL
   

Cases Cited:

The State v Baipu [2005] PGSC 19; SC796
The State v Harisu [2006] PGNC 137; N3168
The State v Java [2002] PGSC 17; SC701
The State v Manu Kovi [2005] PGSC 789
The State v Mangi [2006] PGSC 30; SC880
The State v Thomas [2007] PGSC 26; SC867

Counsel:
L Jack, for the State
D. Kari, for Defendant

SENTENCE
22^nd June, 2018

1. MIVIRI AJ: This is the sentence of Junior Thomas Gala of Rovu village, Talasea charged that he on the 22^nd day of July 2016 at Rovu village Talasea murdered Richard Raka contrary to Section 300 (1) (a) Criminal Code.
   

Brief Facts on arraignment

2. The State presented the following facts against the defendant who was in his village between 9.00pm and 10.00 pm. Richard Raka had an argument with his wife and came to the premises of the prisoner and asked their sister there to borrow her memory card to listen to some music. There was some argument which prompted the Prisoner to pick up an iron rod swore at him and came out and hit him on the head from which he suffered internal injuries. He was admitted to the hospital where despite treatment he died from the injuries. Prisoner had intended to cause grievous bodily harm but the victim died.
   
3. Section 300 (1) (a) reads:
   
   • (1) Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder:–
     

(a) if the offender intended to do grievous bodily harm to the person killed or to some other person;

(b) if death was caused by means of an act–

(i) done in the prosecution of an unlawful purpose; and

(ii) of such a nature as to be likely to endanger human life;

(c) if the offender intended to do grievous bodily harm to some person for the purpose of facilitating–

(i) the commission of a crime other than a crime specified by a law (including this Code) to be a crime for which a person may only be arrested by virtue of a warrant; or

(ii) the flight of an offender who has committed or attempted to commit an offence referred to in Subparagraph (i);

(d) if death was caused by administering any stupefying or overpowering thing for a purpose specified in Paragraph (c);

(e) if death was caused by wilfully stopping the breath of a person for a purpose specified in Paragraph (c).

Penalty: Subject to Section 19, imprisonment for life.

(2) In a case to which Subsection (1) (a) applies, it is immaterial that the offender did not intend to hurt the particular person who was killed.

(3) In a case to which Subsection (1) (b) applies, it is immaterial that the offender did not intend to hurt any person.

(4) In a case to which Subsection (1) (c), (d) or (e) applies, it is immaterial that the offender–

(a) did not intend to cause death; or

(b) did not know that death was likely to result.
Plea

4. Prisoner pleaded guilty accepting liability for the offence that he was not acting in defence nor was he provoked to assault the deceased as he did. He accepted that when he hit the deceased on the head it caused the internal injuries that led to the death of the deceased. He acted with a piece of iron against the deceased who was not armed similarly.
   

Issue

5. What is an appropriate sentence in the case of the prisoner?
   

Aggravation

6. Life imprisonment was prescribed as the maximum penalty against the prisoner. But that was discretionary as it was dependent on the facts and circumstances and here it was not the worst case of murder warranting the maximum penalty prescribed. Given the peculiar facts circumstances unfolding here it was more a determinate term of years, worked out with the range and tariff set out in Manu Kovi v The State [2005] PGSC 789. And applicable in similar cases that had come before this court for instance Java v The State [2002] PGSC 17; SC701 (20 December 2002) 20 years IHL was imposed upon the prisoner who got a grass knife chased after the deceased and cut him up with it causing massive bleeding from which he died. His review was dismissed by the Supreme Court confirming his 20 year term for murder to which he had pleaded guilty to.
   
7. A similar case was Mangi v The State [2006] PGSC 30; SC880 (30 June 2006), the court reduced the 35 years sentence to 16 years IHL viewing that a knife was used but there was no preplanning because it was a case of two drunken men fighting leading to the death. The prisoner was not effected by alcohol but the deceased was, in that sense he was not a danger to anyone let alone the prisoner. The actions of the prisoner given were out of proportion warranting a stern sentence. In a way it may be likened here because the deceased was partially effected by alcohol and would not have been on par with prisoner.
   
8. In The State v Harisu [2006] PGNC 137; N3168 (24 October 2006), 22 years IHL was imposed for murder. Deceased charged at Prisoner with an axe, both struggled in the course of which it fell off and the prisoner took possession inflicting a cut to the knee and then on the face down to the jaw killing him. That is not the case here but a life has been unnecessarily lost.
   
9. Here the reaction of the prisoner was not proportionate to the actions of the deceased. He was not armed with a weapon he was not menacing the prisoner with or any other similar. The prisoner delivered the blow with the iron on the head of the deceased, a very vulnerable part of the body. Deceased stood no chance of survival in the way that prisoner assaulted him. Even if it was accepted that the deceased did utter words that prompted the prisoner it was clearly not proportionate. It was vicious and in the way that he armed and set upon the deceased it was planned in that sense.
   
10. Assessed in the light of Manu Kovi v The State (supra) it fell into the second category of 16 to 20 years imprisonment there was no strong intent to do grievous bodily harm, a weapon a piece of iron was used on a venerable part of the body the head with serious injuries emanating leading to death 2 days later. There was in that sense viciousness in the way that the prisoner acted when he armed himself and set upon the deceased with it leaving the injuries that followed suit and death. No amount of remorse will alleviate that fact.
    
11. In Thomas v The State [2007] PGSC 26; SC867 (28 August 2007) an appeal against a sentence of 18 years for wilful murder imposed by the National Court was viewed by the Supreme Court as serious where the deceased was hit on the head splitting the skull causing damage to the brain leading to death over claim of sorcery. The sentence was increased to 22 years observing the offence as very serious and the sentence being disproportionate to its gravity. Sentences must fit the crime. Sentences for murder will not override that of wilful murder and vice versa. In Baipu v The State [2005] PGSC 19; SC796 (1 July 2005) a conviction of murder relating to sorcery deaths appeal was lodged against life years imprisonment that was reduced to 25 years IHL. Again a demonstration that sentences for each offence must fit that and not be disproportionate.
    

Sentence

12. Here the prisoner is 22 years old educated to grade 8 at Namova Community School and did building at Moramora Vocational School. He briefly worked with Civil Contractor from 2008 to 2016. He is a follower of the Catholic Church confirmed by the Church Catechist Henry Reu. He is a first offender. And the offence is out of character. These particulars are set out in the presentence report which are considered fully in the determination of this sentence upon the prisoner. Including that his house built of bush materials was destroyed in retaliation over the killing. And that he has paid compensation to the Richard Moni Gala father of the deceased in the sum of K 1000 in cash, a live pig valued at K1000, 30 param tabu equivalent to K300 in cash, and 15 Karuka equivalent to K150 in cash giving the breakup of K 2, 250 in cash and kind plus sale of oil palm added together K4, 450 paid out of heart to the father of the deceased by the prisoner. It is evidence of settlement of the matter in the community between the parties giving also that the deceased left behind 5 children with his parents father 63 years old and the mother 57 years old. It will be considered with all other matters before the court to arrive at a sentence proportionate to the gravity of the offence. It is a serious offence and probation is not warranted in the light of the facts presented.
    
13. The medical affidavit of Doctor Ketalu of the Kimbe General Hospital attaching the medical report dated the 29^th July 2016 attaches a report on Post Mortem examination of body identified as that of Richard Raka dated the 28^th day of July 2016 shows that death occurred 3 days before the examination. The Cause of death was Hypoxia left Epidural Hematoma (head Injury). External Injuries 5cm laceration on left parietal region. He was a 165cm tall weight was 70 kg and was 40 years old. There was skull linear fracture 3cm on outer tablet only. The medical certificate of death certified that deceased was Richard Raka who was last seen alive on the 25^th July 2016. And was first viewed after death on the 28^th July 2016. It confirmed the cause of death as set out above.
    
14. In the record of interview with police dated the 13^th January 2017 prisoner admitted the offence. He said he resorted to assaulting the deceased because deceased uttered bad words to him which prompted him to react as he did. He did not intend to kill the deceased at the time that he assaulted him. The deceased was his cousin brother who was drunk on that occasion. And accepted that what he did was in breach of the law.
    
15. Given all the above the proportionate sentence was in the range of 16 to 20 years IHL being the second category within the Manu Kovi case (supra) of murder. Illuminated by the facts and circumstances of the case a just and proportionate sentence would be 20 years IHL given that he has pleaded guilty to the charge and that the deceased is a relative he will dwell as succumbing to his actions on that day.
    
16. He is sentenced to 20 years IHL, time in custody is deducted forthwith.
    

Sentenced accordingly
________________________________________________________________
Public Prosecutor : Lawyer for the State
Public Solicitors : Lawyer for the Defendant