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State v Manga [2017] PGNC 285; N6998 (28 October 2017)

N6998

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR NO 637 OF 2012


THE STATE


V


ANDREW MANGA


Cannings J: Madang
2017: 31 July,
27, 28 October


CRIMINAL LAW – sentencing – Criminal Code, Section 299 (wilful murder) – conviction after trial – offender stabbed victim during altercation in a clubhouse – offender under the influence of alcohol – drunken fight – victim unarmed.


This is a judgment on sentence for wilful murder. The offender was convicted after trial of stabbing and killing a man in a drunken brawl at a clubhouse. The victim was unarmed and being held by one of the offender’s friends at the critical time. The offender stabbed him three times and he died soon after the attack. This is the judgment on sentence.


Held:


(1) The starting point for sentencing for this sort of wilful murder (trial, mitigating factors with aggravating factors, killing of defenceless person, no planning, spontaneous incident, offensive weapon used) is 20 to 30 years imprisonment.

(2) Mitigating factors: no prior convictions; spontaneous incident; no planning involved; substantial compensation paid to relatives of deceased; good community record; genuine remorse; high degree of co-operation with the Police, the Correctional Service and the Court; willingness to pay further compensation and reconcile with deceased’s relatives.

(3) Aggravating factors: use of lethal weapon; brutal killing; multiple stab wounds; killing of defenceless person.

(4) The mitigating factors warrant a sentence around the centre of the starting point range. The head sentence was 24 years imprisonment. Twelve years was suspended subject to conditions including payment of further compensation.

Cases cited:


The following cases are cited in the judgment:


Manu Kovi v The State (2005) SC789
Steven Ume, Charles Kaona & Greg Kavoa v The State (2006) SC836
The State v Andrew Beng, Andrew Manga & Hebron Tui Ekil (2017) N6881
The State v Chris Baurek CR 146/2009, 26.05.10
The State v Isak Wapsi (2009) N3695
The State v Joel Otariv (2011) N4409
The State v Lotivi Mal, Moses Mal, Emmanuel Ong & Kathrine Mal (2012) N4591
The State v Luther Francis Melo (2016) N6267
The State v Mark Bongede (2012) N4683
The State v Mathew Lewaripa (2015) N6151
The State v Mathew Misek (2012) N4561
The State v Moses Dadu & Sylvester Dadu (2017) N6881
The State v Moses Nasres (2008) N3302
The State v Seth Ujan Talil (2010) N4159
The State v Tun Mai Isaac (2014) N5864


SENTENCE


This was a judgment on sentence for wilful murder.


Counsel :


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


28th October, 2017


  1. CANNINGS J: This is the decision on sentence for Andrew Manga who was convicted after trial of one count of wilful murder under Section 299(1) of the Criminal Code. Two other accused faced trial on the same charge, but they were acquitted.
  2. Andrew Manga committed the offence at Assas in the Ramu Valley in the early hours of Sunday 23 October 2011, at a licensed clubhouse. Assas is a small built-up area on the Bruce Jephcott Highway between Walium station and Ramu town in Usino-Bundi District. It is 50 kilometres along the highway from Ramu, in the direction of Madang town.
  3. On the other side of the highway, is a service station, workshop and residence owned by a Western Highlands man, an uncle to the offender.
  4. On the afternoon of Saturday 22 October there was a birthday party for a young boy. No alcohol was consumed at the party. The offender and his two co-accused were at the party. After the party finished, the three of them walked across to the clubhouse and started drinking alcohol and socialising. They are from the Ramonga area of Dei District, Western Highlands Province. The offender was a University of PNG student, living at Port Moresby, who was on holiday at Assas (he had been there for a week) at the time of the incident. When the three accused arrived at the club, there was already a drinking session in progress involving men from Enga, most of whom lived close by. There were two distinct drinking groups, those from Enga (“the Engans”, who were first at the club) and those from Western Highlands (the “Hagens”) who arrived later.
  5. The club owner agreed to leave the club open beyond the normal closing time of 8.00 pm and the two groups of men were socialising harmoniously. Music was playing and some people were dancing. At about 10.00 pm an Engan man accidently bumped into a Hagen man. This led to a fight between the Engan men and the Hagen men.
  6. The deceased Jeffrey Tee is from Kandep District, Enga Province. He was aged about 30. He was not at the drinking party but he arrived when the fight started. In the course of the fight the offender deliberately stabbed him three times, intending to kill him. He was placed in a vehicle, and driven in the direction of Ramu in an attempt to get him urgent medical treatment. He died on the way, at Menia Bridge. The cause of death was hypovolaemic shock (sudden loss of circulating blood) caused by a deep laceration to the liver. Further details of the circumstances of the offence are in the judgment on verdict, The State v Andrew Beng, Andrew Manga &Hebron Tui Ekil (2017) N6881.

ANTECEDENTS


The offender has no prior conviction.


ALLOCUTUS


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

I apologise for what I have done. I apologise from my heart to the relatives of Jeffrey Tee. I say sorry to my own family members and tribesmen. I ask for their forgiveness and mercy. I apologise to the Court and to God for what I have done. It was not planned. It was not meant to happen. I ask for the mercy of the court and forgiveness. I had no intention at all of taking anyone’s life. It just happened and I am very, very sorry.


I have lost my education and property and my marriage and my resources. I just got married last year. This is my first time ever to face court. Thank you to the lawyers. I respect the decision of the court. I understand that no one is above the law.


PRE-SENTENCE REPORT


  1. The Madang branch of the Community Based Corrections office prepared a pre-sentence report for Andrew Manga. He is now aged 29 years. He is the second born in a family of three children. He is the only male. His parents are alive and in the village. He has a grade 12 education. He was at the time of the offence in the third year of a Bachelor of Business degree at the University of Papua New Guinea. His family is strongly supportive of him. His health is sound. The sum of K12,000.00 bel kol was paid to the deceased’s relatives a few days after the incident and contributed to preservation of peace. He has a good community record, and had been looked upon as an up and coming leader, particularly as he was being university-educated.

SUBMISSIONS BY DEFENCE COUNSEL


  1. Mr Morog submitted that there are substantial mitigating factors: there was no planning involved in the offence, it was a spontaneous incident, the offender has no prior convictions and has cooperated with the Court and made a genuine plea for mercy, he has expressed remorse, and substantial compensation has been paid already, which has assisted in keeping the peace. This means that the case falls within the first category (the least serious category) of cases recognised by the Supreme Court in Manu Kovi v The State (2005) SC789, and make the appropriate sentence no more than 15 to 20 years imprisonment.

SUBMISSIONS BY THE STATE


  1. Mr Popeu did not agree that this is a category 1 case according to the Kovi guidelines. It is at least category 2 case as the matter went to trial and there was not only one stab wound, warranting a sentence of 20 to 30 years imprisonment.

DECISION MAKING PROCESS


  1. To determine the appropriate penalty I will adopt the following decision making process:

STEP 1: WHAT IS THE MAXIMUM PENALTY?


  1. The maximum penalty for wilful murder under Section 299 of the Criminal Code is death. The court has a discretion whether to impose the maximum by virtue of Section 19(1)(aa) of the Criminal Code, which states:

In the construction of this Code, it is to be taken that, except when it is otherwise expressly provided ... a person liable to death may be sentenced to imprisonment for life or for any shorter term.


STEP 2: WHAT IS A PROPER STARTING POINT?


  1. I will apply the sentencing guidelines for wilful murder given by the Supreme Court in the two leading cases: Manu Kovi v The State (2005) SC789 and Steven Ume, Charles Kaona & Greg Kavoa v The State (2006) SC836.

The Kovi guidelines


  1. In Kovi the Supreme Court suggested that wilful murder convictions could be put in four categories of increasing seriousness, as shown in the following table.

SENTENCING GUIDELINES FOR WILFUL MURDER


No
Description
Details
Tariff
1
Plea – ordinary cases – mitigating factors – no aggravating factors.
No weapons used – little or no pre-mediation or pre-planning – minimum force used – absence of strong intent to kill.
15-20 years
2
Trial or plea – mitigating factors with aggravating factors.
Pre-planned, vicious attack – weapons used – strong desire to kill.
20-30 years
3
Trial or plea – special aggravating factors – mitigating factors reduced in weight or rendered insignificant by gravity of offence.
Brutal killing, killing in cold blood – killing of defenceless or harmless person – dangerous or offensive weapons used – killing accompanied by other serious offence – victim young or old – pre-planned and pre-meditated – strong desire to kill.
Life imprisonment
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.
[No details provided]
Death

The Ume guidelines


  1. In Ume the Supreme Court suggested that a number of different scenarios may warrant the death penalty, eg (1) killing of a child, a young or old person, or a person under some disability needing protection; (2) killing of a person in authority or responsibility in the community providing invaluable community service killed in the course of carrying out their duties or for reasons to do with the performance of their duties; (3) killing of a leader in government or the community, for political reasons; (4) killing of a person in the course of committing other crimes; (5) killing for hire; (6) killing of two or more persons in a single act or series of acts; (7) killing by a prisoner in detention or custody serving a sentence for another serious offence of violence; (8) if the offender has prior conviction(s) for murder.

Applying the guidelines


  1. Under the Kovi guidelines I reject the defence counsel’s submission that this is a category 1 case and uphold the submission of the State that it is a category 2 case: the conviction followed a trial; there are aggravating factors, and mitigating factors; it was a brutal killing (three stab wounds) of a defenceless, harmless person; and an offensive weapon was used.
  2. Under the Ume guidelines, the case is not one of the eight types that the Supreme Court suggested would warrant the death penalty. Therefore the starting point is 20-30 years imprisonment.

STEP 3: WHAT SENTENCES HAVE BEEN IMPOSED FOR SIMILAR OFFENCES?


  1. I have sentenced offenders for wilful murder in the cases summarised in the following table.

SENTENCES FOR WILFUL MURDER, CANNINGS J


No
Case
Details
Sentence
1
The State v Moses Nasres (2008) N3302, Kimbe
Trial – the offender lay in waiting for the deceased as he walked along a track in a squatter settlement – as the deceased walked past, the offender emerged from behind some flowers and pushed an iron rod though the deceased’s head, killing him instantly.
Life imprisonment
2
The State v
Isak Wapsi (2009) N3695, Madang
Guilty plea – offender killed a fellow villager who he claimed was a sorcerer – the deceased was working at a fermentery and the offender approached him without warning or provocation and cut his legs with a bushknife, severing the right leg and inflicting significant damage to the left leg.
25 years
3
The State v Chris Baurek CR 146/2009, 26.05.10, Madang
Guilty plea – offender killed a fellow villager who he claimed was a sorcerer – he joined with two others in chasing the deceased and attacking him on his back with bush-knives – mitigating factors included that the offender, though fit to plead, had mental and physical health issues, he also made very early admissions of guilt.
20 years
4
The State v
Seth Ujan Talil (2010) N4159, Madang
Trial – offender sentenced for two offences of wilful murder committed at a mediation gathering – not proven that the offender directly killed either of the deceased but he was convicted under both Sections 7(1)(b) and 8 of the Criminal Code as he was involved in a violent group attack and aided others in wilfully committing the murders and the offences were committed during the course of prosecuting an unlawful purpose in conjunction with others.
30 years
5
The State v
Joel Otariv (2011) N4409, Madang
Guilty plea – while the deceased, an elderly woman, was bathing in a river, the offender approached her and raped her, then struck her over the head with a rock, then deliberately pushed her head into the water and drowned her.
Life imprisonment
6
The State v Mathew Misek (2012) N4561, Kimbe
Guilty plea – the offender killed his wife by cutting her on the head with a bushknife, causing instant death – immediately prior to the attack the offender had an argument with her father over payment of bride price – a vicious and barbaric killing, there was a strong desire to kill.
Life imprisonment
7
The State v Lotivi Mal, Moses Mal, Emmanuel Ong & Kathrine Mal (2012) N4591, Madang
Trial – four offenders were convicted after a joint trial of the wilful murder of a man committed during a fight between two groups of people – the sentences reflected their varying degrees of involvement.
20 years,
20 years,
30 years,
17 years
8
The State v
Mark Bongede (2012) N4683, Madang
Trial – the offender was in his village, entertaining a visiting dignitary – the deceased and his friends were drunk and being a nuisance – the offender became frustrated and angry, fought with them and then attacked the deceased with a bushknife, inflicting multiple wounds.
24 years
9
The State v Tun Mai Isaac (2014) N5684, Madang
Trial – the offender killed the deceased by stabbing him in the back during an altercation that took place in the late afternoon after a soccer grand final – deceased offered no provocation – he was trying to stop the fight and was entirely innocent.
Life imprisonment
10
The State v Mathew Lewaripa
(2015) N6151, Madang
Trial – the offender killed his wife by hitting her repeatedly with a shade tree stick and stabbing her several times on her back with a sharp object – the deceased offered no provocation – offender escaped from custody during course of trial.
Life imprisonment
11
The State v Luther Francis Melo (2016) N6267
Trial – the offender killed his wife by strangling and stabbing her – the incident occurred on a public road in the early hours of the morning as the deceased was on her way to work – she offered no provocation – there was no apparent motive for the attack.
30 years
12
The State v Moses Dadu & Sylvester Dadu (2017) N6881
Trial – the offenders chased and stabbed the victim after an altercation between two groups of men in a market – the victim was unarmed – the second offender escaped from custody after conviction and before sentence and was sentenced in absentia and was given a longer sentence.
24 years,
30 years

STEP 4: WHAT IS THE HEAD SENTENCE?


  1. Mitigating factors
  2. Aggravating factors

Consideration


  1. Comparing and contrasting the facts of this case with those summarised above, and taking account of mitigating and aggravating factors, I consider that the mitigating factors are sufficiently weighty to warrant a sentence the same as in the recent case of Moses Dadu: 24 years imprisonment.

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


  1. This is a matter of discretion under Section 3(2) of the Criminal Justice (Sentences) Act. I allow a period of four months.

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


  1. This is not an appropriate case for a wholly suspended sentence. The offender has unlawfully taken a young man’s life. Homicide cases are rarely suitable for wholly suspended sentences. A partially suspended sentence, though it involves a degree of leniency, can be justified in some homicide cases and I consider that this is such a case. The pre-sentence report is very favourable and the prevalent customs in the offender’s area and the deceased’s area supports the idea of a suspended sentence. It is appropriate that half of the sentence – 12 years – be suspended, subject to the following conditions:
    1. must by 29 January 2018 participate in a reconciliation ceremony with the deceased’s family, supervised by the OIC, Madang Probation Office, and for the purposes of the reconciliation:
      • (a) the place of the reconciliation shall be determined by the OIC, Madang Probation Office, after considering the views of the deceased’s family and the offender and ensuring that the Police and the Correctional Service are consulted and that proper security is in place;
      • (b) the offender’s family shall prior to the reconciliation pay into a bank account nominated by the deceased’s immediate relatives, an amount of compensation of K24,000.00, representing the final amount of compensation payable for the death of the deceased;
      • (c) the offender shall, subject to the Jail Commander being satisfied that adequate security is in place, be released from custody during the day of the reconciliation so that he can attend the reconciliation and participate meaningfully in it;
      • (d) the offender’s family shall provide at least six live pigs and foodstuffs; and
      • (e) the deceased’s family shall contribute at least ten chickens and foodstuffs;
    2. must appear before the National Court at Madang on 8 February 2018 at 9.00 am to prove compliance with condition (1);
    3. must not be released from custody to serve the suspended part of the sentence except by order of the National Court;
    4. must reside at a place notified and acceptable to the Probation Office and nowhere else except with the written approval of the National Court;
      1. must perform at least three hours unpaid community work, to be arranged through the Probation Office;
    5. must attend his Church every weekend for service and worship and assist the church in its community activities;
    6. must report to a probation supervisor appointed by the Probation Office during the first week of every month;
    7. must not consume alcohol or drugs;
    8. must keep the peace and be of good behaviour;
    9. must have a satisfactory probation report submitted to the National Court every six months or as and when required by the Court;
    10. if the offender breaches any one or more of the above conditions, he shall be brought before the National Court to show cause why he should not be detained in custody to serve the rest of the sentence.

PLACE OF CUSTODY


  1. The offender will be immediately committed to custody at Beon Correctional Institution, Madang Province, as the offence was committed in Madang, the court proceedings have been conducted in Madang and the conditions of the partially suspended sentence provide for a reconciliation that will need to take place in Madang. The offender will be able, if he so wishes, to apply for transfer to another correctional institution once the Court is satisfied that the reconciliation is complete. The application would be made for enforcement of human rights pursuant to Sections 37(20) and 57 of the Constitution in accordance with Order 23 (human rights jurisdiction) of the National Court Rules.

SENTENCE


  1. Andrew Manga, having been convicted of one count of wilful murder, contrary to Section 299(1) of the Criminal Code, is sentenced as follows:
Length of sentence imposed
24 years
Pre-sentence period to be deducted
4 months
Resultant length of sentence to be served
23 years, 7 months
Amount of sentence suspended
12 years
Time to be served in custody
11 years, 7 months
Place of custody
Beon Correctional Institution

Sentenced accordingly.
________________________________________________________________
Public Prosecutor : Lawyer for the State
Public Solicitor : Lawyer for the offender

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