N4767

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO.1150 OF 2009

BETWEEN:

THE STATE

AND:

TONY DOM
Prisoner

Minj: David, J
2012: 14 & 16 August

CRIMINAL LAW - sentence - manslaughter – matter fixed for a three day trial at call-over at beginning of circuit – State put to expense of bringing witnesses from Baiyer District, Western Highlands Province to testify against the prisoner - conviction on plea of guilty – group fight - prisoner hit deceased once on head with a pole - forceful application of pole on deceased fatal - deceased died from severe head injury – some deliberate intention to harm the deceased present - life of a 47 year old man prematurely and unlawfully terminated - deceased did not have any pre-existing diseases which caused or accelerated death - prevalence of offence - deceased was prisoner's brother in-law – de-facto provocation – killing immediately following argument - little or no preparation - first offender – substantial compensation and belkol paid – prisoner voluntarily surrendered to police after incident – co-operation with police – no weapon used – until committing the offence, the prisoner had a good background – expression of genuine remorse - ten years imprisonment in hard labour – Criminal Code, Sections 7, 19 and 302.

Cases cited:

Manu Kovi v The State (2005) SC789
The State v Japhet Marshall Ano (2007) N3465
The State v Robert Potou (2008) N3316

Counsel:

Mary-Anne Zurenuoc, for the State
Philip L. Kapi, for the prisoner

SENTENCE

16 August, 2012 

1.	DAVID, J: On Tuesday, 14 August 2012, I convicted the prisoner, Tony Dom on a plea of guilty to a charge of unlawful killing, also known as manslaughter, committed against the deceased, Piu Waki on Sunday, 3 May 2009, at Banz in the Jiwaka Province contrary to Section 302 of the Criminal Code. 

2.	The primary issue for consideration and determination is, what is the appropriate sentence for the prisoner?

3.	The prisoner appears before me for sentence from custody.

4.	These were the short facts presented to the Court for the purposes of arraigning the prisoner. The prisoner was working as a security guard at a shop in the Madang Province. On Friday, 1 May 2009, he left Madang and arrived in Banz to see his wife and child. He had heard allegations whilst in Madang about his wife drinking and partying around with some men. Upon his arrival, the prisoner had an argument with his wife over these allegations. The arguments continued over the weekend. On the morning of Sunday, 3 May 2009, the prisoner and his wife went up to the Banz market where they saw the deceased. The deceased was the prisoner's wife's cousin. The prisoner called his brother in-law to meet with them about the allegations concerning his wife. A confrontation ensued between the prisoner and the deceased which then led to a fight. The deceased was assisted by about two to three of his relatives whilst the prisoner also called for assistance from his relatives. During the fight, the prisoner picked up a pole and hit the deceased on his head. The deceased fell to the ground and lapsed into unconsciousness. He was later rushed to the hospital, but was pronounced dead on arrival. Medical examination revealed that the deceased's skull was fractured. The prisoner was a principal offender within the meaning of Section 7 of the Code. This was an unlawful killing that neither demonstrates an intention to kill the deceased or an intention to do grievous bodily harm upon the deceased on the part of the prisoner. 

5.	A post-mortem examination of the body of the deceased was conducted by Dr. Michael Dokup, Director Medical Services at the Mt. Hagen General Hospital on Monday, 11 May 2009. The medical report comprising the affidavit of Dr. Michael Dokup sworn on 13 May 2009, the Post-Mortem Report prepared by Dr. Michael Dokup dated 12 May 2009 and the Medical Certificate of Death issued by Dr. Michael Dokup on 13 May 2009 reveals that death was instant and the cause of death was severe head injury with bleeding in the posterior cranial fossa and depressed fracture measuring 2 x 3 cm at the base of the skull. 

6.	The prisoner is aged about 40 years now. He would have been aged about 37 years at the time of committing the offence. The deceased who was from Baiyer District in the Western Highlands Province was aged about 47 years when he died. The prisoner is from Malbanga village, Banz, North Waghi District in the Jiwaka Province. Until the incident, he was residing and working as a security guard with Penguo Trading at Bogia in the Madang Province. He is married to the deceased's cousin and they have a daughter from the marriage. The prisoner's wife and daughter remained in Banz. At the time of the incident, their daughter was attending primary school doing Grade 3. His father is deceased and is survived by his mother. Apart from himself, he has 3 other siblings, all females. He is the third born in the family. He is a baptized member of the Roman Catholic Church. He has completed Grade 6 formal education. He voluntarily surrendered to the police at Banz after the incident on 3 May 2009. He has been in custody since that time and that works out to be about 3 years, 3 months and 13 days.

7.	The prisoner has no prior convictions.

8.	On his allocutus, the prisoner recounted the events leading up to the fight on Sunday, 3 May 2009 at Banz initially between himself and his brother in-law, the deceased which developed into a group fight with both men assisted by others. The fight was over his wife drinking around with men which he had never heard of in his 18 years of marriage to his wife and the deceased played a part in his wife's inappropriate conduct. He admitted causing the death of the deceased by hitting him with a pole, but he did not mean to kill him. He regretted what happened and said sorry. He requested the Court to take into account in his favour that he was a first offender and that he and his relatives have already paid to the deceased's relatives compensation and belkol comprising K30,000.00 cash and 30 pigs and asked for mercy. 

9.	In mitigation, it was submitted by the prisoner through his counsel, Mr. Kapi that; first, he is a first offender; second, he co-operated with the police; third, he voluntarily surrendered to the police after the incident; fourth, he pleaded guilty; fifth, there was present de–facto provocation because the fight and the subsequent killing of the deceased arose as a result of him believing that his wife was drinking around with men in his absence and the deceased had a part in his wife's inappropriate conduct; sixth, he paid substantial compensation and belkol to the relatives of the deceased; and seventh, no weapon was used. 	 

10.	Mr. Kapi submitted that a sentence be considered within the range of 8 to 12 years as recommended by the Supreme Court for cases falling under category 1 of the guidelines in Manu Kovi v The State (2005) SC 789. A head sentence between 9 to 10 years was appropriate in the circumstances of this case counsel said.

11.	Ms. Zurenuoc for the State submitted that this case was fixed for a 3 day trial at the call-over at the beginning of the circuit last week and the State was put to the expense of bringing its witnesses all the way from the Baiyer District in the Western Highlands Province to testify against the prisoner at the trial only to find that he has decided at the last minute to plead guilty. That should be held against the prisoner counsel said. Other than that, Ms. Zurenuoc did not contest the prisoner's submissions.

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

13.	The sentencing guidelines for manslaughter convictions whether they are entered on a plea or after a trial are set out in Manu Kovi. They are reproduced below.

CATEGORY 1:	 8 – 12 years
		
Plea: 
Ordinary cases.
Mitigating factors with no aggravating factors.	No weapons 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:
Mitigating factors with aggravating factors. 	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:
Special aggravating factors. Mitigating factors reduced in weight or rendered insignificant by gravity of offence.	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
(Worst case):
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 innocent, harmless person. Complete disregard for human life.	

14.	The present case falls under both categories 1 and 2 of the Manu Kovi guidelines as some of the elements of these categories are present. I will now consider a sentence within the ranges recommended there which I will ascertain shortly after considering the factors in mitigation against those in aggravation and a couple of comparable sentences.

15.	I find that the factors which mitigate the offence in the present case are these. First, the prisoner co-operated with the police. Second, the prisoner voluntarily surrendered to the police after the incident. Third, the prisoner is a first offender. Fourth, the prisoner pleaded guilty therefore saving the Court's time and resources to conduct a trial to determine his guilt. Fifth, the prisoner was emotional, under stress and there was present de–facto provocation because the fight and the subsequent killing of the deceased arose as a result of him believing that his wife was drinking around with men in his absence and the deceased had a part in his wife's inappropriate conduct. Sixth, killing followed immediately after an argument between the prisoner and the deceased. Seventh, there was little or no preparation. Eighth, the prisoner paid substantial compensation and belkol to the relatives of the deceased. Ninth, no weapon was used. Tenth, the deceased was the prisoner's brother in-law. Eleventh, until committing the offence, the prisoner had a good background. Twelfth, the prisoner expressed genuine remorse. 
16.	I find that the factors which aggravate the offence in the present case are these. First, the prisoner hit the deceased once with a pole. Second, excessive force was used which proved fatal. Third, some deliberate intention to harm the deceased was present. Fourth, the life of a 47 year old man was prematurely and unlawfully terminated. Fifth, the deceased did not have any pre-existing diseases which caused or accelerated death as is revealed by the medical report. Sixth, death occurred in a group attack. Seventh, the State was put to the expense of bringing its witnesses all the way from Baiyer District in the Western Highlands Province to testify against the prisoner at the trial only to find that the prisoner has decided at the last minute to plead guilty. Eighth, the offence is prevalent. 

17.	I have considered the following manslaughter cases. 

18.	In The State v Japhet Marshall Ano (2007) N3465, the deceased and his wife were walking into their yard in the early hours of one morning following a dance when the couple's nephew demanded to have a can of beer from the deceased. The deceased got angry and punched his nephew who fell to the ground. When the prisoner tried to stop the fight, the deceased also punched him and he fell to the ground. The prisoner went away from the scene, took a thick piece of timber and followed the deceased from his back. He lifted the thick timber with both of his hands and hit the deceased on his head, causing the deceased to fall on the ground. The deceased was taken to the hospital where he was pronounced dead a few hours after the attack on him despite attempts to save his life. Medical examination showed that the deceased died from a severe head injury consisting of basal skull fracture, extradural, subdural and intracranial haematoma and haemorrhage or bleeding into the head, shocking the brain, which was perforated. On a conviction upon a plea of guilty, a sentence of 17 years was imposed. 

19.	In The State v Robert Potou (2008) N3316, following arguments over land and issuance of preventive orders, the prisoner's house was attacked by the deceased and his relatives with stones and sticks. The prisoner's wife got help and attacked the deceased's house. During this attack, the deceased and the prisoner's wife fought and both of them fell to the ground with the deceased landing on top of the prisoner's wife. The deceased's son joined the fight by assaulting the prisoner's wife on her head area whilst the deceased was on top of her. The prisoner heard his wife screaming in the direction of the deceased's house and went to help her armed with a pinch bar. The prisoner struck the deceased once on the back of his head with the pinch bar with force and he fell to the ground. The deceased was rushed to the hospital and pronounced dead sometime later. On a conviction on the alternative count of manslaughter after a trial on a charge for murder, a sentence of 18 years was imposed.

20.	In the present case, mitigating factors significantly outnumber those in aggravation. 

21.	In my respectful view, the circumstances in which the killing occurred in the present case are less serious than those in Japhet Marshall Ano and Robert Potou. 

22.	I consider therefore that the prisoner has made out a case for his sentence to be fixed in the middle range of the tariff recommended under category 1 of the Manu Kovi guidelines. 

23.	In all the circumstances of the present case, I consider that a head sentence of 10 years to be served in custody and in hard labour is most appropriate for purposes of specific and general deterrence. From the head sentence, I will deduct 3 years, 3 months and 13 days for time the prisoner has spent on remand whilst waiting to be brought to his trial and sentence leaving 6 years, 8 months and 15 days to serve (the remaining term). The prisoner will serve the remaining term at the Baisu Correctional Institution subject to any remission of sentence for good conduct whilst incarcerated or the need for relocation done pursuant to the provisions of the Correctional Service Act.

24.	A warrant of commitment to execute the sentence shall issue forthwith.

Sentenced accordingly

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