N4353

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NOS 1431, 1433 & 1434 OF 2010

THE STATE

V

BENJAMIN TOWARI, ROBIN TOWARI & SELMON TOWARI

Madang: Cannings J
2011: 21 June, 4, 11 August

CRIMINAL LAW – sentencing – manslaughter, Criminal Code, Section 302 – guilty pleas – village dispute, group attack on victim – use of bushknife to inflict multiple wounds – markedly different degrees of involvement.

Three brothers pleaded guilty to the manslaughter of a fellow villager. It was a vicious attack with a bushknife. Only one of the three directly attacked the deceased, the other two assisted by chasing him and stood by while their brother inflicted multiple knife wounds on the victim.

Held:

(1)	The starting point for sentencing for this sort of manslaughter is 16 to 20 years imprisonment.

(2)	Mitigating factors: guilty pleas, no prior convictions, good community records.

(3)	Aggravating factors: group attack on one victim; it was a vicious, savage attack and assault.

(4)	The sentences must reflect the differing degrees of involvement. As only one of the offenders directly killed the deceased, he received the heaviest sentence: 15 years imprisonment. The degree of involvement of the other two was similar and much less than that of the principal offender, warranting sentences of 8 years imprisonment each.

(5)	The pre-sentence periods in custody were deducted but there was no suspension of any parts of the sentences.

Cases cited

The following cases are cited in the judgment:

Ignatius Pomaloh v The State (2006) SC834
Manu Kovi v The State (2005) SC789
The State v Mark Kanupio & 4 Others (2005) N2800
The State v Melchior Kapus, Essau Kapus & Derick Kapus (2010) N4114
The State v Vincent Matana Laore and 3 Others CR No 915 of 2005, 24.04.08
The State v Robert Potou (2008) N3316

SENTENCE

This was a judgment on sentence for three offenders who pleaded guilty to manslaughter.

Counsel

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

11 August, 2011

1. CANNINGS J: This is a decision on sentence for three brothers, Benjamin Towari, Robin Towari and Selmon Towari, who pleaded guilty to the manslaughter of a fellow villager, Joseph Aisor, in an incident on the afternoon of 28 June 2010 at Saramun village in the Bogia District, Madang Province. The trouble started earlier in the day when there was a dispute over access to water between the offenders' father, Peter Towari, and the deceased's brother, Nick Aisor. Those two argued but eventually things calmed down and Peter left the scene, leaving Nick at the place where the argument had taken place. Soon afterwards the three Towari brothers arrived on the scene. They were armed. They chased Nick Aisor and one of them – Selmon – cut him three times with a bushknife before he escaped. Upon returning to the place of the first argument the Towari brothers found Nick's elder brother, the deceased, Joseph Aisor. They chased him too, caught up with him, surrounded him and again Selmon Towari was the most aggressive member of the group. He inflicted multiple wounds on Joseph Aisor, on various parts of his body, including the head, which caused his death soon afterwards. Benjamin and Robin did not cut the deceased.

2. Each of the offenders had originally pleaded not guilty to wilful murder. However, after the trial had proceeded for three days and the court refused a no-case submission, they applied for leave to vacate their original pleas. Leave was granted, they were re-arraigned on the lesser charge of manslaughter and pleaded guilty.

ANTECEDENTS

3. None of the offenders has any prior convictions.

ALLOCUTUS

4. The offenders were each given the opportunity to address the court.

Benjamin Towari: I apologise to the court and to God for breaking the country's law and God's laws. I apologise to the police and to the lawyers for the time spent on my case. I apologise to the deceased and his family. This is my first time in court. I am not a criminal in the community. I have never done anything like this before. I am involved in community and sporting activities. I am president of our local business group and am involved in training for cocoa growers. While I have been in custody a lot of my property has been damaged or destroyed so I do not know how I will live when I come out of jail.

Robin Towari: I apologise to the court and to the Judge and the police and to the lawyers for the time spent on my case. I apologise to the deceased and his family. I am a first time offender. This problem arose because the deceased and his family had previously made threats against Selmon. Benjamin and I heard Nick arguing with Selmon so we ran in to assist Selmon. Then the deceased got involved and tried to cut Selmon. I did not cut the deceased but it is true that I was present. I am heavily involved in community activities. Our houses and other property have been destroyed while we have been in custody.

Selmon Towari: I apologise to the court and to God for breaking the country's law and God's laws. I apologise to the police and to the lawyers for the time spent on my case. I apologise to the deceased and his family. I apologise for bringing a bad name to my family in the village. This is my first time in court. I am not a criminal in the community. I have never done anything like this before. I am very active in the community. I am involved in our local business group and am involved in training for cocoa growers. There was an incident in November 2009 in which the deceased and his family destroyed some of our crops and burned a kitchen house. While I have been in custody a lot of my property has been damaged or destroyed so I do not know how I will live when I come out of jail. I ask for mercy. Please give me probation.

OTHER MATTERS OF FACT

5. As the offenders pleaded guilty they 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 Benjamin and Robin did not directly attack or assault the deceased and that a previous dispute between the offenders and the deceased's relatives provided some impetus for the incident. It is also accepted (especially as there is verification of the claim in an affidavit by the local ward councillor) that the offenders' houses and other properties were damaged or destroyed in reprisal attacks after the death.

PRE-SENTENCE REPORTS

6. I received a pre-sentence report from the Community Corrections and Rehabilitation Service. All the offenders are from Saramun village and they have lived in the village all their lives. Benjamin, aged 25, and Selmon, aged 20, are biological brothers, while Robin, aged 20, is their cousin-brother. They are all single. They have been to school: Benjamin (grade 8), Robin (grade 9) and Selmon (grade 7). They have no formal employment record and none of them wish to leave the village. They earn income from the sale of cash crops and are able to sustain themselves that way. They all are involved in community activities and do not have a bad reputation in the community. They are members of the Catholic Church. Their health is sound. Their relatives have attempted reconciliation and mediation with the deceased's relatives, without success. The deceased's relatives told the author of the pre-sentence report that they want no mercy shown to the offenders. They do not want to see the offenders given non-custodial sentences. The report concludes that there is still tension in the village over what happened. They are not recommended for probation.

SUBMISSIONS BY DEFENCE COUNSEL

7. Mr Joseph submitted that a sentence of 13 or 14 years would be appropriate for the principal offender, Selmon, and that the other two should receive significantly lesser terms in view of the minor roles they played. He submitted that this is in line with category 2 of the guidelines on sentencing in the leading case Manu Kovi v The State (2005) SC789. The court should take into account as a mitigating factor that the offenders have already suffered because of the damage and destruction done to their crops and properties after the incident. Verification of this is provided in an affidavit of Cyril Tapper, Ward 32 Councillor, Alami LLG. He referred to the decision of Kandakasi J in The State v Robert Potou (2008) N3316 in arguing that the court should avoid engaging in double punishment.

SUBMISSIONS BY THE STATE

8. Mr Collins did not take issue with the categorisation of the case under the Kovi guidelines. He pointed out, however, that it was a particularly serious incident, involving weapons, planning and a group attack on one man. The court should not put weight on the offenders' claims in allocutus that the deceased did anything to provoke the attack. It was unprovoked. It was a violent and protracted assault on an entirely innocent person. Mr Collins submitted that although Benjamin and Robin were not the principal offenders, they were closely involved in that they joined in the chase of the deceased's brother, and then in the chase of the deceased. They actively aided and assisted Selmon in his killing of the deceased. He submitted that a sentence of at least 16 years imprisonment should be imposed on Selmon and for the other two, sentences of 12 to 14 years would be appropriate.

DECISION MAKING PROCESS

9. 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?

10. Section 302 (manslaughter) of the Criminal Code states:

A person who unlawfully kills another under such circumstances as not to constitute wilful murder, murder or infanticide is guilty of manslaughter.

Penalty: Subject to Section 19, imprisonment for life.

11. The maximum penalty is therefore life imprisonment. The 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?

12. 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	

13. The present case has both mitigating and aggravating factors and death was caused by an offensive weapon. I agree with counsel that it falls within category No 2, so the starting point is 13 to 16 years.

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

14. There are several aspects of this case that make it similar to a West New Britain case I dealt with, The State v Vincent Matana Laore and 3 Others CR No 915 of 2005, 24.04.08: multiple offenders (four), convicted of manslaughter after a trial in which they and a number of others (eight) had been charged with wilful murder, it was a group fight, the deceased was a relative who was directly killed with a lethal weapon (bushknife) by one of the offenders and indirectly killed by the others. I took into account the different degrees of involvement of the offenders in accordance with the Supreme Court decision in Ignatius Pomaloh v The State (2006) SC834 and imposed a sentence of 15 years on the principal offender and 12 years each on the other three.

15. Another relevant West New Britain case is The State v Mark Kanupio & 4 Others (2005) N2800. Election-related violence led to a mob attack on an innocent man, death was inflicted by knives, sticks and stones. The offenders pleaded guilty and they had markedly different degrees of involvement. The sentences were 15, 7, 4, 4 and 3 years.

16. A recent Madang case, The State v Melchior Kapus, Essau Kapus & Derick Kapus (2010) N4114, is also relevant. Three brothers, two of them juveniles, were convicted after trial of manslaughter of a 52-year old male relative. Two of the offenders inflicted fatal wounds to the deceased's head by using a tommyhawk and by punching him in the head. The other offender whipped the deceased with a rubber hose. The incident occurred in an urban settlement where they all lived. They were sentenced to 13 years imprisonment each.

STEP 4: WHAT IS THE HEAD SENTENCE?

17. To determine the head sentence for each offender I will focus on the starting point range of 13 to 16 years and assess the mitigating and aggravating factors. The more mitigating factors there are, the more likely the head sentence will be below the starting point. The more aggravating factors present, the more likely the head sentence will be above the starting point. It is not, however, only the number of mitigating and aggravating factors that determines the head sentence. The strength or weight to be attached to each of those factors is more important. The circumstances of the present case will also be compared to those in the cases referred to in the table.

18. Each offender must be sentenced in a way that reflects his degree of involvement in the crime and his personal circumstances but before looking at them individually there are some mitigating and aggravating factors that are common to each of them, which need to be noted.

19. Mitigating factors are:

•	they have pleaded guilty;
•	they have expressed remorse;
•	they have no prior convictions;
•	their crops and property have been damaged and destroyed in retaliation for the death;
•	they all have a good community record.

20. Aggravating factors are:

•	it was a group attack in that the three offenders chased the victim as a pack;
•	it was a vicious assault, causing multiple injuries.

21. After weighing all these factors and comparing this case with the precedent cases, I have decided that sentences in the range of eight to 15 years imprisonment are warranted.

22. Benjamin Towari did not assault the deceased but he took part in the chase and stood by as Selmon attacked him with a bushknife. His limited involvement in the death does not warrant a sentence as high as that sought by the State. The appropriate sentence is eight years imprisonment.

23. Robin Towari had a similar degree of involvement as Benjamin. He is younger than Benjamin but not significantly so and his personal circumstances are the same as Benjamin's. He deserves the same sentence, eight years.

24. Selmon Towari directly killed the deceased. It was a vicious assault with a lethal weapon. Comparing his actions with those of the principal offenders in the cases referred to earlier (Laore, Kanupio and Kapus), his case is no less serious than any of them. He deserves a sentence at the upper end of the available range: 15 years imprisonment.

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

25. 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 1 year, 1 month, 1 week, 4 days.

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

26. There might have been a case for partial suspension of the sentences if there were signs of reconciliation and forgiveness on the part of the deceased's relatives. But that is not so. There is still tension in the village and it is not appropriate to suspend any part of the sentences. The favourable aspects of the pre-sentence reports have already been taken into account in determining the head sentences.

SENTENCES

27. Benjamin Towari, Robin Towari and Selmon Towari, having each been convicted of one count of manslaughter contrary to Section 302 of the Criminal Code, are sentenced as follows:

No	Name	Total head sentence	Pre-sentence period deducted	Resultant length of sentence to be served	Amount 
of 
sentence suspended 	Time 
to be served in custody	Place 
of 
custody
(CI)	
1	Benjamin 
Towari	8 years	1 year, 
1 month, 
1 week, 
4 days	6 years, 
10 months, 
2 weeks, 
3 days	Nil	6 years, 
10 months, 
2 weeks, 
3 days	Beon	
2	Robin Towari	8 years	1 year, 
1 month, 
1 week, 
4 days	6 years, 
10 months, 
2 weeks, 
3 days	Nil	6 years, 
10 months, 
2 weeks, 
3 days	Beon	
3	Selmon Towari	15 years	1 year, 
1 month, 
1 week, 
4 days	13 years, 
10 months, 
2 weeks, 
3 days	Nil	13 years, 
10 months, 
2 weeks, 
3 days	Beon	

Sentenced accordingly.

_________________________

Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyers for the Offenders