N4292

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 588 OF 2009

THE STATE

V

SMITH BORUM

Madang: Cannings J
2011: 24 March, 31 May, 2 June

SENTENCE

CRIMINAL LAW – sentencing – manslaughter, Criminal Code, Section 302 – sentence after guilty plea – offender killed deceased by stabbing him on his leg during a group fight – sentence of 12 years.

The offender pleaded guilty to the manslaughter of a man who was the father of the man that wounded his (the offender's) father.

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)	There were a number of mitigating factors, including the guilty plea, the offender had no prior convictions, cooperated with the police and a high degree of de facto provocation.

(3)	A sentence of 12 years imprisonment was imposed. The pre-sentence period in custody was deducted and three years of the sentence was suspended.

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 Steven Lucas (2008) N3540
The State v Vincent Matana Laore and 3 Others CR No 915 of 2005, 24.04.08

SENTENCE

This was a judgment on sentence for manslaughter.

Counsel

S Collins, for the State
D Joseph, for the offender

2 June, 2011

1. CANNINGS J: This is a decision on sentence for a young Bogia man, Smith Borum, who has pleaded guilty to the manslaughter of Raphael Koyo, also of Bogia, Madang Province. The incident happened between 2 and 3 pm on 16 March 2008 at Base Camp, Bogia, where the offender retaliated in a group fight by stabbing the victim on his left thigh with an iron rod. The offender's father, Joe Borum, had earlier been stabbed by Francis Koyo (the son of the deceased, Mr Koyo). The offender has therefore engaged in a payback attack on the father of the man who stabbed his (the offender's) father.

2. These incidents were part of a series of fights that broke out between local villagers and persons coming from the Highlands to receive compensation from the local community for robberies of betel nut purchasers earlier in 2008. Police were at the compensation ceremony but were unable to stop the fighting, which led to the death of Raphael Koyo. Joe Borum died later from the stab wound inflicted on him by Francis Koyo.

3. The accused took part in a police interview on 16 June 2008. He admitted stabbing the deceased. He said he did it because during the fighting his father was stabbed in the leg by the deceased's son. So he wounded the deceased in the same way his father had been stabbed.

ANTECEDENTS

4. The offender has no prior convictions.

ALLOCUTUS

5. The offender was given the opportunity to address the court. He said:

The complainant [the son of the decease] caused this incident. He was drunk and stabbed my father, who later died. Then he went away and got his relatives and they all came and fought me. That is how the whole incident happened. The police have taken no action over the death of my father. The police have also not charged the complainant or his relatives for the destruction of my family's houses and other properties. Nine houses, two vehicles, crops and other property were destroyed. My wife and children now have no house to live in. I am the only person facing court for what happened.

OTHER MATTERS OF FACT

6. 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 the following matters:

•	this was a spontaneous, unplanned and one-off incident, something that was out of character for the offender to be involved in, and he did not cause the incident;

•	he reacted in the heat of the moment in retaliation for an attack on his father;

•	the offender made a number of admissions to the police when interviewed.

PRE-SENTENCE REPORT

7. The court was presented with a report prepared by the Madang office of the Community Based Corrections Service.

Personal details of Smith Borum

Age			:	28
Origin		:	Bogia, Madang Province
Upbringing		:	Base Camp, Bosmun, Bogia
Marital status	:	Married
Dependants		:	4 children
Family		:	6 brothers and one sister
Education		:	Grade 5
Employment	:	No formal employment
Occupation		:	Subsistence farmer
Health		:	Sound
Religion		:	Catholic

Other aspects of the offender's life

8. The offender has been a villager all his life. He is regarded as a humble member of the local community who has respect for the elders. The victim's family has indicated that there is a good prospect of reconciliation. They want to reach an agreement and would like to establish peace and harmony between the offender's family and themselves. Already some meetings are planned, initiated by the victim's family, to seek a peaceful resolution. The offender's family (particularly his mother and his wife) is quite supportive of him. His children need his paternal guidance at their tender age. The CBC report recommends a probation period of three years to allow for reconciliation.

SUBMISSIONS BY DEFENCE COUNSEL

9. Mr Joseph conceded that commission of the offence involved elements of viciousness and submitted that the circumstances of the case straddled categories 1 and 2 (the least serious categories) of the guidelines given by the Supreme Court in the case of Manu Kovi v The State (2005) SC789. Therefore the starting point should be in the range of 8 to 16 years.

10. He submitted that the sentence should be at the bottom of the range – eight years – because of the strength of the mitigating factors. There was a high degree of de facto provocation on the part of the deceased's son. If he had not returned with help after wounding his father, the incident would not have happened. The offender's rage – which was understandable – got the better of him and caused him to lose control. The offender has no previous convictions and he pleaded guilty. He has a favourable pre-sentence report, warranting a substantially suspended sentence, he submitted.

SUBMISSIONS BY THE STATE

11. Mr Collins, for the State, did not agree that the case fell within the least serious category of manslaughter cases. The case fell within the second category of the Manu Kovi guidelines as the offender had inflicted death by a lethal weapon and stabbed the deceased three times, and this showed a deliberate intention to injure the victim. Too much weight should not be given to the payment of compensation. A sentence of 15 years should be imposed, Mr Collins submitted.

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 period in custody be deducted?

•	step 6: should all or part of the sentence 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 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	

15. I agree with the prosecutor that the manner in which death was inflicted – a severe wound with an iron rod – prevent the case falling within the least serious category. There are both mitigating and aggravating factors and death was caused by an offensive weapon, so it falls within category No 2. The starting point is 13 to 16 years.

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

16. There are several aspects of this case that make it similar to a West New Britain case I dealt with, The State v Steven Lucas (2008) N3540. The offender, a 19-year-old man, pleaded guilty to the manslaughter of a young man at Gigo in Kimbe. The sequence of events that led to the death started at 10.00 am when a group of young men 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. The deceased 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 youths responsible, then a fight erupted. The offender saw the deceased run out with a gun so he stepped out from where he was hiding and fired a shot which struck the deceased in the lungs, killing him almost instantly. There were a number of mitigating factors: a high degree of de facto provocation, the offender surrendered to the police, he cooperated with police, compensation was paid, he pleaded guilty, he expressed some remorse, he was a first-time offender, he was a young offender, with a good community record. Aggravating factors were the use of a lethal weapon, the gun and that the offender took the law into his own hands. A sentence of ten years imprisonment was imposed.

STEP 4: WHAT IS THE HEAD SENTENCE?

17. I refer to the list of sentencing considerations set out in The State v Vincent Matana Laore and 3 Others CR No 915 of 2005, 24.04.08, and note the similarities between the present case and that of Steven Lucas.

18. The mitigating factors here are:

•	a high degree of de facto provocation;
•	it was a spontaneous incident, which occurred in the heat of passion;
•	the offender co-operated with the police;
•	he pleaded guilty;
•	he expressed some remorse;
•	he is a first-time offender;
•	he is a young man with a young family to raise;
•	he has a good community record.

19. Aggravating factors are that:

•	his attack on the deceased was vicious and savage (this is borne out vividly by the photos of the deceased's body, taken at Modilon General Hospital);
•	use of a lethal weapon, the iron rod;
•	the offender took the law into his own hands, thereby creating an environment for lawlessness.

20. In weighing all these factors I place great weight on the substantial provocation and the guilty plea and the fact that the offender co-operated with the police. I reject the defence counsel's submission that a sentence as low as eight years is warranted. That sort of sentence should be reserved for a case where an offender has inflicted a single sharp blow with a part of the body, such as a fist. After comparing this case with that of Steven Lucas, I consider a sentence below the starting point range is warranted. There are more weighty aggravating factors, however, than in Lucas's case. I impose a head sentence of 12 years imprisonment.

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

21. Yes. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the head sentence the pre-sentence period in custody. This has been difficult to determine as the offender broke bail and had to be re-apprehended on a bench warrant. I will allow one year.

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

22. 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 stabbing him with an iron rod in a savage and vicious attack. The court can appreciate why he was angry but to impose a fully suspended sentence can have the effect of devaluing human life. Payback killings must be discouraged as they offend against the fundamental values of justice and the Rule of Law that are entrenched in the Constitution. The offender must serve time in prison. After taking account of all those matters, it is appropriate to suspend three years of the sentence on the following conditions:

(1)	must within three days after release from custody report to the Probation Office in Madang;

(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 his home province 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 church every weekend for service and worship and assist the church in its community activities;

(6)	must not consume alcohol or drugs;

(7)	must keep the peace and be of good behaviour;

(8)	must have a satisfactory probation report submitted to the National Court Registry at Madang every six months after the date of release from custody;

(9)	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

23. Smith Borum, having been convicted of one count of manslaughter under Section 302 of the Criminal Code, is sentenced as follows:

Length of sentence imposed	12 years	
Pre-sentence period to be deducted	1 year	
Resultant length of sentence to be served	11 years	
Amount of sentence suspended	3 years	
Time to be served in custody	8 years	
Place of custody	Beon Correctional Institution	

Sentenced accordingly.

_________________________
Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyer for the offender