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State v Mano [2019] PGNC 465; N8238 (18 December 2019)

N8238

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 804 of 2018

THE STATE

V

EMMANUEL MANO

Lae: Kaumi J
2019: 11^th July & 18^th December

CRIMINAL LAW – Sentence-Criminal Code Act 1974- Section 302 Manslaughter –Childhood friends drinking alcohol, misunderstanding, brief altercation, and deceased knocked on chest and falls to the cement floor hits back of his head and dies one week later.

CRIMINAL LAW-Proper Starting Point–Sentences Imposed for Equivalent Offences-Head Sentence-Identification of Relevant Considerations-Mitigating and Aggravating Factors-Pre-Trial in Custody-Should All or Part of the Sentence be Suspended –Imperative that there must be a basis substantiated by evidence for any recommendation of suspension of a custodial term in a Pre-Sentence Report-Suspension of sentence can still be made despite lack of input from community where peculiar circumstances dictate

CRIMINAL LAW- Sentence-Guilty Plea-Expression of Remorse–Prevalent Offence.

The offender pleaded guilty of one count of Manslaughter and matter for sentence.

Held

[1] Allowance should be given in circumstances where every possible effort within reason has been made by the CBC office to contact and interview community leaders and the victim’s family for their input but to no avail due to indifference, ignorance or design on their part and by no fault on the part of the offender and especially where the aggregate tenor of the PSR is in favour of the offender in terms of some form of suspension. Conversely to ignore such circumstances would be a case of a lack of judicial piety on part of the Court or worse to give an impression of being arbitrary on part of the Court and injustice to the offender.

[2] There will always be exceptions to general rules given the peculiar circumstances of individual cases.

[3] If the strict compliance with a general rule leads to an absurdity then justice has not been arrived at and fairness not been accorded to the offender.
Cases Cited:

Avia Aihi v The State (No.3) [1982] PNGLR 92
Goli Golu v The State [1979] PNGLR 653
Public Prosecutor v William Bruce Tardrew [1986] PNGLR 91
SaperusYalibakut v The State [2008] SC 890
The Acting Public Prosecutor v Don Hale (27/08/98) SC 564
The State v Wadbag [2002] PGNC 212; N6410
The State v Irox Winston [2003] N2304 (N2307)
Tom Longman Yaul v The State [2005] SC 803
The State v Benson [2006] PGNC 68 CR 447, 445
The State v Kainge [2006] PGNC 229; N4518
Thress Kumbamong v The State (2008) SC 1017
The State v Kelly [2009] N3624
The State v Robert [2010] N4065.
The State v Christopher Dunbun [2010] N4109
The State v Nokup [2012] PGNC 225; N4787
The State v Leahy [2017] PGNC 210; N6880
UreHane v The State [1984] PNGLR 105

Legislation Cited:

Constitutionof Papua New Guinea
Criminal Code 1974
Criminal Justice (Sentencing) Act 1986

Counsel

Ms. Maru and Ms. Comfort Langtry, for the State
Mr. Colman Balus Boku, for the offender

SENTENCE

18^thDecember, 2019

1. KAUMI J: This is a decision on sentence for a man who on the 11^th July, 2019 pleaded guilty of one count of Manslaughter contrary to Section 302 of the Criminal Code Act Chapter 262.
   

ISSUE

2. The relevant issue is: what is the appropriate sentence in this case?
   

FACTS

3. On 27 January 2018, the accused, Emmanuel Mano, had been drinking with the deceased, Betong Joap, at the accused’s house. At around 11pm and 12pm, the deceased sent the accused out to look for someone by the name of Passingan. When the accused returned he heard that the deceased was calling the name of his wife. This made the accused angry and he assaulted the deceased. The accused kicked the deceased on the chest and he fell down and hit the back of his head on the cement floor. The deceased died a week later from blunt force trauma to the head.
   
4. An autopsy was done after the death of the deceased and it was found that the deceased had the following injuries-
   

a. sustained a 2cm x 2cm laceration at the back of the head;

b. contused chest muscles; and

c. hematoma of the back of the head.

ANTECEDENT

5. The Antecedent Report provided to the Court by the State states that he has no prior convictions.
   

ALLOCATUS

6. When I administered allocatus to the offender i.e. allowing him the opportunity to say what matters he would like the court to take into account when contemplating what kind of punishment to give him, the following is a paraphrased summary of his response:

“Thank you Your Honour, firstly, I say sorry to God, He is holy, I broke the law that he doesn’t allow and I did. I say sorry to Your Honour and your associate and the two counsels and Court staff for spending time on my case when you could be doing something else but are here to hear my wrongdoing. I say sorry to Papua New Guinea as a Christian country and the mother law doesn’t allow me to do and I broke it. I say sorry to the family of the deceased. I say sorry to my widowed mother and my new wife. This was unexpected but it happened in my family. I say sorry to myself for spoiling my name and this Christian country. I ask this Court to have mercy and give me probation or good behaviour bond because I am a first time offender, my mother is a widow and my wife and I are newly married. I haven’t settled down and put them in a proper place and this problem arose. I say sorry please can the Court have mercy on me and give a good behaviour bond or probation. I promise I will not do that again”.

OTHER MATTERS OF FACT

7. The prisoner pleaded guilty and so I will give him the benefit of the doubt on mitigating matters raised in the committal depositions, the allocatus and in submissions that are not contested by the prosecution: Saperus Yalibakut v. The State (2008) SC890.
   

SUBMISSION BY DEFENCE COUNSEL

8. The gist of Mr. Boku’s submission on behalf of the offender is that given the fact that this was an isolated incident where there was provocation in the non-legal sense, the attack was not frequent, the death was a direct result of the fall from the concrete floor and no weapons used, these factors strongly indicate that the actions of the offender was not deliberate and therefore the starting point should be between 4 to 5 years and that the sentence should be wholly suspended and relies inter alia on State v. Nokup [2012] PGNC 225; N4787 and Thress Kumbamong v. The State (2008) SC 1017 (Salika DCJ, Kandakasi, Yagi JJ) for his submission.
   

SUBMISSION BY THE STATE

9. Ms. Langtry for the State submitted that this matter had features of the first category of Manu Kovi’s case and the court had the discretion to consider a term of years from 8 to 12 years imprisonment.
   

WHAT IS THE MAXIMUM PENALTY?

10. In this jurisdiction it is trite law that the maximum penalty prescribed for an offence is reserved for the worst form or a category or offending for that particular offence. Goli Golu v The State [1979] PNGLR 653, Avia Aihi v The State (No.3) [1982] 92 and Ure Hane v The State [1984] PNGLR 105.
    
11. Section 302 of the Criminal Code states:

“(1) A person who unlawfully kills another under such circumstances as not to constitute wilful murder, murder or infanticide is guilty of manslaughter”.

Penalty: Subject to Section 19, imprisonment for life.

WHAT IS THE STARTING POINT?

12. I note from the cases above that the sentence for this offence ranges from 9, 12, 13 years. The starting point being generally 12 years and generally the head sentence increased or decreased depending on the circumstances. The proper starting point in this case is twelve years.
    

WHAT SENTENCE HAD BEEN IMPOSED FOR EQUIVALENT OFFENCES?

13. I will now consider the sentencing trends in recent history.
    

NATIONAL COURT SENTENCES FOR MANSLAUGHTER.

(a) The State v Wadbag [2002] PGNC 212; N6410 Gavara-Nanu. J –Offender pleaded guilty and used a piece of wood. He was sentenced to 9 years 8 months 5 days Imp.

(b) The State v Nokup [2012] PGNC 225; N4787 – Offender pleaded guilty to using a kitchen knife to stab sister once causing her death. Offender was sentenced to 9 years Imprisonment with light labour.

(c) The State v Leahy [2017] PGNC 210; N6880 (22 September 2017) Cannings. J- offender, a security officer shot and killed a man he believed was a suspect who had just committed an armed robbery-intention was to fire warning shots, not to shoot the deceased-death was caused by negligence rather than deliberate act. The head sentence was 12 years and deductions reduced 5 years 11 months 3 weeks 3 days.

(d) The State v Kainge [2006] PGNC 229; N4518- Cannings. J -Offender killed younger sister over infidelity with husband and sentenced to 9 years 3 months 3 weeks and 3 days Imprisonment.

(e)The State v Robert [2010] N4065. David. J – Offender pleaded guilty to stabbing the deceased once on a vulnerable point of his body. He was sentenced to 12 years Imprisonment.

(f) The State v Kelly [2009] N3624 Makail. J – Offender used a kitchen knife to stab the deceased (second wife) once on a vulnerable point on her body and the attack was planned, stab wound serious. Prevalent offence. Plea of Guilty. Offender was sentenced to 12 years Imp.

(g) The State v Christopher Dunbun [2010] N4109 Cannings. J – Offender pleaded guilty to one count of manslaughter. He kicked his wife, the deceased, on the buttocks and on the side of the body and she died shortly afterwards due to a raptured spleen. Offender paid compensation. Offender sentenced to 12 years. Pre-Trial Custody of 3 months deducted. A further period of 3 years suspended. Offender to serve 8 years 9 months IHL.

14. With respect to the above cases I wish to make two observations, firstly, I note from the cases above that the sentence for this offence ranges from 9, 12, and 13 years. The starting point being generally 12 years and generally the head sentence increased or decreased depending on the circumstances. Any suspension of these periods have depended on the peculiar circumstances of the matter. I note where the circumstances dictated the head sentence increased over the starting point.
    
15. Secondly, it is important to point out significant differences between all the above cases and the instant one and this I do, on one hand they all involved the use of weapons, guns, knives, piece of wood and multiple blows with use of legs and hands whilst the instant matter does not involve the use of any weapon nor were there multiple physical blows, this was just one punch to the chest.
    

WHAT IS THE HEAD SENTENCE?

16. In order to arrive at a head sentence I have to consider the particular circumstances in which the prisoner has committed the offence and the result of which will come the factors in his aggravation as well as those in his mitigation.
    
17. There are a number of mitigating factors in the matter: first time offender, pleaded guilty, expressed great remorse, no pre-planning, no weapons used, were friends who grew up together and were drinking together, provocation in the non-legal sense, attack not frequented, and fall on the concrete floor caused the death as evidenced from medical report.
    
18. The factors against the prisoner are that: the offender used his leg to kick the chest of the deceased causing the latter to fall to the cement floor landing on the back of his head, he intended to cause some bodily harm to the deceased, this fatal blow to the head caused the death of the deceased, a life has been lost and can never be replaced again.
    
19. Both mitigation and aggravating factors may be mild or strong and weighed accordingly. The State v Raka Benson (2006) CR 447 and 445 Cannings. J
    
20. There are four aggravating factors and nine mitigating factors.
    
21. Considering the circumstances of this matter and the sentencing trend in the cited cases of the head sentence should not be above the starting point of twelve years therefore it will be eight years. Thress Kumbamong v. The State (2008) SC1017 (Salika DCJ, Kandakasi, Yagi JJ)
    

SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED?

22. Section 3 (2) of the Criminal Justice (Sentences) Act 1986 provides that:

There may be deducted from the length or any term of imprisonment imposed of any court any period before the sentence was imposed during which the offender was in custody in connection with the offence for which the sentence was imposed.

23. This provision allows the court discretion to decide whether or not to deduct the period an offender has spent in custody in remand awaiting trial. It is not an automatic right of the offender to have this period deducted.
    
24. I note the offender was arrested on 9 February 2018 and been in custody since and so that would make it 1 year 10 months 10 days and it is proper that this period be deducted.
    

SHOULD ALL OR PART OF THE SENTENCE BE SUSPENDED?

25. Suspension of sentence is primarily the discretion of the Court and is stipulated under Section 19(6) of the Criminal Code that after a court has sentenced an offender to a term of years, it may order a portion of the sentence to be served and the remaining sentence to be suspended.
    
26. In terms of any suspension of sentence I find that there is, firstly, there is a PSR, secondly, it has a recommendation for suspension of sentence and thirdly, the recommendation that is for suspension of sentence has been substantiated. The Acting Public Prosecutor v. Don Hale (SC564) and The State v Irox Winston (N2347) [2003] Kandakasi. J (as he then was)
    
27. In consideration of whether the recommendation for suspension was substantiated I note that besides the perusal of the State prosecutor’s file only the views of the offender and his offender’s foster mother Ms. Ellien Buasaley were obtained and the reason why there was no input from the deceased’s family was the fact that they live at Finschhafen and the CBC officer not able to contact them or travel by boat to see them at Finschhafen due to their geographical locate and isolation. Further requests for the community leaders from the Ahi Block at Situm to come to the CBC office to be interviewed for their views to gauge were in vain as they did not turn up. The Ahi Block at Situm is where the offender lives with his foster mother. Ms. Buasaley said she had brought up the offender from when he was a young child along with two of her biological sons in a disciplined way and he had always been well behaved and always there to help when needed and so was very surprised to learn of his arrest and put the offence down to peer pressure. What I find significant is what she told the CBC officer regarding compensation that despite that there had being no demand from the deceased’s family for compensation there was a willingness on their part to pay some form of compensation to reconcile their families nor had the deceased’s family been willing to sit down with her family to find ways to reconcile their family relations. Their willingness to pay some form of compensation still remained and if the Court ordered compensation she asked for time to comply. She pleaded for the Court’s leniency and that the offender be considered for a non-custodial sentence. The offender informed the CBC officer that after the death of the deceased the latter’s family had retaliated by removing his mother’s boat engine and other accessories. He further said that he would abide by every Court order if placed on probation.
    
28. The PSR states that the offender is no threat to the community, recommends him as a suitable candidate for Probation Supervision and that under their supervision he would perform 500 hours of unpaid community work with progress reports being done.
    

29. Whilst I note that there is no input from the community to which the offender would return if he were to be a beneficiary of a non-custodial sentence I ask the obvious in view of the above circumstances, would justice be best served if I were to completely ignore the peculiar circumstances of the instant matter and not consider him for a possible suspended term.

30. Allowance should be given for circumstances where every possible effort within reason has been made by the CBC office to contact and interview community leaders and the victim’s family for their input but to no avail due to indifference, ignorance or design on their part and by no fault on the part of the offender and especially where the aggregate tenor of the PSR is in favour of the offender in terms of some suspension. Conversely to ignore such circumstances would be a case of a lack of judicial piety on part of the Court or worse to give an impression of being arbitrary on part of the Court and ultimately injustice to the offender.

30. There will always be exceptions to general rules given the peculiar circumstances of an individual case.

31. If the strict compliance with a general rule leads to an absurdity then justice has not been served nor fairness accorded to the offender.

32. The incident that occurred was most unfortunate in that it occurred between two childhood friends. The offender was enjoying a drink with a childhood friend and due to some misunderstanding a very brief altercation occurred between them which led to one of them, the deceased falling and hitting his head on the cement floor which resulted in his tragic death one week later. I could not detect any malice on part of the offender.

33. The aggregate view of the Pre-Sentence Report was that Emmanuel was a suitable candidate for Probation Supervision and I endorse this view for the reasons I’ve already given and impose a suspension of sentence but only partially. Again I say what I’ve said in other cases that we are human beings and human nature being what it is we all make mistakes in life and no one is perfect and so people should be allowed a second chance in life to prove that they are better persons. So having said that I note importantly that a human life has been lost and nothing can adequately compensate this life or replace it as life is priceless. In view of the all these factors I am suspending 3 years 1 month 11 days of the sentence but conditionally. The effective sentence he will serve is 3 years.

34. If I was to suspend the entire sentence that would not in my view serve the purposes of personal and general deterrence and would be a disservice to society. Hence I suspend part of the sentence and impose strict conditions so the offender and the community do not think that the offender is getting off lightly.

35. I suspend three (1) years one (1) month and 11 days of the sentence subject to the following conditions:

(a) Upon release the offender will keep the peace and be of good behaviour for the period of the suspended portion of his sentence (3 years 1 month 11 days);
(b) The offender shall reside at his residence at, Ahi Block, Situm, Lae, Morobe Province;
(c) The offender shall not leave Morobe Province without the written approval of the National Court;
(d) The offender shall not associate himself with criminals;
(e) The offender shall attend his local church for service on every day of worship;
(f) The offender shall perform 500 hours of unpaid community work in his community, under the supervision of Ms. Jane Taibob (Probation Officer).
(g) 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. (see Tom Longman Yaul v The State (2005) SC 803)

SENTENCE

29. The orders of the Court are as follows:

Sentence accordingly.

___________________________________________________________

Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the offender