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State v Walieng [2009] PGNC 251; N3885 (26 June 2009)

N3885

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1341 of 2008

THE STATE

v

CHARLES WALIENG

Kimbe: Kandakasi, J.
2009: 3rd and 26th June

CRIMINAL LAW – Sentence – Manslaughter – Killing in domestic setting – Kicks and punches until deceased fell to ground – Death resulting from suffocation – de facto provocation - Guilty plea - First time offender – Prevalence of offence – Deterrent sentence called for – Sentence of 14 years imposed – Section 300 (1) of Criminal Code.

CRIMINAL LAW – PRACTICE & PROCEDURE – Sentencing guidelines and sentencing ranges – Unnecessary restriction on sentencing discretion – Trial judge has wide discretion – Discretion ought not to be unnecessarily fettered – Purpose of sentencing and facts of each case appropriate guide – Passed sentences also useful guide.

Cases Cited:

Manu Kovi v. The State (2005) SC789

Simon Kama v. The State(2004) SC740
The State v. Lawrence Matau (2007)
James Pangnan & Patrick Ponat v. The State SCRA 39 & 54 OF 2004
Sakarowa Koe v. The State (01/04/04) SC739
Anna Max Marangi v. The State (08/11/02) SC702
The State v. Robert Potou (2008) N3316
The State v. Elias Peter Wano Miva (2006) CR No. 448 of 2005
Thress Kumbamong v. The State (2008) SCRA 39 of 2007
Joe Giamur v. The State (2006) SC884

Counsel:

F. Popeu, for the State.
D. Akeya, for the Accused.

26th June, 2009

1. KANDAKASI J.: The Court found you guilty on a charge of manslaughter contrary to s. 302 of the Criminal Code. That was on your plea of guilty to the charge. Then through your lawyer, you asked for a sentence of 8 years. On the other hand, the State through its lawyer, argued for a sentence between 12 and 20 years. In support of their respective submissions, both counsel referred to and relied on the decision of the Supreme Court in Manu Kovi v. The State[1].

Relevant Issue

2. The issue for the Court to determine therefore is what is an appropriate sentence for you? A sub-issue to that is, whether the decision in Manu Kovi is the relevant and appropriate Supreme Court decision to go by in your case in determining the main issue?

Relevant Facts

3. As the many decisions of both the National and Supreme Courts have said repeatedly, your sentence must reflect the particular circumstances or the facts of your case. Put another way, the law requires the Court to impose a sentence that befits the crime. It is thus necessary to take into account the relevant facts.

4. So what are the relevant facts and circumstances in which you committed the offence? Some time between 10:00 and 11:00am on 04th August 2008, you were in your house at Faflo logging camp with your children. At that time, you heard your daughter who was with your then wife Priscilla, crying. That made you to go out of the house and find out that, her mother hit her. So you confronted your wife and the two of you ended up fighting each other. After that, you turned and were trying to go away when the deceased picked up a stone and hit you with it. That caused you to turn back and start kicking and punching her until she fell to the ground. Sometime soon thereafter, a boat took the deceased to the nearby health centre. Medical staff at the health centre pronounced the deceased dead on arrival. A medical report says the deceased died of suffocation.

Submissions

5. As noted, your learned counsel Mr. Akeya and learned counsel for the State, Mr. Popeu referred me to the Supreme Court decision in the Manu Kovi case to help determine an appropriate sentence for you. Mr. Popeu also referred the Court to two decisions of the National Court where the National Court imposed respective sentences of 12 and 13 years in cases of spleen deaths.

Consideration

6. As I have said in a number of cases already, I have difficulty following the decision in Manu Kovi, especially when it in effect further categorized homicide cases. As the Supreme Court I was a part of said in Simon Kama v. The State[2], Parliament had already categorized the different categories of homicide cases. The decision in Manu Kovi had no regard to what the Supreme Court said on that point in the Simon Kama case, before proceeding with its categorization. Additionally, Manu Kovi has effectively in my humble view, amended the provisions of Sections 299, 300 and 302 of the Criminal Code. This in my respectful view, is the case when the decision further categorizes murder and manslaughter cases, by suggesting categories where there exists preplanning and there is an intention to kill or do grievous bodily harm which are essential elements in willful murder and murder cases respectively.

7. Section 302 of the Criminal Code, being the provision under which you were charged, creates the offence of unlawful killing and prescribes its penalty of life imprisonment. But this is subject to the Court''s wide sentencing discretion under s. 19 also of the Criminal Code. In the exercise of that discretion, the Courts have imposed varying sentences.

8. As I have noted else where,[3] notwithstanding offenders being caught and dealt with accordingly to law, there are still too many killings. Given the prevalence of the offence, the Supreme Court has revisited some of its age old sentencing guidelines and have come up with new sentencing guidelines with increased ranges of sentences for offenders. The Supreme Court decision in James Pangnan & Patrick Ponat v. The State[4] traces that development and ended up with the decision of the Supreme Court in Manu Kovi''s case.

9. Prior to the decision in the Manu Kovi case, there were only three categories of manslaughter cases identified, with their suggested range of sentences. The then latest decision of the Supreme Court was its decision in Sakarowa Koe v. The State.[5] There, the court reviewed the categorization of unlawful killing cases and varied the Supreme Court''s earlier decision in Anna Max Marangi v. The State[6] in terms of increasing the suggested sentences in each category.

10. In The State v. Robert Potou[7], I reviewed the sentencing trend in manslaughter cases and concluded that, the decisions of the Supreme and National Courts show an increase in the kind of sentences imposed in manslaughter cases. I then observed that, the decision of the Supreme Court in the Manu Kovi case endorsed this trend and suggested four categories of manslaughter and recommended an increased range of sentences.

11. I then noted that, the first category is at the lower end of the scale for simple cases of manslaughter which does not involve any weapons, brutality or viciousness, pre-meditation and or planning and the offender pleads guilty. That should attract sentences between 8 to 12 years. The second category is for cases which involve an offensive weapon, some planning, viciousness or brutality and an intention to do harm. This category attracts sentences between 13 to 16 years, whether or not the offender pleads guilty. The third category is for cases which involve offensive weapons such as guns and axes, some planning, viciousness or brutality and an intention to do harm. This attracts sentences between 17 to 25 years, whether or not the offender pleads guilty. The fourth and final category is cases in which all of the aggravating elements missing under the first category and the other categories exist. This attracts life imprisonment, whether or not the offender pleads guilty.

12. At the same time, I expressed the view that, there was a serious flaw in the decision in the Manu Kovi case, in relation to the Courts further categorization of manslaughter cases, particularly in relation to the third and fourth categories. I gave some reasons for that view in a number of cases for example my decision in The State v. Elias Peter Wano Miva.[8] In those cases, I made the points I have earlier made in this judgment.

13. I now note that, there are two further reasons for my holding the view that Manu Kovi cannot be right. The first is this, the further categorization of homicide cases in Manu Kovi, has effectively restricted the National Court from freely exercising its sentencing discretion under s.19 of the Criminal Code. In other words, the sentencing guidelines with categorization of offences with their range of sentences have prevented or restricted the National Court from arriving at a sentence that best befits the crime, the circumstances giving rising to the commission of the offence and the way in which the offender committed the offence. The suggested sentencing ranges within the guidelines have caused the National Court to feel obliged to arrive at sentences within the ranges suggested by the guidelines. The ready grant of appeals by the Supreme Court against sentences departing from the suggested guidelines have strengthened the sense of the National Court being obliged to follow the guidelines and impose sentences within the sentences suggested by the guidelines.

14. Recently, the Supreme Court had occasion to review the setting of sentencing guidelines by the Courts. That was in the matter of Thress Kumbamong v. The State.[9] The Court carefully considered the issue in detail. It then concluded that, since Parliament has not provided for any fettering of the discretion vested in trial judges except to exercise it judicially in accordance with the law, the Courts should be careful not to prescribe or regiment the way in which sentencing judges should exercise their sentencing discretion in the particular circumstances of cases before them. It reasoned that, prescribing the way in which sentencing judges should exercise their discretion would have the effect of usurping the powers and functions of Parliament. Further the Court reasoned that, leaving the exercise of sentencing discretion to sentencing judges recognizes the need to determine a case on its own merits and that criminal sentencing is not a matter of mathematics or precise science but logic and common sense and what is considered fair and reasonable in a given set of circumstances. By reason of that, there may well be difference of opinions and the kinds of sentences imposed.

15. At the same time, the Supreme Court said it was within its power to provide guidelines as to what sort of factors a sentencing judge should take into account. But that does not mean that, the Court can set sentencing ranges or tariffs with minimums as ""starting points"" and maximums within the maximums already prescribed by Parliament. To do so would amount to the Court legislating as opposed to interpreting and applying the law. The Court reiterated and emphasized the point that, trial judges have and should be left with their wide discretion to impose such a sentence or penalty as they consider appropriate in the particular circumstances of each case unhindered by sentencing ranges or tariffs. That discretion can not be curtailed, restricted or interfered with except for very good reason say for example, where there is a total improper exercise of the discretion and going against any sense of logic and common sense and perceptions of justice and fairness. The Court further emphasized the point that, trial judges should be at liberty to impose sentences which might as well turn out to be either a ""quantum leap"" or ""too crushing"" for an offender which the circumstances in which the offence was committed and the factors for and against the offender might well warrant and dictate.

16. In the context of sentencing in manslaughter cases, I take this to mean that, the National Court need not be restricted in terms of the kind of sentence the Court can impose. Instead, the court should be at liberty to impose any sentence between zero and life imprisonment as long as the sentence to be imposed is aimed at serving one of the recognized purposes of criminal sentencing. The actual sentence should be dictated by the particular circumstances in which the offence was committed, the factors in aggravation and mitigation and the kind of sentences imposed in similar cases for consistency sake but to the exclusion of any so called sentencing range under some Court suggested category.

17. The second additional reason for my view that Manu Kovi cannot be right is this. The bringing into the Court''s further categorization of the manslaughter factors or elements which belong to willful murder and murder cases, makes it practically impossible to distinguish a murder case from a manslaughter case. That consequently makes it impossible to impose the maximum prescribed penalty of life imprisonment unless there exists some of the elements that make a case for willful murder or murder exist, such as vicious attacks, pre-meditation, arming and using of dangerous weapons with intent to either kill or cause bodily harm.

18. I think the best that can be done is to consider the kinds of sentences imposed in similar cases in the past and be guided by the sentencing trend. Regard ought also to be had to past sentences and their ability to meet any of the well known purposes of criminal sentencing, such as the most important one of deterring other would be offenders. As far as I am aware, there as been no meaningful research undertaken on the effects of criminal sentencing and the behaviour of our people and the impact that has on the social and economic life of our country. All that we have done to date is, proceeded only on assumptions. We have done so without the support of any real and hard evidence that the kind of sentences that have been imposed in the past, based on which sentencing ranges have been arrived at, have indeed served one of the important purposes of criminal sentencing. In my humble view, the kind of research being mentioned is long over due and we should immediately commission, if not, encourage such a research if we are to seriously prescribe sentencing ranges. Until we have such data or evidence at hand, we should allow the National Court to freely exercise its sentencing powers without being restraint by the so called guidelines set by the Supreme Court.

19. Going by what I have just suggested, I note that one of the most recent decisions of the Supreme Court on manslaughter is its decision in the case of Joe Giamur v. The State[10]. There the appellant killed his wife after returning home from a home brew drinking session. Whilst having his meal he quarreled with the deceased. That developed into a fight in which the appellant used his fists to fight the deceased. The deceased eventually gave up her last breath and passed away. She was then taken to the hospital but was pronounced dead on arrival. According to medical evidence, the deceased sustained bruises to her right elbow and face areas and died as a result of ruptured spleen due to trauma.

20. The National Court imposed a sentence of 7 years, part suspended. On appeal to the Supreme Court, the Supreme Court held that the sentence was low and increased the sentence to 14 years. The appellant, did have some good mitigating factors, namely, guilty plea, payment of compensation, first time offender and the deceased relatives caused some destruction to his and his relatives property. However, the Court was of the view that the appellant''s sentence should be increased because it was a case of repeated kicks and punches that led to the death of the deceased for no good reason.

Sentence in Your Case

21. In you case, the question is, whether your case warrants a sentence of up to 8 years or a term of years beyond that. This issue can be resolved by reference to the factors for and against you and your personal and family backgrounds. I find that, there are some factors in your favour and there are others against you.

Aggravating Factors

22. Starting with those against you, I note firstly that, you committed an offence that is prevalent. This makes it clear that the past sentences are not deterring other would be offenders from committing the offence.

23. Secondly, I note that the death was avoidable. You were so filled with your ego that you could not take a hit from a lady. The lady you fought with was not just another lady or any other person. She was the mother of your children and was the person who took care of all of your domestic chores. Simply put, there was no good cause for you to assault the deceased who was very close to you and your children in the way you did and cause her death.

24. Thirdly, you attacked the deceased two times. The first was when you heard your daughter crying and picked up an argument with the deceased which developed into a fight. The second time was after the deceased hit you with a stone and you retaliated. On both occasions it is clear that, you repeatedly kicked and punched the deceased until she fell to the ground. According to the medical report, the deceased died from suffocation. I am of the view that, your various kicks and punches of the deceased must have seriously affected her respiratory system causing her to suffocate. It is therefore clear to me that you applied much force repeatedly, causing the deceased to suffer much pain and eventually die.

25. Fourthly, by your conduct, you caused the death of your children''s mother. You might of course remarry after serving your time in prison for this offence. In that way, the children might have a step mother and minimize the effects of the loss of their mother. Nevertheless, they never ever will be able to have the connection with and growing up into adults with the care and attention that can only be given by a good biological mother. You have well and truly set in motion a serious growing up problem or risk for the children.

26. Finally what you have done is not only unlawful but is morally wrong and goes against the teachings of the Christian religion that you are part of and our country is built on. The Bible teaches against violence as a means of resolving any conflicts but a spirit of acceptance of abuse and even physical harm or danger and returning good for bad.

Mitigating Factors

27. Turning now to factors in your mitigation, I note firstly that, you pleaded guilty to the charge. That saved the State the trouble and extra costs that could have been expanded on securing the appearance of its witnesses to come and testify against you. You have maintained your admission of guilt from the day police arrested you, cooperated well with the police and have faithfully kept your bail conditions.

28. Secondly, you are a first time offender, meaning you have no prior conviction. The law usually allows for a lenient treatment of first time offenders compared to repeat offenders. This is by reason of their good prior record.

29. Thirdly, I note that you had no preplanning or premeditation to attack or kill the deceased. I also note in this context that, you were not armed and did not use any dangerous weapons to bring about the deceased death. It was simply a case of a domestic argument that developed into a fight resulting in the death of the deceased.

30. Fourthly, though it was your own doing, you lost a wife and your children, their mother. You will have to deal with and live with that fact and loss. Your children will suffer the consequences of having to do without their mother. You will however, have the opportunity of remarrying so losing you wife may only be temporary. We have already noted this is as a factor in aggravation. All that we have observed under your factors in aggravation applies here with the necessary modifications.

31. Finally, I note and take into account all that you have said in your allocatus and in particular your expression of remorse. You claim without the support of any evidence that you paid some compensation to the deceased relatives. But I am not too sure whether this is genuine or simply an expression aimed at persuading the court to deal with you more leniently. I have said in the past that, mere expression of remorse without anything tangible, be it customary compensation or a form of reconciliation means nothing and should not reduce ones penalty in any significant way.

32. Additionally, I take into account your personal back ground as you mentioned in your allocutus as well as your lawyer''s submission.

The Decision

33. Carefully weighing the factors for and against you, I note the factors against you far out weigh those in your favour. I consider your case comes closer to the Joe Giamur case. There, as we noted, the Supreme Court increased a National Court sentence of 7 years to 14 years also in a case of domestic killing. The difference between your case and that case, is the fact that the appellant in that case had acted under the influence of alcoholic substances. The only other factor that was present in that case was, the deceased people retaliated against the prisoner and his people.

34. The abovementioned features in the Joe Giamur case, did not affect the Court''s eventual decision on sentence. In the circumstances, I consider a sentence of 14 years appropriate. Out of that sentence, I order a deduction of the period of 8 months pretrial custody and 26 days pre-sentence custody. That leaves you with a balance of 13 years 3 months and 4 days yet to serve.

Suspension

35. I have given serious consideration to the issue of suspension of either the whole or part of the sentence raised in both your oral and in the written submissions. I have decided against suspension because, the offence is serious, it is prevalent and is promoting violence in the families and children earlier on in their young lives. It is a given fact of life that, violence will always produce violence unless the responsible parties resolve and get into a habit of resolving their conflicts through peaceful means. In your case, if the Court were to suspend any part of your sentence it would be giving the wrong signal to your children that, the Courts will exercise leniency toward fathers or mothers who kill the other. That will no doubt fail to achieve one of the aims or objectives of criminal sentencing, deterrence. Instead, there is the potential of increasing the number of would be offenders, if they know that they can get away easily from killing their wives or husbands.

37. The end result is that you are left to serve the balance of your sentence of 13 years 3 months and 4 days. I order that you serve that term in hard labour at the Lakiemata Correction Service, for which purpose, an appropriate warrant will issue forthwith.

____________________

The Public Prosecutor: Lawyers for the State.
The Public Solicitor: Lawyers for the Accused.

^[1] (2005) SC789

^[2] (2004) SC740
^[3] See for example The State v. Lawrence Matau (2007) N ???
^[4] SCRA 39 & 54 OF 2004, delivered on 30^th August 2006 at Kokopo, per Sevua, Kandakasi & Manuhu.
^[5] (01/04/04) SC739, per Sevua, Kandakasi &Lenalia JJ.
^[6] (08/11/02) SC702, per Jalina, Injia & Sawong J.
^[7] (2008) N3316.
^[8] (2006) CR No. 448 of 2005.
^[9] (2008) SCRA 39 of 2007, per Salika, Kandakasi & Yagi JJ.
^[10] (2006) SC884, per Sevua, Kandakasi and Gabi JJ