N4904

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 449 OF 2009

THE STATE

V

ANDREW JESSIE

Buka: Kawi, J
2010: 8th September

CRIMINAL LAW - Indictable Offence – homicide- manslaughter – Accused pleaded guilty to one- count of manslaughter-accused drunk and assaulted father- accused a high school student -spleen death cases- No strong intention to cause grievous bodily harm- ordinary killing – category one of Manu Kovi 

Cases cited

Manu Kovi v The State (2004) SC 789
Goli Golu v The State [1977] PNGLR563
Tiba Maima v The State [1972] PNGLR 49. 
Simon Kama v The State (2004) SC 740
Sap James Kumbapen v The State (2001) SCRA 14 of 2001, 
Jeffrey Harold Malepo v The State, Unreported Supreme Court Judgment dated 13th December 2000 
The State v Kiri Kirihau Hairsu (2006) N3168

Counsel:

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

Decision on Sentence

8th September, 2010

1. KAWI J: Andrew Jessie of Kuriru Village, Siwai in the Autonomous Region of Bougainville pleaded guilty to one count of unlawful killing contrary to Section 302 of the Criminal Code. 

FACTS 

2. On the 7th of October 2009, the accused, Andrew Jessie had been drinking alcohol. Between 8: 30 am and 9: 00 am, the accused went to a small trade store owned by a Thomas Komung. The accused had differences with Thomas Komung. When he went to the trade store he carried a small axe with him. At the trade store he saw Thomas Komung and swung the axe at Thomas Komung but missed him. The accused then entered the trade store and once inside the shop he did not see his father who had come up from behind him and grabbed him from the back. The father had to do this in anticipation of the accused causing more problems inside the store. His father grabbed and held his right hand and Thomas Komung grabbed the accused on his left hand. They pushed him out of the trade store but the accused tried to re-enter and come inside the store. They then struggled and in the process of struggling the accused elbowed his father. His father got up and sat on the verandah of the store. In the process of resting, the father collapsed and died there and then. Thomas Komung checked the deceased but he could not detect any pulse movements and it was confirmed that the deceased had passed on. A Medical Certificate of Death which was issued confirms the cause of death as being a heart trauma caused by the rupturing of the heart as a result of the elbowing of the deceased's chest by his son the accused. The State states that there was no intention on the part of the accused to kill his late father who was about 60 years at that time. 

THE CHARGE

3. The accused is indicted for one count of unlawful killing. This charge is proffered under section 302 of the Criminal Code. 

4. Section 302 of the Criminal Code reads:

s.302 Manslaughter 

(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. 

Mitigating Factors 

5. Your counsel, Mr Kaluwin has submitted that I consider and take into account the following factors in your favor when assessing your penalty: 

a) The struggle between the father and the son that morning was not a pre planned event. The elbowing of the deceased was unintentional.

b)	Young age of the Accused
The accused is a young man. He is in his mid twenties. At the time of this incident he was a student at the Buin Secondary school attending Grade 11.

Your counsel also raised your youthfulness as a factor to be taken into account. 

c)	The Accused Acted alone

Your counsel Mr Emmanuel submitted that you acted alone when you were struggling with your father. Thomas Komung was in fact helping your father to stop you from causing damage to his store when the incident happened.

d)	Cooperation With Police

It was submitted that the accused did not hide or try to evade police when he committed the offence. He did not resist arrest, but co-operated with police and made all the necessary admissions when the record of interview was conducted. 

e)	The Guilty Plea of the Accused

After making the necessary admissions to Police in the Record of Interview Statement, the accused formally pleaded guilty to the charge in court. He also made the same admissions in his Section 96 Statement and also during the Committal hearings.

f)	First Time Offender

The accused is a first time offender. He has no other criminal records and the State does not allege any prior convictions. He has no history of criminal violence. He is facing this charge for the first time ever.

g)	Expression of Remorse 

The accused expressed remorse during allocutus. He apologized by saying sorry to Almighty God, to the Court, to own family for the premature termination of his father's life. 

h) Absence of Strong Intention to Do Grievous Bodily Harm.

The Court is unable to make a finding that there was a presence of a strong intention to do grievous bodily harm on the part of the accused. Furthermore the force used was only minimal. 

Aggravating Factors 

6. These mitigating factors are aggravated by a number of aggravating factors: 

a)	The accused was quite drunk at the time of the alleged incident.

b)	Just before the incident the accused carried an axe that he was using to threaten Thomas Komung and other bystanders who were watching the incident. 

7. Sentencing is not an exact mathematical science. In considering an appropriate sentence, the court will always be guided by past sentencing guidelines and sentencing tariffs. An appropriate sentence that the court will impose eventually must reflect one or more of the objectives of sentencing, which is the rehabilitation of the prisoner, deterrence from committing the same or other criminal offences 

Sentencing Principles 

8. The maximum penalty for unintentional killing which is defined by legislation (ie Section 302 of the Criminal Code) is life imprisonment. Be that as it may, the Supreme Court has stated in no uncertain terms in a number of cases like Goli Golu v The State [1977] PNGLR 563 that the maximum penalty is to be reserved for those offenders categorized as the "worst time" offenders. This principle is now well settled. See also Tiba Maima v The State [1972] PNGLR 49. 

9. Whether a particular case will be categorized as belonging to the worst type or worst category of cases depends entirely on the facts and circumstances of a particular case. In Simbe v The State, [1994] PNGLR 38, the Supreme Court held that as a matter of practice, the court must decide each case on its own merits in arriving at an appropriate sentence.

10. Section 302 of the Criminal Code, while it imposes the penalty of life imprisonment as the maximum penalty, it made that penalty provision subject to Section19. Section 19 then vests the court with a wide range of discretionary powers that the court can exercise in considering the sentence to be imposed in a particular case. For instance Section 19 (a) vest in the court, the discretion to award a shorter term of imprisonment where a person is liable to life imprisonment and this would depend on the facts and circumstances of the particular case. 

11. In this case, when I balance the mitigating and aggravating factors operating in your favour and against you respectively I find that the mitigating factors operating in your favor far outweigh and tip the scale. 

12. The Supreme Court decision in the case of Manu Kovi –v- The State (2004) SC 789 per Injia DCJ, Lenalia and Lay JJ provides some very helpful sentencing guidelines or tariffs in homicide cases; viz wilful murder, murder and manslaughter. These guidelines are as follows:

Category 	Sentencing Range 	
Category 1
•	Plea
•	Ordinary cases
•	Mitigating factors with no aggravating factors 	12- 15 years 
•	No weapons used
•	Little or no planning 
•	Minimum force used
•	Absence of strong intention to do GBH	
Category 	Sentencing Range 	
Category 2
•	Trial or plea
•	Mitigating factors with aggravating factors 	16 – 20 years 
•	Strong intent to do GBH
•	Weapons used 
•	Some pre-planning 
•	Some elements of viciousness 

Category 	Sentencing Range 	
Category 3
•	Trial or plea
•	Special aggravating factors 
•	Mitigating factors reduced weight or rendered insignificantly by gravity of the offence	20 – 30 years 
•	Pre-planned –victim attack
•	Strong desire to do GBH
•	Dangerous or offensive weapons used; eg; gun or axe
•	Others offence of violence committed

	
Category 	Sentencing Range 	
Category 4
•	Trial or plea
•	Special aggravating factors or mitigating factors rendered completely insignificantly by gravity of offence	Life Imprisonment 
•	Pre-mediated attack
•	Brutal killing, in cold blood
•	Killing of innocent, harmless person 
•	Killing in the course of offence
•	Complete disregards for human life	

13. Another useful case where the Supreme Court (Sevua J, Kandakasi J and Lenalia J set down sentencing guidelines in murder case is in the case of Simon Kama v The State (2004) SC 740. That case set the following guidelines:

a)	where there is a guilty plea with no factors in aggravation, a sentencing of Twelve (12) to Sixteen (16) years; 

b)	where there is a guilty plea with aggravating factors other then the use of firearms and commission of another serious offence, a sentence between Seventeen (17) to Thirty (30) years. 

(c)	where there is a guilty plea with aggravating factors where there is use of firearms and such other dangerous weapons in the course of committing or attempting to commit another serious offence, a sentencing of Thirty one (31) years to life imprisonment. 

(d)	on a plea of not guilty, with no other aggravating factors a range of sentence from Seventeen (17) years to Twenty one (21) years. 

(e)	on a plea of not guilty, with aggravating factors other item the use of firearms and in the course of committing or attempting to commit another offence, a range of sentence from Twenty Two (22) years to forth (40) years. 

(f)	where there is a not guilty plea with aggravating factors where there is a use of firearms and or such other dangerous weapons and or in the course of committing or attempting to commit another offence, a sentence of Forty One year (41) to life imprisonment. 

14. The court also made it clear that a trial judge had the discretion to impose a sentence below these guidelines, where there exists a very good mitigating factor such as a very young person being persuaded by the others to commit the offence falling short of the defence of compulsion to commit the offence or for other very good reasons. 

15. In a number of murder cases which had been categorized as worst category case, the offenders were given the worst sentence category of life imprisonment. Examples of this kind of offence are Sap James Kumbapen v- The State (2001) SCRA 14 of 2001, Jeffrey Harold Malepo v The State Unreported Supreme Court Judgment dated 13th December 2000 and The State v Kiri Kirihau Hairsu (2006) N3168. 

Your Sentence

16. In determining your sentencing, I take into account the mitigating factors operating in your favor and the aggravating factors which operate to render completely insignificant and thereby reduce the weight of the mitigating factors. These factors are: 

(a)	This was a pre-meditated and planned killing.

(b)	Other offences were also committed leading up to the killing. This included assault of an innocent people, wilful destruction of properties, disturbing peace and order in the community.

(c)	 The properties owned by the deceased namely his trade store was destroyed and the store goods were vandalized and stolen.

(d)	The deceased was a serving clergyman. He was the serving Lutheran Church Pastor for the Tagup Circuit which comprise a number of villages including Bafor and Kilden village. 

17. Following the decision of the Supreme Court in Manu Kovi's case and Simon Kama's case, I will not categorize your case as belonging to the worst category, the murder here is one of a clergyman servicing the faithful of the Lutheran Church. By the categories outlined by Bredmeyer J in the Ure Hane case, this killing may well satisfy in category 8, but I will not venture that far to make that finding. Certainly this case does not auger well nor does it feature in the same category as Jeffrey Harold Malepo and Sap James Kumbapen, such that I can categorize it as a worst category case deserving the imposition of the maximum penalty of life imprisonment or death.

18. Following the Sentencing tariffs propounded in the Manu Kovi case and Simon Kama case, I would categorize your case as falling in category No 1, which attracts a penalty of 12-15 years imprisonment. I will take into account the time spent in custody which works out to be 2 years. This I deduct from your sentence. I will impose a sentence of 7 years upon you to be spent in hard labour at the Bekut Corrective Institution. 
________________________________________________________________
Acting Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyer for the Accused