N2750

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR NO. 1667 OF 2003

THE STATE

-V-

ELIZAH BONO MANIWOGIN

Wewak: 	Batari J
2004: October 24

CRIMINAL LAW - Sentence - Manslaughter killing - Land dispute between relatives - Deceased shot with firearm – Old man in poor physical and mental state armed with firearm – Relevance of - Factors in mitigation and aggravation – Consideration of. 

CRIMINAL LAW - Sentence - Plea of "Old age" - Whether it is a mitigating factor in manslaughter killing - Accused aged 83 years. 

CRIMINAL LAW - Sentence - Manslaughter killing - Sentencing guides - Whether tariff intended - Sentenced of 8 years part suspended is appropriate.

CASES CITED:
The State v Laura (2) [1988-89] PNGLR 98
PP v Apava Keru & Anor [1985] PNGLR 78
Marangi v The State (Unreported Supreme Court Judgment – 2002) No. SC702
Sakarowa Kewa v The State (Unreported Supreme Court Judgment - 2004) No. SC739
State v. Ivoro Kaumin Lupu (Unreported National Court Judgment) No. N1545
Lawrence Simbe v The State [1994] PNGLR 38

SENTENCE

Upon conviction on one count of manslaughter killing, the following judgment was delivered on sentence.

Counsel:
K. Umpake, for the State
M. Bayam, for the Accused

23 October 2004

BATARI J: You have been convicted upon an indictment charging you with the manslaughter killing of Kenny Nimiengunai on 10 July 2003 at Jongun village, Dagua, East Sepik Province. During the short adjournment, the CBC Office prepared a comprehensive pre-sentence report for which I am very grateful as it proved most helpful in making this difficult task of sentencing a lot easier. 

The facts which led your conviction as I found proven on the evidence have been traversed in the body of my judgment on verdict following your trial. It is sufficient to state fairly briefly for the purpose of sentence that, on the morning of 10 October, 2003 a clash precipitated by a land dispute arose between your sons Joachim, David and Gregory on the one side and the deceased with his relatives on the other, over a piece of land that the deceased and his relatives were then clearing for gardening. The fight progressed towards a hut where you were sitting and fearing, quite understandably, for your own safety at your old age, you retreated into the nearby bushes. Whilst in hiding, you heard your son David had been knocked to the ground and you assumed albeit, wrongly that he was dead. So, fearing the worst also for your other two sons, you returned to your house where you picked up a firearm and shot the deceased who was then engaged in a fight with your son, Joachim. Consequently, the deceased bled to death from gun-shot pellet wounds to his right thigh. 

The crime of manslaughter carries life imprisonment under s. 302 of the Criminal Code. That maximum penalty demonstrates the seriousness of killing another person unlawfully. It also underscores the importance and the sanctity of life which no one has the right to deprive another of under any situation or circumstances except where it may be lawful for him to do so. There was no excuse for what you did. The fight appeared to have been evenly fought between three persons from each side of the conflict and that made your intervention unnecessary and the use of firearm inappropriate. 

Even then, use of violence to resolve or settle disputes is not the way of civilized and orderly societies. It only creates unwanted and sometimes tragic consequences thereby, exacerbating hate, hostility and ensuing long term discord in relationships within a community of relatives or neighbours. In this case, there is some evidence that the deceased and his family had been part of your own family through ancestral connections and you all have been residing together in the same part of Jongun village of Dagua District for that reason. I am informed that the rift in the relationship between your two families has not healed and relatives of the deceased having taken the matter to the police, wanted to see you imprisoned for your crime. 

When you armed yourself with the shot gun, your intention may have been to scare rather than shoot anyone with it. You said in your evidence you tried to shoot in the air but somehow or other, the deceased was shot on his leg. Even if I were to find that you did not intend to hurt anyone with the gun, the fact remains that you had in your possession, a dangerous weapon over which you had total control and had deliberately discharged it at those present. You did that in your present state of old age with apparent physical instability and volatility, poor eyesight and impaired hearing with traits of senility. Trying to deliberately shot with a gun in the direction of those fighting in your physical and mental state was therefore, a negligent act of a serious kind. The consequence of your conduct was the violent and premature end to a young life and a tragic loss to a young family. 

The use of a weapon, in particular a gun put your crime in the more serious category when I consider the starting point for manslaughter cases committed with or without aggravating features or with mitigating factors as recently suggested by the Supreme Court in Anna Max Marangi v The State (Unreported Supreme Court Judgment 2002) No. SC702. That case has defined three possible categories of manslaughter and suggested a range of sentences for each of those categories. In general, manslaughter cases may now attract sentences from suspended sentences to 7 years at the lower end of the spectrum and 13 to 16 years at the upper end. Sentences exceeding 16 years have also been imposed in cases that fall into the most serious, to the worst category: Sakarowa Kewa v The State (Unreported Supreme Judgment dated 01/04/04) No. SC739. The State Prosecutor has submitted that this case falls into the upper category of manslaughter killing because of its seriousness and on that basis, Counsel Mr. Umpake, urged the court to impose a sentence in the category of 13 to 16 years. I have considered that. 

I have also considered what was said in Marangi v The State (supra) and the recent Supreme Court judgment in Kewa v The State (supra). I do not take either case as laying down a tariff of sentence in all the categories of serious manslaughter killings discussed because there is always under s. 19 of the Code the discretion which all judges still retain to be exercised in each individual case. The law says that I will sentence you only on the particular facts of your own case, applying the approach in, Lawrence Simbe v The State [1994] PNGLR 38 where the Supreme Court in endorsing the principle in, State v Laura (No 2) [1988-89] PNGLR 98, stated at pp 39-40: 

"That is the principle. Each case of murder must be decided on a case-by-case basis, but always remembering that the sentence laid down by s 300 is life imprisonment and the term of years is by virtue of s 19".

This statement of sentencing principle applied to a murder killing is in my view equally applicable to manslaughter killings. Your case falls above the lower range of seven years in Marangi’s case but within the range of eight to twelve years, in my assessment. 

You are aged 83 years old. I had observed you throughout the trial, noting that, your physical appearance and responses appear consistent with your age estimate. The old age factor is not quite settled as a mitigating factor in homicide cases largely due to lack of persuasive advocacy on that issue. In the English text of Thomas’ Principles of Sentencing (2nd Ed. 1979) old age is mentioned as a mitigating factor. On p. 196, the learned author states:

"Age begins to be a relevant consideration again once the offender has passed 60, although at this end of the spectrum it is most effective as a mitigating factor when combined with another, such as good character. In Wilkinson a man of 60 appealed against sentences totalling five years for offences of indecency committed over a period of several years with his young grandnieces. The Court observed that while ‘a substantial custodial sentence’ was inevitable, the appellant had a ‘perfectly good’ record and the offences began when he became a ‘desperately lonely’ widower. Stating that ‘no court willingly sentences a man of spend a large part of the remainder of his life in prison’. The Court reduced the sentence to thirty months. In Bishop the Court reduced a sentence of fifteen months for an ‘extremely serious’ tax fraud on a man of 61 with the highest personal reputation’, not because the sentence was ‘in any way wrong in principle but simply as an act of mercy to this man at this stage of his life’."

The Supreme Court in, PP v Apava Keru and Aia Moroi [1985] PNGLR 78, constituted by, Kidu CJ, Bredmeyer Amet JJ held reservations about this principle being applicable to murder when the court stated at p.84:

"We note that Thomas is not there writing of murder offences which carry a mandatory life sentence in England. We are not convinced that the principle mentioned has much to do with murder although we leave the matter open for argument in some later case." (underlining, mine)

In that case, the two respondents, each aged about fifty years, were villagers from the Goilala area of the Central Province. The first respondent killed his daughter’s de facto husband following an argument (de facto provocation). The second respondent, who was the father of the de facto husband, killed the son of the first respondent by way of payback. They each pleaded guilty to wilful murder. On appeal against inadequacy of sentences of 6 years, the first respondent was sentenced to 15 years imprisonment and the second respondent to life imprisonment.
 
The old age factor was not considered as the Supreme Court then, held that the old age is not generally a mitigating factor on sentence for murder. However, in State v Laura (No 2) [1988-89] PNGLR 98 Kidu CJ in prescribing guidelines for murder sentences included "very advanced age" of the accused as a special mitigating factor when he said at p. 99:

"I consider that a murder case with no special aggravating factors where the accused pleads guilty should attract a sentence of six years. 	 Where a sentence of less than six years is imposed, I believe that it should only be in a case where there are special mitigating factors such as the youthfulness of the 	accused (for example, 14 or 15 years old) or the very advanced age of the accused…… ". (underlining mine)

This view was adopted and affirmed by the Supreme Court in Lawrence Simbe v. The State (supra). It is however, not known if the old age factor was fully argued in Simbe’s case. In my view, where a person of advanced aged is convicted of unlawful killing, he should be treated with some leniency as an act of mercy to him at this phase of his life. But that issue has never been fully argued to my knowledge since the last observation I made in the case of State v. Ivoro Kaumin Lupu (unreported National Court Judgment) No. N1545. In the case before me, I am still not convinced that I should not take exception to the reservation in Apava Keru and Aia Moroi’s case as the question of old age as a mitigating factor in murder cases was not then fully argued. I will adopt and follow the principle articulated in Laura’s case and affirmed by the Supreme Court in Simbe’s case.

Therefore, old age may be considered as a special mitigating factor in manslaughter cases. However, the old age factor is more relevant when the person is at "the very advanced age" of his life. As to when a person is of "very advanced aged" will vary from case to case and need not be considered with reference to chronological order of age because one person may be physically frail "due to old age," earlier than the other. However, generally a person in his 60s may be considered as having reached old age. Whether he is of advanced age should depend on a number of factors including, the life expectancy in Papua New Guinea, his physical appearance, whether he has any physical or mental disability, etc.. 

There is no doubt that the prisoner is of a very old man. I accept that he is about 83 years old. Even without reference to his chronological age, there is every indication from his physical appearance that he is a very old man. He now walks with a stoop, is hard at hearing and repeats himself, all which I think is sure attributes of an advanced age. I consider him to be at his very advanced age and I will take that age factor into account on sentence.

I have spent sometime to consider your old age and it is important that I do that because of the nature of your offence. You have killed another person which is a very serious matter and you still have part of your life to live. I do not know how much longer you will live but because your offence does not fall into the worst type of unlawful killing, I must be careful not to pass judgment that might tantamount to you spending the rest of your life in prison. You have no formal education and were unemployed at the time of your arrest. However, in the early part of your life, you had some contact with the early administration which in a way shaped a generally good and purposeful background for you. You have seven children from your marriage. I have also taken into account your expression of remorse and that this is your first conviction. At your age, this meant you had led a very good and trouble free life. I have had regard also to your custody period of five months which I will deduct from the head sentence I am about to impose.

Your crime was committed out of passion – a passion to protect your own children from harm. That was understandably a parental instinctive reaction prompted by provocative acts which fell short of the statutory defence. You used a gun when that was not called for, but I do appreciate that your human frailty took the better part of your good judgment so that, your comprehension and appreciation of prevailing events were easily influenced or distorted. Your state of mind cannot be equated with that of a healthy younger man. It is in my view easy for a man at your age to easily misjudge factual events and react impulsively. That was what I think happened when you used the gun on the deceased. However your lawyer did not rely on "reasonable but mistaken believe" on your defence and the facts do not support such defence. It is nevertheless relevant on sentence.

In all the circumstances, I sentence you to eight years imprisonment, less five months for the time spent in custody. You are an old man of advanced years and it would be amiss on my part to let you serve the whole term which could tantamount to life or death sentence for you. I will suspend from that remaining term, 6 years and 7 months leaving you, 12 months to serve with hard labour.
____________________________________________________________

Lawyer for the State: 			Public Prosecutor
Lawyer for the Accused: 		Bayam Lawyers