N7242
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 72, 73, 74, 75, 76 OF 2016

  THE STATE

V

ALLAN MANGAIA & PETER SAUREN & ALLAN TAGALA 
DESMOND BENSTEAD &WESLEY BARILAE

Kimbe: Miviri AJ
2018: 14th 22nd March 26 27th April

CRIMINAL LAW – PRACTICE AND PROCEDURE – Manslaughter S302 CCA – Plea – group attack –– allegation of sorcery – deceased bleeding femoral artery– death –– PSR MAR ordered favourable – prevalent offence– serious offence – parity of sentence – no parity – acting in concert– common purpose–no disassociation from common purpose – equal participation – deterrent sentence.

Facts

Five Accused were at the grave side of a relative who had just died. Deceased threw stone landing on the roof of the grave shelter. Accused pursued and caught the deceased and assaulted him during the course where he sustained a cut to his femoral artery resulting in the deceased bleeding to death.

Held

Strong belief in sorcery
Deceased suspected
Assaulted
Femoral artery cut
Use of weapons
Venerable part of the body 
Plea
20 years IHL

Cases Cited: 

Allan Peter Utieng v. The State; Unreported judgment delivered in Wewak on 23/11/00) SCR 15 of 2000
Marangi v The State [2002] PGSC 15; SC702 
Rex Lialu v The State [1990] PNGLR 487.
R v. Kopal Wamne (1974) N809.
R v Oa [1967-68] PNGLR 26.
Sanawi v The State [2010] PGSC 31; SC 1076 
Thress Kumbamong v The State (2008) SC 1017 
State v Aitsi No 2 [2008] PGNC 21; N3296 
State v Hurotove [2017] PGNC 114; N6754 
State v Kimkilala [2017] PGNC 243; N 6908 
State v Martin [2008] PGNC 3312 
State v Walus [2005] PGNC 147; N2802 
Tapi v The State [2000] PGSC 2; SC635 
The State v Angitai [1983] PNGLR 185
The State v Avia Aihi (No 3) [1982] PNGLR 92 
The State v Baipu [2005] PGSC 19; SC796 
The State v Kovei [2001] PGSC 5; SC676 
The State v Kovi [2005] PGSC 34; SC789 
The State v Saraga [2017] PGSC 17; SC1592 
The State v Tapea Kwapena [1978] PNGLR 316.

Counsel:

A Bray, for the State
R Bellie, for the Defendant
		
SENTENCE
9th May, 2018 

1.	MIVIRI AJ: This is the sentence of the four prisoners who pleaded guilty to unlawfully killing another over allegation of sorcery. I adjourned to allow filing of presentence and means assessment reports which have now being done in all.

Charge

2.	Allan Mangaia, Peter Sauren, Allan Tagala, Desmond Benstead, and Wesley Barilae were charged with unlawful killing of one Gume Ismael Labiti on the 31st of August 2015 at Karapi Hoskins pursuant to section 302 of the code. They were at a “haus Krai” of one Philip Mangaia who had died. Whilst there two stones were thrown at the roof of the shelter of the grave of Philip Mangaia and they pursued the person Gume Ismael Labiti who had allegedly thrown the stone. He sought refuge in his own house but was pursued there. He jumped out of the window there they pursued catching him whereupon they repeatedly assaulted him with their hands and weapons. In the course of which he sustained a cut to his femoral artery from which he bled to his death. 

3.	Except for Wesley Barilae all four accused pleaded guilty to the charge. I confirmed their guilty pleas after reading the file tendered and convicted all as charged. My reading of their file did not disclose the scene in Tapea Kwapena v The State [1978] PNGLR 316. Nor did it disclose the situation in R v. Kopal Wamne (1974) N809: R v Oa [1967-68] PNGLR 26; Angitai v The State [1983] PNGLR 185. It was safe in law to confirm and accordingly confirmed.

4.	No evidence was offered in respect of Wesley Barilae drawing verdict of not guilty of manslaughter he was acquitted discharged and bail moneys were ordered to be refunded.
Issue

5.	What then is the appropriate sentence given for the prisoners here?

6.	It was not the worst case of murder: Kovei v The State [2001] PGSC 5; SC676 adopting and following Avia Aihi v The State (No 3) [1982] PNGLR 92. A determinate term of years is in order from the maximum prescribed of life years under s302 of the Code.

Facts

7.	The facts are that the deceased was accused of being a sorcerer responsible for the death of Philip Mangaia their relative at whose grave side they were at by custom when stones landed on the grave shelter they pursued the deceased up to his house. They did not desist but pursued even when he tried to escape through a window and seek refuge elsewhere. He succumbed to the level of violence exerted. The Medical evidence established he suffered a cut to the femoral artery from which he bled to his death. 

8.	The artery is a major blood vessel in the body and inflicting a cut to it is grievous life is threatened here and was unnecessary taken primarily over an allegation not a conviction of sorcery. The prisoners had no right to take his life. In each case of homicide whether it is wilful murder, murder or manslaughter as is the case here, the sentence of death in the former and in the latter and the present life years is prescribed as maximum. A clear dictate that life is sacred emphasized by section 35 of the Constitution. Which preambles Papua New Guinea as a Christian country pledging the Christian principles that Life is by GOD and no man has a right to take another’s life as was the case here accepting we live only once.

9.	The belief in sorcery is prevalent and rampant throughout the country despite 42 years of the existence of the Constitution in the preamble set out above. And heinous crimes of homicide and other atrocities’ exerted in group attacks as here is spread throughout the country of recent, Saraga v The State [2017] PGSC 17;SC1592; State v Martin [2008] PGNC 3312; Baipu v The State [2005] PGSC 19 ;SC796. Even education and expose to modern life has not extinguished. The prisoners are no different particulars I have set out here. In my view that is grave defiance of the Constitution particulars set out above and the right to life. It is incumbent upon the courts to deter as well as punish and denounce this offence in the strongest terms. It cannot be mitigated that the killing was over allegation of sorcery which is not the same as defences in law set out by the Criminal Code excusing application of the law.

10.	Karapi village in Hoskins where the offence took place is less than 45 minutes or less drive out of Kimbe. It is exposed to the modern world but this belief is deeply rooted giving rise to this evil here where a life is taken because of it. In the antecedent report the prisoners are; 

(i)	Allan Mangaia is 32 years old educated to grade 10 Port Moresby Grammar Secondary School 2002. He furthered that with certificate training in Welding at Moramora Technical College 2013 graduating 2014. He was employed with KKKingstone Company in Lae. He is a catholic of that Church at Karapi. He set out in life well.
(ii)	Peter Sauren is 38 years old single man educated to grade 8 in 1990 going onto Moramora Technical School 2013 where he did trade skills in panel beating and did practical at Malama Fibre glass workshop for 6 months. He has no formal employment record and is a first offender of the Catholic Church Karapi. He also set out in life well.
(iii)	Allan Tangala is 33 years old is the third child out of nine. He is married with four children of his own. And educated to grade 10 in 1998 at Moramora Technical High School. He has no formal employment history is subsistence farmer. He too is of the Catholic Church Karapi. And has set out in life well.
(iv)	Desmond Benstead is 31 years old married with three children. His father is from Oro Province and mother from Karapi living at Mosa where father is employed as a workshop supervisor. He is the eldest out of three siblings and is educated to grade 10 at Bialla Secondary School in 2011. He did certificate training in Welding at Moramora Technical College 2013 graduating 2014. Presently he is unemployed and does not have any record of the same. He is of the united Church Karapi. He is a first offender. Again he too has set out in life well.

Presentence and means Assessment Reports

11.	I have thoroughly considered both the Presentence and the means assessment reports at length in respect of each individual prisoner and make the following observations following. The immediate relatives of the deceased have demanded payment of K 10, 000 as compensation for the death of the deceased. That has not been done. There is payment of K2000 by the prisoners and immediate relatives which has not been received by the immediate relatives of the deceased. The effect is that the matter is not resolved at that level there is tension in the community from the offence. It would not be parallel with the gravity of the offence to put back the prisoners into the community. 

12.	The offence is a culmination of three failed mediation, firstly at Buluma Police Station on the 15th August 2014 where the complainants and the offenders attended in relation to the death of Jessica Benstead but not the deceased and others related. The Second mediation was on the 3rd March 2015 at Hoskins LLG office in relation to the death of Andrew Benstead offender Benstead’s younger brother, again the deceased and his relatives did not attend. The complainants including the offenders attended. The third mediation on the 1st July 2015 was at Karapi attended by the offender and the deceased and others related did not so it was called off. It was in relation to the death of Helen Mangaia. This is credit to the prisoners for complying with law in trying to solve this problem. Rather than pursue in that manner and find solution compatible with all they elected to go as they did. It aggravates as it shows they knew how to solve the matter at their level but did not persist to find that solution. A wrong can never be right with another wrong rather with a right. The sentence passed will reflect this in bold never to be law unto oneself in settling problems.

Presentence Means Assessment Reports

13.	All prisoners are assessed and recommended to be good candidates for probation with strict conditions by the presentence report. I have taken due regard and consideration of including the means assessment reports that each prisoner is capable of paying compensation. And time is asked for by the prisoners to so settle. It cannot be said that this genuine given that on14th March 2018 they were remanded. Prior to that date they were on bail and made no real attempt to so discharge. Although K2000 was presumably paid it has not been received by the deceased relatives. Who have demanded K 10, 000 in settlement of the matter. Understandably so in view of the death of a loved one. In my view this works against the consideration of a non-custodial or part suspended sentence because no real prospect has been shown to weave into by the court here.

Application Tariff and Range

14.	Given the facts and circumstances set out here category 3 of manslaughter in line with Kovi v The State (supra) runs ranging between 17 to 25 years in jail which both counsel have affirmed addressing. It is good practice to consider range and tariff of like offences and sentences drawing, but does not take away the discretion of the court to consider the facts and circumstances of a given case Thress Kumbamong v The State (2008) SC1017 and to deduce an appropriate sentence befalling. Because the sentence is according to penalty prescribed not without. Here also Allan Peter Utieng v. The State Unreported judgment delivered in Wewak on 23/11/00) SCR 15 of 2000, stands for the proposition that the personal circumstance of a prisoner will not override what is due in law to him because protection of the law is equal both to the prisoner and the deceased in this case.  Particularly considering that life is lived only once and is therefore sacred. It is a fundamental right under our Constitution section 35 and only by process of law can life be taken. Kovi v State (supra) settles and this court has always reinforced that, State v Hurotove [2017] PGNC 114; N6754 is an instant. 

15.	Here is a very serious group attack persistently pursued until deceased was no more at the discretion of the prisoners resulting in the cut to the femoral artery. It was vicious and planned because they knew and laid in waiting at the cemetery and then pursued the deceased until they were able to successfully take his life. Even though it was in a village setting at night time they were not deterred in their endeavour to assault regardless of whatever befell the deceased. In that regard it was a deliberate intention to harm in this case unlawfully kill. In so doing they paid little or no regard for human life bearing in mind their personal backgrounds set out above. And all acted in concert and together in a common intention to pursue and breach the law. They are treated equal in the sentence befalling. There is no parity in sentence given the facts and circumstances set out here. The Supreme Court in Sanawi v The State [2010] PGSC 31; SC 1076 sets out the principle of parity as follows:

 “A consideration of all these authorities shows that a court can impose a sentence that is in disparity with a sentence received by an offender’s co accused. That can only happen if there are good reasons such as prior conviction, conviction after trial, and playing a more active and leading role in the commission of an offence. Such factors need not exist in the one case at the same time. There could be just one such factor or there could be a combination of them”.

Allocutus

16.	They were concerned about their own families and circumstances after consequence of the breach. Each apologised and pleaded for mercy to be accorded and asked to pay some form of compensation.
Circumstances of case

17.	Manslaughter is a very prevalent offence despite the stern punitive and denouncing sentences that have time and again been imposed by this court. Fundamental is where the level of violence is high and weapons are used indiscriminately and there is no regard for the sanctity of life or as here persistent attack upon the victim deceased prompted by sorcery and revenge: Tapi v The State [2000] PGSC 2; SC635 the supreme court maintained that it was the top end of manslaughter cases for 16 years to have been imposed on a husband who had cut up the wife causing massive bleeding from which she died. Where a weapon is used the sentence goes up;  a piece of iron rod was used to hit the deceased over the head and he died as a result which attracted 17 years imprisonment upon the prisoner State v Aitsi No 2 [2008] PGNC 21; N3296. This is also reflected in the range that Kovi’s case (supra) makes out which echoes Rex Lialu v The State [1990] PNGLR 487.

18.	A further fact that increases the sentence is the viciousness of the assault with very serious injuries leading to death as this court held in State v Walus [2005] PGNC 147; N2802 18 years IHL was imposed upon the prisoner who pleaded guilty to assaulting the deceased who sustained a broken neck as well as a ruptured spleen from which she died. The assault was vicious drawing very serious injuries from which the deceased succumbed. The same is so here the assault was fuelled by a very strong belief even after 42 years of independence upon sorcery. And is group attack upon an individual who was not given any chance to say in respect of the allegation upon him.

19.	In The State v Kimkilala [2017] PGNC 243; N 6908 15 years IHL was imposed where the prisoner had stabbed deceased in the back piercing the lung from which he died. He pleaded guilty. 

 "Manslaughter is a very serious matter or offence and it carries a maximum penalty of life imprisonment. And the life imprisonment is because a life is gone and that person is never going to come back. "No matter whose fault it is, the person is dead and it is tragic. I cannot ignore the fact that you were carrying a knife with you at the time and unfortunately this court sees time and time again women who are walking around everywhere, not just in the Highlands, in many places of the country who are carrying knives and so much harm comes out of it. You stabbed her twice and what makes this case even sadder than everything is that the deceased was seven months pregnant. And the State has asked me to take that into consideration as an aggravating circumstance. As I understand the foetus died and the whole incident is tragic. It is sad and it should never have happened. You have done something that you will have to live with for the rest of your life.... I cannot ignore the fact that not only did the lady die but the seven months foetus has died as well. Women must realize that they cannot express their anger with the use of a knife; it is just not acceptable under any circumstances. If they do so, they can expect to go to jail." Marangi v The State [2002] PGSC 15; SC702 (8 November 2002) 

20.	The facts and circumstances in Maringi (supra) are different but the principle within is applicable here and I apply in so determining. Use of a weapon to cause harm in a group and to kill as here is not a light matter. I consider in all the circumstances weighing the aggravating as well as the mitigating factors of the case that a just and proportionate sentence in your case would be 20 years IHL and I impose that upon you regarding that you all pleaded guilty. This sentence would have been higher had you not pleaded guilty. 

21.	I consider group attacks persistent deliberate and calculated very serious which must be stopped by strong punitive sentences. There are no extenuating circumstances set out by the evidence. The formal orders of the court are that you are all sentenced to 20 years IHL and the time in custody will be deducted forthwith.

22.	Twenty (20) years IHL upon all four prisoners Allan Mangaia, Peter Sauren, Allan Tagala, Desmond Benstead.

23.	Time on remand is deducted forthwith.

24.	The balance will be served in Jail.

Sentenced accordingly.

__________________________________________________________________
Public Prosecutor:  	Lawyer for the State	
Public Solicitor: 		Lawyer for the Defendant