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State v Kilik [2004] PGNC 28; N2749 (11 October 2004)

N2749

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

THE STATE

V

MISACK KILIK

WEWAK: BATARI, J

2004: 8, 11 October

CRIMINAL LAW – Sentence – Manslaughter – Victim hit on head and stabbed in back with iron– Mitigating factors – Plea of Guilty –Compensation – Remorse and contrition – Principles applied.

CRIMINAL LAW – Sentence – Manslaughter – Sentence – Basic rule that the Court must have careful regard to the circumstances and the way in which death was actually caused applied.

CRIMINAL LAW – Sentence – Manslaughter –– Range of Sentences – Balance of interests on sentence - Supreme Court guidelines – Sentence of 8 years imprisonment

Cases Cited:

John Elipa Kalabus v the State [1988] PNGLR 193
Rex Lialu v The State [1990] PNGLR 487
Jack Tanga v The State (1999) Unreported Supreme Court Judgment No. SC602
Yantap Yala v The State (unreported Supreme Judgment), SCR 69/96, 1996)
R.v Phillips (1985) 7 Cr App R (S) 235 at 237)
Anna Max Marangi v The State (Unreported Supreme Court Judgment) No. SC702

Counsel:
F. Umpake, for the State
D. Gavara-Nanu for the Accused

SENTENCE

11 October, 2004

BATARI, J: This is a recent committal of the prisoner to the National Court. He pleaded guilty to the unlawful killing of one, Jerry Malken Simon at Banglenko village, Maprik, East Sepik Province and was remanded for sentence today.

The facts are very brief and they are as follows: On the early hours of 24th July 2004 around 3.00 am, the deceased and seven others, amongst them the prisoner’s younger brother, came to the prisoner’s part of the village, drunk, noisy and abusive. The prisoner’s elder brother, Petos Kilik confronted the mob and in the ensuing fight, their younger brother speared him. Stirred by his elder brother’s anguish, the prisoner armed himself with a piece of iron and pursued the group which had by then dispersed and retreated from the area. He caught up with the deceased and struck him once on the back of his neck and then speared him on his back with the sharpened end of the iron. Consequently, the deceased died from internal bleeding due to injuries to his neck and spinal cord.

The crime with which the prisoner is charged is defined under s. 302 of the Criminal Code as manslaughter killing. It carries the prescribed penal servitude of life imprisonment.

Defense counsel, Mr. Gavara-Nanu in a well prepared and articulated presentation deserving mention as such level of advocacy from a junior lawyer is uncommon, submitted that his client’s offence was precipitated by circumstances of de facto provocation. He submitted that the sudden and intrusive disturbance the deceased and his drunken mob brought into the neighbourhood had had the effect of unsettling everyone in the privacy of their homes and their peaceful night and sleep.

I accept there is indeed nothing more distressing and infuriating than being rudely awoken in middle of the night by unruly and abusive drunks. The prisoner, no doubt was disappointed when initially disturbed from his sleep but he maintained his composure. I accept that he had to put up with the noise and the unpleasant ruckus from uninvited drunks within his area. In fact, the prisoner did not act spontaneously from those disturbances. He resorted to violence after heard his elder brother called out that he had been speared and was dying. It was only then that he armed himself and attacked the deceased. However, he did not react in defence of his brother or under provocation in the legal sense. But the whole of the circumstances leading up to the prisoner’s behaviour showed that his conduct was explainable by provocation in the non-legal sense.

The prisoner and the deceased were possibly from the same village. It is not known if they were related but they were about the same age at 29 years. He is a self-made village-based businessman and a leader in his own right in the community and within his own family circle comprising his parents, 2 brothers, 2 sisters, his wife and 2 children. From humble beginnings with a Grade 6 education, he persevered in improving his skills which included a self-sponsored training in farming in Rabaul. At the time of the offence, he had succeeded in setting up agriculture and retail businesses with about K80,000.00 worth in assets. This is his first offence.

His plea of guilty and his earlier admissions to the police are in his favour and I take that into account as the State and the court are saved the time and expenses incurred in running a trial on the facts which are clearly not in dispute. His attitude and conduct subsequent to his offence, his early plea of guilty and payment of compensation also support to some extent, remorse and contrition on his part for the death of the deceased.

Remorse and contrition whether expressed or inferred from the prisoner’s conduct subsequent to his offence may favour the prisoner on sentencing when it is expressed early. In John Elipa Kalabus v the State [1988] PNGLR 193 the Supreme Court as per Kidu, CJ at 197 stated:

"Remorse and contrition are factors weighed in the matter of sentence in favour of accused persons, particularly if they are manifested in a plea of guilty. Whether remorse or contrition are shown by a plea of guilty depends upon the time and circumstances in which the plea is advanced. The earlier the expression of remorse or contrition after the commission of the offence the more favourable it will be for the accused. Remorse and contrition expressed at the trial weighs very lightly. It is easier to believe remorse expressed earlier than remorse expressed at the time of the trial, especially in serious cases like this one."

The prisoner and his line had paid compensation of K5, 500.00 in cash and two traditional gold rings with worth about K2,000.00 each. The value of those traditional rings in real money terms can never be known as the evidence is not before me. However, the significance of those items, their place, usage and effect as a medium in customary restorative settlements like the taboo shell-money, widely used amongst the Tolai people in the East New Britain Province, cannot be understated.

It is trite that compensation is not a specified punishment for unlawful killings although in some instances it might act as customary punishment against the offender and his line. Under the Criminal Law (Compensation) Act 1991 the Court has power to order payment of compensation as part of the penalty where the circumstances of the case permit. In this case, the death of the deceased led to destruction of houses and other properties of the prisoner and his line. The payment of compensation then, I think, was intended to restore peace and harmony other than a customary punitive measure against the prisoner. I think that’s how far one can take the effect of compensation payment in this case. Even if I were to consider compensation, that would only form part of the punishment for the offence and the limit is K5,000.00 under the Act. I do not propose to do that as customary compensation is now part-paid and it is only proper that the parties are encouraged to complete that process outside the court.

Sentences for manslaughter have come under close scrutiny by the National and Supreme Courts in numerous cases. Generally the call has been for manslaughter sentences to be relatively higher than sentences for rape and robbery. For that reason, there have been increases in the range of sentences that can be imposed on the various categories of unlawful killings. In Jack Tanga v The State (1999) SC602, the Supreme Court confirmed the approach to be adopted in determining the punishment for manslaughter is set out in the earlier Supreme Court case of, Rex Lialu v The State [1990] PNGLR 487. Those considerations are set at p. 497as out as follows:

(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 the act causing death:

(i) the nature and frequency of any attack or assault;

(ii) whether the injury which caused the death arose directly from an attack or assault or was caused by, for example, falling on an object;

(iii) whether the injury was caused by the person or by a weapon;

(iv) whether there was deliberate intention to harm;

(v) whether there was provocation in the non-legal sense;

(vi) whether the deceased had a thin skull, and

(vii) whether the deceased had an enlarged spleen.

I have had regard to those guidelines and to a number of Supreme Court cases since Lialu’s case. Sentences for manslaughter have ranged from suspended sentences to seven years in a plea and higher in contested cases with aggravation. In the more recent times, higher sentences are being imposed which clearly demonstrate the suggested range in Lialu’s case is no longer relevant and applicable in today’s circumstances. In Tanga’s case, the Supreme Court in observing that many sentences for manslaughter have ranged from 6 – 10 years confirmed a sentence of 12 years in a plea of guilty where the prisoner, heavily inebriated by alcohol literally kicked and punched his wife to death. That sentence demonstrated the view expressed in Antap Yala v The State (unreported, SCR 69/96,1996) that, whilst sentences for manslaughter will normally be lower than sentences for murder and wilful murder, there are those cases which will justify the imposition of heavy punishment and even the maximum punishment.

In the more recent case of Anna Max Marangi v The State (Unreported Supreme Court Judgment) (08/11/02) No. SC702, the Supreme Court defined 3 categories of manslaughter and suggested the following sentencing guidelines:

"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."

The observance of these sentencing principles are important in maintaining consistency in the pattern of sentencing bearing always in mind, the basic rule that, in sentencing for manslaughter, the court must have careful regard to the circumstances of death and the way in which death was actually caused. (See, R. v Phillips (1985) 7 Cr App R (S) 235 at 237.)

The prisoner in this case had initially lost his self–control and subsequently attacked the victim with a weapon in retaliation. Consequently, a young man was prematurely deprived his right to live his life to the fullest. Offences resulting in tragic loss of life in this manner have always been considered to be serious.

There are in my view, sufficient factors that mitigate the seriousness of the prisoner’s conduct. His plea of guilty, remorse, prior good conduct and payment of compensation are factors in his favour. The crime itself, though serious is not the worst of its kind. It falls into the second category of Marangi’s case where a sentence of 8 to 12 years may be appropriate.

In all the circumstances of this case, a sentence of 10 years is appropriate. So that there is no misapprehension by the prisoner of double punishment, I propose to take into account, breaches of his constitutional rights at the hands of the victim’s relatives resulting in huge personal losses to him. The sentence I impose should also inform relatives of the victim not to take the law into their own hands and leave the retributive aspect of punishment to the courts of law.

I consider that a sentence that sufficiently meets both the deterrent and retributive aspects of sentencing should be imposed. I do not however consider it appropriate to suspend any part of the sentence.

The prisoner is sentenced to 8 Years imprisonment with hard labour. The sentence is reduced by 3 months, being the time spent in custody.
______________________________________________________

Lawyer for the State: Public Prosecutor

Lawyer for the Accused: Public Solicitor