N5801
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 660 OF 2014

THE STATE

V

RONALD BITO VAGU
Defendant

Kimbe: Cannings J
2014: 14, 22, 23 August

CRIMINAL LAW – sentence – manslaughter – Criminal Code, Section 302 – guilty plea – offender killed a man – stabbed him with a scissors during a group fight.

The offender pleaded guilty to manslaughter. The offender became involved in a fight between two men. The offender used a pair of scissors to stab one of them in the chest and that man died soon afterwards from the injury inflicted by the offender. This is the judgment on sentence.

Held:

(1)	The maximum penalty for manslaughter is life imprisonment. The starting point for sentencing for this sort of killing (use of offensive weapon) is 13 to 16 years imprisonment (Manu Kovi v The State (2005) SC789 guidelines applied).

(2)	Mitigating factors: he cooperated with the Police; made early admissions; he pleaded guilty; he has expressed remorse; some element of provocation and self-defence.

(3)	Aggravating factors: use of lethal weapon; force used disproportionate to threats he faced.

(4)	A sentence of 13 years imprisonment was imposed. The pre-sentence period in custody was deducted and no part of the sentence was suspended.

Cases cited

The following cases are cited in the judgment:

Ignatius Pomaloh v The State (2006) SC834
Manu Kovi v The State (2005) SC789
Saperus Yalibakut v The State (2006) SC890
The State v Vincent Matana Laore and 3 Others (2008) N5466

SENTENCE

This was a judgment on sentence for manslaughter.

Counsel:

F K Popeu, for the State
D Kari, for the offender

23 August, 2014

1. CANNINGS J: This is a decision on sentence for a man who pleaded guilty to manslaughter. The offence was committed on Friday 17 January 2014 between 2 and 3 pm at Bali Wharf, Kimbe. While the offender was there picking up cargo that had come on a ship from Bali, there was a fight between two people, Samson Hagara and the deceased, Enoch Kipi Johnson. The offender and other persons of Bali origin became involved in the fight. The offender got hold of a pair of scissors and stabbed the deceased in the chest, who fell and died soon afterwards.

Antecedents

2. The offender has one prior conviction, for attempted murder, for which he received a sentence of seven months imprisonment in 2013.

Allocutus

3. The offender was given the opportunity to address the court. He said:

"I am sorry for breaking the laws of our country and for what I have done. I did not mean to kill the deceased. It was a group fight. I ask for mercy and a non-custodial sentence."

Other Matters of Fact

4. As the offender pleaded guilty he 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). I take into account that he made admissions and a confessional statement to Police when interviewed on 1 April 2014. He claimed that the scissors belonged to the deceased, so there is some element of de facto provocation and self-defence involved in the incident.

Pre-Sentence Report

5. The court was presented with a report prepared by the Kimbe office of the Community Based Corrections Service. The offender is 21 years old, from Bali Island, his parents are deceased, as is his only sister. He has a grade 2 education, and is married with two children. He was employed at the time as a crew member on the ship.

Submissions by Defence Counsel

6. Mr Kari submitted that a sentence in the range of 13 to 16 years would be appropriate as it was a group fight.

Submissions by the State

7. Mr Popeu asked for a sentence of 15 years imprisonment.

Decision Making Process

8. 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?

9. 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.

10. 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?

11. 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 the table.

Sentencing Guidelines for Manslaughter: 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	

I agree with counsel that this is a category 2 case and therefore the starting point is 13 to 16 years imprisonment.

Step 3: What Other Sentences Have Been Imposed For Equivalent Offences?

12. A useful point of comparison is the West New Britain case of The State v Vincent Matana Laore and 3 Others (2008) N5466. Four men were convicted of manslaughter after a trial in which they and eight others 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.

Step 4: What Is The Head Sentence?

13. Mitigating factors are:

•	he cooperated with the police;
•	made early admissions;
•	he pleaded guilty;
•	he has expressed remorse;
•	some element of provocation and self-defence.

14. Aggravating factors are:

•	use of lethal weapon;
•	force used disproportionate to threats he faced.

15. In weighing all these factors I consider that though there are mitigating factors it was nonetheless a very serious case of group violence. I impose a sentence of 13 years imprisonment.

Step 5: Should The Pre-Sentence Period In Custody Be Deducted?

16. 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 seven months, three days.

Step 6: Should All or Part Of The Head Sentence Be Suspended?

17. No. There is no evidence of reconciliation between the offender and the deceased's relatives. Only by imposing a prison term will the court be able to signify the gravity of the offence.

Sentence

18. Ronald Bito Vagu, having been convicted of one count of manslaughter contrary to Section 302 of the Criminal Code, is sentenced as follows:

Length of sentence imposed	13 years	
Pre-sentence period to be deducted	7 months, 3 days	
Resultant length of sentence to be served	12 years, 4 months, 3 weeks, 4 days	
Amount of sentence suspended	Nil	
Time to be served in custody	12 years, 4 months, 3 weeks, 4 days	
Place of custody	Lakiemata Correctional Institution	

Sentenced accordingly,
_____________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender