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State v Tuma [2017] PGNC 18; N6618 (3 February 2017)

N6618

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1246 OF 2016

THE STATE

V

GREG TUMA

Madang: Cannings J

2016: 16 November, 9 December,

2017: 3 February

CRIMINAL LAW – sentence – manslaughter – Criminal Code, Section 302 – guilty plea – offender killed a man he suspected of having an affair with his wife – use of bush knife to cut the deceased on the wrist – death ensued through loss of blood – substantial de facto provocation.

The offender pleaded guilty to the manslaughter of a man who the offender suspected of having an affair with the offender’s wife. The offender interrupted his wife and the deceased who were at night-time together, naked. The offender cut the deceased on his left wrist, intending to hurt him, not kill him. The incident occurred in a remote location and the deceased could not be taken quickly to a clinic and he died due to loss of blood. 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 weapon, with level of de facto provocation and other mitigating factors) is 12 years imprisonment (Manu Kovi v The State (2005) SC789 guidelines applied).

(2) Mitigating factors: the offender was the sole attacker; high level of de facto provocation; only one wound inflicted; no intention to kill or inflict serious harm; difficulty in getting prompt medical care, presumed to have contributed to death; high level of cooperation with the Police; paid some compensation without being ordered to do so; the deceased’s family has a positive attitude towards the offender; offender made early admissions; pleaded guilty; early guilty plea; he is a first-time offender; he has expressed remorse.

(3) Aggravating factors: use of a lethal weapon; took the law into his own hands.

(4) A sentence of ten years imprisonment was imposed. The pre-sentence period in custody was deducted and four years of the sentence was suspended.

Cases cited:

The following cases are cited in the judgment:

Manu Kovi v The State (2005) SC789
Saperus Yalibakut v The State (2006) SC890
The State v Sebastian Sahoto Roho (2006) N4483
The State v Simon Tikau (2008) N3938
The State v Turuk Willie CR 446/2010, 15.09.11

SENTENCE

This was a judgment on sentence for manslaughter.

Counsel:

F K Popeu, for the State
J Morog, for the Offender

3^rd February, 2017

1. CANNINGS J: This is a decision on sentence for manslaughter. The offender, Greg Tuma, pleaded guilty to the unlawful killing of a man who the offender suspected was having an affair with his wife. The offence was committed at Kobum village, Usino-Bundi District, Madang Province, on 3 April 2016. The offender interrupted his wife and the deceased, Tawi Elias, who were at night-time together, naked. The offender used a bushknife to cut the deceased on his left wrist, intending to hurt him, not kill him. The incident occurred in a remote location and the deceased could not be taken quickly to a clinic and he died due to loss of blood.

ANTECEDENTS

2. The offender has no prior convictions.

ALLOCUTUS

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

The deceased went to my house and slept with my wife. I did not mean to kill him. I just wanted to put a mark on his body because what he did was very bad. I am very sorry that he is dead and I am very sorry for what I did.

OTHER MATTERS OF FACT

4. As the offender has 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 will take into account the explanation and motivation for his actions and regard this as a case in which there was a high level of de facto provocation. His explanation of the incident is consistent with the early admissions he made to the Police and that he cooperated with the Police and the Court at all times.

PRE-SENTENCE REPORT

5. Personal details of Greg Tuma

Age : 25
Origin : Kobum village
Upbringing : village
Marital status : married with two children
Family : both parents are alive and live in the village, the offender has two sisters and two brothers and he is the second born
Education : no formal education
Employment : no formal employment
Occupation : villager
Health : OK

The offender is strongly supported by his family, particularly by his father who was interviewed for the purposes of the report. The deceased’s family representative is his uncle, Philip Karabo, a senior Village Court magistrate in the local area. Mr Karabo stated that the deceased’s family’s view is that the deceased caused his own death by committing adultery, that the ‘wages of sin is death’, that the deceased was a drug-taker and troublemaker and a ‘headache’ in the local community, that the family has accepted K3,040.00 + six pigs as compensation and does not wish to see the offender spend a long time in custody and that he will be welcomed back into the community.

SUBMISSIONS BY DEFENCE COUNSEL

6. Mr Morog submitted that a sentence of eight years imprisonment would be appropriate, as this should be treated as a low-grade offence because of the numerous and weighty mitigating factors.

SUBMISSIONS BY THE STATE

7. Mr Popeu submitted that despite the many mitigating factors, this was nonetheless a serious case involving use of a lethal weapon. It should not be treated as a low-grade offence and a sentence of at least 12 years imprisonment is warranted.

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. The maximum penalty under Section 302 (manslaughter) of the Criminal Code is 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?

10. 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 following table.

SENTENCING GUIDELINES FOR MANSLAUGHTER FROM KOVI’S CASE

This is a difficult case to categorise as there are numerous mitigating factors that tend to bring it in category 1, but a weapon was used, which puts the case in category 2. I will use a starting point as the mid-point between the bottom of category 1 (8 years) and the top of category 2 (16 years), which is 12 years imprisonment.

STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED RECENTLY FOR EQUIVALENT OFFENCES?

11. I refer to three cases I have decided that are similar in some respects to the present case in which all were treated as low-grade offences because of the weighty mitigating factors.

SENTENCES FOR ‘LOW-GRADE’ MANSLAUGHTER

STEP 4: WHAT IS THE HEAD SENTENCE?

12. Mitigating factors are:

• the offender was the sole attacker;
• high level of de facto provocation;
• only one wound inflicted;
• no intention to kill or inflict serious harm;
• difficulty in getting prompt medical care, presumed to have contributed to death;
• high level of cooperation with the Police;
• offender made early admissions;
• paid some compensation without being ordered to do so;
• the deceased’s family has a positive attitude towards the offender;
• pleaded guilty;
• early guilty plea;
• he is a first-time offender;
• he has expressed remorse.
  

13. Aggravating factors are:

• use of a lethal weapon;
• took the law into his own hands.
  

The mitigating factors outweigh the aggravating factors and warrant a sentence below the starting point of 12 years. I consider, however, that the sentence of eight years suggested by Mr Morog would not reflect the gravity of the matter. The case is comparable to the three cases identified as low-grade cases. I impose a sentence of ten years imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

14. 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 ten months.

STEP 6: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

15. The many strong mitigating factors, in particular the high level of de facto provocation and the attitude of the deceased’s relatives, warrant a partial suspension of four years imprisonment, subject to the condition that upon his release from custody the offender must keep the peace and be of good behaviour for a period of four years. Breach of this condition will provide a ground on which the State can apply to have the offender returned to custody to serve the balance of the sentence.

SENTENCE

16. Greg Tuma, having been convicted of one count of manslaughter contrary to Section 302 of the Criminal Code, is sentenced as follows:

Sentenced accordingly,
________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Offender