N4971
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 863 0F 2007

THE STATE

V

EUGINE BOKOAR

Buka: Cannings J
2007: 18 September, 24 October

CRIMINAL LAW – sentence – manslaughter – Criminal Code, Section 302 – guilty plea – offender, was the member of a group of friends consuming alcohol – altercation erupted with another group of men – in the course of the fight, offender punched deceased and threw rocks at him – sentence of 12 years.

A young man pleaded guilty to manslaughter. He was amongst a group of friends consuming alcohol near a shoreline. His group got involved in a fight with another group of men. In the course of the fight the offender hit the deceased with stones, disabled him and pushed him into the sea. The deceased died due to a head injury inflicted by the offender and inhalation of sea water.

Held:

(1)	The starting point for sentencing for this sort of manslaughter (presence of both mitigating and aggravating factors and death caused by offensive weapon (the rocks)) is 13 to 16 years imprisonment.

(2)	A sentence of 12 years was imposed. The pre-sentence period in custody was deducted and none of the sentence was suspended.

Cases cited

The following cases are cited in the judgment:

Manu Kovi v The State (2005) SC789
Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06
The State v Alphonse Kaparo and John Loangesa CR 1636-1637/2006, 21.03.07
The State v Daniel R Walus (2005) N2802
The State v Elizabeth Gul CR 375/2005, 09.05.05
The State v Hiliong Gunaing (2005) N2803
The State v Jacklyn Boni CR 786/2005, 08.09.05
The State v John Buku Kailomo CR 920/2005, 24.08.07
The State v John Loangesa CR 301/2000, 21.03.07
The State v Joseph Dion CR 71/2001, 20.05.05
The State v Kalimet Tovut CR 968/2004, 20.12.05
The State v Kila Peter (2006) N3018
The State v Lien Kaingi CR 1119/2006, 19.12.06
The State v Mark Kanupio, Balwin Kining, Peter Pasikio, Steven Lipilas and Paul Nowor (2005) N2800
The State v Mas Judah Binas CR 957/2004, 27.03.07
The State v Sebastian Sahoto Roho CR 1665/2005, 24.08.06
The State v Timothy Mawe CR 1455/2003, 20.05.05

SENTENCE

This was a judgment on sentence for manslaughter.

Counsel

L Rangan, for the State
P Kaluwin, for the offender

24 October, 2007

1. CANNINGS J: This is a decision on sentence for a man who pleaded guilty to one count of manslaughter arising from the following facts. The incident happened between 5.00 and 6.00 pm on 2 February 2007 at the seafront at Kokopau, opposite Buka town. The deceased, Clarence Raphael, a member of the Buka CID, was in a boat with a group of friends who had just left Kokopau to go to Buka when they heard someone swearing at them from the beachfront. They came back to shore. Some of Clarence's friends asked the group of men whether the accused, Eugine Bokoar, was with them and if they had sworn at them. An argument started then a fight broke out between the two groups. Clarence came in to stop the fight when Eugine hit Clarence's head with a stone and then shot him in the side. He then pushed Clarence into the sea. Clarence found it hard to swim because of his head injury. He later died at the hospital. Eugine did not mean to kill Clarence.

ANTECEDENTS

2. The offender has no prior convictions.

ALLOCUTUS

3. I administered the allocutus, ie the offender was given the opportunity to say what matters the court should take into account when deciding on punishment. He said:

I apologise to the relatives of the person whose life I took away. I apologise to God before this court. This is my first time to be in court. I did not mean to kill Clarence. I ask this court for mercy. Please put me on good behaviour bond or give me probation.

OTHER MATTERS OF FACT

4. As the offender has pleaded guilty he will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06). His version of events is that the fight was started by the deceased's group. He was hit first. He was angry and struck the deceased in retaliation. He co-operated with the police and made full admissions in his police interview.

PERSONAL PARTICULARS

5. The offender is 23 years old, single, from Torote village, Selau, in Bougainville. He has a brother and two sisters. He is the second born in the family. He completed grade 10 at Bishop Wade Secondary School, Tarlena, in 2004. He has never been formally employed. He lives with his two sisters at Torote village.

SUBMISSIONS BY DEFENCE COUNSEL

6. Mr Kaluwin highlighted that there was strong de facto provocation as it was the deceased's group that started the fight and they had been drinking. The deceased's group (consisting of police officers) had come into premises that the offender was lawfully occupying. Though the offender used a weapon (the stones) it was a spur of the moment incident, not a vicious attack, not a planned attack. The facts fall within the second category of manslaughter cases identified in Manu Kovi v The State (2005) SC789, which means that the court should use a starting point of 13 to 16 years imprisonment. The many mitigating factors mean that a sentence at the lower end of the range or even beneath it would be appropriate.

SUBMISSIONS BY THE STATE

7. Mr Rangan submitted that there was no evidence that the deceased's group had been drinking. The deceased did not do anything to provoke the fight. He tried to stop the fight. The fact that the deceased was a law enforcer is an aggravating factor. As to the Kovi categories, he agreed that this is a category 2 case but because the offender killed a law enforcer, a sentence in the range of 15-20 years is warranted.

DECISION MAKING PROCESS

8. To determine the appropriate penalty I will adopt the following decision making process:

•	step 1: what is the maximum penalty?
•	step 2: what is a proper starting point?
•	step 3: what sentences have been imposed for equivalent offences?
•	step 4: what is the head sentence?
•	step 5: should the pre-sentence period in custody be deducted?
•	step 6: should all or part of the sentence be suspended?

STEP 1: WHAT IS THE MAXIMUM PENALTY?

9. Section 302 (manslaughter) of the Criminal Code states:

A person who unlawfully kills another under such circumstances as not to constitute wilful murder, murder or infanticide is guilty of manslaughter.

Penalty: Subject to Section 19, imprisonment for life.

10. The maximum penalty is therefore life imprisonment. The court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code.

STEP 2: WHAT IS A PROPER STARTING POINT?

11. In Manu Kovi v The State (2005) SC789 the Supreme Court suggested that manslaughter convictions could be put in four categories of increasing seriousness, as shown in table 1.

TABLE 1: SENTENCING GUIDELINES FOR MANSLAUGHTER DERIVED FROM THE SUPREME COURT'S DECISION IN MANU KOVI'S CASE

No	Description	Details	Tariff	
1	Plea – ordinary cases – mitigating factors – no aggravating factors.	No weapons used – offender emotionally under stress – de facto provocation – killing in domestic setting – killing follows straight after argument – minimal force used – victim had pre-existing disease that caused or accelerated death, eg enlarged spleen cases.	8-12 years	
2	Trial or plea – mitigating factors with aggravating factors.	Use of offensive weapon, eg knife, on vulnerable parts of body – vicious attack – multiple injuries – some deliberate intention to harm – some pre-planning.	13-16 years	
3	Trial or plea – special aggravating factors – mitigating factors reduced in weight or rendered insignificant by gravity of offence.	Dangerous or offensive weapon used, eg gun, axe – vicious and planned attack – deliberate intention to harm – little or no regard for sanctity of human life.	17-25 years	
4	Worst case – trial or plea – special aggravating factors – no extenuating circumstances – no mitigating factors, or mitigating factors rendered completely insignificant by gravity of offence.	Some element of viciousness and brutality – some pre-planning and pre-meditation – killing of harmless, innocent person – complete disregard for human life.	Life imprisonment	

12. I agree with counsel who agreed that this is a category 2 case. There are both mitigating and aggravating factors present and death was caused by an offensive weapon (the two rocks). The starting point is therefore 13 to 16 years.

STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED RECENTLY FOR EQUIVALENT OFFENCES?

13. Before I fix a sentence, I will consider other manslaughter sentences I have handed down. These cases are shown in table 2.

TABLE 2: SENTENCES FOR MANSLAUGHTER, 2005-2007, CANNINGS J

No	Case	Details	Sentence	
1	The State v Hiliong Gunaing (2005) N2803, Kimbe	Guilty plea – stab wound causing death of wife – Laleki settlement, Kimbe – offender in his mid-40s – allegations of wife's infidelity.	15 years
	
2	The State v Mark Kanupio, Balwin Kining, Peter Pasikio, Steven Lipilas and Paul Nowor (2005) N2800, Kimbe	Guilty plea – mob attack – Kandrian, WNB – various sentences – degree of participation – in company with 4 others – knives and sticks and stones used – election-related killing.	15 years,
7 years,
4 years,
4 years,
3 years
	
3	The State v Daniel R Walus (2005) N2802, Kimbe	Guilty plea – domestic setting – Gaongo VOP, Kimbe – offender punched and kicked the deceased, a female, a number of times – deceased was offender's in-law – ruptured spleen causing death.	18 years
	
4	The State v Jacklyn Boni CR 786/2005, 08.09.05, Kimbe	Guilty plea – domestic setting – Buvussi, Kimbe – juvenile offender hit deceased with a stick, rupturing his spleen – deceased was offender's husband – argument over a small domestic item.	8 years
	
5	The State v Elizabeth Gul CR 375/2005, 09.05.05, Kimbe
	Guilty plea – domestic argument – Mosa, Kimbe – offender was being assaulted by the husband and his sister – offender stabbed husband on his leg – prisoner claimed husband was being unfaithful.	10 years
	
6	The State v Joseph Dion CR 71/2001, 20.05.05, Kimbe	Trial – offender had fight with his wife on the back of a moving vehicle – Salelebu, Central Nakanai area – she fell off the vehicle and was killed upon hitting the road.	10 years
	
7	The State v Timothy Mawe CR 1455/2003, 20.05.05, Kimbe	Trial – offender was prosecuting an unlawful purpose, making a homemade gun – Buvussi, Kimbe – discharged the weapon killing the deceased.	10 years
	
8	The State v Kalimet Tovut CR 968/2004, 20.12.05, Kimbe	Guilty plea – argument between cousins – Sarakolok, Kimbe – offender punched the deceased to the ground, kicked him in abdomen – ruptured spleen causing death.	10 years
	
9	The State v Kila Peter (2006) N3018, Kimbe	Guilty plea – fatal stab wound to the back causing death of husband – Mosa, Kimbe – young mother – offender walked 2 km in middle of night and waited for victim – husband was with another woman.	12 years
	
10	The State v Sebastian Sahoto Roho CR 1665/2005, 24.08.06, Buka	Guilty plea – young man kicked his mother in abdomen, rupturing her spleen – domestic dispute – family did not want offender given a lengthy sentence.	10 years
	
11	The State v Lien Kaingi CR 1119/2006, 19.12.06, Kimbe	Guilty plea – family dispute – Barema, near Bialla – offender suspected her sister was having an affair with her husband – offender stabbed her sister.	10 years
	
12	The State v John Loangesa CR 301/2000, 21.03.07, Bialla	Guilty plea – domestic dispute – Kisiluvi, central Nakanai – offender assaulted his wife while drunk – during assault, he kicked her in the stomach – an element of de facto provocation.	12 years
	
13	The State v Alphonse Kaparo and John Loangesa CR 1636-1637/2006, 21.03.07, Bialla	Guilty plea – family dispute – two men punched and kicked their brother-in-law – two-against-one fight.	12 years,
12 years
	
14	The State v Mas Judah Binas CR 957/2004, 27.03.07, Kimbe	Trial – offender became angry with his cousin-brother who was drunk, on the road – stabbed him once.	13 years
	
15	The State v John Buku Kailomo CR 920/2005, 24.08.07, Kimbe	Trial – man assaulted his wife during a domestic dispute – she died of a ruptured spleen.	15 years

STEP 4: WHAT IS THE HEAD SENTENCE?

14. There are a number of considerations to take into account in deciding on the head sentence. I have listed them below as a series of questions. An affirmative (yes) answer is regarded as a mitigating factor. A negative (no) answer is an aggravating factor. A neutral answer will be a neutral factor. The more mitigating factors there are, the more likely the head sentence will be reduced below the starting point. The more aggravating factors present, the more likely the head sentence will be above or at the starting point. However, sentencing is not an exact science. It is a discretionary process. When a factor is marked as mitigating or aggravating it does not mean necessarily that it is given the same weight as another mitigating or aggravating factor. Some mitigating factors may be strongly mitigating. Others may be mildly mitigating. The same goes for aggravating factors. Three sorts of considerations are listed. Numbers 1 to 8 focus on the circumstances of the incident. Numbers 9 to 13 focus on what the offender has done since the incident and how he has conducted himself. Numbers 14 to 17 look at the personal circumstances of the offender and give an opportunity to take into account any other factors not previously considered.

1	Did the offender not directly kill the deceased? No, the offender did two things that combined to directly cause the death: he struck the deceased with rocks, and then pushed him into the sea.

2	Was just one person involved in the attack? Yes, no one else assisted him in striking the deceased.

3	Was there some intervening cause of death? No.

4	Did the offender not set out to hurt anyone? No.

5	Did the deceased or any other person provoke the offender in 'the non-legal sense'? Yes. The offender was provoked when the deceased and his friends showed up to find out who swore at them.

6	Did the deceased have a pre-existing condition making him susceptible to serious or fatal injury by a moderate blow? No.

7	Can the attack on the deceased be classed as 'not vicious'? No. It was vicious.

8	Can the death of the deceased be regarded as an unforeseeable consequence of the activity that the offender was involved in? No.

9	Did the offender play a relatively minor role in the activity that led to the death? Yes.

10	Did the offender give himself up after the incident? Yes.

11	Did the offender cooperate with the police in their investigations? Yes. He made admissions in his record of interview and gave a confessional statement.

12	Has the offender done anything tangible towards repairing his wrong? No.

13	Did the offender plead guilty? Yes.

14	Has the offender genuinely expressed remorse? Yes.

15	Is this his first offence? Yes.

16	Can the offender be regarded as youthful or are his personal circumstances such that they should mitigate the sentence? Neutral.

17	Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence? Yes, the offender was not the person who started the chain of events that led to the deceased's death. He got caught up in an incident that spiralled out of control.

15. To recap, mitigating factors are:

•	No 2 – sole attacker;
•	No 5 – de facto provocation;
•	No 9 – minor role in fight;
•	No 10 – surrendered to police;
•	No 11 – co-operated with police;
•	No 13 – pleaded guilty;
•	No 14 – expressed remorse;
•	No 15 – first-time offender;
•	No 17 – did not start the chain of events.

16. Aggravating factors are:

•	No 1 – directly killed deceased;
•	No 3 – no intervening cause of death;
•	No 4 – strong intention to harm;
•	No 6 – deceased had no susceptible condition;
•	No 7 – vicious attack;
•	No 8 – death a foreseeable consequence;
•	No 12 – no reconciliation.

The other factor (No 16) is neutral.

17. After weighing all these factors (9 mitigating and 7 aggravating) I place great weight on the guilty plea, the full co-operation the offender gave the police and the strong element of de facto provocation. These factors pull the head sentence below the starting point range. After comparing this case to the other manslaughter cases I have dealt with, I impose a head sentence of 12 years imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

18. Yes. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment the whole of the pre-sentence period in custody, which is eight months, three weeks.

STEP 6: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

19. No. The court has not been informed of any moves towards compensation or reconciliation. No material has been presented that warrants suspension of any part of the sentence.

SENTENCE

20. Eugine Bokoar, having been convicted of one count of manslaughter, is sentenced as follows:

Length of sentence imposed	12 years	
Pre-sentence period to be deducted	8 months, 3 weeks	
Resultant length of sentence to be served	11 years, 3 months, 1 week	
Amount of sentence suspended	Nil	
Time to be served in custody	11 years, 3 months, 1 week	

Sentenced accordingly.
_______________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender