N4737

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No.813 of 2011

BETWEEN:

THE STATE

AND:

JACKSON KULDA PENG
Prisoner

Mt. Hagen: David, J
2012: 5 April & 11 & 27 July

CRIMINAL LAW – sentence – manslaughter – death caused during prosecution of an unlawful purpose, robbery - prisoner a juvenile aged seventeen years when offence committed - deceased stabbed by bayonet-like knife – deceased aged about thirty eight years – aggravating factors outnumber mitigating factors - sentence of thirteen years imprisonment in hard labour imposed – Criminal Code, Sections 19 and 302.

Cases cited:

Paulus Manadatititip & Anor. v The State (1978) PNGLR 128
Peter Naibiri & Kutoi Soti Apia v The State (1978) SC 137
Kuri Willie v The State (1987) PNGLR 298
The State v Rex Lialu (1988-89) PNGLR 499
Antap Yala v The State (1996), SCR 69 of 1996, Unnumbered & Unreported Judgment delivered on 31 May 1996 (Amet CJ, Salika & Injia, JJ)
Jack Tanga v The State (1999) SC602
Sakarowa Koe v The State (2004) SC738
Manu Kovi v The State (2005) SC789
The State v Tou Aitsi No.2 (2008) N3296

Counsel:
Joe Kessan and Philip Tengdui, for the State
Philip L. Kapi, for the prisoner

SENTENCE

27th July, 2012

1.	DAVID, J: On Thursday, 5 April 2012, I convicted the prisoner, Jackson Kulda Peng on a plea of guilty to a charge of unlawful killing, also known as manslaughter, committed against the deceased, Kenneth Kande Kuru, an adult national male on Monday, 30 August 2010 at Kagamuga, Mt. Hagen in Western Highlands Province contrary to Section 302 of the Criminal Code. 

2.	The prisoner appears before me today for sentence from custody. 

3.	For the purpose of arraignment, Senior State Prosecutor, Mr. Kessan presented the following short facts of the case to the Court. On 30 August 2010 at around 3:00 o'clock in the afternoon, the prisoner was at the junction of the Okuk Highway on the road leading to Kagamuga in the company of a friend. The deceased, Kenneth Kande Kuru was with his wife walking from Tega to visit a friend at HATI. As the deceased and his wife walked past the prisoner and his friend, they immediately followed them and the prisoner grabbed the bag the deceased was carrying in an attempt to rob him. In the struggle that followed, the prisoner pulled out a bayonet-like knife from his side and stabbed the deceased in the left region of his abdomen. The deceased was rushed to the Mt. Hagen General Hospital, but died due to heavy loss of blood. The prisoner was apprehended by villagers at Kagamuga and brought to the Police Station where he was formally arrested and charged with homicide. 

4.	The undated witness statements of Barbara Kenneth, the widow of the deceased, Joyce Thomas, Dianne Maki, and Sarah Bulda all of whom are eye witnesses to the homicide on the afternoon of Monday 30 August 2010 and the Record of Interview conducted between Senior Constable Bram Moea and the prisoner on 2 September 2010 at the Mt. Hagen Police Station corroborated by First Constable Michael Badu confirm that the prisoner stabbed the deceased on the abdomen region once with a knife he had drawn from his waist. The Record of Interview contains admissions. Three photographs of the murder weapon, a sharp bayonet-like knife measuring 30 cm in length and 3 cm wide identified as photographs 1, 2 and 3 form part of the depositions. 

5.	The affidavit of Doctor Michael Dokup, Director Medical Services of the Mt. Hagen General Hospital sworn on 12 October 2010 annexed to which is the Post Mortem Report dated 30 August 2010 and the Medical Certificate of Death dated 12 October 2010 constitute the medical report. The medical report confirms the admission of the deceased to the Mt. Hagen General Hospital on 30 August 2010 after being stabbed, the nature and extent of the injury the deceased sustained from the stabbing and the cause of death. A 13 cm x 4 cm stab wound was inflicted on the deceased's left groin severing major vessels resulting in acute blood loss. That led to cardio respiratory arrest triggered by hypovolaemic shock. 

6.	The only issue for me to consider and determine is what is the appropriate sentence for the prisoner?

7.	The prisoner was given the opportunity to address the court. He said sorry to the deceased and his relatives, his own family for giving them the burden caused by his criminal conduct and the Court for taking time to hear his case. He begged for mercy.

8.	Following the administration of the allocutus, the prisoner requested through his lawyer for a pre-sentence report to be provided by the Probation Service here and for a deferral of submissions on sentence pending the filing of the report. I granted the application and directed that the report be filed by 9:30 am on 12 April 2012. The report was furnished by the Probation Service as directed, but submissions on sentence could not be heard as scheduled due to my being called to help out in Waigani for the balance of the April 2012 circuit. Circuit arrangements thereafter for myself and lawyers for the parties have not made it possible for me to hear submissions on sentence until this circuit.

9.	The prisoner has no prior convictions.

10.	The prisoner committed the offence when he was aged about 17 years so he would be aged about 19 years now: see Question/Answer 10, Record of Interview. The deceased was about 38 years old when he died. The prisoner is from Pentlame village, Kagamuga, Hagen Central in the Western Highlands Province. Until the incident, he was residing with his parents at his village. His parents are both alive. He is the third born in the family and single. He has 8 other siblings, 5 brothers and 3 sisters. He is a baptized member of the Evangelical Lutheran Church. He completed Grade 6 at the Kagamuga Primary School in 2006. At the time of the incident he was unemployed, but living a subsistence farming life. He has been in custody since committing the offence on 30 August 2010 and that works out to be about 1 year and 11 months.

11.	In mitigation of the offence, it was submitted by the defence that; first, the prisoner co-operated with the police in their investigations; second, he admitted committing the offence at the earliest opportunity; third, he pleaded guilty; fourth, he expressed or demonstrated remorse; fifth, he was a youthful offender, being a juvenile when he committed the offence; sixth, this was an unplanned and isolated case; seventh, he was a first offender; and eighth, compensation comprising K54,600.00 in cash, 56 pigs and a cow was paid to the deceased's relatives. 	 

12.	Mr. Kapi for the prisoner submitted that a sentence be considered within the range recommended by the Supreme Court for manslaughter cases in the second category of the sentencing guidelines in Manu Kovi v The State (2005) SC 789 which recommended a sentencing range of 13 to 16 years. A sentence between 10 to 13 years was appropriate in the circumstances of this case counsel said.

13.	Mr. Tengdui of counsel for the State highlighted the aggravating features of the offence as these; first, a bayonet-like knife was used; second, the deceased was stabbed in the abdomen; third, there was some pre-planning demonstrated by the prisoner being armed with the bayonet-like knife; fourth, this was a vicious and unprovoked attack; and the offence was committed in the prosecution of an unlawful purpose namely, robbery. 

14.	Mr. Tengdui concurred with the prisoner that the present case has both factors in mitigation and aggravation and death was caused by an offensive weapon so it fell within the second category of the sentencing guidelines in Manu Kovi. These only operate as a guide and should not be an impediment to the exercise of a trial judge's sentencing discretion to impose an appropriate sentence within the range prescribed by the maximum penalty taking into account the peculiar circumstances of a case counsel said. Counsel referred me to Antap Yala v The State (1996), SCR 69 of 1996, Unnumbered & Unreported Judgment delivered on 31 May 1996 (Amet CJ, Salika & Injia, JJ), Jack Tanga v The State (1999) SC602, Sakarowa Koe v The State (2004) SC738 and The State v Tou Aitsi No.2 (2008) N3296 in support of the proposition. 

15.	Counsel submitted that the facts of the present case warranted a charge of murder, but plea-bargaining resulted in the prisoner being charged for the lesser serious charge of manslaughter hence drastically reducing the kind of penalty he might have received if he were charged with murder. Counsel further submitted that whilst payment of customary compensation operated as an important or special mitigating factor, under no circumstance should it be a substitute to penalty. He also contended that there exist no exceptional circumstances to warrant a further reduction of sentence. He therefore urged the Court to impose a head sentence at the top end of the range suggested in the second category of 16 years. 

16.	I have considered the submissions of counsel. 

17.	Section 302 of the Criminal Code creates the offence of manslaughter and prescribes the penalty for the offence. The maximum penalty is life imprisonment subject to the Court's discretion to impose a lesser sentence under the various options available to the Court under Section 19 of the Code.

18.	As correctly referred to by counsel, the sentencing guidelines for manslaughter convictions are set out in Manu Kovi. They are reproduced below.

MANSLAUGHTER

CATEGORY 1 	 8 – 12 years	
Plea: No weapon used. Victim emotional under stress and de-facto provocation e.g. killings in domestic setting. Killing follows immediately after argument. Little or no preparation. Minimal force used. Victim with pre-existing diseases which caused or accelerated death e.g. enlarged spleen cases. 
	
CATEGORY 2	13 – 16 years	

Trial or Plea: Using offensive weapon, such as knife on vulnerable parts of body. Vicious attack. Multiple injuries. Some deliberate intention to harm. Pre-planning. 

CATEGORY 3	17 – 25 years	

Trial or plea:	Dangerous weapons used e.g. gun or axe. Vicious and planned attack. Deliberate intention to harm. Little or no regard for safety of human life.

CATEGORY 4	LIFE IMPRISONMENT	

Trial or Plea:	Some element of viciousness and brutality. Some pre-planning and premeditation. Killing of innocent, harmless person. Complete disregard for human life.

19.	I concur with the parties that the present case falls under category 2 of the Manu Kovi guidelines. I will now consider a sentence within the range recommended there which I will ascertain shortly after considering the factors in mitigation against those in aggravation.

20.	I find that the factors which mitigate the offence in the present case are these. First, the prisoner pleaded guilty therefore saving the Court time and resources to conduct a trial to determine his guilt. Second, the prisoner is a first offender. Third, until committing the offence, the prisoner had a good background. Fourth, the prisoner co-operated with the police during their investigations by making an early admission whereby he accepted criminal responsibility for his action and he maintained that stance culminating in him pleading guilty. Fifth, he pleaded guilty. Sixth, the prisoner is an unsophisticated subsistence villager with little formal education. Seventh, there was no intention to kill the deceased. Eighth, substantial amount of compensation was paid to the relatives of the deceased. It amounts to a special factor in mitigation: see The State v Rex Lialu (1988-89) PNGLR 499 and Manu Kovi. Ninth, the prisoner has expressed genuine remorse. Tenth, the prisoner is a youthful offender because at the time of committing the offence, he was aged not less than 7 years and less than 18 years as defined by Section 2 of the Juvenile Courts Act, 1991. Eleventh, there was one stab wound.

21.	I find that the factors which aggravate the offence in the present case are that; first, a bayonet-like knife was used; second, the deceased was stabbed in the abdomen, a vulnerable part of the body; third, there was some pre-planning involved demonstrated by the prisoner being armed with the bayonet-like knife, but not necessarily to harm the deceased specifically; fourth, this was a vicious attack as is confirmed by the details of the injuries inflicted on the deceased in the medical report; fifth, this was an unprovoked attack; sixth, there was some deliberate intention to harm the deceased; seventh, the deceased was unarmed and defenceless; eighth, there was no regard for human life and the deceased died through no fault of his; ninth, the offence was committed in the prosecution of an unlawful purpose namely, robbery; tenth, the prisoner did not give himself up; eleventh, the prisoner was in the company of another person; and twelfth, the seriousness and prevalence of the offence. 

22.	I have not been able to find any reported or unreported manslaughter cases associated with the commission of an unlawful purpose such as robbery applying the guidelines suggested in Manu Kovi in this jurisdiction. It will suffice for these purposes therefore that I apply the guidelines in Manu Kovi particularly the second category to the peculiar circumstances of the present case as I have alluded to already. The factors in aggravation slightly outnumber those in mitigation. I will consider a sentence in the lower range of the second category. Accordingly, I sentence the prisoner to 13 years imprisonment in hard labour less 1 year and 11 months he has served on remand while waiting to be tried and sentenced. That will leave him 11 years and 1 month to serve.
 
23.	Should I suspend all or part of the remaining term given the seriousness of the offence, age of the prisoner when he committed the offence and the circumstances in which the offence was committed?

24.	The pre-sentence report which I have considered recommends a custodial sentence.

25.	Youthfulness of an offender is usually treated as a strong mitigating factor. However, the Supreme Court has said that youthfulness cannot continue to be a mitigating factor in serious cases like wilful murder, rape, armed robbery and the like. Instead, strong deterrent sentences need to be imposed where the offence is prevalent and youthful offenders should not receive special treatment unless there are exceptional circumstances which warrant leniency: Paulus Manadatititip & Anor. v The State (1978) PNGLR 128; Peter Naibiri & Kutoi Soti Apia v The State (1978) SC 137. In Kuri Willie v The State (1987) PNGLR 298, Hinchliffe, J said that where youthful first offenders are to be sentenced, the court should treat imprisonment as a last resort and should investigate alternatives to imprisonment before sentencing.

26.	The prisoner is no longer a juvenile. He has committed a serious offence which is prevalent throughout the country. I find no exceptional circumstances which warrant my exercising the discretion vested in me by Section 19 of the Code for a suspension of any part of the sentence. I concur with the Probation Service's recommendation for a custodial sentence.

27.	The prisoner will serve the remaining term of 11 years and 1 month at the Baisu Correctional Institution subject to early discharge brought about by any remission of his sentence or the need for relocation done pursuant to the provisions of the Correctional Service Act. 

28.	A warrant shall issue forthwith to give effect to this sentence.
Sentenced accordingly.

_________________________________________

P. Kaluwin, Public Prosecutor: Lawyer for the State 
F. Pitpit, Public Solicitor: Lawyer for the Prisoner