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State v Tony [2015] PGNC 154; N6054 (18 August 2015)

N6054

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.NO.1109 OF 2014

THE STATE

V

NOEL TONY

Kavieng: Lenalia, J.
2015: 11th, 14th & 18th August

Criminal Law – Manslaughter – Plea - Matters for consideration – Sentence –Criminal Code s.302.

Criminal Law – Manslaughter – Sentence – Sentencing principles – Not a worse type killing case – Sentence of 12 years appropriate.

Cases cited

Anna Max Marangi v The State (2002) SC 702
Antap Yala v The State (1996) SCR 69 of 1996
Avia Aihi (N0.3) v The State [1982] PNGLR 92
Goli Golu v The State [1979] PNGLR 653
Jack Tanga v The State (1999) SC 602
Kesino Apo v The State [1988] PNGLR 182
Manu Kovi v The State (31.5.05) SC 789
Rex Lialu v The State [1990] PNGLR 487
Sakarowe Koe v The State (2004) SC 739
Simon Kama v The State (2004) SC 740
The State v Rex Lialu [1988] PNGLR 449
Ure Hane v The State [1984] PNGLR 105

Counsel:

Mr. R. Luman, for State
Mr. A. Tunuma, for Accused

18th August, 2015

1. LENALIA, J: The prisoner pleaded guilty to one count of manslaughter contrary to s.302 of the Criminal Code. The offence was committed on 2nd May 2014, here in Kavieng town at PNG Power Limited Compound. The above provision states:

"A person who unlawfully kills another under such circumstances as not to constitute willful murder, murder or infanticide is guilty of manslaughter.

Penalty: Subject to Section 19, imprisonment for life."

Facts

2. The brief facts of this case show a tragic death following an argument between the prisoner and his uncle now deceased Moses Beno. The facts show that on 2nd May 2014, between 12 midday and 1 pm, the prisoner, the victim and their friends came to town from PNG Power Limited compound and bought a 12 pack bottles of beer and two coffee rum bottles. They shared the 12 pack amongst them and started to drink. After consuming the beer bottles they started to drink one of the two coffee rum bottles.

3. While they were drinking the first coffee rum bottle, the prisoner walked up to where the full coffee rum bottle was placed and got that full coffee rum and walked away with it. The deceased followed the prisoner and asked if the prisoner could give the rum bottle back to where the group was sitting. The prisoner refused and the two of them walked further up to a big tree near PNG Power compound premises and sat down.

4. Since the prisoner was not responding to the deceased's demand to return the bottle of rum, the deceased walked back and when he returned, he had a piece of bricks on his hand. He started an argument with the prisoner during which, he insulted the accused. The prisoner threw an empty bottle of beer at the victim and he blocked it off. In the course of their argument, they struggled and started to fight. The victim held up a brick and wanted to hit the prisoner.

5. They struggled further and the prisoner held his small knife up wanting to defend him during which, the victim was stabbed on his left ribs. The deceased ran back to where the group was drinking and called out for help. There was a bus parked nearby which rushed the victim to the Kavieng General Hospital but he died soon after arrival.

Address on allocutus

6. When asked if he wanted to address the court on anything before hearing his lawyer, the prisoner nodded his head and said, he wanted to say something. The prisoner said sorry for what he did and said, what he did was an accident as he did not mean to kill the deceased. He said, he is now concerned about his education as at the time he committed the crime he was doing his Grade 10 and he did not complete it.

7. If the court understands him correctly, while in C. S custody he is continuing his education. He referred to having in his possession some documents. Reading the pre-sentence report, he might have been referring to photos of properties destroyed by relatives of the deceased. According to the last document on the pre-sentence report in annexure 'e' it contains the total value of the properties lost or otherwise destroyed after the death of the deceased. He asked the court to consider the fact that the victim was his uncle and the court should consider leniency.

Addresses on sentence

8. Mr. Tunuma of counsel for the prisoner submitted that the prisoner is charged with manslaughter carrying the maximum penalty of life imprisonment. He asked the court to consider mitigations such as:

➢ The prisoner's guilty plea.
➢ He is the first time offender.
➢ That the victim is a relative of the prisoner.
➢ That he expressed remorse.

9. Counsel rightly submitted that, when determining the issue of penalty, each case is considered on its own merits. He asked the court to consider compensation and the terms of the pre-sentence report since the prisoner and the deceased do come from the same location in East Sepik Province.

10. For the State, Mr. Luman submitted that offence of manslaughter is serious as shown by the prescribed penalty of life imprisonment. Counsel asked the court to consider aggravating factors such as the use of the offensive weapon used by the prisoner to stab the deceased. Counsel cited the case of Rex Lialu v The State [1990] PNGLR 487 where the Court there set out certain considerations which a sentencing Judge should consider on sentences for manslaughter cases.

11. Counsel also referred to the sentencing ranges suggested by the Supreme Court case of Manu Kovi v The State (31.5.o5) SC 789. Counsel is of the view that this current case would fall under category 2 of the suggested sentencing guidelines discussed in the Manu Kovi case. The court will later refer to those two authorities. Counsel asked the court to consider an appropriate penalty.

Application of Law

12. The prisoner is charged with an offence punishable by life imprisonment pursuant to s.302 of the Criminal Code. The Court has power to sentence the offender to a term of years by virtue of the sentencing discretion given it by s.19 of the Code. It was said in Rex Lialu v The State [1990] PNGLR 487 that, sentences for manslaughter must reflect the serious view taken by the Parliament over the loss of a human life when it fixed the maximum penalty at life imprisonment. That authority list considerations to be considered by a sentencing Judge on cases of manslaughter.

13. In the Supreme Court case of Kesino Apo v The State [1988] PNGLR.188 the Supreme Court said an imprisonment term in custody should be the starting point in any manslaughter cases for the very reason that, lives must be protected. And in Jack Tanga v The State (1999) SC 602, the above Court said that because the crime of manslaughter is serious, it is reflected by the maximum penalty of life imprisonment. In Antap Yala v The State SCR. 69/96 (1996), the Supreme Court said sentences for manslaughter will depend on its own peculiar facts and the Court there suggested that it was unable to prescribe any particular range of sentences with precision. I totally agree with the above view.

14. In the case of Manu Kovi v The State (31.5.o5) SC 789, the Supreme Court reviewed the sentencing tariffs earlier set in Antap Yala v The State (Unreported judgment by Supreme Court dated 31st May 1996, SCRA.No.69 of 1996, and in Anna Max Marangi v The State (2002) SC 702, Jack Tanga v The State (1999) SC 602 and even the cases of Sakarowe Koe v The State (2004) SC 739 and Simon Kama v The State (2004) SC 740.

15. I consider this case should fall within category 1 or 2 in the sentencing guidelines set by the Supreme Court in Manu Kovi's case, (supra). In case of category 1, he could be sentenced to a term between 7-12 years and for category 2, sentences should range from 13 to 16 years.

16. The instant case involved the killing of a close relative of the prisoner. I am persuaded by the principle stated by the Supreme Court in Kesino Apo v The State [1988] PNGLR 188 that, the loss of a loved one is must be considered on sentence. The victim in this case was not only a helper but an uncle of the prisoner. All family related that of the deceased and the prisoner have now or since the death of Moses Beno have lost him forever now. This means that the court should consider a term lower than the normal range of sentences in the current sentencing trend.

17. In Rex Lialu v The State (supra) the Supreme Court said that, the proper approach to sentencing in manslaughter cases is to have regard to all the aggregate effect of all relevant considerations and then determine an appropriate penalty. The aggregate effect come from several considerations which the court must consider by carefully examining the circumstances of each case as to how the death was caused.

18. By authority of the above case, the court must consider factors such as the nature and frequency of the attack. The court must consider whether were the injuries caused by a direct hit or did the victim fall on to any objects by heavy landing or not.

19. I must also consider whether the injuries caused were caused by the prisoner being bare handed or did she use a weapon. As the facts of the present case show, the prisoner used a small kitchen knife being an offensive and dangerous weapon. In this case, the victim did not fall on anything. The injury he received was a direct result of the stab wound accidently inflicted on his chest by the prisoner.

20. Though the facts show that there may not be any intention on the part of the prisoner to kill the deceased, the injury inflicted on the deceased was quite serious because it penetrated the victim's lower and upper lobe the deceased's left lung. The doctor's opinion as to the cause of death was summed up in the following words:

"The autopsy findings elicit the cause of death was due to pulmonary arrest secondary to the penetrating stabbed wound."

21. Having gone through the facts of this case, I conclude that this was not the worst type killing as it was truly accidental killing. On mitigation I consider the prisoner's guilty plea to this very serious charge and all the mitigations raised in his favour and considering the serious nature with which the accused took away the life of the deceased.

22. I also consider the fact that the prisoner committed this offence against a very close relative according to their custom, someone who can be in assistance in time of need or trouble.

23. The principle stated by the Supreme Court in Kesino Apo v The State (supra) is that killing a close relative is 'self inflicting' and the offender and his or her relatives suffer as a result. I consider the fact that if the prisoner is incarcerated for a long term of imprisonment, the child born to her by the deceased will suffer great consequences as no one will take care of her.

24. I consider the terms of the pre-sentence report and means assessment reports. The victim's father Mr. Bill Beno is of the view that, compensation claim should be made would be put at K50, 000.00 but says, he knows that the relatives of the prisoner cannot afford this amount. The parents of the prisoner say that, the court should consider the destruction caused to the relatives of the prisoner which values at K7, 000.00 over. Each party is of the view that the prisoner should serve a term of imprisonment.

25. I consider counsels submissions on sentence. Mr. Tunuma submitted that, the prisoner is a first offender with no past criminal convictions. He asked the court to consider the prisoner's guilty plea confirming what he told the police in the record of interview. Mr. Luman asked the court to consider the fact that an offensive weapon was used and suggested a sentence under category 2 in the sentencing tariffs suggested in Manu Kovi case.

26. The case of John Elipa Kalabus v The State [1988] PNGLR 193 is authority for the proposition that where an accused had co-operated with the police and confirms his admission by pleading guilty to a charge or any number of charges is mitigation in favour of the prisoner.

27. I consider the fact that crimes of violence are very prevalent throughout the country and as such deterrent sentences are called for. All communities in this country are experiencing a high level of violent crimes affecting our country's quest for progress in terms of solving disputes in more diplomatic and amicable manner as provided for by the law.

28. On the current case, the prisoner used a weapon to inflict an injury on the body of the deceased which fact is an aggravation according to the case of Manu Kovi v The State (supra). The wound you inflicted on the left side of the deceased chest was quite deep and dangerous. In the court's view, such wound was determinately inflicted because it penetrated right into the centre of the heart.

29. The principle in the highest homicide cases of willful murder is that the maximum penalty must be reserved for the worst type case of killing: Manu Kovi v The State (2005) SC789, Goli Golu v The State [1979] PNGRL (see also Aviah Aihi (N0.2) v The State [1982] PNGLR 92 and Ure Hane v The State [1984] PNGLR 105).

30. Taking into account the prisoner's guilty plea to this serious charge and considering addresses on sentence on mitigations and aggravations, I am of the view that, an imprisonment term should be imposed. Considering all those factors earlier on raised and considering the fact that a life has been lost, I sentence the prisoner to an imprisonment term of 12 years.

31. The court suspends 3 years from that sentence on condition that after serving 9 years, he shall be required to keep the peace and to be of good behaviour bond for a period of 2 years. The custody period shall be deducted from the balance he is to serve and he shall serve the balance. The relatives can arrange compensation as they are closely related as the court does not want to create a burden on the prisoner's line.

Sentenced accordingly

__________________________________________________________________
The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Accused.