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State v Urevo [2021] PGNC 509; N9319 (14 October 2021)

N9319

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1009 0F 2021

THE STATE

V

ROBERT UREVO
Prisoner

Popondetta: Sambua, A J
2021: 6^th, 8^th & 14^th October

CRIMINAL LAW – Guilty plea – manslaughter s.302 - mitigating factors - aggravating factors - appropriate sentence – no prior conviction- 10 years custodial sentence appropriate.

Cases Cited:
Manu Koivi v The State [2005] SC789
State v Abraham Nobi [2008] N3412
State v Jerry Mana [2003] N2367
State v Kapus & 2 ORS [2010] N4114
State v Enege [2010] N6318
State v John [2010] N4116
Rex Lialu v The State [1990] PNGLR 487
Kesino Apo v The State [1988] PNGLR.188
Jack Tanga v The State (1999) SC 602

Counsel

Ms. T. Kametan, for the State
Mr. Yavisa, for the Prisoner

DECISION ON SENTENCE

14^th October, 2021

1. SAMBUA, AJ: The prisoner Robert Urevo was indicted with one (1) count of manslaughter under Section 302 of the Criminal Code Act Chapter 262. On arraignment he pleaded guilty to the charge. After submission on penalty was heard. I reserved my ruling on penalty. Here is my decision on penalty.
   

Background

2. The deceased Sam Eseka and his friends were drinking alcohol on the night of Friday 22^nd January 2021. The prisoner Robert Urevo who was drinking alcohol elsewhere, joined them in the course of the night. After he had joined them there was an argument among themselves sometime between 3:00am and 4:00am on the early morning of Saturday 23^rd January 2021 and in the course of the argument the prisoner stabbed the deceased Sam Eseka with a pair of scissors on his left chest. The deceased died two (2) days later on the 25^th of January 2021 after being admitted at the Popondetta General Hospital for the stab wound to his left chest caused by the prisoner. An autopsy was conducted by Dr Paul Gimot who established that the cause of death was left massive haemopneumothorax due to penetrating stab wound to the left chest which was 6cm deep.
   
3. The crime of manslaughter is created by Section 302 of the Criminal Code Act which carries a maximum penalty of life imprisonment: Section 302 reads:
   

“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”

Allocutus

4. In his statement in allocutus, the prisoner said that he was sorry for breaking the Constitution of PNG and also extended his sorrow to the family of the deceased and his own family. He also apologises to the court and its officials. He said that he is a first-time offender and surrendered to Police and admitted the crime to Police. He further stated that whilst being locked up at the station, the family of the deceased went and burnt down 16 houses in his village. He said those responsible have not been charged by the Police.
   
5. He also said that he is the only child in his family. His mother died and he was raised by his grandparents. He is married with 2 children. He does not know how they are and is concerned about their welfare. And asks court for a lesser time in prison and to be placed on probation.
   

Address on Sentence

6. Mr. Yavisa, counsel for the prisoner submitted that this case will fall between category 2 and 3 of Manu Koivi [2005] SC789 case for manslaughter cases and in support of his argument he referred to the case of State v Abraham Nobi [2008] N3412. In that case the prisoner stabbed the deceased and he died as a result.
   
7. He also referred to the case of State v Jerry Mana [2003] N2367, where the prisoner was sentenced to 8 years.
   
8. He also submitted that this court should also consider the prisoner’s guilty plea, he is a first-time offender, he made an early admission to police in the Record of Interview and was remorseful in allocutus and conceded that this is a prevalence offence in Oro and in PNG and in this case a pair of scissors was used to stab the deceased, which was an offensive weapon.
   
9. He also submitted for the court to exercise its sentencing discretion under Section 19 of the Criminal Code to impose a sentence fitting the circumstances of this case.
   
10. Miss Kametan on behalf of the State submitted that this is a case falling between category 2 and category 3 of Manu Koivi case and should attract a sentence between 12 to 14 years.
    
11. In support of her argument she referred to the cases of State v Kapus & 2 ORS [2010] N4114, the case of State v Enege [2010] N6318 and the case of State v John [2010] N4116 where the prisoners were sentenced to 12 years less the pre-trial custody period.
    

Application of Law

12. The crime of manslaughter under Section 302 of the Code carries a maximum penalty of life imprisonment. However, the courts have power to sentence offenders to a term of years by virtue of the sentencing discretion under Section 19 of the Criminal Code Act.
    
13. The Supreme Court in Goli Golu v The State [1979] PNGLR 653 and John Kalabus v State [1988] PNGLR 193 stated that the maximum penalty should be reserved for the worst type of cases.
    
14. It was said in Rex Lialu v The State [1990] PNGLR 487 that, sentences for manslaughter must reflect the serious view taken by the Parliament over the loss of a human life when it fixed the maximum penalty at life imprisonment. That authority list considerations to be considered by a sentencing Judge on cases of manslaughter.
    
15. In the Supreme Court case of Kesino Apo v The State [1988] PNGLR188 the Supreme Court said an imprisonment term in custody should be the starting point in any manslaughter cases for the very reason that, lives must be protected. And in Jack Tanga v The State (1999) SC 602, the Supreme Court said that because the crime of manslaughter is serious, it is reflected by the maximum penalty of life imprisonment. In Antap Yala v. The State CRA No. 64 of 1994 (Unreported) (1996) the Supreme Court said sentences for manslaughter will depend on its own peculiar facts and the Court there suggested that it was unable to prescribe any particular range of sentences with precision. I fully endorse these views expressed by the Supreme Court in the above cases.
    
16. In the case of Manu Kovi v The State (2005) SC 789, the Supreme Court set the sentencing guidelines for homicide cases including manslaughter cases. The tariff for manslaughter cases are as follows:
    

Category 1, 8-12 years.

No weapon used -Victim emotional under stress and de facto provocation e.g. killings in domestic setting -Killing follows immediately after argument -Little or no preparation - Minimal force used -Victim with pre-existing diseases which caused or accelerated death e.g. enlarged spleen cases.
Category 2, 13 -16 years

Using offensive weapon, such as knife on vulnerable parts of body-Vicious attack -Multiple injuries -Some deliberate intention to cause harm -pre-planning.

Category 3, 17 -25 years

Dangerous weapons used e.g., gun or axe -Vicious and planned attack-Deliberate intention to harm -Little or no regard for safety of human life

Category 4, Life imprisonment

Some elements of viciousness and brutality -Some pre-planning and pre-meditation -Killing of innocent, harmless person -Complete disregard for human life.

17. I consider this case should fall within category 1 and 2 in the sentencing guidelines set by the Supreme Court in Manu Kovi's case, (supra). In case of category 1, he could be sentenced to a term between 8-12 years and for category 2, sentences should range from 13 to 16 years.
    
18. In Rex Lialu v The State (supra) the Supreme Court said that, the proper approach to sentencing in manslaughter cases is to have regard to all the aggregate effect of all relevant considerations and then determine an appropriate penalty. The aggregate effect come from several considerations which the court must consider by carefully examining the circumstances of each case as to how the death was caused. The court must consider factors such as the nature and frequency of the attack. The court must consider whether the injuries were caused by a direct hit or did the victim fall on to any objects by heavy landing or not.
    
19. In this case, I must consider whether the injuries caused were caused by the prisoner being bare handed or did he use a weapon. In this case, the prisoner used a pair of scissors, though may not be considered as an offensive and dangerous weapon however when inappropriately used with a criminal intention, its use will be lethal as in this case. The injury caused to the deceased that led to death was a direct result of the stab wound on his left chest by the prisoner.
    
20. Having gone through the facts of this case, I conclude that this was not the worst type killing as it was truly accidental killing. On mitigation, I consider the prisoner's guilty plea to this very serious charge and all the mitigations raised in his favour and considering the serious nature with which the accused took away the life of the deceased.
    
21. I consider the fact that crimes of violence are very prevalent throughout the country and as such deterrent sentences are called for. All communities in this country are experiencing a high level of violent crimes affecting our country's quest for progress in terms of solving disputes in more diplomatic and amicable manner as provided for by the law.
    

Consideration of Appropriate Sentence

22. In order for the courts to consider the appropriate penalty, the courts are bound to consider the circumstances of the case and the factors in mitigating and factors in aggravation.
    
23. The mitigating factors are as submitted by Mr. Yavisa which included his guilty plea, he is a first-time offender with no previous convictions, he was apologetic and remorseful in allocutus and that he was co-operative and surrendered to police and admitted in his Record of Interview and in court upon his guilty plea.
    
24. The aggravating factors were that a weapon namely a pair of scissors was used to stab the deceased and it is a prevalent offence, and it was an alcohol related killing.
    
25. Alcohol consumption by young people like the prisoner in this case is common in this day and age, either in public gathering or in private gatherings. In this case it was a private gathering by the deceased and his friends when the prisoner intruded. However, he was accepted by the deceased’s group.
    
26. Despite being accepted, he was ungrateful for the deceased’s group’s hospitality and generosity to him. He was uncontrollable and became violent thus resulting in the stabbing of the deceased with a pair of scissors which eventually led to his death two (2) days later on the 25^th of January 2021 at the Popondetta General Hospital.
    
27. After the prisoner stabbed the deceased, the deceased’s group did not retaliate nor seek revenge on the stabbing, they simply dispersed from their gathering and went away. The deceased had to go to his wife and told her that he had been stabbed. Arrangement was made and deceased was taken down to Popondetta General Hospital and was admitted at Hospital but died two (2) days later on the 25^th of January 2021.
    
28. In this case a life has been lost because of alcohol consumption by young people. In my view, when young people consume alcohol, it fuels itchiness to cause trouble which usually results in confrontations and serious bodily injuries that sometimes leads to fatalities.
    

Comparative Cases

29. In the case of State v Noel Tony [2015] N6054, it was a decision by Lenalia, J (as he then was) in Kavieng. The prisoner pleaded guilty to a manslaughter charge and was sentenced to 12 years in prison.
    
30. The facts were that on 2^nd of May 2014, between 12.00 midday and 1.00 pm, the prisoner, the deceased (an uncle) and their friends bought a 12 pack bottles of beer and two coffee rum bottles. They shared the 12 pack among themselves and started to drink. After consuming the beer bottles, they started to drink one of the two coffee rum bottles.
    
31. After drinking the first coffee rum bottle, the prisoner walked up to where the full coffee rum bottle was placed and picked the full coffee rum bottle and walked away with it. The deceased followed the prisoner and asked if the prisoner could give the coffee rum bottle back to him to take back to where the group was sitting. The prisoner refused and the two of them walked further up to a big tree near PNG Power compound premises and sat down.
    
32. Since the prisoner was not responding to the deceased's demand to return the bottle of rum, the deceased walked back and when he returned, he had a piece of brick on his hand. He started an argument with the prisoner during which, he assaulted the prisoner. The prisoner threw an empty bottle of beer at the deceased and he blocked it. In the course of their argument, they struggled and started to fight. The deceased held up a brick and wanted to hit the prisoner.
    
33. They struggled further and the prisoner held his small knife up to defend himself when the victim was stabbed on his left ribs. The deceased ran back to where the group was drinking and called out for help. There was a bus parked nearby which rushed the deceased to Kavieng General Hospital but he died soon after arrival. The prisoner was sentenced to 12 years I.H.L.
    
34. In State v Serah Joe Wennis [2011] N4661, a decision by Batari, J in Lae, it was a manslaughter case where the prisoner pleaded guilty to the charge. It was a domestic killing with a kitchen knife, she was a first-time offender and was sentenced to 8 years I.H.L. Part of the sentence was suspended with conditions.
    
35. In State v John Banuk. (No.2) [2014] N5757, a decision by Lenalia, J (as he then was) in Kokopo. In that case the prisoner was a Policeman attached to the Criminal Investigation Division based in Kokopo Police Station. He was originally indicted with one count of murder under section 300 (1) (a) of the Code, however, was found guilty of manslaughter under section 302 of the Criminal Code Act after a trial and was sentenced to 7 years imprisonment term.
    
36. The facts of that case were that on the night of 24^th of June 2011, the prisoner, and three other policemen attended a fight at the Kokopo Business College (KBC) in the township of Kokopo. When they arrived at Kokopo Business College, they proceeded to the boys' dormitory and after talking to the staff, the students obeyed while some did not. After the students were calmed down, the policemen drove off. As they were driving off someone threw something on the road causing a loud noise.
    
37. The Police stopped and went up to the boys' dormitory and forcefully pulled three students out. One of the three students was the deceased. After they took those students out, they were taken into two police vehicles, and were taken to Kokopo Police Station.
    
38. At the Police Station, they started to whip the students and attention was focused on the deceased because he had tried to resist arrest at the College campus. The deceased was ordered to stand against the brick-wall of the police station. The prisoner hit the deceased’s head against the brick wall several times until he fell with his headfirst onto the cement unconscious. They kicked him and tried to wake him up but did not wake up and water was poured on him to revive him. He did not move. They took the deceased and other two students and locked them in the cells. The deceased died in the early hours of the next day.
    

Decision on Sentence

39. Taking into account the prisoner's guilty plea to this serious charge and considering addresses on sentence by both counsels on mitigations and aggravations, I am of the view that, an imprisonment term should be imposed. Even though there was use of a weapon, in this case a pair of scissors and will easily fall into category 2 of the Manu Kovi case, I am of the view the sentence should be within category 1 of Manu Kovi case. Considering all those factors raised earlier on and considering the fact that a life has been lost, I sentenced the prisoner to an imprisonment term of 10 years IHL less the pre-trial custody period.

Order

40. The prisoner is sentenced to 10 years, less pre- trial custody period and he is to serve the balance.

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Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Prisoner