N3412

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1197 OF 2007

THE STATE

V

ABRAHAM NOBI

Buka: Paliau, AJ
2008:	12th & 19th May

CRIMINAL LAW – Manslaughter – Charge of – Guilty Plea – Criminal Code s.302.

Cases cited:
Manu Kovi v The State (2005) SC789 

Counsels:
Mr. Rangan, for the State
Mr. Kaluwin, for the Accused

19 May, 2008

DECISION ON SENTENCE

1. 	PALIAU, AJ:	You pleaded guilty to a charge of Manslaughter. The killing took place at Buin Town, in the Autonomous Region of Bougainville on the 25th August 2007. Between the hours of 5:30 pm and 6:30 pm in the evening, you killed the deceased by stabbing him with a knife on the left hand side of his neck. He died where he was stabbed. You did not mean to kill the deceased.

2. You were 22 years at the time of the offence and you are single. You completed Grade 9 at Buin High School in 2006 and since then you have not continued your education or found employment. You intend to further your education to Grade 10 if you are given another chance.

3. I have read the Pre-Sentence Report prepared by the Community Based Corrections Services. You have a good record in the community apart from this offence. You are not considered a threat to the community. You are recommended for probation.

4. The Pre-Sentence Report shows that there has been payment of compensation of K1, 000.00 to the deceased relatives and there was reconciliation with them. A letter dated the 24th January 2008 and signed by the two chiefs of the two clans was attached to the report bearing evidence of this. 

Submission by Defence Counsel

5. Your lawyer submitted that you saved the Court’s time by your early guilty plea. You made admissions to the Police in your Record of Interview and this is your first conviction. You forego your possible defence of mistaken belief. Before the commission of the offence you saved the deceased from possible death or injury from his relatives. The deceased was under the influence of alcohol. When the deceased approached without you knowing, you assumed that he was going to attack you. There was no pre-planning involved.

6. Your lawyer further submitted that because you are young, the highest category of punishment in the Manu Kovi v The State (2005) SC 789 case should not be imposed. The lowest category of punishment must be imposed. It is not proper that you should spend 10 years of your life in prison. He submitted that the sentence be lower than 10 years because of the strength of the mitigating factors. He submitted that 5 years would be most appropriate and partially suspended. The offence was not committed in a domestic setting and not a case of multiple wounding. Knife was used only once.

Submission by the State

7. The State submitted that you used a deadly weapon or offensive weapon that caused the death of the deceased. You have taken the life of a person away. You must face the consequences of your action. All human lives must be protected.

8. That your case fell within the second category of the Manu Kovi case, where there was use of offensive weapon, knife, therefore the starting point should be in the range of 13 years to 16 years and make deductions depending on the strength of mitigating factors.

Decision as to the appropriate penalty

9. To determine the appropriate penalty, I will adopt some of the following decision making process that my brother Judge, his Honour Justice Cannings has used in some of his decisions and they are:

Step 1	:	What is the maximum penalty?
Step 2	:	What is the proper starting point?
Step 3	:	What should be the head sentence?
Step 4	:	Should the pre-sentence periods in custody be deducted from the term of imprisonment? 
Step 5	:	Should all or part of each sentence be deducted?

STEP 1: WHAT IS THE MAXIMUM PENALTY?

10.	Section 302 of the Criminal Code states that the maximum penalty for manslaughter is life imprisonment, subject to Section 19. This gives the National Court wide discretion whether to impose the maximum penalty.

STEP 2:	WHAT IS THE PROPER STARTING POINT?

11.	In Manu Kovi v The State (2005) SC 789, the Supreme Court prescribed tariffs of sentences in four categories of increasing seriousness. The present case fall into category 2 which is 13 – 16 years, where knife, an offensive weapon was used. This case has both mitigating and aggravating factors.

STEP 3:	WHAT SHOULD THE HEAD SENTENCE BE?

12.	As the starting point is 13 to 16 years, I will start from there and weigh the mitigating and aggravating factors. If the mitigating factors are more, the head sentence will be below the starting point. If the aggravating factors are more, the head sentence will be above the starting point.

Mitigating Factors 

-	You co-operated with the Police in their investigations.
-	You co-operated with the Courts, by saving the Court’s time in your early plea of guilty.
-	You have a good record in the community.
-	You have no prior convictions.
-	You have expressed remorse.
-	You are a first time offender.
-	There has been peace and reconciliation with the deceased relatives and compensation of K1,000.00 has been paid.

Aggravating Factors

-	You used an offensive weapon, pocket knife.
-	You were under the influence of illegal alcohol.

Determination

13. After weighing the mitigating and aggravating factors, the mitigating factors outweigh the aggravating factors by 5. The head sentence should be below the starting point.

14.	 The tariffs of sentences prescribed in Manu Kovi case for manslaughter are in my view should only be used as guidelines and should not take away the National Court’s discretion to impose sentences that maybe over or above or well below the suggested tariffs. Sentences to be imposed by the Court must of course depend on the peculiar facts of each case.

15. In the present case, the mitigating factors outweighs the aggravating factors. This means that any sentence to be imposed should be more in favour of the accused. I therefore impose a head sentence of 8 years imprisonment.

STEP 4: SHOULD THE PRE-SENTENCE PERIODS IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

16. I am required under Section 3 (2) of the Criminal Justice (Sentences) Act to deduct from the head sentence, the whole of the pre-sentence periods in custody, which is 8 months 10 days to today.

STEP 5:	SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

17. You have a good pre-sentence report and you co-operated very well with the Police and the Courts. Your relatives have paid compensation to the deceased relatives and reconciliation has taken place. Because of all these, I will suspend five years of sentence on conditions.

18. Upon release from custody the following conditions will apply:

(1)	must within seven days report to the Community Based Corrections Office in Buka;

(2)	must perform at least 10 hours unpaid community work in accordance with a program organized and supervised by the Community Based Corrections Officer;

(3)	must attend church every Sunday for service and worship and assist the church in it’s community activities;

(4)	must not consume alcohol or drug;

(5)	must keep the peace and be of good behaviour for a period of 1 year;

(6)	if you breach any one or more of the above conditions, you shall be before the National Court to show cause why you should not be re-detained in custody to serve the rest of the sentence.

Sentence

19. ABRAHAM NOBI, having been convicted of the crime of manslaughter, you are sentenced to:

Length of sentence imposed		:	8 years IHL
Pre-sentence period deducted		:	8 months 10 days
Resultant length of sentence to be	: 	7 years, 4 months served & 21 days
Amount of sentence suspended		:	5 years
Time to be served in custody		:	2 years 4 months 21 days, subject to compliance with conditions of suspended sentence.

Sentenced accordingly.

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused