Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

State v Mana [2003] PGNC 125; N2367 (2 May 2003)

N2367

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 53 of 2002

THE STATE

-V-

JERRY MANA

WEWAK: KANDAKASI, J.
2003: 28th April
02nd May

CRIMINAL LAW — Sentence — Manslaughter — Guilty Plea — Death resulting from drunken brawl – One punch causing deceased to fall on his head on hard concrete floor – Serious injuries to head leading to death - First time offender – Sentencing guidelines considered – Sentence of 9 years imposed – s.302 Criminal Code.

Cases cited:

Rex Lialu v. The State [1988-89] PNGLR 487.
Anna Max Marangi v The State (08/11/02) SC702.
Antap Yala v. The State, (Unreported judgement 31/05/96).
Jack Tanga v. The State (1999) SC602.
John Kapil Tapi v. The State (2000) SC635.
The State v. Dominic Mangirak (unreported and unnumbered judgement delivered 29/04/03) CR 625 of 2003.
The State v Jimmy Morgan (unreported judgement delivered 17/12/01) N2171.
Kesino Apo v. The State [1988] PNGLR 182.
The State v Abel Airi (28/11/00) N2007.
The State v. Gilbert Peter Diga (17/04/00) N1991.
The State v. Lucas Yovura (unreported and unnumbered judgement delivered 29/04/03) CR 2002 of 2003.

Counsel:

Mr. M. Ruarri for the State
Mr. D. Kari for the Accused

02nd May, 2003

DECISION ON SENTENCE

KANDAKASI J: You pleaded guilty to one charge of manslaughter or unlawful killing contrary to s. 302 of the Criminal Code. Upon reading the material in the deposition, which was admitted into evidence with your consent, I was satisfied that there was enough evidence to support your guilty plea. I therefore, accepted your guilty plea and convicted you on the charge presented.

The facts are straight forward. Around 8:00 p.m. on 11th September 2001, you were at the Kaprai Club here in Wewak, drinking beer. There were a number of other people also drinking beer and playing darts. Amongst them, was a Philip Beiso, who is now deceased. Also at the club was a Robert Jagi, who bought you two bottles of beer. Upon seeing that, the deceased continued to ask Robert Jagi in terms of "what kind of a person were you that he (Robert) was buying you two bottles of beer?" You got fed up of that and asked him to stop but he continued. That made you to slap him in his face and he fell down on the hard concrete floor on his back. You tried to resuscitate the deceased without success.

The deceased was then taken to the Boram Hospital. There was nothing the doctors could do to save his life. He was pronounced dead later the same night. According to the medical report and other evidence on file, the deceased died of a fractured head and brain haemorrhage or bleeding.

In your own address on sentence, you told this Court that you did not mean to kill the deceased. You said you were sorry for what you had done. You also told the Court that you have taken steps to pay compensation to the deceased relatives but his people have not yet come to you to receive it. Further, you told the Court that this is your first offence. You are married with 3 children. Your third born child died whilst you were in custody. In addition to your own, you told the Court that you are also looking after your elder brother’s illegitimate children who are all in school. Your brother is away in Japan studying. His children are quite undisciplined and they need your close supervision. If you are sent to prison, your children and those of your brothers will suffer. You therefore asked this Court to be merciful and be lenient to you in placing you under a good behaviour bond or probation.

At your lawyers request I ordered a pre-sentence report to assist me in determining an appropriate sentence for you. I also directed you to get your brother to confirm your claims in relation to his children and show why he is not able to take care of his own children.

I am now in receipt of the report from the probation service. The report recommends a non-custodial sentence to avoid sufferings to you and your brother’s children.

Your lawyer took it further on your behalf and urged the Court to note that you pleaded guilty and co-operated well with the police and the other authorities up to this Court. This saved the State and the Court substantial time it could have taken if there was a denial. He also asked me to note your personal background and that this is a case of unintentional killing only as opposed to a case of wilful murder or intentional wounding leading to death. Further, he urged me to distinguish your case from other manslaughter cases. Taking these factors into account he submitted on your behalf that your sentence should start at 6 years.

In support of his argument, your lawyer drew the Court’s attention to the Supreme Court judgement in Rex Lialu v. The State [1988-89] PNGLR 487. That case set guidelines for sentencing in manslaughter cases at page 497 of its judgement. Subsequently the Supreme Court in Anna Max Marangi v The State (08/11/02) SC702, revisited those guidelines. In so doing, it had regard to its earlier judgements in Antap Yala v. The State, (Unreported judgement 31/05/96); Jack Tanga v. The State (1999) SC602; and John Kapil Tapi v. The State (2000) SC635.

It spoke of 3 main categories of manslaughter cases. These categories as I noted in the case of The State v. Dominic Mangirak (unreported and unnumbered judgement delivered 29/04/03) CR 625 of 2003 are as follows:

"The first consists of cases in which force is used accidentally or in an uncalculated manner, such as a single blow, punches or kicks on any part of deceased’s body. This also includes cases in which death is cause by an acceleration of a pre-existing disease or condition leading to death. These kinds of killings attract sentences between three (3) years and seven (7) years.

The second are cases that involve repeated application of vicious force, with or without the use of an instrument or weapon, such as repeated kicks and punches applied to the head or chest with deliberate intention to wound or cause bodily harm. Deaths caused by a single or multiple knife stab wounds applied to the head, neck, chest or abdomen or on any other vulnerable part of the body, even if there is no other special aggravating factors, come under this category. This category attracts sentences between 8 and 12 years.

The third and final involve cases in which there is direction application of force in a calculated manner, on the body using a weapon such as a knife, bush knife or axe causing serious bodily injuries, such as piercing vital organs or severing vital parts of the body. Deaths caused by chopping the neck, legs and arms with an axe or bush knife are examples of this kind of killings. This includes death caused by single or multiple knife stab wounds on the head, face, neck, chest or the abdomen if accompanied by other special aggravating factors may also fall under this category. These kinds of killings attract sentences between 13 and 16 years."

I also noted in that case, that the Supreme Court considered killings in the third category as more serious whilst those in the first category are considered less serious. It considered those in the second as the median between the two. The category into which a particular case may fall under depends on the way in which force was applied, the nature of the assault, the manner in which the injuries were inflicted and the seriousness of injuries resulting in death. It also noted that killings, which come under the second and third categories, could constitute murder or even wilful murder if the necessary intentions to either cause grievous bodily harm or to kill are present.

I further noted that the Supreme Court was of the view that the imposing of sentences between 3 and 6 years was too lenient and no longer appropriate nowadays. Then in the case before it, which was a case of a wife killing her husband’s girlfriend by the use of a kitchen knife twice to stab the deceased who was pregnant, the fetus of which was terminated, was considered serious and falling in the second and or the third category. It then upheld the National Court’s sentence of 9 years and said, the appellant was fortunate enough to receive that sentence as it was of the view that she deserved to receive a higher sentence.

On my own part, I imposed a sentence of 12 years in a drunkard waking up a sleeping man and attacking him with a piece of wood. The deceased had a swollen spleen that was caused to rapture in the attack resulting in his death. The prisoner was a first time offender and he pleaded guilty. That was in the case of The State v Jimmy Morgan (unreported judgement delivered 17/12/01) N2171. On Tuesday 29th April 2003, here in Wewak, I imposed a similar sentence in The State v. Dominic Mangirak (supra). In that case, the prisoner was also a first time offender pleading guilty. He used a sharp bamboo spear to spear the deceased on the chest and then pulled the spear out and tried to also shoot the deceased brother out of an argument turning into a physical fight over an alleged gossip.

Your case

In your case, I note that no weapons were used. It is a case of a drunken argument leading to a simple assault causing the deceased to fall due to his own drunken state and break his head which caused his death. This happened in circumstances in which you and several other men were at a club drinking beer and playing darts for beer. One of your friends bought you two bottles of beer. The deceased upon seeing that, asked your friend in terms of what were you to your friend that he bought you the two bottles of beer. He repeated that line of inquiry against your friend. You got annoyed and told him to stop. The deceased persisted and you slapped him and because he was drunk, he fell down on the concrete floor.

Senseless killings in the kind of circumstances in which you killed the deceased is a common occurrence not only here in the East Sepik Province but throughout most of the country. It is therefore a prevalent offence. Too many lives are being lost unnecessarily with the compliments of alcoholic drinks, especially beer and are creating a lot more other problems. People of your kind who get drunk are nothing but a complete nuisance to the community, a total disgrace to themselves and their family. It is a wasteful pastime and waste of money that could be applied toward a better maintenance of oneself and his or her family. As I said in The State v. Jimmy Morgan (supra):

"The problem of people getting drunk and disturbing the peace of the community is a serious problem. It is happening almost everywhere in the country. It therefore, calls for a tougher penalty to send a strong message that this kind of behaviour is unacceptable because it not only disturbs the peace but it also brings in other very serious social problems like death in this case. If it were not for your drunkard behaviour, you might not have caused the death of the deceased and you would not be in Court.

Our country and or Constitution are built on the Christian principles. Those principles are set out in the "Holy Bible", the Word of God. The Bible in Proverbs 20 verses 1 and also Ephesians 5:18 teaches against getting drunk with wine or alcohol for it is a mocker. Instead it teaches us to be filled with the Holy Spirit of God and be filled with love for one another (Solomon 1:2). God in his futuristic eye saw that being drunk could cause a lot of problems. He has therefore, spoken against the consumption of alcohol. The Holy Bible also teaches us against the taking away of another man's life. It is in the 10 commandments. Commandment number 6 specifically states, "You shall not kill" (Exodus 19:13). A failure to follow these instructions has the penalty of death. The Bible in Romans 6 verse 23 makes it clear that disobedience to these instructions, which is called sin, is death unless we turn way from our disobedience and start loving one another and live in peace with each other.

The offences under the laws of our country such as section 302 of the Criminal Code go back to the Bible for their origin. Only if society returns to the teachings of the Bible and does as it says, we would have no law and order problem and our society would be a paradise on earth. Until we reach that stage, the law requires penalties to be imposed against those who break the law. The good news is that, death is not the penalty under section 302 of Criminal Code. That is nevertheless a penalty everyone of us stand to face when Jesus Christ returns to take his obedient people to heaven."

Human life is more precious. Only God can give life and take it back. No human being has any right to assume that right and so therefore it is against God’s law to take away the life of another person regardless of whatever circumstance a person may be placed under. I believe in a full appreciation of that, Parliament prescribed life imprisonment as the maximum penalty this offence should attract. However, it is the Court’s in the exercise of their sentencing discretion under s. 19 of the Criminal Code, that have given much lesser sentences.

In my view, the sentences in alcohol related deaths, have been far too lenient. I believe that has been the case based on the view that a prisoner had no self-control due to his drunkard state of mind. A representation of that view is in case of Kesino Apo v. The State [1988] PNGLR 182 at pp.182 and 183 are worth quoting per Kapi DCJ:

"The relevance of intoxication goes to the question of culpability. The rationale is that if an offender offends while under the influence of alcohol, his self control is affected and therefore his culpability may be diminished ..."

But as I did in The State v Abel Airi (28/11/00) N2007, until a contrary view is expressed by the Supreme Court:

"I hold the opinion that anyone who voluntarily gets himself drunk, must know that his capacity to control himself will be impaired and it is no reasonable explanation by him after the event that his self-control was affected. On its own, it ought not to be taken as a mitigating factor."

Sawong J took a similar view in The State v. Gilbert Peter Diga (17/04/00) N1991. His Honour expressed that view in this way:

"You and your friend were drunk when you committed this offence. Unfortunately, we once again see the effect of alcohol abuse. This is not a factor in your favour; in fact it is a factor against you."

What this means is that, the kind of sentences that have been imposed for alcohol related killings, will now have to be seriously reviewed with a view to increasing them, given the high incident of the deaths in this kind of cases. Being drunk and coming under the influence of alcohol is not an excuse and can not be a factor in the prisoner’s favour.

I have tried to accommodate this in the recent case of The State v. Jimmy Morgan (supra). I will therefore allow myself to be guided by that case. In that case the prisoner woke up a sleeping man and his family. He then picked a fight with the deceased using a piece of timber. The deceased died from the injuries he received from the prisoner’s blow. I imposed a sentence of 12 years.

Finally, I note that, despite you claiming in Court that this was your first offence there is evidence of you having being committed for being unlawfully on premises. You were placed under probation and appeared to have met it. This was in the late 1980s. A long period of time has therefore passed before you committed this offence. But what it does show is that you do not have a clean record. You have been convicted of an offence before.

Against this factual background and the law, I note that there are only a few factors in your favour. First, you pleaded guilty to the charge. Secondly, you have taken your admission of guilt further by showing a preparedness to pay compensation to the deceased widow. You now have K5,000.00 ready to pay to the deceased wife in compensation. But despite repeated messages for her to come and receive such compensation, she has not come forward. There is no evidence of what is the situation in relation to any call for compensation or attempts to make peace with the other relatives of the deceased. It therefore seems, there is no one claiming and available to receive compensation. It will therefore serve no usual purpose to order any compensation and for any further mitigation in your favour.

Thirdly, you did not repeatedly attack the deceased. There is evidence of you trying to help the deceased to recover and thereafter arrange for him to be taken to the hospital. I therefore accept your claim that you did not intend to kill the deceased. This is why, I note that you have been charged with manslaughter and not wilful murder or murder.

I also note that, you are relatively young although you are married with 4 children with one dead. You have pleaded for a consideration of the welfare of your immediate family and your brother’s interest. In respect of that, I will repeat what I have just said in this circuit in The State v. Lucas Yovura (unreported and unnumbered judgement delivered 29/04/03) CR 2002 of 2003:

"Indeed I note what the Supreme Court in Allan Peter Utieng v. The State (Unreported judgement delivered in Wewak on 23/11/00) SCR 15 of 2000 said is relevant. In that case, the Court observed that an offender should consider his background first before committing any offence. Implicit in that is the fact that, it is a little too late to talk about an offenders personal background including the needs of his family concerns once he is proven guilty according to law. His background and concerns should have little or no weight against the need to impose a sentence or punishment that best befits an offence he has committed in the particular circumstances in which the offence was committed.

I followed this principle in a number of cases already. An example of that is the case of The State v. Raphael Kimba Aki (No.2) (28/03/01) N2082. Following this line of authorities and the reasoning behind them, your plea for leniency to avoid suffering to you family has no place. If at all, that plea has little or no weight in determining an appropriate sentence for you"

I add that the interest of the children of your brother, is a primary responsibility that falls upon your brother when he is alive and well. Besides there is no evidence that, you have no other relative to whom your brother cold turn to look after his children. In this regard I note having asked you to provide evidence of any communication between you and your brother regarding the welfare of the children. I note for the purpose of the record that you have not produced any such evidence.

Taking all of the above factors into account, I am of the view that your case falls in the first category manslaughter cases per the Anna Max Marangi v The State decision. Therefore, it is not as worse as in the case of The State v. Jimmy Morgan (supra). This is because you did not use a weapon or a dangerous object to effect the assault against the deceased. It is also because both you and the deceased where at a club drinking beer and ended up in a drunken argument which eventually lead to a simple assault causing the deceased to fall down on the hard concrete floor breaking his head resulting in his death. His fall was contributed to by his own drunken condition.

Taking into account both the factors for and against you as outlined above, I consider a custodial sentence of 8 years appropriate to serve as a deterrent to you personally and to all others in Wewak and throughout the country. But let me sound a warning to you and any other person who is prepared to get drunk, cause a death or end up in any unlawful conduct that, the Courts will now impose a much higher sentence. This proceeds on my view that, if a person chooses to go and get drunk, he voluntarily assumes the risk of causing trouble. Hence, if he does cause any trouble, he also assumes the risks of being dealt with severely by the Courts.

Out of the 8 years, the period of 1 year 10 days you have already spent in custody from the date of your arrest (14/09/01) to grant of bail on 20th September 2002 and being remanded in custody pending your sentence shall be deducted. That will leave you with 6 years 11 months and 20 days to serve in hard labour. I order that you serve the term of 6 years, 11 months and 20 days in hard labour at the Boram CIS. A warrant of commitment shall be issued forthwith in those terms.
_______________________________________________________________________
Lawyers for the State: The Public Prosecutor
Lawyers for the State: The Public Solicitor