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State v Wambura [2017] PGNC 318; N6967 (8 August 2017)

N6967

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 816 of 2013

THE STATE

V

LOMBOI WAMBURA
Bali-Vitu : Batari J
2017: 8^th August

CRIMINAL LAW-Sentence – Manslaughter – Accused assaulted victim on head with fist, deceased fell down and lapsed into unconsciousness – head injury - whether injury due to fist blows or resulted from fall – no evidence of – benefit of doubt – accidental killing under provocation – mitigation - plea – value and effect of considered – cooperation & remorse factors – principles of - domestic killing – consideration of – compensation – duty to provide proof of – Sentencing principles considered and applied - Sentence of 7 years appropriate.

Facts:

The accused was charged with the unlawful killing in circumstances where in the course of drinking, his brother in-law pushed him and he retaliated by punching his brother in-law on the head causing him to fall unconscious and subsequently died.

Held:

(1) The cooperation factor is also an incentive to cooperate with the police, it indicates personal acceptance of responsibility and supports remorse

(2) A plea and genuine remorse are strong indicators of inclination towards rehabilitation, it shows disposition against re-offending.

(3) A guilty plea ought to result in some discount in practical terms as an incentive to plead guilty.

(4) With the increasing length, complexity and costly criminal trials at public expenses, guilty persons when charged with offences be encouraged to enter honest pleas of guilty at the earliest possible time.

(5) The sentence imposed by the Court must be determined by the circumstances of death or the nature of the killing and the way in which death was actually caused in each case.

(6) A killing that did not result from calculation, deliberation, planning, cruelty, but have an element of incidental, accident, stupidity or negligence will attract a lower term of imprisonment.

(7) Intoxication is not an excuse if the accused voluntarily got drunk to give him/her courage to commit the offence though, alcohol may to some extent influence an extreme behaviour not otherwise expected of a person in his normal self as his self-control is affected, and hence, intoxication may lessen culpability supported by other relevant factors.
(8) Killing of a relative is a mitigating factor.

(9) An accused person who relies on payment of customary compensation as a mitigating factor on sentence bears the onus of proving as a matter of fact, the existence of such a custom.

Cases Cited:
Papua New Guinea Cases Cited

Acting Public Prosecutor v Nitak Mangilonde Taganis of Tampitanis [1982] PNGLR 299
Anna Max Marangi v The State ( 2002) SC 702,
Kalabus v The State [1988] PNGLR 193.
Kesino Apo v The State [1988] PNGLR 182
Manu Kovi v The State (2005) SC789
Paul Mase & Anor v. The State [1991] PNGLR 88
Public Prosecutor v Tom Ake [1978] PNGLR, 469
Rex Lialu v The State [1990] PNGLR 487
The State v Bluey Hanua (1997) N1625
The State v Jacob Cajetan (2016) N6383.
The State v Win Thomas (un-numbered NC Judgment) CR No. 837 of 1994

Overseas Cases

R. v Phillips [1985] 7 CR App R (S) 235.
R. v. Pickett (1986) 2 QR 441

Counsel

A Bray, for the State

A. Tunumu, for the Accused

SENTENCE

8 August, 2017

1. BATARI, J; This morning, Lomboi Wambura pleaded guilty to manslaughter. The victim, Philip Pegesti died after Lomboi floored him with punches to the head. This is the verdict on sentence.
   

Factual Background

2. In the evening of 31 June, 2013 at Tamagore village, Unea Island (Bali), West New Britain Province, Lomboi Wambura joined his brother in-law Philip Pegesti and other relatives to celebrate their children’s first Holy Communion under the Roman Catholic Church rite. They consumed home-brewed alcohol into the night, until the incident. During a brief altercation, Philip pushed Lomboi to the ground. Lomboi retaliated and punched Philip all over his head. Peter fell and lapsed into unconsciousness. He subsequently died.
   
3. A medical report compiled by HEO Marcellus Vatican of Unea Catholic Health Centre showed Philip sustained a fracture of the left temporal base skull. This was the main cause of death, hastened by alcohol. Of the effect of alcohol, the report stated; “This boosted the strength of liquor to loosen the control of his level of consciousness and died instantly” (sic). The report concluded, death “was caused by an unknown direct hit by a hard object to the left temporal head”.
   
4. The report is inconclusive on what caused the base skull to fracture. It is unclear whether the head trauma resulted from the punches or the fall. Nevertheless, the injury resulted after the prisoner assaulted the deceased and he fell. Philip’s state of intoxication also contributed to his death.
   

Prisoner’s Background & Personal Circumstance

5. Aged 43 years, Lomboi comes from a fairly large family, married with two children and a villager. He attained grade 6 level of schooling and follows the Roman Catholic faith. I am not sure if Lomboi is a true believer in his church’s teachings. His conduct did not support that view. Nonetheless, this is his first conviction from unblemished past. There is nothing extraordinary that may add to his personal good background.
   

Cooperation with Police & Remorse

6. The principle here is, that the person who upon arrest or surrender, cooperates in admitting the offence and/or volunteers information leading to the arrest of other suspects or recovery of stolen properties, is entitled to discount on his sentence because he has saved police and the State, time, resources and costs to investigate his crime.
   
7. The cooperation factor is also an incentive to cooperate with the police. Too, such conduct indicates personal acceptance of responsibility and supports remorse. Furthermore, a plea and genuine remorse are strong indicators of inclination towards rehabilitation. It shows disposition against re-offending.
   
8. In this case, Lomboi made early admissions and have reconciled with relatives of his brother in-law. Normalcy has been restored following his contribution towards funeral and related expenses, a sign of remorse. So, I accept his expression of remorse as genuine.
   

Plea

9. Mr Tunumu of Counsel for the prisoner submitted, the guilty plea ought to weigh heavily in his client’s favour. Had he contested his innocence, it would have put the State and the Court to unnecessary costs and time wastage.
   
10. I agree. The fact of a guilty plea ought to result in some discount in practical terms. The final outcome in the sentence should reflect the worth of pleading guilty. And a plea can be an incentive to plead guilty. In The State v Win Picinon Thomas (un-numbered) CR No. 837 of 1994 Los, J stated;
    

"... an honest plea of guilty must be taken into account in an apparent fashion so that the prisoner must know that his guilty plea has been well appreciated and take into account by the Courts. This would also encourage other people who genuinely want to plead guilty must do so knowing that it will help them in their punishment."

11. I expressed similar sentiment in The State v Bluey Hanua (1997) N1625 that with the increasing length, complexity and costly criminal trials at public expenses, it is considered important, guilty persons when charged with offences be encouraged to enter honest pleas of guilty at the earliest possible time. (See R. v. Pickett (1986) 2 QR 441). The incentive must of course come from what is apparent on the final sentence of the Court.
    
12. It is trite that a guilty plea may demonstrate and support remorse and contrition. See, Public Prosecutor v Tom Ake [1978] PNGLR, 469; Kalabus v The State [1988] PNGLR 193. A guilty plea is sometimes described as the best evidence of remorse. The weight due to be given to a plea of guilty may depend on a number of factors such as;
    
    1. The seriousness of the offence;
    2. The circumstances of aggravation;
    3. The factors in mitigation;
    4. The young age or advanced age of offender;
    5. How soon the plea is taken after committal.
       
13. The advantage of an early plea is the opportunity the prisoner would have missed in having to serve the penalty early. Too, a plea at the earliest opportunity adds consistency to the offender’s good conduct since the commission of the offence. This is not to say a belated plea has no value. For variety of reasons including but not limited to infrequent sittings of the National Court, lack of opportunity to seek or obtain legal advice, change of representation or as a result of plea bargaining, it may not be possible to enter an early plea.
    
14. Where the accused procrastinates in taking an early plea despite overwhelming evidence, a belated plea in my view, should add little weight. Similarly, guilty plea to serious crimes of unlawful killings and other crimes of violence committed in circumstances of aggravation itself will have little or no weight if the plea is not supported by special or exceptional mitigating factors like old age or very young age or ill health.
    
15. In this case, the timing of the prisoner’s plea is immaterial. He was committed to stand trial on 4/11/2013. The case was initially listed as a trial. Following his committal and change in circumstances, the National Court now for the first time sits in Bali-Vitu. His guilty plea deserves some credit on sentence albeit, late. It is fairly supported by other factors from his personal circumstances and the offence.
    

Circumstances of Killing: Principle

16. It is now common acceptance that the sentence imposed by the Court is determined by the circumstances of death or the nature of the killing and the way in which death was actually caused in each case: R. v Phillips [1985] 7 CR App R (S) 235. For a brutal and deliberate killing, a higher term of imprisonment somewhere around the maximum of life imprisonment or in the worst case, life imprisonment (or death penalty for wilful murder) is appropriate. A killing that did not result from calculation, deliberation, planning, cruelty, but have an element of incidental, accident, stupidity or negligence will attract a lower term of imprisonment.
    

Intoxication & Provocation

17. There are several factors that aggravate or mitigate this killing. First it was alcohol related. Both men had been drinking non-distilled alcohol and no doubt drunk at the time of the incident.
    
18. Intoxication is not an excuse if the accused voluntarily got drunk to give him/her courage to commit the offence. In that case, intoxication may be considered as an aggravating factor: The State v Jacob Cajetan (2016) N6383. Conversely, alcohol may to some extent influence an extreme behaviour not otherwise expected of a person in his normal self as his self-control is affected. So, this may lessen culpability. However, on its own, intoxication may not be a significant mitigating factor as Kapi DCJ (as he then was) stated in Kesino Apo v The State [1988] PNGLR 182 (Kapi DCJ., Woods, Los JJ.) at p183;

“It may have some bearing if considered together with other circumstances, such as provocation in fact for the purpose of sentence. In the end result, the influence of alcohol cannot be a significant factor in mitigation of sentence.”

19. In Paul Mase & Anor v. The State [1991] PNGLR 88 Kidu, CJ and Amet, J (as he then was) in a joint judgment stated almost the same thing that;
    

“If people drink liquor, get drunk and commit crime they must not expect leniency from the courts unless, of course, the intoxication is shown to have the effect of diminishing responsibility. Such was not the case here.”

20. In this case, I consider that the serious culpability of the prisoner’s conduct is reduced by his level of intoxication. It is no doubt the reason for reacting in the manner he did against his own brother in-law. Being under the influence of alcohol, his self-control was affected. I also accept presence of provocation falling short of the legal defence. The deceased started the fight. He pushed the prisoner and the prisoner fell. Lomboi then recovered and retaliated. This factor supports the intoxication factor: Kesino Apo v The State; Paul Mase & Anor v. The State.
    

The way in which death was actually caused

21. This is the second factor that reduces the serious culpability of the prisoner’s conduct. No weapons were used. It was simple fist punches that caused the deceased to fall. Then, intoxication no doubt affected the deceased’s strength and self-control to resisted or control his fall. In all the fight seemed trivial. Those present had remained unperturbed may be because the fight between the two in-laws was not serious or alarming. It seemed no-one was aware of Philip’s predicament until they tried to move him to another “sleeping” place.
    
22. It is also unclear if the fracture to Philip’s head resulted from the fist punches or as a result of falling. The fracture may have been cause by the fall. Although the seriousness of the attacked may be inferred from the victim falling, it must be borne in mind that intoxication contributed to the fall and hastened the death.
    
23. This case falls into the category of accidental or negligent killing.
    

Killing of a relative

24. Lomboi brought about the death of his own brother in-law. In a way he has caused the death of and lost someone he could rely on for support. The punitive aspect of the killing which the prisoner has brought upon himself has long been accepted as a mitigating factor following the principle in Kesino Apo v. The State (supra) that;
    

“The traditional self-punitive aspects relating to the killing of a relative are matters which may be taken into account on sentencing.”

25. These factors from the offence together with Paul’s good background, his cooperation with the police, expression of remorse and payment of compensation support for the guilty plea.
    

Compensation

26. The prisoner said he will pay compensation if released on probation orders or good behaviour bond. Compensation is a matter that may be taken into account on sentencing in homicide cases, where such payment is considered relevant to sentence. An accused person who relies on payment of customary compensation as a mitigating factor on sentence bears the onus of proving as a matter of fact, the existence of such a custom: Acting Public Prosecutor v Nitak Mangilonde Taganis of Tampitanis [1982] PNGLR 299 (Kidu CJ, Kapi DCJ, Pratt J).
    
27. In this case, the prisoner has not shown by proof of evidence, the effect of compensation as a customary sanction in Bali-Vitu LLG area, its relevance as a mitigating factor. If customary compensation is practised in this part of WNB Province, the prisoner had six months to attend to that. He did nothing apart from some initial payments which included funeral expenses. It is open to infer that any monies and goods paid did nothing more than to appease grieving relatives of the deceased to restore peace and harmony. In this case, I am not satisfied that customary compensation should be ordered.
    

Manslaughter Sentencing – Principles Applied

28. The maximum sentence for manslaughter killing is life imprisonment. It is not mandatory because of s.19 of the Criminal Code. Section 19 sets out different sentencing options the court can use in the particular circumstances of a case. In the exercise of its sentencing discretion, the Court is guided by settled principles from case precedents for similar type unlawful killings.
    
29. For manslaughter killings, the guidelines for different categories have been settled in Rex Lialu v The State [1990] PNGLR 487 and the long of cases that has since followed to the now most frequently cited case of Manu Kovi v The State (2005) SC 789.
    
30. It is trite that sentences for manslaughter will normally be lower than sentences for murder and wilful murder. However, taking life imprisonment as the maximum penalty, there are those cases that will warrant a term of imprisonment within the category of murder killings. In Anna Max Marangi v The State (2002) SC 702, the Supreme Court suggested guidelines for three types of manslaughter killings as follows:
    

“The first consists of cases in which force is used accidentally or in any uncalculated manner, such as a single blow, punches or kicks on any part of the deceased body. This also includes cases in which death is caused by an acceleration of a pre-existing disease or condition leading to death. These kinds of killings attract sentences between three (3) years and seven (7) years.

The second are cases that involve repeated application of vicious force, with or without the use of an instrument or weapon, such as repeated kicks and punches applied to the head or chest with deliberate intention to wound or cause bodily harm. Deaths caused by a single or multiple knife stab wounds applied to the head, neck, chest or abdomen or an any other vulnerable part of the body, even if there is no other special aggravating factors, come under this category. This category attracts sentences between 8 and 12 years.

The third and final involve cases in which there is direct application of force in a calculated manner, on the body using a weapon such as a knife, bush knife or axe causing serious bodily injuries, such as piercing vital organs or severing vital parts of the body. Deaths caused by chopping the neck, legs and arms with an axe or bush knife are examples of this kind of killings. This includes death caused by single or multiple knife stab wounds on the head, face, neck, chest or the abdomen if accompanied by other special aggravating factors may also fall under this category. These kinds of killings attract sentences between 13 and 16 years.”

31. In Manu Kovi v The State (supra) the Supreme Court used the four categories in Anna Max Marangi’s case as a guide to recommend that:
    

“1. In an uncontested case, with ordinary mitigating factors and no aggravating factors, a starting point of 7 years up to 12 years. A sentence below 7 years should be rarely imposed except in exceptional cases where there are special mitigating factors.

2. In a contested or uncontested case, with mitigating factors and aggravating factors, a starting point of 13 - 16 years.

3. In a contested or uncontested case, with special aggravating factors and mitigating factors whose weight is reduced or rendered insignificant by the gravity of the offence, 17 - 25 years.

4. In contested and uncontested case with special aggravating factors - Life imprisonment for the worst cases. The presence of mitigating factors is rendered insignificant by the gravity of the offence. These are cases which involve viciousness, some pre-planning, use of a weapon and complete disregard for human life”.

32. The case of Manu Kovi v The State (supra) did not necessarily do away with the sentencing guide in Maragi v The State. Although, the sentencing range in that case remains good guide, the suggested ranges in Manu Kovi are the preferred approached as it is a subsequent pronouncement.
    
33. The killing in this case resulted from a combination of incidental, accidental, stupidity and gross negligence. I consider that the seriousness of the offence is mitigated by the plea of guilty, supported by a prior good background, the preceding and surrounding circumstances as explained above. The case falls in between the first and second categories in Marangi v The State where the ranges of 3 to 7 years and 8 to 12 years are prescribed. In Manu Kovi v The State, the suggested sentence range in the first category is 8 to 12 years. The Court was also mindful that a sentence below 7 years may be justified in exceptional cases where there are special mitigating factors.
    
34. There is no question that the prisoner will serve a term of imprisonment calculated to sufficiently serve both the deterrent and retributive aspects of sentencing.
    
35. The offender has asked for suspended sentence. I have considered that request. Neither of those sentencing options is supported by good reason. In all the circumstances, a sentence of 7 years is appropriate.
    
36. Lomboi Wambura is sentenced to 7 years imprisonment with hard labour. That term is reduced by 11 months, being the time spent in custody. He will serve the balance of 6 years and 1 month IHL.

_______________________________________________________________

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