N3540
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 597 0F 2008

THE STATE

V

STEVEN LUCAS

Kimbe: Cannings J
2008: 18th August, 7th October, 11th December

CRIMINAL LAW – sentence – manslaughter – Criminal Code, Section 302 – guilty plea – offender fired shot at deceased with home-made gun, during group fight, killing him –– sentence of 10 years. 

A man pleaded guilty to manslaughter. He killed the deceased by shooting him with a home-made gun following a group fight. There was a strong element of de facto provocation as, prior to the incident, the deceased had invaded the offender’s home and assaulted his mother and raped his sister.

Held:

(1)	The starting point for sentencing for this sort of manslaughter (no offensive weapon) is 8 to 12 years imprisonment.

(2)	A sentence of 10 years was imposed. The pre-sentence period in custody was deducted and six years of the sentence was suspended with strict conditions to be applied owing to a good pre-sentence report.

Cases Cited

The following cases are cited in the judgment:

Manu Kovi v The State (2005) SC789
Saperus Yalibakut v The State (2006) SC890
The State v Daniel R Walus (2005) N2802
The State v Jacklyn Boni CR 786/2005, 08.09.05

SENTENCE

This was a judgment on sentence for manslaughter.

Counsel

F Popeu, for the State
J Yapao, for the Offender

11th December, 2008

1.      CANNINGS J: Steven Lucas, a 19-year-old man from the Kandrian area, WNB, has pleaded guilty to unlawfully killing Stanley Maleng at Gigo 2 in Kimbe on 1 January 2008. He must now be sentenced for committing the crime of manslaughter. The sequence of events that led to Stanley Maleng’s death started at about 10.00 am when a group of young men from a part of Gigo 2 called ‘Paradise’ chased a young man in the direction of where the offender was standing. They saw the offender and decided to chase him instead. They chased him up past his house. Then they went into the offender’s house and attacked his mother and his sister. Stanley Maleng was in this group. After they left, the offender went to his house and discovered that his mother had been injured and his sister raped. The offender looked for a gun. He found a popgun (a home-made gun) and a cartridge. Then, he went looking for the youths responsible for assaulting his mother and sister. He was joined by some friends and they located the Paradise youths, then a fight erupted. The offender saw Stanley Maleng run out with a gun, so he stepped out from where he was hiding, and fired a shot, which struck Stanley Maleng in the lungs, killing him almost instantly. 

ANTECEDENTS

2.     The offender has no prior convictions.

ALLOCUTUS

3.     The offender was given the opportunity to say what matters the court should take into account when deciding on punishment. He said:

This incident happened because of a fight between people from Simbu and people from Kainantu, Eastern Highlands. I had nothing to do with it. But Stanley’s boys were chasing someone and they saw me and thought I was with their enemies. So they chased me. I hid from them and they went into my house and cut my mother with a knife and raped my sister and they also set fire to the house. I got angry and gathered my uncles and we fought with them. Stanley had a gun so I fired a shot at him, which got him. Then Stanley’s people chased me again and burned down six of my uncles’ houses. 

I apologise to the court and to Stanley’s family. 

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 (2006) SC890). In that regard, I will take into account that:

•	he was not involved in the initial conflict that started the train of events leading to the death of Stanley Maleng;

•	his mother was assaulted and injured by the deceased’s group and his sister was raped in the same incident;

•	his house was burned down by the deceased’s group;

•	he made admissions to the Police; and

•	he surrendered to the police, with the assistance of community leaders. 

PRE-SENTENCE REPORT

5.     A pre-sentence report prepared by the Kimbe branch of the Community Based Corrections shows that Steven Lucas was raised at Gigo by his mother, after Steven’s father deserted the family some years ago. He has been educated to grade 6 and was planning to enter grade 7 this year but his education has been interrupted by this case and the time he has spent in remand. Steven has strong family support from his mother and sister, who do not want him to be sent to jail for a long period. His local ward member, Benny Fidelis, speaks highly of him. He is not a known troublemaker. Compensation has been paid to the deceased’s relatives. The report concludes that he is not a danger to the community and is suitable for probation. 

SUBMISSIONS BY DEFENCE COUNSEL

6.     Mr Yapao submitted that despite the use of a firearm, a moderate sentence, in the vicinity of 12 years imprisonment should be imposed. The death followed a group fight, the deceased was armed and there was substantial provocation. 

SUBMISSIONS BY THE STATE

7.     Mr Popeu suggested that this was a planned attack. Although it was a group fight, the offender was supported by others and time was taken to mobilise his uncles and others. There was time for the offender’s passion to cool – time for him to take a course of action other than taking the law into his own hands. A sentence of 17 years would be appropriate.

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.     Under Section 302 (manslaughter) of the Criminal Code the maximum penalty is life imprisonment. The court however has a discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code.

STEP 2: WHAT IS A PROPER STARTING POINT?

10.     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	

11.     In this case there are both mitigating and aggravating factors present and death was caused by an offensive weapon, the gun. The case falls within category 2. The starting point is therefore 13 to 16 years.

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

12.     Before I fix a sentence, I will consider other manslaughter sentences I have handed down recently in West New Britain. There have been about 15 such cases, most of them concerning deaths arising from domestic disputes. The sentences have ranged from 8 to 18 years imprisonment. In The State v Jacklyn Boni CR 786/2005, 08.09.05, a juvenile offender pleaded guilty to unlawfully killing her husband by hitting him with a stick, rupturing his spleen, following an argument over a small domestic matter. She was sentenced to eight years imprisonment. In The State v Daniel R Walus (2005) N2802 a young man pleaded guilty to punching and kicking the deceased, a female, a number of times, rupturing her spleen and killing her. He was sentenced to 18 years imprisonment. 

STEP 4: WHAT IS THE HEAD SENTENCE?

13.     Mitigating factors are:

•	substantial provocation, constituted by the attack on his mother, the rape of his sister and the burning down of his house;
•	the victim was armed;
•	the offender surrendered to the police;
•	cooperated with police;
•	some compensation paid;
•	pleaded guilty;
•	expressed some remorse;
•	first-time offender;
•	a young offender; 
•	a good community record and pre-sentence report.

14.     Aggravating factors are:

•	directly killed deceased;
•	use of a lethal weapon, the gun;
•	took the law into his own hands, thereby creating an environment for lawlessness. 

15.     In weighing all these factors I place great weight on the substantial provocation and the guilty plea and the fact that the offender surrendered to and co-operated with the police. After comparing this case to the other manslaughter cases I have dealt with, I consider a sentence below the starting point range is warranted, even below what was contended for by the defence counsel. I impose a head sentence of ten years imprisonment.

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

16.     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 11 months.

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

17.     The favourable pre-sentence report, showing that the offender is recommended for probation, means that there is a case for suspension of the sentence. But not all of it. Fully suspended sentences for homicide cases must be reserved for the most exceptional and unusual cases. The offender killed a man by shooting him with a gun and though the case has some unusual features, it was an unnecessary unlawful killing. I will suspend three years of the sentence, on the following conditions:

(a)	must reside at a place notified to the Probation Office and nowhere else except with the written approval of the National Court;
(b)	must not leave the Province in which he resides without the written approval of the National Court;
(c)	must perform at least six hours unpaid community work each week at a place notified to the Probation Office under the supervision of his Ward Councillor;
(d)	must attend his local Church every weekend for service and worship and submit to counselling;
(e)	must report to the Probation Office on the first Monday of each month between 9.00 am and 3.00 pm;
(f)	must not consume alcohol or drugs;
(g)	must keep the peace and be of good behaviour;
(h)	must have a satisfactory probation report submitted to the National Court Registry every three months after the date of sentence;
(i)	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 detained in custody to serve the rest of the sentence.

SENTENCE

18.     Steven Lucas, having been convicted of one count of manslaughter, is sentenced as follows:

Length of sentence imposed	10 years	
Pre-sentence period to be deducted	11 months	
Resultant length of sentence to be served	9 years, 1 month	
Amount of sentence suspended	3 years	
Time to be served in custody	6 years, 1 month	
Place of custody	Lakiemata Correctional Institution	

Sentenced accordingly.
_____________________________________________________________
Public Prosecutor: Lawyer for the State	
Paul Paraka Lawyers: Lawyers for the Offender