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State v Kovio [2016] PGNC 266; N6461 (31 August 2016)

N6461

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 657 OF 2015

THE STATE

V

TOM KOVIO

Popondetta: Auka, AJ
2016: 27^th July & 31^st August

CRIMINAL LAW – Sentence –Particular offence – Manslaughter guilty plea – Relevant Considerations – Victim close relative – Traditional aspect of killing relative – Relevant to mitigation- Criminal code s.302 and s.19

Case Cited:
Goli Golu v. The State [1979] PNGLR 653
Kesino Apo v. The State [1988-1989] PNGLR 186
Manu Kovi v. The State (2005) SC 789
Public Prosecutor v. William Bruce Tardew [1986] PNGLR 91
Rex Lialu v. The State [1990] PNGLR
The State v. Giru (1997) N1661
Ure Hane v. The State [1984] PNGLR 105

Counsel:
Ms Babra Gore, for the State

Mr. E Yavisa, for the Accused

DECISION ON SENTENCE

31^st August, 2016
1. AUKA AJ: The accused pleaded guilty to one count of Manslaughter Contrary to Section 302 of the Criminal Code.

2. The brief facts of the case were that the accused and the deceased are biological brothers and both with their respective families lived at Kainde Village, Oro Province. It happened that there were continuous arguments and fights between their wives’s. Prior to the day and date of the offence which is 20^th March, 2014, the accused had an argument with the deceased’s wife. At that time the deceased was not around in the village. The deceased learnt of the argument in the afternoon. In the night of 20^th March, 2014 between 7:00pm and 8:00pm the deceased went to accused’s house and broke the walls of the house and he asked the accused as to why he had an argument with his wife. Accused came out of his house with his spear and he pushed the spear through the left thigh of the deceased. Then the deceased fell to the ground unconscious and bled. He was taken to Ambari Health Centre but he died due to loss of blood. Unfortunately there is no Medical Report to verify the nature of the injury which caused heavy bleeding resulting to deceased’s death.

3. On his statement on Allocatus, the accused said the incident happened within the family. He said he had an argument with his sister in-law first. After that he got K10. 00 in cash and a live chicken and gave it to his In-law and made peace and when it got dark his family went to sleep in their house. His deceased brother was out at sea fishing. In the night he returned and heard about the fight between his wife and the accused. So he the deceased went to his house and hit the walls of the house with a stick and broke the walls. Accused said at that time him and his family members were sleeping. He said he heard the noise on the walls of his house, got up and picked up his spear and walked out. When he saw his brother he pushed the spear into deceased left thigh. He said he did not mean to kill his brother.

4. Mr. Yavisa of Counsel for the accused submitted the following matters:

1. Accused is 56 years old and comes from Kainde village, Oro Province;
2. That he is married with four (4) children and two are in high school and the others are in the village;
3. That he attends Anglican Church;
4. That he did grade 6 education only;
5. That at the time of the offence he was a subsistence farmer and do hunting and fishing;
6. That his parents are still alive;
7. That he is looking after his deceased’s brothers and two (2) children as well and so he is in total looking after six (6) children.
   

5. Mr. Yavisa urged the Court to take into account in accused’s favour the following factors on sentence;

1. That accused pleaded guilty to the charge and saved court’s time
2. That accused did not viciously attack the deceased. He only pushed the spear into his thigh.
3. That there was some provocation in a non-legal sense.
4. That as the accused was in custody no arrangement was made to pay compensation.
5. That the accused is currently looking after the two (2) children of the deceased which show some expression of remorse.
6. That the person he killed was his own brother and in a sense that killing is self inflicting in that the accused have lost a helper in his needs. This may be regarded as a punitive aspect of the killing which he has brought upon himself. Mr. Yavisa submitted that this is a strong factor that should be considered in accused’s favour. He referred the court to the Supreme Court case of Kesino Apo v. The State [1988-89] PNGLR 182.
   

6. Mr. Yavisa also referred the court to the case of The State v. Giru (1997) N1661. In that case the accused had an argument with a relative and during the argument, accused used a piece of timber and hit the deceased on the head and caused death. He pleaded guilty to Manslaughter and was sentenced to 4 years and reduced by 3 months for pre-trial custodial term and serve the balance of 3 years 9 months.

7. Ms. Gore Counsel for the state submitted that the court should consider the following matters against the accused when considering the appropriate sentence;

1. Accused took the law into his own hands;
2. A life has been lost
3. Accused has not shown any remorse to the Court and to the family of the deceased
4. Accused has not paid any compensation to the widow and her children.
5. That accused used a dangerous weapon namely a spear to spear the deceased from which he died.
   

8. Ms. Gore submitted that the offence of Manslaughter is a very prevalent offence. Counsel cited the often cited case of Manu Kovi v. The State (2005) SC 789 and said that this case falls under category one (1) of Manu Kovis case which attract sentences between 8 to 10 years. She submitted that a term of 8 years is appropriate.

9. The maximum penalty prescribed by law for the offence of Manslaughter under S. 302 of the Criminal Code is life Imprisonment. The Court has discretion to impose a term of years pursuant to S.19 of the Code. I am of the view that this case falls into first category in Manu Kovi’s case (Supra).

10. On authority of Goli Golu v. The State [1979] PNGLR 653 and Ure Hane v. The State [1984] PNGLR 105, the maximum penalty must be reserved for the worst type of case. In my view, the accused case is not a worst type of manslaughter case.

11. In Rex Lialu v. The State [1990] PNGLR, 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 consideration 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 and how the death was caused.

12. 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 the injuries were caused by a direct hit or did the victim fell on any object. The court must also consider whether the injuries were caused by the accused bare hand or did he use any weapon.

13. And the court must consider whether there was any intention to deliberately harm the victim? In the circumstances of the case I find that there was some intention. The accused picked up his spear and speared the victim on the left thigh. Was there any provocation in the non-legal sense? Yes I would say there was some provocation in the non-legal sense in that the accused saw the deceased broke the walls of his house. In my view, this was a low degree of de-facto provocation.

14. Crimes of violence are very prevalent throughout the country and as such deterrence sentences are called for. All communities in this country are experiencing a high level of violence crimes affecting our country’s quest for progress in terms of solving disputes in more amicable manner as provided for by the law.

15. In this case accused used a spear and inflicted serious injury on the body of the deceased particularly his left thigh. The thigh of a human person is very vulnerable parts of the human anatomy.

16. The National Court has repeatedly warned that sentence for Manslaughter cases much reflect the serious view which the Parliament took over the loss of a human life when it fixed the maximum penalty at life Imprisonment.

17. For the above reasons, a starting point on Sentence for Manslaughter case should be a custodial term as a means of protecting human life. The State v. Rex Lialu [1988-89] PNGLR 449, Kesino Apo v. The State [1988] PNGLR 182 at p.184.

18. By authority of Rex Lilu v. The State (supra), the relevant considerations to determine the appropriate sentence in the present case are that the accused used a spear and wounded the victim on a vulnerable part of victims body and directly caused injury from which he died. There was some intention to harm the victim. Of course there was some provocation in the non-legal sense for the accused to act the way he acted.

19. Having said what I have said, I take into accused’s favour his plea to this serious charge. I also take into account in his favour what he said on allocatus. I have also considered counsels submission on mitigation and aggravation. I also consider that the person he killed was his own brother which in itself was self inflicting and I consider this factor in favour of the accused, Kesino Apo v. The State (Supra). I consider that a sentence of 6 years imprisonment should be imposed. Accordingly I impose that sentence against the prisoner. The time already spent in custody awaiting trial and sentence shall be deducted.

20. The next issue for determination is whether the sentence be wholly or partially suspended.

21. In Public Prosecutor v. William Bruce Tardew [1986] PNGLR 91, the court held that suspension of part of sentence under s.19 (6) is, or maybe appropriate if it will promote personal deterrence, reformation or rehabilitation of the offender.

22. The accused in this case have admitted committing the offence from the very beginning. He has taken responsibility for his action. His conduct after the commission of the offence and all the events leading up to his guilty plea and conviction most particularly his decision to look after his deceased’s brothers 2 children as well show that he is remorseful over his action and that have prompted me to give special consideration and accommodation in the sentence.

23. I consider that a 56 year old man like the accused in this case do not require lengthy imprisonment term but correction and rehabilitation outside the prison system.

24. I give serious and appropriate consideration to what I stated above and I consider that this is an appropriate case to suspend part of the sentence.

25. I propose therefore to suspend 2 years from the sentence on condition that the accused will enter into his own recognizance to be of good behaviour for the whole period of his suspended sentence.

Public Prosecutor : Lawyer for the State
Public Solicitor : Lawyer for the Accused