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State v Vealolo [2019] PGNC 96; N7802 (17 April 2019)

N7802

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 1361 OF 2018

THE STATE

V

PAUL ELEKSEN VEALOLO

Kokopo: Susame AJ
2019: 10, 11, 15 & 17 April

CRIMINAL LAW – Sentence – Plea - Offence – Manslaughter – 302 Criminal Code – Swinging Of Knife Intentional But Never Intended For The Victim – Act Amounted To Negligence- Mitigation Factors Favourable To Offender & Outweighed The Aggravating Factors - 10 Years Imprisonment Discounted By 2 Years – 8 Years To Serve With Period In Custody Deducted – Sentence Wholly Suspended With Conditions.

Cases Cited
Papua New Guinea Cases

Acting Public Prosecutor v Uname Aumane [1980] PNGLR 510
Goli Golu v The State [1988-1989] PNGLR 643
Court Manu Kovi v The State [2005] PGSC 34; SC789
The State v Regina Jako [2010] PGNC 119; N4110
The State v Mara [2010] PGNC 140; N4133
The State v Bekeram [2011] N4319
R v Begari-Dubere (1962) N227
Thres Kumbamong v The State (2008) SC1017

The State v Kaur Aquila CR N0. 10 0f 2017 (unnumbered & unreported) dated 10 April 2019

Overseas Cases
R v Phillips (1985) & Cr App R(S) 235

Counsels:

Mr G. Tugah, for the State
Ms JM. Ainui, for the Prisoner

DECISION ON SENTENCE

17 April, 2019

1. SUSAME AJ: Prisoner pleaded guilty to a charge of manslaughter under s 302 of the Criminal Code. Plea was consistent with instructions given to his lawyer. Court was satisfied on the evidence in the court file tendered which included prisoners admissions of guilt of the offence committed in the record of interview. Plea was unequivocal and conviction was entered against the prisoner. Court is now faced with the task of deciding the appropriate penalty against the prisoner.
   

Facts

2. On Thursday 23 August 2018, around 6:30am the prisoner was with his wife late Fatima Sulu at their family home at Mauna village, Pomio District, East New Britain Province. Prisoner was sitting outside the ‘haus boi’ (boys house) with his bush knife. The wife walked over where he was and prisoner asked her for the file to sharpen his knife. The wife got the file which was wet and handed to him. Realising the file was wet prisoner asked his wife what she did with the file the day before and it got wet. The prisoner was angry when his wife told him that. He told the wife why she had not told him it was wet and should have dried it over the fire. In his anger the prisoner swung the bush knife against the bamboo seat. The knife slid on the surface of the bamboo seat and cut his wife on the right calf muscle at back of the knee causing a deep wound. The wife was rushed to the nearby aid post at Lau. From there she was referred to the aid post at Rali but along the way she passed on. Prisoner voluntarily surrendered to police and made confession of his guilty in committing the offence.
   

Offence

302. MANSLAUGHTER.

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.

3. Now the most important question: What sentence should the court impose?
   
4. In reaching a specific sentencing, court is usually guided by:
   
   • ➢ Consideration of established principles
   • ➢ Consideration of guidelines in decided cases,
   • ➢ Consideration of facts and circumstances of the case
   • ➢ Gravity or otherwise of the offence
   • ➢ Prevalence of the offence
   • ➢ Consideration of factors of aggravation and mitigation
     
5. Court has considered the submissions advanced by the parties.
   
6. Starting point is consideration of the maximum penalty. Maximum penalty for the offence of manslaughter is imprisonment for life. However, courts have a wider discretion under s 19 to imposing a sentence lower than the maximum. (Acting Public Prosecutor v Uname Aumane [1980] PNGLR 510). Section 19 discretion has been extensively used by the courts in this jurisdiction.
   
7. It is trite principle of sentencing maximum prescribed penalty should rarely be used and reserved for the worst type of case encountered in practice. Goli Golu v The State [1988-1989] PNGLR 643 is the case on point. That is to uphold the fundamental principle that sentence must be proportionate to the crime committed.
   
8. In Goli Golu v The State (supra) Wilson J considered the conditions to justify a life imprisonment sentence (maximum sentence) following the judgment of Court of Criminal Appeal in R v Hodgson Unreported (Judgment S, C, 137 25 October 1978). The conditions are:
   

“1. Where the offence or offences are in themselves grave enough to require a very long sentence;

2. Where it appears from the nature of the offence or from the defendant’s character that he is a person of unstable character likely to commit such offences in the future; and

3. Where if the offences are committed the consequences to others may be specifically injurious, as in the case of sexual offences or crimes of violence.”

9. Sentencing regime more specific in wilful murder, murder and manslaughter cases in this jurisdiction was considered by the Supreme Court in Manu Kovi v The State [2005] PGSC 34; SC789 (31 May 2005). This is perhaps the leading authority most often relied on.
   
10. The Court considered the factors and came up with 4 categories of sentencing range for each offence. The 4^th category states factors to justify the maximum penalty of death for wilful murder and life imprisonment for murder and manslaughter respectively.
    
11. The factors to justify the maximum penalty for manslaughter are not present in this particular case. Therefore maximum penalty will not be considered.
    
12. Where does this case fall in the sentencing range of Manu Kovi? Mr Tugah considered it fell within category 2 (13 – 16 years). Ms Ainui contended otherwise and submitted it fell within category 1 (8 -12 years).
    
13. Court’s view. This was a plea case. Killing was in a domestic setting. There was no de facto provocation. There was no preparation. An offensive weapon (bush knife) was used. All other factors which would place the case in category 1 are present except the use of offensive weapon. In my considered judgment I consider this case falls within category 1, but at the top end of the scale because offensive weapon was used.
    
14. Court has been referred to several comparable judgments from a large volume of cases. They were decided on their own peculiar set of facts. The judgments are not binding upon this court, but are useful guide. For comparison I set them out below.
    

The State v Regina Jako [2010] PGNC 119; N4110 (Cannings J)

15. This was a plea case. Death arose in a domestic setting in a polygamous relationship. Prisoner and deceased were married to a single husband. They lived together in the same residence and had history of constant quarrels. In one of the argument the two women and their husband had, the prisoner stabbed the victim 3 times with a kitchen knife. The victim died shortly after of stab wounds. Cannings J considered the case fell within category 2 of Manu Kovi (13 -16 range), Considering factors favourable to the prisoner 12 years imprisonment was imposed less period spent in custody. Balance of the sentence was wholly suspended.
    

The State v Mara [2010] PGNC 140; N4133 (Makail J)

16. This was a plea case. The deceased was in an affair with the prisoner’s husband. The wife prisoner caught her with her husband. A fight ensued between the two women. The deceased had in her possession a kitchen knife. The prisoner wrestled with her and removed the knife from the victim and stabbed her on the right side of her back. The knife penetrated and punctured the victim’s right lung. She subsequently died of severe loss of blood from the wound. Sentence of 12 years imprisonment was imposed which fell within category 1 of Manu Kovi. Court considered a rebate for pre-sentence period in custody. Resultant sentence prisoner to serve was 9 years, 11 months 2 weeks.
    

The State v Bekeram [2011] N4319

17. Prisoner was sentenced after trial. Death arose in a domestic setting. Prisoner husband had an argument with his wife for being absence from home for 2 weeks. During the argument prisoner assaulted his wife. She subsequently, died of injuries inflicted on her. Court considered the attack on the wife was vicious and sentenced the prisoner to 14 years imprisonment. The sentence was within category 2 (13 -16 range) in Manu Kovi.
    

Allocutus

18. Prisoner made the following statement in his address on sentence. He was quite emotional. Your honour. I say sorry to God, to this court, my 2 children, wife’s relatives, and mother law of this country and everyone in court. I am a first time offender. I did not mean to kill my wife. It was an accident. At Lau Aid Post nurse Theresa Peter did not help save my wife. I brought her to the next Aid Post. I had paid compensation and say sorry to her relatives and my 2 children. I paid K25 300.00, one shell money, 3 pigs, 1 live chicken, and some garden food, witnesses by West Pomio LLG Manager Joe Ringo, Pomio Community Development Officer Mr Kulukara, police personnel, CID Officer Mrs Esther Butinga and 6 communities of Manna, Lau, Bairaman, Polo, Misa and Sarengina. It was a peaceful ceremony. After I walked towards the coffin and I paid my last respect to my wife and we buried her and I went to the police. I am feeling very sorry for my children and their education. I come from a remote place where health and education services are difficult to access. I ask the court for the welfare of my children and their education. I will have hard time to look after them. I ask mercy of the court to place me on probation. Thank you. That is all.
    

Mitigating factors

19. Most of the factors have been canvased by Ms Ainui in the extract of her submission. I endorse them.
    
    • Prisoner pleaded guilty saving cost associated in running a trial and cutting trial time.
    • Prisoner has no priors and is a first time offender
    • There was no pre-planning nor intention to cause grievous bodily harm.
    • Prisoner was regretful and genuinely remorseful for the mishap that caused his wife’s death
    • This was demonstrated from the very start when he made every effort to save his wife’s life, followed by his prompt voluntary surrender to police, his cooperation with police, the reconciliation ceremony in which payment of substantial amount of compensation in cash and kind was made. In court he was very apologetic and emotionally remorseful for causing the death of his wife
      

Aggravating Factors

• Prisoner acted in a threatening manner when he struck the bamboo seat with a bush knife which is a dangerous working tool.
• Injuries and death caused by use of dangerous tool such as bush knives and kitchen knives is far too prevalent in society.
  

20. It is quite obvious mitigating factors far out the aggravating factors.
    
21. It was stated in R v Phillips (1985) & Cr App R(S) 235 that “in sentencing for manslaughter, the court must have careful regard to the circumstances of death and the way in which death was actually caused.” I adopt that statement as my own.
    
22. The facts of this case may be distinguished from the cases set out above. Deaths in the cases cited occurred during arguments and fights. There was deliberate and intentional use of knives and assault of the victims that brought about the deaths.
23. Facts of this case are different. There was no fighting between the couple. Prisoner asked the wife for the file to sharpen the bush knife he had with him. The wife gave him the file which was wet. Both exchanged few words over the wet file. In his anger the prisoner swung the knife against the bamboo seat which slid and cut the wife.
    
24. The swinging of the knife was not accidental but intentional. However, the knife was never intended at the wife. It was thrown at the bamboo sitting platform where the wife was standing. The knife slid against the smooth surface of the bamboo platform and cut wife on the calf muscles of her right leg below the knee. The knife caused a deep wound measuring 14 cm wide and 7 cm deep.
    
25. The loss of life here was not out of intentional or deliberate use of knife at the wife. Rather, it was the result of careless or negligent swinging of the knife in a manner that was dangerous and threatening to the wife who was standing within the proximity of the prisoner. The law (s 287) imposes a duty of care on person’s using dangerous weapons, items or implements to avoid injuries or deaths to other persons. The prisoner therefore owed a duty of care to his wife. He breached that duty swinging the knife in a carless threatening manner where the wife was standing. Prisoner’s actions no doubt amounted to criminal negligence (see R v Begari-Dubere (1962) N227 (Smith J).
    
26. In her submission Ms Ainui submitted the court is not bound by the sentencing tariffs in Manu Kovi. For that proposition she replied on Thress Kumbamong v The State (2008) SC101. Court accepts that. In few of my past judgments [e.g. The State v Kaur Aquila CR N0. 10 0f 2017 dated 10 April 2019, unnumbered & unreported], I stated that tariffs although they are not binding are important to maintaining or promoting consistency in sentencing. That there are no huge sentencing disparities. It keeps the court more focused to keep within the sentencing range set by the courts. But, not limiting the court’s unfettered discretion to go higher or lower considering the mitigating or extenuating factors or factors that are aggravating.
    
27. A life was lost forever. That makes the case serious. There is also a need for deterrence. Question: Should the court impose a more server punishment considering the circumstances discussed above? To me it would be more crushing to the prisoner who is already feeling the emotional pain of losing loving partner and helper in fending for their two children.
    
28. From all the discussions I consider the head sentence to be 10 years. Considering the prisoner’s early plea and all the mitigating factors favourable to the prisoner court will allow a debate. In the exercise of my discretion sentence will be reduced by 2 years.
    
29. Effective sentence to serve is 8 years with pre-sentence custody period to be deducted. I further order that the resultant sentence is wholly suspended and prisoner is to enter into a written recognizance with a case security of K1000. 00 and is to be of good behaviour for the entire period of the suspended sentence.
    

30. The conditions on sentence are as follows:

1. He shall maintain peace and good order in the community
2. He shall pay a cash surety of K1000.00 refundable forthwith.
3. He is restraint from taking alcohol
4. He will provide free community work at the Palmalmal District Office, Palmalmal District Hospital and Palmalmal Police Station as and when required 3 days each week for a period of 12 months
5. Prisoner to attend church services each Sunday
6. Prisoner to be supervised by the Probation Service through Volunteer Probation Officer to be appointed by OIC Probation Office in Kokopo forthwith.
7. Copies of sentence and the recognizance are made available to Police Officer In Charge, Palmalmal Police Station & District Administrator Palmalmal.

________________________________________________________________
Office of the Public Prosecutor: Lawyer for the State
Office of the Public Solicitor: Lawyer for the Prisoner