N4619

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 977 OF 2011

THE STATE

V

DANIEL KONDONGA

Minj & Mount Hagen: Makail, J
2012: 14th February, 27th & 28th March

CRIMINAL LAW - Plea - Sentence - Manslaughter - Killing of a youth - Use of stone -Prevalence of offence - Partly suspended sentence appropriate - Term of 6 years imprisonment imposed and partly suspended - Criminal Code, Ch 262 - Sections 19 & 302.

Cases cited:

The State -v- John Airi (1980) N275
The State -v- Kore Ase (2001) N2220 
The State -v- Albert Kundudu (2010) N4108 
The State -v- Steven Ruben (2008) N3941 
The State -v- Sakora (2008) N3935 
Anna Max Maringi -v-The State (2002) SC702
Manu Kovi -v- The State (2005) SC789

Counsel:

Mr A Bray, for the State
Mr M Joe, for the Offender 

SENTENCE

28th March, 2012

1.	MAKAIL, J: This is an unfortunate case. The offender pleaded guilty to unlawful killing of a young boy by the name of John Non Teine under section 302 of the Criminal Code, Ch 262. He accidentally killed the deceased when he threw a stone to scare the deceased and two others to go to their houses at a video place at Bolba village on the night of 23rd May 2011. The stone struck the deceased on his chest and he was in great pain. He was rushed to Kujip Nazarene Hospital and following surgery, died. According to the medical report, he died from a blunt trauma caused by the impact of the stone on his chest.

2.	The offender is a young man of 20 years. At the time of the offence, he was 19. He was doing Grade 7 at Bolba primary school when he committed the offence. He is a first offender and has unblemished record. He has expressed remorse for his action. This death is purely an accident. It was so unfortunate that the stone had struck the deceased on his chest. It must also be a reminder to the offender and others who think a stone cannot kill to think again because if it is thrown with reasonable force, it can inflict serious injury or death to another person.

3.	For this offence, the prescribed maximum penalty is life imprisonment and that is the time an offender can expect to serve if the facts support this penalty. If the facts show that it is not a worst case of manslaughter, the Court may impose a lesser penalty in accordance with its power under section 19 of the Criminal Code, Ch 262.

4.	When I look back at history to see if there were any similar cases, I find the offender's case almost identical to the case of The State -v- John Airi (1980) N275. In that case, the offender threw a stone at a passing motor vehicle in the suburb of Erima in Port Moresby. The stone struck a child in the motor vehicle and the child died. He pleaded guilty and told the Court he did not mean to cause the death because at that time, he was drunk and "long long" or out of his mind. He was given among others, 24 months imprisonment in light labour and committed to the custody of Director of Child Welfare as no juvenile centre was available to take him in.

5.	In this case, both counsel agreed it was not a worst case of manslaughter such that would attract the maximum penalty of life imprisonment. The offender's counsel submitted a sentence of 3 years imprisonment and wholly suspended is appropriate and the State prosecutor submitted a term of between 8 and 12 years imprisonment is appropriate. In support of his submission, the offender's counsel cited manslaughter cases of The State -v- Kore Ase (2001) N2220 and The State -v- Albert Kundudu (2010) N4108 where the Court imposed a sentence of 15 years imprisonment in the former's case and 12 years imprisonment in the latter.

6.	The State prosecutor cited manslaughter cases of The State -v- Steven Ruben (2008) N3941 and The State -v- Sakora (2008) N3935 where the Court held that in manslaughter cases where no weapons are used, the starting point is 8 - 12 years imprisonment. In both cases, 10 years imprisonment was imposed and in the latter case, 5 years was suspended after deduction of time for pre-trial custody.

7.	Those cases cited by both counsel can be distinguished on their facts. In all those cases, the death of the deceased arose from an argument with the offender. This is the distinction. In my view, the absence of an argument is a factor operating most favourably for the offender in this case. I also consider the offender's case falls into the first category of manslaughter cases in Anna Max Maringi -v-The State (2002) SC702 where the facts depict application of force in an uncalculated manner, of a single blow, kick, or punch on any part of the deceased's body. Under this category, a term of 3 - 7 years imprisonment is recommended. This sentencing range was increased to 8 - 12 years in Manu Kovi -v- The State (2005) SC789.

8.	Using 8 - 12 years as a guide, I accept the offence is prevalent. Many people have died because of carelessness of offenders such as this offender. It is also true and I accept a life has been lost as a result of the offender's careless act and no amount of compensation can recover the life lost. Other than these, I find the mitigating factors far outweigh the aggravating factors because first, the offender pleaded guilty to the offence, secondly, is a first offender, thirdly, expressed remorse, fourthly, co-operated with the police including surrendering to the police following the offence, fifthly, has no prior convictions and sixthly, substantial customary compensation comprising of K7,000.00 and 10 pigs has been paid to the parents and relatives of the deceased. A further compensation is being planned for April this year. 

9.	Finally, the most compelling factor is that the death did not arise from an argument with the deceased. It was purely an accidental death. In addition, the pre-sentence report provided by the probation officer Ms Theresa Puk of which I am grateful does not suggest anything adverse about the offender. Indeed, it stated he had a stable upbringing, his parents being subsistent farmers from Kerowil, Kerowil being the place where he grew up. His father unfortunately died after he committed the offence. It is believed his offending had something to do with his father's death. He has been in custody for 10 months. 

10.	In the end, I consider a partly suspended sentence appropriate. It is therefore the judgment of the Court that the offender is sentenced to a term of 6 years imprisonment and 10 months is deducted for time spent in pre-sentence custody. This leaves a balance of 5 years and 2 months. I further suspend 3 years and 2 months and order that he enter into his own recognizance and be of good behaviour for that period when he comes out of prison. He shall serve the remainder of 2 years in prison in hard labour.

Offender sentenced accordingly.
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Public Prosecutor: Lawyers for the State 
Paul Paraka Lawyers: Lawyers for the Offender