N2600

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 260 of 2004

THE STATE

-V-

TAU KARO

POPONDETTA: 	KANDAKASI, J.
2004: 		15th and 29th April

DECISION ON SENTENCE

CRIMINAL LAW - Sentence - Manslaughter - Guilty Plea - Deceased drunk and provoking attack in non legal sense – Deceased pushed and landing on hard surface causing already swollen spleen to rapture - First time offender – Sentencing guidelines considered – Sentence of 8 years imposed – s.302 Criminal Code.

Cases cited:
The State v. Robin Donumb (Unreported judgment delivered on 27/02/03) N2446.
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 judgment 31/05/96).
Jack Tanga v. The State (1999) SC602.
John Kapil Tapi v. The State (2000) SC635.
The State v. Dominic Mangirak (Unreported judgment delivered 29/04/03) N2368.
The State v Jimmy Morgan (unreported judgment delivered 17/12/01) N2171.
The State v. Sakarowa Kewa (Unreported judgment delivered on 01/04/04) SC739.
The State v Fredinand Naka Penge (Unreported judgment delivered 24/05/02) N2244.
Allan Peter Utieng v. The State (unreported judgment of the Supreme Court delivered in Wewak 23/11/00) in SCR 15 of 2000.
The State v. Kevin Anis and Martin Ningigan (Unreported judgment delivered on 07/04/03) N2360.
The State v. Jerry Mana (Unreported judgment delivered on 02/05/03) N2367. 
Acting Public Prosecutor v. Don Hale (Unreported judgment delivered on 27/08/98) SC564.
The State v. Louise Paraka (Unreported judgment delivered on 24/01/02) N2317. 

Counsel:
P. Kaluwin for the State 
P. Kumo for the Accused

29th April, 2004

KANDAKASI, J: 	You pleaded guilty to one charge of manslaughter or unlawful killing contrary to s. 302 of the Criminal Code. The Court accepted your guilty plea on being satisfied that, the material in the deposition, admitted into evidence with your consent, supported the charge and your guilty plea. 

The Facts

The relevant facts start with you being at the Napo Club performing your duty as a security guard, here in Popondetta on 10th October 2003. The time was between 4:00 and 5:00pm. At that time, the deceased Willie Wamp, then drunk, walked in and refused to pay his gate fee of K2.00 charged by the club. An argument then eventually a fight developed between you and him over his non-payment of his gate fee. He started the fight by punching you on your left ear. You returned that punch by hitting him around his face, momentarily blinding him and caused him to fall onto the ground. You then pulled him up on his shirt collar and threw him out of the gate. That caused him to land hard on a hard surface, causing his already moderately enlarged spleen to rapture, leading to his death. 

During your address on sentence, you told this Court that, you did not mean to kill the deceased. You said sorry to the relatives of the deceased and asked for leniency. To this, your lawyer added your personal and family backgrounds. 

You are from Makerupu village, Rigo, Central Province and aged 36, married with four children. This is the first time you have committed any offence. Professionally, you are an experienced electrician and have worked with Remington Pitney Bowes for sometime. Additionally, you are a reserve police constable and at the time of the offence, Napo Club employed you as a security guard and was performing your duties, in the course of which you committed the offence.

Submissions and Sentencing Trends and Tariffs 

In relation to the kind of sentence you should receive, your lawyer urged the Court to take into account your personal and family backgrounds and 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. Further, he urged the Court to note that, you did not intend to commit any offence but the situation gave you no choice, except to act in the way you did even though this was not a case of legal provocation. Having regard to all of these, he submitted that a sentence of 6 years was appropriate with a substantial part of that suspended. 

In support of his submissions, your lawyer referred the Court’s attention to the case of The State v. Robin Donumb (Unreported judgment delivered on 27/02/03) N2446. That was a case of unlawful killing with the use of a bush knife. The medical evidence noted the following as the injuries caused to the deceased:

(1)	Left lateral epicondyle completely separated by a clean cut.
(2)	Severed head of the left gastrocemics – both lateral and medial head.
(3)	Severed popliteal artery and vein.
(4)	Severed nerve common peroneal.
(5)	Severed tendons of the biceps fessoris.

The Court imposed a sentence of 12 years. In arriving at that sentence, the Court took into account the prisoner’s lack of prior convictions, his expressions of remorse, his plea of guilty, provocation in the non-legal sense and payment of compensation. 

The Supreme Court judgment in Rex Lialu v. The State [1988-89] PNGLR 487, set guidelines for sentencing in manslaughter cases at page 497. 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 judgments in Antap Yala v. The State, (Unreported judgment 31/05/96); Jack Tanga v. The State (1999) SC602; and John Kapil Tapi v. The State (2000) SC635.

The judgment in Anna Max Marangi’s case spoke of three main categories of manslaughter cases, particularly in the domestic setting. These categories as I noted in the case of The State v. Dominic Mangirak (Unreported judgment delivered 29/04/03) N2368 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 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 fetus terminated, was 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 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 judgment delivered on 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.

More recently the Supreme Court of which, I was a member sitting in Mt. Hagen, in the case of The State v. Sakarowa Kewa (Unreported judgment delivered in 01/04/04) SC739, reconsidered the classification of unlawful killing cases and 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."

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

Your Case

In your case, I note that you could have removed the deceased from the premises of your then employer without reacting in the way you have. There is so much violence and unnecessary deaths in the country, instead of people using the means already provided for by law for the peaceful resolution of disputes. What you did is one of the many latest testimonies of this kind of conduct. This so is despite the country being independent based on Christian principles and the good customs of traditional Papua New Guinea. The highest Court of the land has recently endorsed this fact in the Sakarowa Koe v. The State (supra) case and has suggested an increase in the sentences to show this ready resolve to violence is unacceptable and ought to be discouraged.

Whilst I note that, had it not been for the moderately enlarged spleen and its rapture; the deceased could not have died, that is no excuse for your over-reaction. Further, you were a reserve police officer. Police officers swear to uphold the rule of law and are expected to do so, but you did not. You had before you a drunkard who could not have known what exactly he was doing. By contrast, you being sober knew what you were doing and you could have decided not to harm the deceased but you did. You could have taken him out of the gate and left him there but you did not do that. 

The above factors operate against you. Then on the other hand, I note that, there are a number of factors in your favour. Firstly, you did not use any weapons to commit the offence. It is a case of a security guard over reacting to a drunken man. Secondly, you pleaded guilty to the charge, a position you took from the beginning. You therefore cooperated with the authorities up to this Court. Thirdly, you are a first time offender. That means you have not been in trouble with the law before. This offence was therefore an act out of character.

Although, you said sorry, there is no evidence of any compensation you might have paid, if any. There is ample authority for the proposition that, an expression of remorse without anything such as a payment of compensation means nothing: See The State v Fredinand Naka Penge (Unreported judgment delivered 24/05/02) N2244; Allan Peter Utieng v. The State (Unreported judgment of the Supreme Court delivered in Wewak 23/11/00) in SCR 15 of 2000 and The State v. Kevin Anis and Martin Ningigan (Unreported judgment delivered on 07/04/03) N2360.

After carefully weighing the factors both for and against you as well as your personal background as set out above, I find that your case falls in the lower end of manslaughter cases. This attracts a sentence between seven (7) and 12 years imprisonment. Your lawyer argues for a sentence of 7 years with part suspended. The State is not seriously arguing against such a sentence except only to refer to the guidelines set by the Rex Lialu (supra) case.

I find your case not as serious as the above cases. Most of these cases involved the uses of a weapon or an object and or injuries that are more serious. You used only your fist once and later threw the deceased out of the gate. Therefore, I find your case similar to that of The State v. Jerry Mana (Unreported judgment delivered on 02/05/03) N2367. There, the deceased provoked the prisoner in a non-legal sense at a beer club. He therefore, punched him once, which caused the deceased to fall on the hard cement floor and he died purely from the injuries he sustained. The prisoner had tried to pay compensation both before and at the time of the hearing of his case. However, the deceased relatives did not avail themselves to receiving it. I imposed a sentence of 8 years less time already spent in custody awaiting his trial.

Your case distinguishes from the above case only in respect of the fact that the deceased in that case, died from the injuries brought by the prisoner punching the deceased and the deceased falling on the hard cement floor. Your case is also distinguishable from that case because, the prisoner there was prepared to pay compensation and would have done so, had the deceased relatives availed themselves to receiving it. Considering these and both the factors for and against you as well as the current sentencing tariffs, I consider a custodial sentence of 8 years in hard labour appropriate. Accordingly, I impose that sentence against you, less the time, if any; you have already spent in custody awaiting your trial. A warrant in those terms shall issue forthwith.

In arriving at this decision, I did consider your lawyer’s submission for a part suspension of your sentence. I decided against that submission because there is no pre-sentence report favoring a suspension of either the whole or part of your sentence. The Supreme Court in Acting Public Prosecutor v. Don Hale (Unreported judgment delivered on 27/08/98) SC564, made it abundantly clear that, before there can be a suspension of any sentence, either in part or in whole, there must first be a pre-sentence report supporting it. I emphasized in The State v. Louise Paraka (Unreported judgment delivered on 24/01/02) N2317, the need for counsel to ensure such a report is available to assist the Court if a submission for suspension of any sentence is in their contemplation. Unless this is adhered to, there can be no suspension of a sentence either wholly or in part.
______________________________________________________________________
Lawyers for the State:				The Public Prosecutor
Lawyers for the State:				The Public Solicitor