N5466
PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NOS 915, 919, 929 & 922 OF 2005

THE STATE

V

VINCENT MATANA LAORE, PAUL MAKELE LAORE,
LAWRENCE LUMBOLUMBO MULAGE &
PETER BALUAE MULAGE

Kimbe: Cannings J
2008: 17 March, 2, 24 April

CRIMINAL LAW – sentencing – Criminal Code, Section 302 (manslaughter) – sentence after trial – killing in the course of a fight between two groups in a village setting – co-offenders – varying degrees of involvement.

Four men were convicted of the manslaughter of their cousin. They killed him in a fight between two groups of men. One of the offenders directly killed the deceased by slashing him with a bush knife, almost severing one leg, causing massive blood loss. The others indirectly killed him by inflicting serious head, neck and chest injuries. 

Held:

(1)	The starting point for sentencing for this sort of killing, a vicious attack involving an offensive weapon, is 13 to 16 years imprisonment.

(2)	When sentencing co-offenders it is proper to take account of their different degrees of involvement in the commission of the offence.

(3)	Sentences imposed were 15 years for the principal offender and 12 years for the other three. The pre-sentence periods in custody were deducted and three years of each sentence was suspended.

Cases cited

The following cases are cited in the judgment:

Ignatius Pomaloh v The State (2006) SC834
Manu Kovi v The State (2005) SC789
The State v Alphonse Kaparo and John Loangesa CR 1636-1637/2006, 21.03.07
The State v Charlice Lamete CR 870/2007, 26.10.07
The State v Daniel R Walus (2005) N2802
The State v Elizabeth Gul CR 375/2005, 09.05.05
The State v Eugene Bokoar CR 863/2007, 24.10.07
The State v Hiliong Gunaing (2005) N2803
The State v Isaac Ulul CR 203/2007, 16.10.07
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 Michael Jim Gorogoro CR 105/2008, 22.02.08
The State v Paul Gambu Laore and 11 Others (2007) N5026
The State v Sebastian Sahoto Roho CR 1665/2005, 24.08.06
The State v Steven Ruben CR 843/2007, 22.02.08
The State v Timothy Mawe CR 1455/2003, 20.05.05

SENTENCES

This was a judgment on sentences for manslaughter.

Counsel

F Popeu & T Ai, for the State
B Tanewan & J Awalua, for the offenders

24th April, 2008 

1. CANNINGS J: This is a decision on sentence for four men convicted after trial of the manslaughter of their cousin, Peter Nale. They killed him in a fight between two groups of men near Penata village, Bali Island, West New Britain Province on the morning of Easter Saturday, 26 March 2005. All men involved in the fight are related. All are from Bali and most were living there at the time. On the offenders' side there were nine men and on the deceased's side there was a similar number. There had been bad blood between the two groups over many years and tension had built up over a few weeks before the fight. On the night before one of the offenders and one of his brothers had raided the deceased's brother's house and damaged it. That led to a revenge attack on the offenders' family houses. The next day at 8.30 am the groups confronted each other. Each side was armed, with knives, axes and rocks. After a bit of talking the fight erupted when the deceased charged with a bushknife at the leader of the offenders' group, Paul Gambu Laore, threatening to cut him. The principal offender Vincent Matana Laore came to Paul's assistance, struggled with the deceased, wrestled the knife from him, then cut him on his legs. He cut him so severely that he almost severed the deceased's right leg, which the post-mortem report revealed was left hanging by a 4 cm flap of skin. Vincent also inflicted a deep wound on the deceased's right leg. The leg wounds caused heavy blood loss, which was the cause of death. Vincent was found to have directly killed the deceased. The three other offenders, Paul Makele Laore, Lawrence Lumbolumbo Mulage and Peter Baluae Mulage, indirectly killed the deceased by inflicting serious head, neck and chest injuries.

2. The offenders and eight others ("the Bali 12") were charged with wilful murder and pleaded not guilty. A trial was held over nine days in November 2007. In the verdict, I found that three of the 12 were not present at the incident. Of the nine present, five were acquitted and the four now before the court were convicted. They were found not guilty of wilful murder and not guilty of murder. Their defences of self-defence, aiding in self-defence and extraordinary emergency were rejected. Their killing of the deceased was found to be unlawful and therefore they were each convicted of manslaughter. Further details of the circumstances in which the offence was committed are set out in the written judgment on verdict (The State v Paul Gambu Laore and 11 Others (2007) N5026).

ANTECEDENTS

3. None of the offenders has any prior convictions.

ALLOCUTUS

4. I administered the allocutus, ie each offender was given the opportunity to say what matters the Court should take into account when deciding on punishment. A paraphrased summary of their responses follows:

Vincent Matana Laore: I apologise to God, the Court and the relatives of the deceased. I ask for mercy. I accept that the Court has found me guilty. I ask the Court to consider my individual circumstances. I am a teacher at Ruango primary school. I am responsible for 37 students in Grade 4 of the ages around 13/14 years. I ask the Court to recognise what I am able to do to contribute to the community. I want to use my knowledge to help serve the community and at the same time serve my sentence outside prison. I am also looking after my old mother who is living with us at Ruango. I had 11 co-accused and I was looking after most of them while we were on bail. Therefore I ask for mercy of the Court so that I may be allowed to look after my family and serve the community.

Paul Makele Laore: I apologise before God for what has happened and I apologise to this Court and law. I ask the Court to consider my individual circumstances. I have six children to care for and they are all attending Siki primary school. I therefore ask for mercy and ask that I be allowed to serve my sentence outside prison so I can look after my family.

Lawrence Lumbolumbo Mulage: I ask for mercy from the Court and from God. I ask that the Court consider me for probation and a suspended sentence. I had been attending court for 3 years now to deal with this case. My parents are old and are with me at Ruango. I am unemployed and I ask the court for mercy. Please put me on probation so I can look after my parents.

Peter Baluae Mulage: I want to ask for mercy from God and from this Court. The Court has found me guilty and I ask the Court to have mercy on me. I want to be able to look after my parents and to do that I will need to serve my sentence outside the jail.

PRE-SENTENCE REPORTS

5. I received pre-sentence reports from the Community Corrections and Rehabilitation Service. All the offenders come from Bali and have been living at Ruango, near Kimbe, since they were granted bail in 2005. They all have a good record in the community apart from this offence. All are recommended for probation and none is considered a threat to the community. 

6. Vincent Matana Laore is aged 27 and single. He was educated to Grade 12 at Kerevat National High School in 2000. He has a diploma in teaching from Holy Trinity Teachers College, Mt Hagen. He has been working as a teacher at Ruango Primary School. 

7. Paul Makele Laore is aged 33 and is married with six children. He is educated to Grade 6 at Panata Community School, Bali Island. He was employed as a crew member of MV Kathleen for two years until 2005. He is well regarded in the community in which he now lives. 

8. Lawrence Lumbolumbo Mulage is aged 26 and single. He has no formal education and has never been formerly employed. While he has been living at Ruango he has made money from fishing and he helps people clean their blocks and they pay him cash in return. He is well regarded in the community in which he has recently been living. 

9. Peter Baluae Mulage is aged 29 and is married with one child. He was educated to Grade 6 at Panata Community School. He has never been formally employed. He personally has no regular source of income. He is well regarded in the community in which he has been living. The pre-sentence reports show that there has been no payment of compensation to the deceased's relatives and no reconciliation with them.

SUBMISSIONS BY DEFENCE COUNSEL

10. Mr Awalua submitted that the case fell within the second category of the Manu Kovi guidelines and therefore the starting point should be in the range of 13 to 16 years. He submitted however the sentences should be lower than that – say 10 years for Vincent Matana Laore and 7 years for each of the three others – because of the strength of the mitigating factors. It was a group fight and the attack on the deceased could not be regarded as vicious. The offenders co-operated with the police: they have expressed remorse and they are willing to pay compensation. The death of the deceased was not expected. It was unintentional and if the deceased had been taken quickly to the hospital his life could have been saved. There was no pre-meditation involved.

SUBMISSIONS BY THE STATE

11. Mr Ai agreed that the case fell within the second category of the Manu Kovi guidelines but submitted that there was no case for sentencing at a lower range within that category (13 to 16 years). He submitted that the principal offender should get 14 years and the other three should be sentenced to 12 years imprisonment each.

DECISION MAKING PROCESS

12. 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 other sentences have been imposed for similar offences?
•	step 4: what should the head sentence be?
•	step 5: should the pre-sentence periods in custody be deducted?
•	step 6: should all or part of the sentences be suspended?

STEP 1: WHAT IS THE MAXIMUM PENALTY?

13. The maximum penalty for manslaughter, under Section 302 of the Criminal Code is life imprisonment. The National 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?

14. 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 the following table.

SENTENCING GUIDELINES FOR MANSLAUGHTER

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	

15. The present case has both mitigating and aggravating factors present and death was caused by an offensive weapon. It therefore falls within category No 2 of Manu Kovi, which gives rise to a starting point of 13 to 16 years.

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

16. Before I fix a sentence, I will consider other manslaughter sentences I have imposed.

SENTENCES FOR MANSLAUGHTER

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
	
16	The State v Isaac Ulul CR 203/2007, 16.10.07, Madang	Guilty plea – domestic dispute – offender slashed his brother with a bushknife – strong de facto provocation.	10 years
	
17	The State v Eugene Bokoar CR 863/2007, 24.10.07, Buka	Guilty plea – offender, consuming alcohol with group of friends, fought with another group of men – offender hit deceased with stones, disabled him, pushed him into sea, causing him to drown.	12 years
	
18	The State v Charlice Lamete CR 870/2007, 26.10.07, Buka 	Guilty plea – the offender, a 19-year-old pregnant woman, allowed a friend to administer a drug used to induce child birth into her vagina, causing the child to be born prematurely, resulting in child's death soon after birth.	6 years
	
19	The State v Steven Ruben CR 843/2007, 22.02.08, Madang	Guilty plea – domestic dispute – offender had argument with his wife and threw two unripened paw paws at her, rupturing her spleen.	10 years
	
20	The State v Michael Jim Gorogoro CR 105/2008, 22.02.08, Madang	Guilty plea – domestic dispute – offender had argument with his wife – she ran away but he followed her and stabbed her once with a screwdriver, inflicting fatal wound.	13 years

STEP 4: WHAT IS THE HEAD SENTENCE?

17. I will determine a head sentence for each offender that takes account of their different degrees of involvement in the crime and their personal circumstances. I will first consider the principal offender, then the other three. This is consistent with the Supreme Court decision in Ignatius Pomaloh v The State (2006) SC834, which clarified that when sentencing co-offenders it is necessary to take account of their differing degrees of involvement, particularly in a manslaughter case in which one or more of the co-offenders has not directly killed the deceased. I will focus on the starting point range of 13 to 16 years and assess the mitigating and aggravating factors. The more mitigating factors there are, the more likely the head sentence will be below the starting point. The more aggravating factors present, the more likely the head sentence will be above the starting point. It is not, however, only the number of mitigating and aggravating factors that determines the head sentence. The strength or weight to be attached to each of those factors is more important.

Vincent Matana Laore 

Mitigating factors:

•	It was the deceased who started the fight, so there was an element of de facto provocation.
•	The offender co-operated with the police in their investigations.
•	The offender has co-operated with the courts and complied with his bail obligations.
•	He has a good record in the community and has been working as a teacher.
•	No prior convictions.
•	The offender has expressed remorse.

Aggravating factors:

•	The attack on the deceased did not consist of a single blow: he was cut repeatedly with the bushknife on his legs.
•	More than one person was involved.
•	Use of an offensive weapon, the bushknife.
•	It was a very vicious assault on the deceased, which almost resulted in one of his legs being cut off.
•	The offender played the major role in the attack on the deceased. He directly killed the deceased.
•	There has been no peace or reconciliation with the deceased's relatives and no payment of compensation.

18. After weighing all these factors, comparing this case with other manslaughter sentences I have imposed and bearing in mind that this was a trial (so there is no concession for a guilty plea) the head sentence should remain in the starting point range. I impose a head sentence of 15 years imprisonment.

Paul Makele Laore, Lawrence Lumbolumbo Mulage and Peter Baluae Mulage

19. These three had the same level of involvement in the crime, which was less than that of the principal offender. They have been found guilty of indirectly killing the deceased by inflicting serious head and neck injuries. Their personal circumstances are similar to those of the principal offender. They have displayed, like him, a high level of co-operation with the police and the court. I will impose a sentence of 12 years imprisonment each.

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

20. Yes. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from each head sentence, the whole of the pre-sentence period in custody, which is: Vincent Matana Laore – seven months; Paul Makele Laore – six months; Lawrence Lumbolumbo Mulage – eight months; Peter Baluae Mulage – seven months.

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

21. Because each offender has a good pre-sentence report and an exemplary record of co-operating with the police and the courts, I will suspend three years of each sentence on conditions. Upon release from custody the following conditions will apply:

1	must within seven days report to Probation Office in Kimbe;
2	must reside at a place to be nominated by the National Court and nowhere else except with the written approval of the National Court;
3	must not leave WNB without the written approval of the National Court;
4	must perform at least six hours unpaid community work in accordance with a program approved by the National Court;
5	must attend the Catholic Church every Sunday for service and worship and assist the church in its community activities under the supervision of the Parish Priest;
6	must report to the National Court at Kimbe every Monday between 9.00 am and 3.00 pm and sign the register;
7	must not consume alcohol or drugs;
8	must keep the peace and be of good behaviour;
9	must have a satisfactory probation report submitted to the National Court Registry at Kimbe every three months after the date of release from custody;
10	if the offender breaches any one or more of the above conditions, he shall be brought before the National Court to show cause why he should not be re-detained in custody to serve the rest of the sentence.

SENTENCE

22. Vincent Matana Laore, Paul Makele Laore, Lawrence Lumbolumbo Mulage and Peter Baluae Mulage, having been convicted of the crime of manslaughter, are sentenced as follows:

Calculation	1st offender:
Vincent Matana Laore	2nd offender:
Paul
Makele Laore	3rd offender: Lawrence Lumbolumbo Mulage	4th offender: Peter
Baluae
Mulage	
Length of sentence
Imposed	15 years	12 years	12 years	12 years	
Pre-sentence period deducted	7 months	6 months	8 months	7 months	
Resultant length of sentence to be served	14 years,
5 months	11 years,
6 months	11 years,
4 months	11 years,
6 months	
Amount of sentence suspended	3 years	3 years	3 years	3 years	
Time to be served in custody	11 years,
5 months, subject to compliance with conditions of suspended sentence	8 years,
6 months, subject to compliance with conditions of suspended sentence	8 years,
4 months, subject to compliance with conditions of suspended sentence	8 years,
6 months, 
subject to compliance with conditions of suspended sentence	

Sentenced accordingly.
_____________________________________________________
Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyers for the offenders