N3872

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1670 of 2006

THE STATE

-V-

NOBERT WINDU

Kimbe: Kandakasi, J.
2009: 3rd & 29th June

CRIMINAL LAW – Sentence – Manslaughter – Shooting deceased with stone on leg causing deceased to fall on the ground – Prisoner picking up an iron pipe and hitting deceased – Death after few days of hospital admission and treatment – Prisoner acting under de factor provocation - Guilty plea - First time offender – Prevalence of offence – Sentence of 12 years imposed – Section 302) of Criminal Code

Cases Cited:

Sakarowa Koe v. The State (2005) SC739
The State v Joe Butema Arua (2001) N2076
The State v. Lawrence Matau (2007) N3865
James Pangnan & Patrick Ponat v. The State SCRA 39 & 54 OF 2004
The State v Manu Kovi (2005) SC789
Anna Max Marangi v. The State (2002) SC702
The State v Charles Walieng, 26th June 2009 (Yet to be numbered)
The State v. Robert Potou (2008) N3316
The State v. Elias Peter Wano Miva (2006) CR No. 448 of 2005
Simon Kama v. The State (2004) SC740
Thress Kumbamong v. The State (2008) SCRA 39 of 2007
Joe Giamur v. The State (2006) SC884

Counsel:

F. Popeu, for the State
T. Gene, for the Prisoner

29th June, 2009

1.	KANDAKASI J.: On your guilty plea, the Court found you guilty on a charge of manslaughter contrary to s. 302 of the Criminal Code. Then through your lawyer, with the endorsement of the State's lawyer, you submitted that, a sentence between 13 and 17 years is appropriate in the particular circumstances of your case. In support of their respective submissions, both counsel referred to and relied on the decision of the Supreme Court in Sakarowa Koe v. The State (2005) SC739.

Relevant Issue

2.	The issue for the Court to determine therefore is, what is an appropriate sentence for you? 

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? Sometime before 16th July 2003, a Kelly Jacob of Kerema origin, who is now deceased came to your parent's premises and tried to abduct your sister. This happened when your father was not home and you were about 17 years old and did not know what to do. When your father returned home from work, you reported the incident and your father called for a mediation with the deceased to resolve his attempted abduction. The deceased however, refused to turn up for mediation. You therefore, went looking for him. On 16th July 2003 at about 11:30am, you found the deceased sitting at a friend's boy house, reading a newspaper. 

5.	On seeing the deceased, you took a stone and short at the deceased. The stone landed on the deceased right leg, causing him to fall to the ground. When he was on the ground, you took an iron pipe and hit the deceased once on his head. Thereafter, you left the deceased and others rushed him to the Kimbe General Hospital. The Hospital had him admitted and had him treated. Unfortunately, medical science and treatment were not able to prevent the deceased from developing complications and eventually die on 19th July 2003. 

6.	You got news of the passing away of the deceased and voluntarily surrendered to the police. Police had you arrested and remanded you in custody for 6 months until the Court granted you cash bail. You breached your bail conditions which resulted in the issuance of a bench warrant and the police re-arrested you on 11th December 2008. You have been in custody since then for about 6 more months. 

Submissions

7.	As noted, your learned counsel Mr. Gene and learned counsel for the State, Mr. Popeu, referred me to the Supreme Court decision in the Sakarowa Koe to help determine an appropriate sentence for you. Your lawyer also drew the Court's attention to my decision in the matter of The State v Joe Butema Arua (2001) N2076 to support his submission for a sentence in the range of 13 to 17 years. 

Consideration

8.	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. 

9.	As I have noted elsewhere, notwithstanding offenders being caught and dealt with according 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 traces that development and ended up with the decision of the Supreme Court in The State v Manu Kovi's (2005) SC 789.

10.	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. 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 in terms of increasing the suggested sentences in each category. As I recently, said in the case of the State v Charles Walieng (26th June 2009) yet to be numbered)

11.	In The State v. Robert Potou, 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. 

12.	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-mediation 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.

13.	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 Court's 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. In those cases, I made the point that, Parliament had already provided for categories of homicide cases depending on the intention of the offender with their penalty prescribed and it was not within the Court's power to again further classify the offence. That was in due recognition of the principles calling for the separation of powers between the judiciary and the legislature.

14.	I noted that, support for that view is provided by the decision of the Supreme Court in Simon Kama v. The State where the Court took a close look at the basis for the Court's further categorization of homicide cases and confirmed the view that, the Court should not further categorize homicide cases, for to do so would be entering into the sphere of legislating and hence usurp the powers of Parliament. The decision in Manu Kovi's case did not give any meaningful consideration to its earlier decision in the Simon Kama case, although it referred to that decision. 

15.	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. 

16.	Recently, the Supreme Court had occasion to review the sentencing guidelines. That was in the matter of Thress Kumbamong v. The State. 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 differences of opinions and the kinds of sentences imposed. 

17.	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 sentences or penalties they consider appropriate in the particular circumstances of each case, unhindered by sentencing ranges or tariffs. That discretion cannot 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. 

18.	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. 

19.	The second additional reason for my view that Manu Kovi cannot be right is this. By 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 in appropriate cases unless 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. 

20.	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 meeting 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 has been no meaningful research undertaken and on the effects of criminal sentencing in 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 so we can be guided by real date. Until we have such data or evidence at hand, we should allow the National Court to freely exercise its sentencing powers without being restrained by the so called guidelines set by the Supreme Court, without he support of real data or the relevant statitistics.

21.	Bearing in mind all of the above, 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 (2006) SC884,. 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. 

22.	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 it 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 lead to the death of the deceased for no good reason.

Sentence in Your Case

23.	In your case, the submission is for a sentence of 13 to 17 years. The question then is, what is an appropriate sentence either within or outside that range? This issue can be resolved by reference to the factors for and against you, which includes your personal and family backgrounds. 

Personal and Family Backgrounds

24.	Turning firstly, to your personal and family background, I note that you are now 22 years old but was 17 years old at the time of the commission of the offence. You are the second born in a family of 8 children. Both of your parents are alive, with your father having retired as a fireman with the PNG Fire Services. 

25.	Education wise, you were doing grade 10 at Kimbe Secondary and was a follower of the Seventh-Day Adventist faith. However, following grant of bail, you went to Wewak in breach of your bail conditions and become involved with Asia Pacific Harvest Ministry College in Maprik. You graduated into a teacher in the ministry and were teaching for 10 months as a teacher in charge at a Christian Academy in Nuku, Sandaun Province.

26.	In your allocutus, you said sorry for the death you have caused and pointed out that, you and your family tried to make good the damage you unintentionally caused by paying K2,000 in compensation, arranging and meeting the costs of transporting the deceased body to his home province. Further, you said, you surrendered to police as soon as you received word of the deceased passing away in the hospital. Finally, you concluded with expressing concern over your educational opportunity. 	

Aggravating Factors

27.	There are number of factors for and against you. I now turn to a consideration of the factors for and against you. I note that, you committed an offence that is prevalent. This fact makes it clear that, the past sentences are not deterring other would be offenders from committing the offence. There is far too many violence in our homes and in out streets. There is a ready resort to violence to resolve conflicts. Only a few are looking for peaceful means of resolving human conflicts or difficulties. A strong deterrent sentence is thus called for.

28.	Secondly, I note that, the death in this case was avoidable. Whist I appreciate that the deceased failed to turn up to resolve the problem he created, it could not and did not give you any course to become violent and take the deceased life. I note with interest that you were a Christian which religion teaches that, we should all be slow to anger and if someone hits you on one side, give him the other side for him to hit also. What you did not only went against the laws of our country but it also went against your Christian faith. 

29.	Thirdly, you attacked the deceased two times. The first was when you hit the deceased with a stone on his leg which caused him to fall onto ground. Thereafter you took a piece of iron pipe (which I note was a dangerous weapon), and hit the deceased on the head. This reveals signs of having an intention to cause the deceased death if not serious bodily harm. When this is viewed with the fact that you had been looking for him following the deceased failure to turn up for mediation, it shows a case of some preplanning and executing the plan. This constitutes additional factors against you.

Mitigating Factors

30.	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 and you cooperated well with the save only for your jumping bail but doing good up to the point of your re-arrested. 

31.	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.

32.	Thirdly, I note that, you had no preplanning or premeditation to attack or kill the deceased in so far as the facts the State put to you during your arraignment are concerned. I also note in this context that, you were not armed with any dangerous weapons such as a bush knife or an axe or a gun to cause the deceased death. 

33.	Fourthly, I note and accept that your expression of remorse was genuine. This is evidenced and confirmed by the fact of your freely surrendering to the police on the passing away of the deceased, paying compensation and arranging for the deceased body to be sent to his home province.

34.	Finally, I note that, you had some de factor provocation. The deceased had come to your parents' premises and tried to abduct your sister. Your family arranged for the matter to be resolved through mediation but the deceased refused to attend the mediation process, thereby frustrating a quicker and peaceful resolution of the problem he created. That caused you to do what you did.

The Decision

35.	Carefully weighing the factors for and against you, I note the factors against you slightly outweigh those in your favour. I consider your case comes closer to the Joe Giamur case. There, as we noted, the Supreme Court increase a National Court sentence of 7 years to 14 years in a case of domestic killing. The only difference between your case and that case, is the fact that the appellant had acted under the influence of alcoholic substances and only kick and punched and caused the deceased spleen to rapture. In your case, you used a stone and a piece of iron which were dangerous objects or weapons. Comparatively therefore, your case is worse than that of in the Joe Giamur case. 

36.	In the circumstances, you should receive a sentence that is higher than 14 years. However, given your age at the time of the offence, the fact that you had de factor provocation, and that you have shown genuine remorse coupled with the payment of compensation, I consider a sentence of 12 years appropriate. Accordingly, I impose a sentence of 12 years against you. Of that, the period of about 1 year you have already spent in custody is deducted. This leaves you with the balance of 11 years to serve in hard labour at the Lakeamata Correction Services. A warrant of commitment in those terms shall issue forthwith.
_____________________________________________________________

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