N2674

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO.1089 of 2000

THE STATE

-V-

CHARLES MANIWA
&
JOSEPH UTURA MANIWA

WEWAK: 	KANDAKASI, J.
2004: 		15th and 22nd June

DECISION ON SENTENCE

CRIMINAL LAW - Sentence - Manslaughter – Group attack on church worker over church property – Breach of Court Order – Defiance of calls by village leaders – Shooting deceased with a stone by one and attempted hitting with a piece of iron by another – Rapture of swollen spleen – Need to deter breach of court orders and defiance of interventions of village leaders considered - 19 years less time spent in custody imposed – s.302 Criminal Code.

Cases cited:
Anna Max Marangi v The State (08/11/02) SC702.
Sakarowa Koe v. The State (01/04/04) SC739.
Antap Yala v. The State, (Unreported judgment delivered 31/05/96).
Jack Tanga v. The State (1999) SC602.
John Kapil Tapi v. The State (2000) SC635.
The State v. Dominic Mangirak (29/04/03) N2368.
The State v Jimmy Morgan (17/12/01) N2171.
David Bawai Laiam v. The State (01/04/04) SC741.
The State v. Enni Mathew & Ors (No.2) (29/10/03) N2563

Counsel:
J. Wala for the State 
L. Siminji for the Defendants

22nd June, 2004

KANDAKASI, J: 	Both of you pleaded guilty to one charge of manslaughter or unlawful killing of one Tobby George, a Catechist of the Catholic Church on 4th December 1997. That was contrary to s. 302 of the Criminal Code. The Court accepted your guilty pleas on being satisfied that, the material in the deposition, admitted into evidence with your consent supported the charge and your guilty pleas. 

The Facts

The facts giving rise to the charge and your guilty pleas are straightforward. The deceased worked at the Banak village as a Catechist with the Catholic Church. He spent much of his young live there and ended up marrying a local girl. Out of that marriage, he had 4 children. 

The deceased and the local church council were concerned over the village people continuously getting into the mission area and taking away properties belonging to the mission. The deceased and the local church council raised the matter with the village people. There was no improvement and this resulted in the Church obtaining a restraining order against the village people from entering the mission area and removing properties or things from there. The terms of the order were made known to all the village people including you two.

In direct breach of the court orders, you entered the mission area on 3rd December 1997 and cut down sago stems and left them there. Your father sent you back the following day to collect the sago stems. However, on arrival, you discovered that some of the sago stems were missing. You suspected that they were taken away and used on the instructions of the deceased. Therefore, you went and reported that to your father.

Soon you returned to the mission area with your father and your mother and confronted the deceased. You questioned the deceased authority and that developed into an argument. In the process, you, Joseph Utura Maniwa got a stone and threw it at the deceased. The stone landed on the deceased chest. Then you, Charles Maniwa, tried to further attack the deceased with a piece of iron but the deceased managed to grab hold of it and struggled with you, until a third party separated the two of you. By that time, damage was already done to the deceased and he collapsed at the scene because of the injuries he received from you. Other people rushed the deceased to the hospital. Upon arrival at the hospital, the hospital pronounced him dead. An autopsy carried out on the deceased revealed that he died of rapture of the spleen, which had swollen to five times larger than normal.

Prior to your confrontation of the deceased, the village leaders stopped you from doing so in view of the existing court order. In fact, one of them told you that he was tired and that he needed some rest, after which he would give the problem some attention with a view to resolving it peacefully. You showed no preparedness to wait for that. 

Allocutus and Submissions 

In your allocutus, both of you said sorry for what you have done. You also said sorry to the deceased family and relatives. You said a peace ceremony was conducted in which K1,000.00 in cash and a further K1,000.00 in goods were paid over. You have been under police custody for over seven years. Finally, you asked for probation and mercy of the Court toward you. 

Your lawyer added to this by pointing out your respective personal and family backgrounds. You are both young, Charles Maniwa, you are 22 years old now, 15 years old at the time of the offence, while Joseph Utura Maniwa you are 21 years old now, 14 years old at the time of the offence. Both of your parents are alive. You have two brothers and three sisters. Of these, Charles, you are the first born and received grade 6 education while Joseph you are the second born in the family. Both of you follow the Catholic faith and live subsistence style dwelling and have no prior convictions.

You were arrested on 18th November 1997, and have been in custody until 27th March 1998, when the charge against you, then going before the District Court committal process was struck out. You were recharged and arrested on 2nd October 2000, and kept in custody until 19th October 2000, when you were released on a cash bail of K200.00. Therefore, you were in custody for a total of 6 months.

In relation to the kind of sentence you should receive, your lawyer urged the Court to take into account your personal and family backgrounds, 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 urged the Court to note that this is a case of unintentional killing only as opposed to a case of wilful murder or intentional wounding leading to death.

In so submitting, you acknowledged through counsel, that any case of killing is serious because it involves the loss of one human life prematurely. Counsel then referred to the Supreme Court judgment in Anna Max Marangi v. The State (08/11/02) SC702. Counsel also referred to the most recent judgment of the Supreme Court in Sakarowa Koe v. The State 01/04/04) SC739. Having regard to these judgments, your lawyer asked for a sentence up to 13 years, in view of your guilty plea, being first time offenders, and the circumstances surrounding the commission of the offence.

The State also relies on these two cases and argues for a sentence of up to 17 years. In so submitting, counsel for the State urged the Court to note a number of aggravating factors. The first is the fact that, this was a killing of a church worker who was providing for the spiritual needs of the community. Secondly, you acted in breach of the court order preventing you from entering the church area and removing properties such as the sago stems. You were therefore, trespassing on church land. Thirdly, you disobeyed calls by the village leadership to refrain from confronting the deceased and instead go for a peaceful resolution. Instead, you armed yourself with a stone and a piece of iron to attack the deceased. 

Sentencing Trends and Tariffs

The offence of manslaughter or unlawful killing carries a maximum penalty of life imprisonment. The case of Anna Max Marangi v. The State (supra) reviewed nearly all of the previous cases on manslaughter cases and in particular it had regard to its earlier judgments 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. The judgment spoke of three main categories of manslaughter cases, particularly in domestic settings. These categories are as I noted in the case of The State v. Dominic Mangirak (29/04/03) N2368 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 caused 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 direct 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 judgment that, the Supreme Court considered killings in the third category as more serious whilst those in the first category 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 either to cause grievous bodily harm or to kill are present.

Further, I 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 and the foetus terminated, the Supreme Court found it 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 case of a drunkard waking up a sleeping man and attacking him with a piece of wood. The deceased had a swollen spleen that ruptured 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 (17/12/01) N2171. 

Subsequently, 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.

In the most recent judgment of the Supreme in Sakarowa Kewa v. The State (supra), the Supreme Court considered all of the foregoing and reconsidered the classification of unlawful killing cases. It then varied the judgment in Anna Max Marangi v. The State (supra) in two respects. Firstly, it held that the categorization of the offence of manslaughter in that case applies with appropriate modification to all other settings. Secondly, it suggested a new range of tariffs in terms of the following (from the head note):

"Given the prevalence of the offence and past sentences not appearing to deter other would be offenders as well as the fact that there can be no excuse except as provided for by law for the taking away of any other person’s life, the sentencing range for the three categories of manslaughter identified in Anna Max Marangi v. The State (08/11/02) SC702 was varied to cover all types of manslaughter cases and increased the tariffs in terms of, seven (7) to twelve (12) years for the first category, thirteen (13) to seventeen (17) years for the second category and eighteen (18) years to life imprisonment for the third category. The use of a firearm, which was not considered in the categorization of manslaughter cases, could fall at the worse end of the third category if not a separate category."

With these in mind, I now turn to consider an appropriate sentence for you.

Sentence in Your Case

I note and take into account both of your personal and family backgrounds as noted above. I also note in your mitigation that, you are both first time offenders and that you have pleaded guilty to the charge of manslaughter. Further, you said sorry for what you have done and note that you have paid some form of compensation, but that has not and will not bring back the deceased to life and he cannot be replaced. Your guilty pleas have saved the State substantial time and costs that could have otherwise been outlaid to mount a trial against you. Further, I note that you were both youthful offenders at the time of the commission of the offence. 

The law has now turned against pleas of youthfulness, because mostly young men like you are now committing most of the serious and violent offences in the country. A recent statement of the law on that is the Supreme Court judgment in The State v. David Bawai Laiam (01/04/04) SC741.

I note also in your favour that, you did not use a bush knife, an axe or such other dangerous weapons like that to attack the deceased. Instead, you used a stone and attempted to use a piece of iron. It was a case of a single stone blow to the chest of the deceased. That caused a rapture of the deceased already swollen spleen. Nevertheless, this does not render the attack on the deceased any less serious. For it does not matter whether a gun, a bush knife, an axe or stone and a single or double blow is used to kill someone. What matters is that, a person’s life has been brought to an end prematurely. 

Against this, are a number of aggravating factors. First and foremost is that a court order was in place, obtained by the village and church leadership against you and others in the village to protect the church’s properties. You were well aware of that order. Yet you chose to act in total defiance of that order in two respects. Firstly, you entered an area you were ordered not to. Secondly, you then proceeded to cut down and thereafter tried to remove from the prohibited area sago stems, again in direct defiance of the court order. 

Court orders are made for those against whom they are directed to take or not to take the actions that might be specified. A failure to do so and act in complete defiance amounts to a contempt of court. Depending on the nature of the defiance, if it is an order of the superior courts, the penalty is unlimited. Court orders are made for good order in society and to enable peaceful co-existence. A breach of a court order amounts to a serious misconduct as it operates against the entire system of justice. It does not matter what court made the order, be it the order of the Village Court at the village level, a District Court order at the District level or an order of the National and Supreme Court at the highest. They must all be respected and complied with. A deliberate action in breach of it must be met with a serious penalty to serve as a deterrent against such action against both the offenders and any others who might be inclined to defying court orders.

In The State v. Enni Mathew & Ors (No.2) (29/10/03) N2563, I made observations in those terms in the context of a Local Land Court order and took that as a factor in aggravation against the prisoners. I do likewise here.

The second factor in aggravation is the fact that this was a group attack on a single church worker. The person you confronted was in no position to fight back or argue back. He was there catering for the spiritual needs of the whole community. Indeed, I note that, you received your primary school education provided by the church he was an officer of. It is most unheard of and therefore least expected that a member of a Christian Church would attack his or her own church leader in such a violent manner, but you did. In fact, there is a long held level of confidence between priest and penitent. Therefore, there is a trust relationship between a church catechist or a pastor and members of his congregation. An action against that amounts, in my view, to a serious breach. The law must therefore appropriately address it when it comes to an appropriate penalty, to safeguard that relationship and give confidence to church workers to continue to provide their valuable service to the soul that matters most.

Thirdly, the problem in your case, was already brought to the attention of the village leadership. The leadership indicated preparedness to address it soon. Others stopped you from mounting the physical confrontation with the deceased. Your actions showed total disrespect for the leadership at the village level. Village leaders are the government and authority at the village level. In the past, all members of the community have adhered to the directions and suggestions of the village leadership to allow for a happy and peaceful living. Indeed, from time immemorial, the village leadership was the only known source of direct control and order. When that was recognized and people acted subservient to the leadership at that level, society lived in peace. 

These days, young men like you are showing no respect whatsoever for the authority and important role the village leadership plays in our societies. This is leading to lawlessness, fear and insecurity even at the village level, which were once considered very save. Church work and workers have come to acknowledge and work with the local leadership. The Catholic Church has taken a lead in that regard. This was evidenced in the fact that it was the village leaders together with the church leadership that obtained the restraining orders.

Before the society disintegrates into lawlessness and therefore a total break down by your kind of conducts, the Court must act decisively and severely against people of your calibre. Your kinds of people are not good news, but bad news for the majority of peace and order loving people in our communities. The sentence this Court or any other Court in similar situation imposes must have that deterrent element so that this bad development creeping into our societies can be eliminated.

Weighing all of the above factors, I find that the factors in aggravation out weigh those in mitigation. Having arrived at that decision, I now need to consider and decide into which category under the two Supreme Court judgments already referred to above, your case falls under.

If this was a straight forward spleen death case, it would fall under the first and less serious of the categories. Instead, the factors in aggravation as noted and discussed above places it in the second category, and perhaps beyond that. I say beyond that, because the serious act of defying a court order was not considered in either of these cases. Similarly, an attack of a church pastor or leader was not considered in those cases. In the end therefore, I consider a sentence of 19 years just above the maximum suggested in the second category by Sakarowa Kewa v. The State (supra) appropriate to reflect the seriousness of the offence in the particular circumstances of the case with a view to deterring similar conducts in the future.

I have considered the respective roles both of you played and note that each of you gave each other strength and encouragement to attack the deceased in the way you attacked him. Without the support of each other and your parents, one of you could not have gone to the extent you have in fact gone. I therefore find that, each of you equally contributed to the death of the decease even though the fatal blow was effected by only one of you. The deceased did not immediately collapse after that; he struggled with the other who was trying to attack him with a piece of iron. In these circumstances, I consider the same sentence should apply to both of you, under s. 7 of the Criminal Code.

Out of the 19 years, I order a deduction of the 6 months you spent in custody awaiting your sentence. You shall serve the balance of 18 years and 6 months in hard labour at the Boram Correction Service.
_________________________________________________________________
Lawyers for the State:				The Public Prosecutor
Lawyers for the State:				The Public Solicitor