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State v Dickson [2011] PGNC 199; N4539 (15 December 2011)

N4539

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1589 OF 2005

THE STATE

-V-

AMOS DICKSON

Kimbe: Kawi J
2011: 14th & 15th December

CRIMINAL LAW - sentence- accused indicted with wilful murder under section 299(1)- found guilty instead of alternative charge of manslaughter under section 539(1)- Criminal liability arose by virtue section 287 of the criminal code. Principles of sentencing in Manslaughter cases discussed - Breach of duty of care imposed by section 287 - Conduct must be described as "culpable, gross, wicked clear and complete" - Accused in charge of dangerous things placed under a duty to take reasonable precautions and reasonable care for the life, safety and welfare of those under his care - Categories of Sentencing guidelines in Sakarowe Koe and Anna Max Marangi considered - Additional sentencing guidelines considered.

Brief facts

The accused was indicted with one count of wilful murder of his biological father pursuant to section 299(1) of the Criminal Code. The prisoner had an argument with his father. Tired and obviously angry of his continuous bagging, the prisoner went to a house where he kept his home made firearm for safekeeping. He loaded the homemade firearm with a live cartridge and walked to where his father was hoping that the presence of him carrying a loaded firearm would act as a deterrent and prevent his father from bagging him again. He was walking away from the scene of the argument when unknown to him, his father followed him. As he turned around to check who was following him, his hand touched the trigger of the firearm which was cocked to the firing position beforehand. The touch triggered the firing pin which in turn fired a shot killing the father instantly. During submissions, the State conceded that the charge of wilful murder could not be sustained owing to the lack of evidence to establish intention. The Court subsequently found that an alternative charge of manslaughter was available to charge the accused pursuant to Section 539(1). The prisoner who was in charge of a dangerous thing had a duty to take reasonable care and precaution to ensure that the lives of those in his care are not unnecessarily endangered. Such duty was placed upon the prisoner by section 287 of the Criminal Code. The Court found that by discharging the firearm in the way he did the offender breached the duty of care imposed by section 287.Consequently the offender was found guilty and convicted of manslaughter under section 302 of the Criminal Code. On sentence:

HELD: (1) When sentencing an offender charged with manslaughter whose criminal liability arises by virtue of a breach of the duty imposed by section 287, the following are additional sentencing guidelines suggested:

• What is the degree of reasonable duty of care and precaution employed by the offender to avoid any danger/s that lay ahead of them may arise?
  
• What is the degree of negligence shown by the offender?
  
• Can the degree of negligence be described as "culpable, wicked gross, clear and complete", reckless disregard for the safety, life and welfare of others.
  
• Did the deceased have any opportunity to withdraw or extricate himself or herself from the situation of the offender?
  
• Did the prisoner foresee the likelihood or possibility of death or serious bodily injury occurring from his actions to either do something required of him or a failure to do anything required of him?
  

(2) It is clear the circumstances that the offender was placed in, demonstrated a deliberate intention to kill his father.
By arming himself with a homemade firearm and walking to the scene of the argument, the offender had already begun to execute that intention to kill.

(3) In the circumstances the offender would be sentenced according to the third sentencing guideline in Sakarowe Koe. Taking into account the full circumstances of the events leading up to the death of the deceased, the offender is imposed a jail term of twenty one years in hard labour,

Cases cited:

Rex Lialu-v- The State [1990] PNGLR 417
Wellington Belawa –v-The State [1988-89] PNGLR 478
Billy Kauwa –v-The State [1994] PNGLR 487
Anna /max Marangi-v- The State [2002]SC 702
Sakarowe Koe –v- The State [2004] SC 719

Counsel:

Mr L.Rangan, for the State
Mr P. Mokae, for the Accused

DECISION ON SENTENCE

13th September, 2011

1. KAWI, J: The accused pleaded not guilty on arraignment to an indictment charging him with one count of wilful murder contrary to section 299(1) of the Criminal Code. At the close of the case, the prosecution conceded that on the strength of the overall evidence as it is, a charge for wilful murder proffered under section 299(1) cannot be sustained. It was subsequently submitted that pursuant to section 539(1) the accused should be found guilty of the alternative count of either murder or manslaughter pursuant to section 3539(1) of the Criminal Code. In my judgement on verdict I found the accused guilty of manslaughter under section 302 of the Criminal Code. This is now my judgement on sentence.

2. THE ISSUE

2. The sole issue for consideration is what the kind of penalty that I should impose for involuntary manslaughter.

3. In this sentencing process, I consider and take into account the following principles which will guide me in how I exercise my sentencing discretion. This is in recognition that sentencing is not a mathematical science guided by fixed scientific formulas. Rather sentencing is a discretionary process guided by some well known principles of law which will be discussed below.

3. THE PRINCIPLES OF SENTENCING.

4. I will consider and apply the following principles of law in computing an appropriate penalty to impose upon the prisoner.

a) I will take into account mitigating factors operating in favour of the prisoner and aggravating factors which operate against the prisoner. Some mitigating factors may be strongly mitigating while others may be only mildly mitigating. The same is true for aggravating factors.

b) Another principle to be applied is that in this jurisdiction it is trite law that the maximum prescribed sentence will be reserved for crimes described as falling into the cases described as belonging to the worst category of cases or the offender described as the worst offender. In the present case I cannot describe this case as belonging to the worst category of cases nor the prisoner a worst offender. The circumstances of this case can be best described as simply reckless disregard for the sanctity of human life. Therefore in my view the maximum punishment prescribed by legislation for this kind of offences cannot in my view be imposed upon the offender. But this does not mean that this offence is less serious than other homicide offences.
c) I will also take into account the statement of the offender made in allocutus.
d) I will also take into account sentencing tariffs from other similar cases decided by the National court or the Supreme Court on appeal.
d) Then I will consider submissions by both counsels before reaching a decision on sentence.

4. MITIGATING AND AGGRAVATING FACTORS

5. Factors which I found operate in favor of the prisoner are the following:

• The prisoner is a first time offender.
  
• The offender is married with a young wife and has a child. The offender is a first time offender. This is his first time to appear in Court. The State did confirm this fact when it did not allege any prior convictions when the prisoner's antecedent report was presented.
  
• The prisoner did offer his apologies to his own family for the way he terminated the life of his father. He also apologized to the court, the community and Almighty God for the cardinal sin he committed. Having made this apology he specifically pleaded for the Court to have mercy on him when sentencing him.
  

6. Factors which I find to be operating against the offender are the following:

• He pleaded not guilty to the charge and so the Court had to spend some time and resources conducting his trial to determine his guilt.
  
• Following an argument the prisoner manifested an intention to kill, by going to where he kept his homemade firearm, loaded it and carried it to his father's house.
  
• A dangerous and lethal weapon was used to kill his father, an unlicensed firearm was used.
  
• At the time of death the firearm used by the offender was illegally manufactured and an unlicensed firearm.
  
• By arming himself with an illegal and an unlicensed firearm the accused clearly demonstrated a vicious intention to kill.
  
• There is a prevalence of homicide offences of this type here in the West New Britain Province. Whether this is voluntary or involuntary manslaughter is not significant.
  
• The circumstances leading to the commission of this crime was one which can aptly be described as "complete and reckless disregard for the life, welfare and safety of the deceased."
  

7. Some of the mitigating factors are mildly mitigating while others are strongly mitigating. The same is true for aggravating factors. But when I balance these factors individually against each other, I find that aggravating factors tip the scale heavily in their favour.

5. ALLOCUTUS STATEMENT.

8. When the allocutus was administered the prisoner apologized to his own family for mercilessly taking the life of their father, the community at large and to the Almighty God for his actions.
He then begged the Court for mercy and leniency when exercising its sentencing discretion. He specifically asked the court to consider the welfare of his only son whose custody is now placed in the care of his mother (grandmother of the child). With him facing a possible jail sentence, his old mother will face difficulties looking after his son.

6. SUBMISSIONS OF COUNSEL.

9. Mr Mokae for the offender submitted the offender is not entirely responsible for the incident which caused this death. He submitted that this was a simple accident. Based on this he submitted that taking into account all the mitigating factors a sentence at the lower end of the scale in the first category of Manu Kovi would suffice. This is a sentence in the range of 8 to 11 years. He made the alternative submission that a manslaughter charge in which criminal responsibility arose by virtue of the breach of the duty placed by section 287 of the Criminal Code is not very serious when compared to other degrees of homicide like wilful murder or murder. Thus the sentence here should be fully suspended.

10. Mr Rangan for the State in reply submitted that the epithet best used to describe this case and the conduct of the offender is a reckless and blatant disregard for the welfare, safety and sanctity of life of the deceased. This alone renders this category of homicide as being very serious warranting a sentence in the second category of the range in the Supreme Court decision of Manu Kovi.

7. SENTENCING TARIFFS IN MANSLAUGHTER CASES.

11. Judges often refer to a starting point when they are determining a sentence. By that they mean a reference point. Usually a good reference point is a sentence in a previous case, against which the case being dealt with can be assessed. For instance, in misappropriation cases a convenient starting point for judges has always been the case of Wellington Belawa – v- The State [1988-89] PNGLR 478.

12. Depending on the circumstances of the case, judges then adjust the sentence upwards or down wards. The judge assess whether the case being dealt with is more, or less serious than the starting point case. If it is to what extent is it more serious or less serious? In the present case both counsels were very helpful in their respectful submissions and cited me some decisions in similar cases which will help me to compute an appropriate sentence for you. Various decisions of both the National and Supreme Courts were referred to by Counsels during submissions as making an attempt to define and classify a sentencing range for manslaughter cases.

13. The case of Rex Lialu-v- The State [1990] PNGLR 417 tried to define sentencing guidelines and factors to be taken into account when computing an appropriate sentence. The Supreme Court in that case stated that careful regard must be had to the circumstances of the death and the way the death was caused. It then listed a number of factors to be considered. These are:

(a) The nature and frequency of the attack;

(b) Whether the injury which caused the death was directly from an attack or assault or was caused by for example falling on an object?

(c) Whether the injury was caused by a person or weapon?

(d) Whether this was a deliberate intention to harm?

(e) Whether there was provocation in a non legal sense?

(f) Whether the deceased had a thin or thick skull or an enlarged spleen?

14. To the above one more factor was proposed in the case of Billy Kauwa –v-The State [1994] PNGLR 487. Injia (AJ as he then was) held that the degree of premeditation would be applied.

15. Some twelve years later the Supreme Court had the occasion to deal with and review these guidelines in the case of Anna Max Marangi –v- The State [2002] SC 702.The Supreme Court comprising Jalina, Injia and Sawong JJ laid down three broad categories under which manslaughter cases can be classified for purposes of determining a head sentence. The three categories are as follows:

(a) The first category relates to cases which come in the lower end of the range. These cases involve application of force in an uncalculated manner such as a single blow, punch, or kick on any part of the deceased's body. For instance a single or multiple kick or punch causing a rupture of the spleen. This kind of killing attracts a sentence between three (3) and seven (7) years. Cases where the deceased has pre-existing disease, which accelerated or contributed to the death such as enlarged spleen are treated as less serious than the death of a normal person and they attract sentences in the lower end of this scale.

(b) The second category relates to cases which fall in the middle part of this range. These cases involve repeated application of vicious force with or without the use of an instrument or weapon such as repeated kicks or punches applied to the head or chest with deliberate intention to wound or cause bodily harm. Unintentional killing which come under this category, attracts sentences between eight (8) and twelve (12) years.

(c ) The third category relates to cases which fall in the top end of this range. These cases involve application of direct force in a calculated manner on the body using weapons such as knife, bush knife or an axe thereby inflicting serious injuries such as piercing vital organs of the body. Death caused by chopping the neck, legs and arms with an axe or bush knife are examples of this kind of killing. These kind of killing attracts sentences between thirteen (13) and sixteen (16) years.

16. These sentencing guidelines were again the subject of a further review in another Supreme Court decision in the case of Sakarowe Koe-v- The State [ 2004] SC 739. The Court in that case was dealing with a case of unlawful killing where the offender had pleaded guilty. It stated that manslaughter cases have been prevalent and past sentences have not deterred would be offenders. Specifically it made this comment:

"What is clear to us though is that it (referring to the case of Anna Max Marangi) acknowledges that the offence of manslaughter is prevalent and past sentences have not served any deterrence. Hence we are of the view that sentences should increase a bit to serve that purpose. Proceeding on that basis we suggest that the sentencing tariffs be in the terms of seven (7) to twelve (12) years in the first category, thirteen (13) to seventeen (17) years in the second category, and eighteen (18) years to life imprisonment in the third category.

17. After suggesting these tariffs, the Supreme Court went ahead and made these further comments:

"Of course the National Court should be at liberty to progressively increase the tariffs if there is no decline in the number of unlawful killings. At the same time the National Court has to impose a sentence less than what we have recommended

in exceptional cases where very good mitigating factors exists but certainly not as a matter of course".

18. Looking at the sentencing guidelines set out in the cases of Rex Lialu, Anna Max Marangi and Sakarowe Koe, I am of the view that the circumstances of this case would not fall easily and neatly into any of those categories suggested in the cases referred to. I would impose my own sentencing guidelines when sentencing an offender whose criminal liability arises by virtue of a serious breach of the duty of care imposed by section 287 of the Criminal Code. The guidelines I suggest are:

• What is the degree of reasonable care and precaution employed by the offender to avoid any danger/s that lay ahead of them?
  
• What is the degree of negligence shown by the offender?
  
• Can the degree of negligence be described as culpable, gross, clear and complete, reckless disregard for the safety, life and welfare of others.
  
• Did the deceased have any opportunity to withdraw or extricate himself or herself from the situation of the offender?
  
• Did the prisoner foresee the likelihood or possibility of death or serious bodily injury occurring from his actions to either do something required of him or a failure to do anything required of him?
  

19. A positive answer to any one or more of the questions posed shows a very high degree of negligence involved. When sentencing an offender whose liability arose by virtue of the breach under section 287, in cases where the degree of negligence is gross, then the first category suggested in Sakarowe Koe should be used as a sentencing guide. On the other hand if the degree of negligence is very high as in the circumstances of the present case, then the sentencing pattern should follow the third category. I find the presence of the following in this case:

• The death arose directly as a result of an attack.
  
• Secondly the death was caused by the use of a weapon, namely a firearm.
  
• This weapon was an illegal and an unlicensed firearm.
  
• Thirdly I find that there was a deliberate and wilful intention to harm.
  
• Fourthly I find that there was a very high degree, of deliberate pre-meditation.
  
• Fifthly there was a direct application of vicious force resulting in death occurring from the use of dangerous lethal weapon.
  
• There was a very high degree of negligence shown by the behavior of the offender.
  
• Sixth there was a strong presence of de facto provocation arising as a result of the behavior of the deceased.
  

20. The heavy presence of these factors in the present case shows clearly that it falls in the third category of Anna Max Marangi and Sakarowe Koe.

Going by those guidelines I would impose a jail term of 21 years to be served in prison. Taking into account the de facto provocative behavior of the deceased, I would reduce that sentence by three years leaving a balance of eighteen (18) years which I order is to be served by the prisoner at the Lakiemata jail outside Kimbe. I will further order that all pre trial custody period served while awaiting the trial of this case be deducted from the head sentence. Finally I order that any monies spent on account of bail are be fully refunded.
__________________________________________________________________

Public Prosecutor: Lawyer for the State
Paraka Lawyers: Lawyer for the Prisoner