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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR. NO. 163 OF 2003
-V-
PETER KOLOL
KOKOPO: LENALIA, J.
2004: 24 Mar, 8, 13 April & 21 & 23 June
CRIMINAL LAW – Intentional Killing – Plea of guilty – Matters for consideration – Sentence – Criminal Code s. 302, Ch. No. 262.
CRIMINAL LAW – Manslaughter – Intention motive – No expression of particular result – Resultant action unintended – What is a negligent action – Duty of persons in charge of dangerous things – Criminal Code ss. 24 and 287, Ch. No. 262.
CRIMINAL LAW – Presumption of mental capacity – Duty of defence on trial – Criminal liability – Reasonable inferences from factual circumstances surrounding the occurrence of the act or omission - R v Eembosi Napikai, followed, see also Bratty v Attorney General for Northern Ireland [1963] A.C. 386.
CASES CITED:
Anna Max Marangi -v- The State (8.11.02) SC702
Antap Yala -v- The State (13.5.96) unreported
Jack Tanga -v- The State (1999) SC602
John Tapi Kapil -v- The State (2000) SC635)
The State -v- Skie Sogave N2086
Goli Golu -v- The State [1978] PNGLR 653
Javo Johnson Berora -v- The State [1988-89] PNGLR. 562
R -v- Begari Dubere (1962) N227
OTHER CASES CITED:
Bratty -v- Attorney General for Northern Ireland [1963] A.C. 386
Counsel:
L. Rangan, for the State
J. Kaumi, for the Accused
13th April 2004
LENALIA, J. After the prisoner was arraigned, he pleaded guilty to a charge of manslaughter contrary to s. 302 of the Criminal Code.
The circumstances leading into the death in the instant case can be described as truly tragic and unintentional when considering the duty of a person who is in charge of a dangerous things defined by s. 287 of the Criminal Code. On 26th June in 2002, the prisoner and the deceased (Kanpal Valentine) were in town here at Kokopo in the house of a policeman. The two of them decided to go to their village at Watwat village in the Ganai area on the Bitapaka Local Level Government, Kokopo. ENBP.
The reason why the pair wanted to go home was they wanted to leave some tradition costumes with their relatives there for someone to do them up. The costumes were belonging to the deceased late Kanpal Valentine. The prisoner and the deceased are close relatives and the prisoner in his confessional statement as well as in the record of interview said, the deceased is his uncle, as their grand mothers were sisters.
On their arrival at Watwat village, where the accused elder brother Ereman Kolol and his family live, they rested under Ereman’s house for sometime to cool themselves down. After resting, they decided to go up into the house. It appears from the facts and the set of photographs taken from the scene including the house shows that the house is built upon stilts. So the pair went into the house and decided to lie down on the accused brother’s bed.
As the two of them lied down on the mattress, the deceased felt something from under the mattress poking him on his side. The deceased bent over and lifted the edge of the mattress on the side where he was using; he noticed it was a homemade gun. He then pulled it out and started to observe and examined it. After talking for sometime, they took the gun and got into the other room. After the deceased had finished looking at the gun perhaps with admiration, he started to ask the accused how that gun would be fired. The deceased handed over the gun to the accused and asked the accused to demonstrate to him (deceased) how a gun is fired.
The deceased seemed to have been curious about how to use the gun and in the course of the accused’s explanation to the deceased and unknown to both of them; the gun was loaded with one cartridge. The prisoner then tried to demonstrate by pulling the trigger. The gun went off and the pallet sunk into the victim’s nose region.
Dr. Kurapa, conducted a post mortem examination on the deceased on 24th July 2002. To correctly and appropriately understand the extent of injuries caused to the deceased, I quote Dr. Kurapa at the second page at paragraphs 4 to 7:
"Large rugged edge wound hold was noted over the right maxilla about 5-8 cms in diameter involving the skin, soft tissue and the right maxilla bone and looked as if the inferior orbital margin of right eye was also affected.
The right eye ball was sunkened [sic] and it was found that the right eye was missing from the socket.
The track of the missile was diagonally superiorly and slightly laterally into the right hemisphere of the brain toward occipital. It measured about at least 10 cms no depth.
The exit wound was noted on the scalp and thus the missile most probably lodged itself in the right side of the brain".
The doctor’s conclusion in relation to the cause of death was primarily due to a "grade 3 compound wound" caused by high velocity missile to the right side of the face and extensive brain damage to the right hemisphere of the brain.
I had the privilege of hearing all parties in this case. On the accused’s favour, I take into account your guilty plea and statement on remorse on which you said, this case was truly an accident as you did not mean to kill your own uncle. The facts of the case support that version suggesting un-intention killing as opposed to criminal negligence provided for by ss. 24 and 287 of the Criminal Code. The prisoner is about 18 years now and he has no previous, convictions. These are the matters the Court shall take into account when you are sentenced later.
Mr. Kaumi of counsel for the accused submitted to the Court on 21st June that the Court takes into account the accused guilty plea and the motive for the killing. I am further urged to take into account compensation has been paid which is quite substantial. They include 2 life pigs, K2,000.00 cash, a semi-permanent 3 bed-room residence and a block of land containing cocoa and vanilla. The Court take into account all other factors mentioned in favour of the prisoner such as his age (18 years), his guilty plea. These above factors are taken towards mitigation.
On the other hand, Mr. Rangan of counsel for the State submitted that the Court should sentence the accused at its discretion.
I am thankful for the Pre-Sentence-Report compiled by Ms. Suzie Vuvut, the Community Correction and Rehabilitation Officer of this Province. She recommends a period of Probation. There is one comment I wish to make in relation to Pre-Sentence-Reports. It would have been a lot better for the report to represent the community rather that only the relatives of the prisoner to avoid unfair reporting and conflict of interest. It should be noted here that any report ought to represent the whole community affected by the offence and should be acquired from community leaders such as Ward Councillors, Church leaders, Ward Committees and of course as in this case the relatives of the deceased.
Reporting on or about someone in Court must be made from the community based perfective and perceptions about the crime committed. Whether it is an offence involving homicide cases, must present community’s view on that type of behaviour. This is a warning to the officers of the Community Base Correction Services Office here in Rabaul and elsewhere for that matter. In the future make sure that a fair, unbiased and free from conflict of interest reports must be made.
On the law, the maximum penalty for the offence of manslaughter is life imprisonment. The Court has discretion under s. 19 of the Code to impose a term of years. As often been said, any sentence for the offence of manslaughter will depend entirely on the circumstances of each case. At this stage, I wish to refer to the Supreme Court case of Rex Lialu -v- The State [1988-89] PNGLR 487. The Court there set the following sentencing guidelines for sentencing in manslaughter cases at p. 497 of that judgment:
(a) The Court must have careful regard to the circumstances of death and the way in which death was actually caused.
(b) The following matters may be relevant to the nature of an act causing the death:
- (i) the nature and frequency of any attack or assault.
- (ii) Whether the injury inflicted was direct result of the death or was it caused by an example of falling on an object.
- (iii) Whether such injury was caused by an object or by the use of arm or part of human body.
- (iv) Was there any deliberate intention to harm.
- (v) Whether there was provocation in the non-legal sense.
- (vi) Whether the deceased had in thin skull.
- (vii) Whether the deceased had an enlarged spleen or not.
The Supreme Court in its recent judgment in, Anna Max Marangi -v- The State (8.11.02) SC702 states and acknowledges that the kind of sentences that have been imposed which have regard to the above guidelines are now out dated. In that case, the Supreme Court referred to three of its earlier judgements of Antap Yala -v- The State (unreported judgment by Amet, C.J, Salika and Injia, JJ of 31st May 1996), Jack Tanga -v- The State (1999) SC 602 and John Kapil Tapi -v- The State (2000) SC635. The prisoners received lenient sentences in the above cases. The Supreme Court sounded a warning in the first of these cases that unintentional killing is becoming so prevalent and sentences will increase. The Court there reiterated that, while sentences for murder should or ought to be higher than manslaughter sentences, there are killings, which would be regarded as serious and ought to attract the maximum penalty of life imprisonment.
In Anna Max Marangi’s case (surpa) the Supreme Court there set out three categories of manslaughter cases. The lower category involves cases of force in uncalculated manner such as a single punch or kick causing rupture of the spleen. Under that first category should attract sentences between 3 to 7 years. The Court there said the second category falls into cases where there was repeated vicious force with or without the use of instrument or weapon. The example the Court put in that case was where there were repeated kicks or punches applied to the head or chest with deliberate intention to wound or cause bodily harm. The suggested starting point for that category is 8-12 years.
The third category is on the top of the range. They include application of direct force in a calculated manner on the body by the use of weapons such as bush knives, axes and other offensive weapons piercing vital organs or severing vital parts of the body. The Court suggested there that for this category, the maximum penalty should range between 13 and 16 years.
If I understand the facts of the case of Anna Max Marangi correctly it was a discussion on domestic killing. I note that from the above case there is no mention on the use of guns. This may have been an oversight on the part of that Court in that case; however, there may still be room for modification of the principle to include the situation where crimes of manslaughter are committed in other settings and those including the use of guns.
By way of illustration of a few more recent cases of manslaughter cases which stand to reflect the view that, respect must be given to the sanctity of life. I must say in this respect that, there must be a comparative approach in sentencing principles and most recently judges of both the National and Supreme Courts have expressed concern over unwonted killing some of which are even committed cold-bloodedly.
John Kapil Tapi’s case (supra) was the case where the appellant had a premeditated plan to kill the deceased or any member of the deceased’s family and relatives. When the deceased came around at night walked into an ambush set up by the appellant. When the deceased came the Appellant’s way, he inflicted several blows on the victim causing his death. The appellant in the above case was sentenced to 16 years. In The State -v- Pat Miti CR. 322 of 2003 a National Court judgment of March 2003, a sentence of 15 years was imposed on a guilty plea. The above case arose from an old land dispute which could not be settled quickly. In The State -v- Saku Segave (2000) N2086 on a plea to manslaughter, he was sentenced to 20 years. In Jack Tanga -v- The State (supra), Jack was sentenced to 12 years. He appealed, but the Supreme Court confirmed the sentence.
A valid argument raised almost in all the above cases is that, a sentence for the offence of manslaughter in any given case will depend entirely on its own peculiar facts. I agree with the approach adopted in Rex Lialu (supra) that, a sentencing Court must have regard to the aggregate effect of all relevant considerations, which aggravate and mitigate the nature of the offence then to determine an appropriate penalty. This is the reason why, I do not agree with the principle of setting up specific range of sentences for any category of manslaughter. I have the view that due to the prevalence of the crime of manslaughter so as in murder and wilful murder cases, a sentencing judge must maintain flexibility to sentence an offender not only because, manslaughter is committed in differing circumstances, but two other issues may be raised here.
First, it is obvious, that in so many cases, the process of plea bargaining has been a tool used behind the scenes by lawyers to come into agreement to a particular charge to be preferred. In my view, this is already a reduction from then prescribed penalty fixed in our penal Code. The above is only secondary to the fact that, the parliament is superior and had fixed the maximum penalty for manslaughter to be life imprisonment, so be it. I make this observation in light of the current trend of sentencing guidelines so far adopted from case to case and secondly, a sentencing Court is a Judge of all facts and of law presented to him on trial and as such, as an administrator of law ought to be free to make his own decision.
The case of Goli Golu -v- The State [1978] PNGLR 653 was an appeal from a sentence of life imprisonment for the offence of wilful murder. He appealed out of time and leave was granted to him and the appeal against sentence was allowed and the life sentence was quashed. The Court there at pp. 660 made an interesting observation on the assessment of what should be the appropriate sentences for wilful murder. The Court there said:
"It is a general principle of sentencing that the maximum penalty, the most severe sentence, should be reserved for the most serious instances of offence, the worst possible cases normally encountered in practice; this is an application of an even more basic principle, that there must be proportion between offence and sentence".
The prisoner before this Court is very young, but his age cannot be used as mitigation if the offence he committed was a violent killing say for instance conducted during the course of an armed robbery, rape or in a wilful murder case or just a family related argument. From the start of the scenario, the brother of the prisoner should not have carelessly kept the gun under his bed. It was quite reckless on the part of Ereman Kolol to keep a loaded gun under his bed. The reason for me to raise this point is because the accused never had any slightest intention of harming nor even killing the deceased. This young man landed himself in great trouble through no fault of his.
It is my view that a sad incident such as this one ought to warrant special considerations. It was a very unfortunate situation which resulted in a loss of a young life, which I must say was truly an accident. The issue is, can the circumstances in the instant case come under cover of s. 24 of the Criminal Code? The above section provides that:
"24. Intention: Motive.
(1) Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for—
(a) an act or omission that occurs independently of the exercise of his will; or
(b) an event that occurs by accident.
(2) Unless the intention to cause a particular result is expressly declared to be an element of the offence constituted, in whole or part, by an act or omission, the result intended to be caused by an act or omission is immaterial.
(3) Unless otherwise expressly declared, the motive by which a person is induced—
(a) to do or omit to do an act; or
(b) to form an intention,
is immaterial so far as regards criminal responsibility".
A pre-independent case of R -v- Tsagaroan Kakobo [1965-1966] PNGLR 122 at 130 seem to say that s. 24 of the Code has no application on trial of a person charged with an offence of manslaughter. This proposition is based on the argument that there is a breach of duty imposed by s. 287 of the Code. In the later case of Berora -v- The State [1988-89] PNGLR 562, it was said there that in a charge of manslaughter where death is said to have resulted from a failure to use reasonable care, or take some reasonable precautions as required by s. 287, liability is decided without resorting to s. 24 of the Code. I totally agree with that view.
The earlier proviso is in the following terms:
"287. Duty of persons in charge of dangerous things.
(1) It is the duty of every person who has in his charge or under his control any thing, whether living or inanimate, and whether moving or stationary, of such a nature that in the absence of care or precaution in its use or management the life, safety or health of any person may be endangered, to use reasonable care and take reasonable precautions to avoid that danger.
(2) A person on whom a duty is imposed by Subsection (1) shall be deemed to have caused any consequences that result to the life or health of any person by reason of any omission to perform that duty.
In light of the above provision, what should be the standard of negligence to be established to determine criminal culpability, which will demonstrate that the prisoner in the instant case acted with such disregard for the life of the deceased which should make his conduct deserving punishment. An in order to amount to criminal negligence, the conduct of an accused must be characterised and nothing less as "reckless or grossly careless". There must be some element of culpability which an ordinary man ought to understand as "criminal liability surpassing in a material degree": R -v- Begari Dubere (1962) N277.
I am in agreement with the Supreme Court decision in Java Johnson Berora -v- The State [1988-89] PNGLR 562 where the Court there said that the defence of accident under s. 24 (1) of the Code, has no application to manslaughter by negligence. The issue really is whether the actions or omissions by the prisoner were of such a nature as to amount to criminal negligence. In fact the above case may be one of the leading authorities on the issue of manslaughter by criminal negligence. That was a case where the appellant took a borrowed shotgun and went into the Waigani swamps to shoot something for dinner.
He fired three shots at the birds and at the direction where the deceased was sitting down setting up his bandicoot trap. Two of those shots killed the deceased Bona Laloka.
He was tried for wilful murder and convicted and sentence to a term of imprisonment. He appealed against his conviction and sentence. The above authority contains well established statements on criminal negligence at common law by eminent and learned judges. I agree with the decision in the above authority that what is or what is not criminal negligence is a question of degree to be decided from the facts and such must be decided by reference to the circumstances at that time and not by the consequences of the accused conduct which brought him before the Court. see 567 of above case.
So that when I see the facts of the instant case more particularly, the way the accused and deceased handled this dangerous weapon namely the shotgun which was a home-made one, examining it perhaps with curiosity, then accidentally the gun fires. The issues such as how many shots were fired or what was the motive for the accused firing the gun at the deceased are in my view obvious considerations that I need to consider on sentence.
Having explored the circumstances of the shooting and taking into account, the prisoner’s guilty plea and his young age and the fact that the deceased was an uncle of the prisoner some concessions must be given to the accused for losing a relative as discussed in Kesino Apo -v- The State [1988] PNGLR 182. I have observed the young prisoner and am of the firm view that, he does not posses the propensity to commit crimes nor does he appear to be a violent person. To send this young man to prison would have a crushing effect on his future life.
Taking into account all those factors together, the sentence of this Court is four (4) years imprisonment. The Court suspends the whole sentence and order that the prisoner be placed on 3 years probationary period with effect from today and with the following conditions:
Sentence accordingly.
___________________________________________________
Lawyer for the State : The Public Prosecutor
Lawyer for the Accused : The Public Solicitor
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