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State v Brendon [2022] PGNC 148; N9558 (18 February 2022)

N9558

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1433 OF 2021

STATE

V

TITUS BRENDON

Alotau: Salika CJ
2022: 15^th & 18^th February

CRIMINAL LAW – Practice and Procedure – Charge of manslaughter - Section 302 of the Criminal Code – reasons for not raising a defence of provocation -possible abuse of provocation not considered.

Cases Cited:
Goli v The State (1979) PNGLR 653
Avia Aihi v The State (1982) PNGLR 92

Counsel:

Mr D Mark, for the State
Mr C Namono, for the Prisoner

18^th February, 2022

1. SALIKA CJ: INTRODUCTION: The prisoner, Titus Brendon, pleaded guilty to one count of unlawfully killing one Bobby Gideon. The charge was laid under Section 302 of the Criminal Code Act.
   

BRIEF FACTS

2. The brief facts put to him on arraignment were:
   

“On 22^nd March 2021 between 8.00 pm and 9.00 pm, deceased Bobby Gideon and prisoner, Titus Brendan were at Hokelelei Hamlet in Gwavili Ward, Alotau. Both were under influence of intoxicating liquor.

The Accused came upon Bobby Gideon drinking alcohol with his (accused’s wife) but also girlfriend of Bobby Gideon at Bobby’s house. Prisoner uttered words Bobby who responded saying: “mi drink beer wantaim meri blo you na kaupim em, bai yu wekim wanem.” Titus Brendon pick up a piece of wood nearby and hit deceased hard on the head causing him to fall on to the ground and continued to assault him. The deceased was later rushed to Alotau General Hospital where he was found to have suffered serious head injuries. He died 9 days later from those injuries.

ISSUE

3. The issue for the Court to determine is the appropriate sentence to impose on the prisoner.
   

THE LAW

4. Section 302 of the Criminal Code Act provides:
   

“Section 302 MANSLAUGHTER

(1) A person who unlawfully kills another under such circumstances as not to constitute wilful murder, murder or infanticide is guilty of manslaughter.

Penalty: Subject to Section 19, Imprisonment for a life.”

5. The maximum penalty in this case is life imprisonment subject to Section 19 of the Criminal Code. Maximum penalty is usually reserved for the worst type of manslaughter cases. See Goli Golu v The State (1979) PNGLR 635 and Avia Aihi v The State (1982) PNGLR 92. Is this manslaughter case the worst manslaughter? This is a serious case of manslaughter but in my opinion not the worst manslaughter case. Part of the reason is that, the prisoner was provoked in a non-legal sense to do what he did in that the deceased was having an adulterous affair with the prisoner’s newly wedded wife and that was the reason the prisoner assaulted the victim. The victim died some 9 days after the assault.
   
6. Moreover, all homicide offences are all serious crimes because it involves taking away a person’s life which is a serious business.
   

PERSONAL PARTICULARS

7. The following personal particulars are noted.
   
   • He is from Haibala village, Alotau, Milne Bay Province.
   • He is 38 years old.
   • He is educated up to Grade 6 at Daio Primary School.
   • He is of the Catholic faith.
   • He is a villager and a subsistence gardener.
   • He is married to Noelene Lawrence, the woman the victim deceased was having an affair with.
     

MITIGATING FACTORS

8. The following mitigating factors are noted:
   
   • (a) He pleaded guilty
   • (b) First time offender.
     

EXTENUATING FACTORS

9. The following extenuation factor is noted.

The victim said words which were not appropriate which provoked the prisoner. The prisoner got a piece of timber and hit the victim on his head which caused his death some 9 days later. I inquired of counsel for the prisoner why the matter did not go on trial on the defence of provocation. The defence counsel said his instruction were for the prisoner to plead guilty and that the provocation was in a non-legal sense. Provocation is a complete defence on a charge of manslaughter.

AGGRAVATING FACTORS

10. The following aggravating factor is noted:
    
    • A piece of timber was used to hit the victim on the head by the prisoner.
      
11. Any homicide is a serious matter. Killing of another human being is a serious matter. The killing in this case is a serious matter. A Bobby Gideon lost his life because he said some things which provoked the prisoner. The only reason the defence did not have this matter as a trial was perhaps because of the amount of force used may have been disproportionate. I can only speculate at this point in time, because Bobby Gideon was drunk and what he uttered provoked the prisoner.
    
12. Human life is sacred and should be treated with utmost respect and restraint. In this case, the prisoner did not respect Bobby Gideon’s life. He could have hit him on his back or on his buttocks. As I said yesterday in another manslaughter case, humans have only one life, once taken, it is gone forever. That is what unfortunately happened to Gideon Bobby.
    
13. It is rather unfortunate that the prisoner was put in this situation not of his own making.
    
14. Considering all the factors in this case and the circumstances in which this incident occurred, I am of the view that the prisoner in this matter was made to attack the deceased. Considering the mitigating factors and the aggravating factors, I impose a sentence of 8 years imprisonment on this prisoner. He has spent 7 months 3 weeks in custody. These are taken off. The balance he will serve is 7 years 4 months 1 week imprisonment in hard labour.

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