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State v Aiwa [2017] PGNC 253; N6948 (17 August 2017)

N6948

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR N0: 280 OF 2017

THE STATE

V
MARME DEDI AIWA

Kundiawa: Salika DCJ
2017: 17^th August

CRIMINAL LAW – Practice and Procedure – charge of manslaughter – s.302 of Criminal Code – what is appropriate sentence – 20 years imprisonment is appropriate.

Case Cited:
Kwalimu Goina v The State (1982) SC230
Lawrence Simbe v. The State [1994] PNGLR 33
Manu Kovi v. The State [2005] SC789
Rex Lialu v. The State (1990) PNGLR 448
The State v. Tuma (2017) N6618
The State v. Kovio (2016) N6461
The State v. Ladiah Kilala & Ors [2012] N5080
The State v. Anita Kelly [2009] N3624
The State v. Bernard Hagei [2005] N2913
The State v. Douglas Mareva [2012] N4805, 230

Counsel:

Miss H Roalakona, for the State
Mr M Yawip, for the Prisoner

SENTENCE

17^th August, 2017

1. SALIKA, DCJ: INTRODUCTION: The prisoner pleaded guilty to one count of unlawful killing of one Wii Sango. The charge was brought under Section 302 of the Criminal Code.
   

FACTS

2. The facts are that on 6^th October 2016, the accused Marme Dedi Aiwa was at Yobadibole village. It is alleged that about 5 pm on that date the accused met one Michael Olmi, who is his uncle and they had an argument over an accident that injured seven people. Michael Olmi started his motorbike attempting to leave when the accused removed a bush knife from his motorbike.
3. The accused wanted to use the bush knife to scare Michael Olmi when Wii Sango got in the way and was cut by the bush knife on his neck. Wii Sango sustained a 10-15 cm wound on his neck that severed his veins and arteries resulting in acute loss of large volumes of blood that resulted in hypo volameic shock and led to death.
4. The State says that the accused had negligently handled the bush knife and cut the deceased on his neck that caused his death thereby contravening section 302 of the Criminal Code Act.
   

ISSUE

5. Having pleaded guilty of the charge the only issue for the Court to determine is what sentence to impose on the prisoner.
   

THE LAW

6. Section 302 of the Criminal Code says:
   

“A person who unlawfully kills another under such circumstances as not
to constitute wilful murder, murder and infanticide is guilty of
manslaughter.

Penalty: Subject to Section 19, imprisonment for life.

The maximum penalty the court may impose is life imprisonment subject to S.19 of the Criminal Code.

7. The court will however consider the current sentencing trends imposed by the National Court and the Supreme Court to come to a fair sentencing decision. It will also look at case precedents and peculiar circumstances of the case to come to a decision on a sentence.
   
8. In homicide cases wilful murder is more serious than murder, and murder is more serious then manslaughter. The prisoner is convicted on one count of manslaughter. The maximum sentence for wilful murder is death and for murder and manslaughter is life imprisonment and that is because taking away a person’s life is a serious thing. Human life is lived only once. Once lost it is lost forever. The maximum sentence is reserved for the worst case and is usually determined when one is dealing with; who, why, what, when, where and how questions in other words, the circumstances of the commission of the offence. The sentence is usually determined or arrived at on the circumstances of each case.
   

CIRUMSTANCES LEADING UP TO OFFENCE

9. It is admitted that the offender was drinking home brew or steam and was affected by it. He then confronted Michael Olmi and got a bush knife from Michael Olmi’s Motor Bike to cut Michael Olmi. Olmi evaded it and the deceased Wii Sango went to intervene and stop the offender but the bush knife got Wii Sango on his neck and he died from severe blood loss.
   

PRINCIPLES OF SENTENCING

10. The following factors are usually considered by the Courts to determine the appropriate sentence:-
    
    • (a) degree of participation.
      • - the offender was the instigator and the aggressor and is responsible for the death of Wii Sango.
        
    • (b) degree of ignorance of the law.
      • - it is wrong to kill another person, the prisoner knows that.
        

(c) age of offender

- 20 years old

(d) is offender a first time offender? Yes

(e) Was compensation paid?

• - yes about K15, 000.00 was paid in compensation
  

(f) has prisoner shown remorse?

• - yes but whether genuine or not I cannot tell.
  

(g) did prisoner co-operate with police?

- yes, he surrendered himself – walked 3 days to surrender himself.

(h) did the offender plead guilty?

- yes

(i) was there any aggravation offered by the deceased?

- no Wii Sango as an elder and a village court magistrate his job to disarm the offender and to stop him.

(j) will the jail term have an effect on the offending family?

• - the jail term will have an effect on his family.
  

CASE PRECEDENTS

11. The court will however consider the current sentencing trends imposed by the National Court and the Supreme Court to come to a fair sentencing decision. It will also look at case precedents and peculiar circumstances of the case to come to a decision on a sentence.
    
12. Relevantly the Supreme Court in Manu Kovi v. The State (supra) said:-
    

“In homicide cases, as with any other offences, the use of a tariff though has its limitations, because the determination of appropriate punishment in each case, is an exercise of discretion, having regard to the seriousness of the offence, the gravity or otherwise of the circumstances of the offence, the personal circumstances of the prisoner which aggravate or mitigate the punishment and the interests of the community in ensuring the punishment achieves its purpose.

I have said it before and I say now, again that sentencing an offender is a exercise of discretion, taking into account all the relevant considerations and making a decision on sentence. I agree there is no scientific or mathematical formula. Case precedents of similar factual circumstances helps a judge to decide what a sentence is to be.

13. The sentencing tariff is to be used as a guide as suggested in the Manu Kovi case in 2005. Some 12 years later now, manslaughter offences have not decreased; in fact they continue to increase. Are the sentencing ranges in Manu Kovi case still relevant now and I suggested they are outdated and perhaps they need to be increased. I also suggest some refinement in the type of cases of manslaughter. Sentences for guilty plea case should be different from trial case. The Manu Kovi suggested tariffs have been in use for 12 years now, but have not served as a deterrent at all. Manslaughter cases continue to rise at will. In my respectful opinion this court should be at liberty to progressively increase sentences from the tariffs suggested in Manu Kovi 12 years ago as there is no decline in the number of unlawful killings. Similarly, the Court must be at liberty to impose lower sentences in appropriate cases.
    
14. Counsel for the offender cited the case of The State v. Tuma (2017) N6618, for the proposition that part of the sentence be suspended. In that case the prisoner pleaded guilty to the charge of manslaughter. The deceased in that matter was having an adulterous affair with the prisoner’s wife. On the night of the killing the prisoner caught the man and the wife naked. The offender cut the man with a bush knife on his left wrist intending to hurt him. The incident took place in a remote location in the Madang Province and the man died due to loss of blood. The deceased family was of the view that the deceased brought about his own death in that the pay for his adulterous acts was death and he was a drug taker, a trouble maker and a headache in the community. It was a relief to the community that he was gone for good.
    
15. In the matter of The State v. Kovio (2016) N6461, the deceased and the prisoner were biological brothers. Their respective wives had continuous arguments and fights. Prior to the day and date of the offence, the prisoner had an argument with the deceased’s wife. The deceased was not there then. The deceased learnt of the argument in the afternoon and in the night he went and broke the wall of the prisoner’s house and the prisoner got his spear and speared him on his left thigh. The deceased died from blood loss. The prisoner was sentenced to 6 years but 2 years of that was suspended on conditions that he be of good behaviour for 2 years. He pleaded guilty and got the benefit of a reduction in sentence.
    
16. The point is made, and that is that, the court has discretion to suspend whole or part of the sentence on conditions and on proper basis. This court will consider whether whole or part of the sentence in this case should be suspended.
    
17. Sentencing for manslaughter offences must be lower than sentences for murder and wilful murder. The court must pay careful attention to:-
    
    • (i) the circumstances leading to the death and
    • (ii) the way death was actually caused when considering the appropriate sentence. (see Rex Lialu v. The State (1990) PNGLR 448).
      
18. In considering what an appropriate sentence in manslaughter cases should be, the following factors should be considered:-
    
    • (a) circumstances of the death and the way the death was actually caused.

- in this case the facts be seen.

(b) was the assault on the deceased vicious or not vicious

- it was vicious.
(c) was there any deliberate intention to harm;

- yes.
(d) what was the nature of the assault.

-3 or 4 punches to the head and face and swinging him to hit head on stone wall.
(e) was the injury that caused death directly from an attack or assault or was it caused by a fall on an object.

- yes.
(f) was injury caused by a weapon or by the person.

- by the person.
(g) was injury by fist.

- yes

19. However, a sentence in my respectful opinion should be decided on its own peculiar facts and circumstances (see Lawrence Simbe v. The State [1994] PNGLR 33). The use of sentencing tariffs has its limitations with respect, and should only be used as a reference tool by a sentencing authority in considering an appropriate sentence.
    
20. Defence counsel has urged the court not to penalise the prisoner for exercising his right to plead not guilty to the charge. I appreciate that submission but the sentencing tariffs in the Manu Kovi case, does allow for penalty variations with those who plead guilty and those who plead not guilty. In other words the courts do recognise the benefits of a plea of guilty to an offender who pleads guilty to an offence. A plea of guilty is a clear demonstration of an accused’s acceptance of his or her actions which were wrong and his or her profound regret for what happened. It may be an expression of genuine remorse and not by talk only that he or she is remorseful about what happened. A plea of guilty saves time and costs to the court and the prosecution. A plea of guilty is indeed a mitigating factor – which must result in a reduced sentence. In considering how much reduction is to be given for a plea of guilty is again in the discretion of the court after examining the circumstances giving rise to the plea of guilty.
    

MITIGATING FACTORS.

21. The following are mitigating factors:-
    
    • (a) the prisoner is a first time offender.
    • (b) he pleaded guilty.
    • (c) expressed some remorse
      

AGGRAVATING FACTORS.

22. The following are the aggravating factors:-
    
    • (a) the prisoner was drunk with homemade brew and steam
    • (b) prisoner was the aggressor and killed a man
    • (c) Michael Olmi was leaving when he stopped him.
    • (d) prisoner got the tramontina bush knife to attack Michael Olmi from Michael Olimi’s own motor bike which was strapped on the side of the
      bike.
    • (e) negligence and recklessly swinging knife and killed Wii Sango.
    • (f) showed no respect for authority in the community as Wii Sango was a Village Court Magistrate doing his community work to stop any violence offered by the offender.
    • (g) showed no respect to the elders.
      

ALLOCATUS STATEMENT

23. The offender said Wii Sango was his father and he said he was sorry that he was negligent in swinging the knife and that he was drunk and did not mean to kill him.
    

SENTENCE

24. The end result in all homicide cases is that a human life is lost. Section 35 of the Constitution says:-
    

“35 (1) No person shall be deprived of his life intentionally except –

(a) in execution of a sentence of a court following his conviction of an offence for which the penalty of death is prescribed by law; or

(2) Nothing in Subsection (1)(b) relives any person from any liability at law in respect of the killing of another.

25. Life is a gift from God and no one has the right to end another person’s life. Taking away a person’s life is repulsive and despicable. The court must be seen to be protecting human life because life is lived only once in this world. The sanctity and value of life is more precious and valuable than material wealth silver, gold or diamond and this Court takes serious notice of that undeniable fact. No amount of compensation in monetary terms, regret or remorse is ever going to restore a life that is lost. (see The State v Ladiah Kilala & Ors [2012] N5080, The State v Anita Kelly [2009] N3624. Wii Sango is now gone forever. That is the reality.
    
26. I agree with the sentiments made by the National Court in The State v. Bernard Hagei [2005] N2913, where the court said:
    

“There are so many wanton killings happening in the country as well as though life is some form of commodity or a replaceable item that can be borrowed or bought from the hardware shop in town. Killings in this country are becoming more daring without fear and there is no respect for sanctity of life. Brutal horrific and cold blooded killings are becoming too frequent”.

27. There are indeed far too many cruel, violent, deliberate, wilful, unjustifiable and senseless killings as happened in this case. There appears to be no end in sight for such killings.
    
28. The National Court in The State v. Douglas Mareva [2012] N4805 said:-
    

“Whatever sentences the Court decides to impose must reflect the purposes of the criminal justice system that should balance over between the offender, the victim and the effect it may have on the community.”

29. One purpose for imposing a sentence is that one will have an opportunity to look back at his or her actions, and work on those weak parts of his or her habits and character with a view to reform and rehabilitate oneself.
    
30. The sentence also plays a role in educating our communities to live peaceful lives with one another and to deal with issues in a civilised manner. Our people must identify and practice proper standards of conduct in the community, that includes proper respect and tolerance for one another and have common decency. The Court should be seen as an educational tool in that sense.
    
31. The Court also sentences offenders to imprisonment to prevent reoffending by the same person. In some cases the Court sends offenders to serve jail terms to ensure peace and safety in the community is safe guarded.
    
32. Another purpose for sentencing is to try and reconcile the parties so that previous good relationship is restored. Another purpose for sentencing an offender is the need for retribution that is the need for the offender to be punished for the crime he or she committed. The offender must realise that he or she has committed a crime, in some instances, a very serious crime and that he or she deserve to be punished for doing wrong.
    
33. I take into account the case precedents referred to by counsel to assist me. I have referred to some of them in the decision. This case falls into category two (2) of the Manu Kovi at the lower range and I am guided by that decision although with respect I am of the opinion that it is now outdated.
    
34. I am reminded by what the Supreme Court said in Kwalimu Goina (27 July 1982) SC 230 when it said:-
    

“We are mindful of the increase in crimes of violence and the undisputed public concern about such offences. Such conduct will be met by firmness on the part of the courts and we give warning that sentences will increase substantially.”

35. Considering all the mitigating factors and the aggravating circumstances in this matter I note that this incident created a tribal conflict and a lot of commercial and churches were affected by this single incident. This killing sparked other killings, all because of the drunkard state of the offender. I conclude this killing to be in the upper category of the Manu Kovi case in category two (2).
    
36. Accordingly, in the end result I impose a sentence of 20 years imprisonment with hard labour. He has been in custody for 10 months. This is taken away from the 20 years. The balance he will serve is 19 years, 2 months’ imprisonment with hard labour.
    

Sentenced accordingly
__________________________________________________________
Public Prosecutor : Lawyer for the State
Public Solicitor : Layer for the Defence