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State v Yambao [2024] PGNC 452; N11381 (15 June 2024)

N11381

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 211 OF 2024

BETWEEN:

THE STATE

AND

JIM PHILIP YAMBAO

BAISU: KUPMAIN. AJ
6^th, 7^th, 11^th & 15^th June 2024

CRIMINAL LAW – Sentence – Manslaughter by Criminal Negligence –Section 287 of the Criminal Code invoked – Offender in charge of a Dangerous thing- Firearm – Duty of care on the offender – Criminal Code s 302 (Ch. 262).

Cases Cited:
Avia Aihi -v- The State (No.3) [1983] PNGLR 92
Goli Golu -v- The State [1979] PNGLR 653
Lawrence Simbe -v- The State [1994] PNGLR 38
Manu Kovi -v- The State (2005) SC789
Rex Lialu -v- The State [1990] PNGLR 487
State -v- Elisha Mema [2012] PGNC 21; N4602
State -v- Turuk Willie CR. No. 446 of 2010
State -v- Simon Moses [2017] PGNC 17; N6617
State -v- Namaliu (2020) N8506.
The State -v- Albert Tiki (2013) N5219

Counsel:
Philip Tengdui, for the State
Luke Toke, for the prisoner

SENTENCE

15 June 2024

1. KUPMAIN. AJ: This is my decision on sentence of the prisoner Jim Philip Yambao who pleaded guilty to one count of manslaughter under Section 302 of the Criminal Code Act.
   

Indictment

2. On an Indictment dated 07^th of June 2024 and presented on the same date, State charged the accused with one count of manslaughter. The charge on the Indictment was that the prisoner, Jim Philip Yambao of Pimas Village, Wapenamanda, Enga Province, on the 24^th day of February 2023 at Lyokainas Village, Tsak Valley, in Papua New Guinea unlawfully killed Jeremie James.
   

Charge

3. This charge was one of manslaughter and was brought under Section 302 of the Criminal Code Act. (Ch. 262). State invoked Section 287 of the Criminal Code Act and thereby it became a charge of manslaughter by Criminal Negligence. Section 302 of the Criminal Code Act is in the following terms:
   

302 MANSLAUGHTER.

“A person who unlawfully kills another under such circumstances as not to constitute willful murder, murder or infanticide is guilty of manslaughter.

Penalty: Subject to Section 19, imprisonment for life”.

287 DUTY OF PERSONS IN CHARGE OF DANGEROUS THINGS.

(1) It is the duty of every person who has in his charge or under his control any thing, whether living or inanimate, and whether moving or stationary, of such a nature that in the absence of care or precaution in its use or management the life, safety or health of any person may be endangered, to use reasonable care and take reasonable precautions to avoid that danger.

(2) A person on whom a duty is imposed by Subsection (1) shall be deemed to have caused any consequences that result to the life or health of any person by reason of any omission to perform that duty.

4. The maximum penalty for this charge under Section 302 of the Criminal Code Act Ch.262. is, subject to Section 19, life imprisonment.
   

Issue

5. The main issue before this court is “what is the appropriate sentence to be imposed in this case?”
   

General Principles on Sentence

6. The general principles relating to sentence is clear in our jurisdiction. Starting off with the court’s Section 19 sentencing discretion under the Criminal Code to impose penalty other than the maximum. This court is also aware that the maximum sentence is normally reserved for the worst category of cases. Goli Golu -v- The State [1979] PNGLR 653 and Avia Aihi -v- The State (No.3) [1982] PNGLR 92. It is also understood that each individual case must be decided on its own facts and circumstances. Lawrence Simbe -v- The State [1994] PNGLR 38. This court will adopt and apply these general principles of law on sentencing in this case before me.
   
7. The approach to sentencing which I adopt and apply in this case is the principle as stated in the case of Rex Lialu -v- The State [1990] PNGLR 487. That is that the court must have regard to the aggregate effect of all relevant considerations and then determine an appropriate penalty. The aggregate effect comes from several considerations such as the circumstances giving rise to the commission of the offence; the personal circumstance of the offender; and the mitigating and aggravating factors and whether there are any extenuating circumstances or special aggravating circumstances.
   

Facts

8. The facts are that on Tuesday the 24^th of January 2023, the accused, Jim Philip Yambao was at Lyokainas village in the Tsak Valley area of the Enga Province. At about 10.30pm that evening, he accompanied Rachel Joel and her children to their house. At the time he was carrying a factory-made shot gun. The deceased, Jeremie James, was also in the house with the others. As they sat, the shot gun was discharged and the pellets from the bullet hit the deceased on the chest. He died from the gunshot wounds. Medical postmortem revealed the deceased died from massive internal bleeding.
   
9. State invoked Section 287 of the Criminal Code Act. and alleged that he failed his duty of care as he was in charge of a dangerous thing which is the gun and failed to have the safety lock and properly place away from them all.
   

10.The accused pleaded guilty and was convicted accordingly.

Antecedent

10. As per the antecedent report, the prisoner has no prior conviction which means this is his first time to be before the court and this goes in his favour.
    

Personal Particulars

12. Prisoner is 28 years old. He originates from Lyokainas village, Wapenamanda, Enga Province. He is married with four children from two wives.
His father died in 2022, and mother still alive. He is the first born in the family of 7 siblings. The siblings consist of 5 males and 2 females. He completed Gr. 6 level of education at Taledu Primary School in 2010. He lives in the village as a subsistence farmer. He is a member of the Lutheran faith group.

Allocutus

13. In his statement on allocutus he expressed remorse and apologized to the God and to the court for the offence which he had committed. He also apologized to the deceased and said he did not mean to do what he did. He also apologized to the complainants and to the witnesses. He also apologized to his community. He said “I have violated the Constitution of this country so I’m sorry as well. I have done the wrong thing so I’m asking this court to have mercy on me. That’s all.”

Submissions

14. Mr. Toke for and on behalf of the prisoner cited several mitigating factors for the court to consider and they are:

1. Prisoner pleaded guilty at his earliest opportunity, and save court’s precious time;
2. First time offender with no prior conviction;
3. He surrendered to the police;
4. Prisoner showed and expressed genuine remorse;
5. Prisoner admitted to the offence right from the beginning; and
6. Primary compensation paid with K5000.00 cash, 36 live pigs and 20 coke cartoons.
   

Extenuating Circumstances:

1. The attack was not pre-planned. It was a spur of a moment thing.
2. Absence of a strong intent to do GBH.
3. Prisoner is a relative of the deceased, and he had no intention to cause his death.
   

15. Mr. Toke submitted that according to the Manu Kovi guidelines this case will fall within category 2 and suggested the range of sentences to be between 13 to 16 years on a charge of manslaughter and as such this was not the worst case. Mr. Toke suggested 10 years to be appropriate in this case. He further submitted that the mitigating factors outweigh the aggravating factors and that as such the court should suspend 2 years.

16. In support of his submission, Mr. Toke referred the court to 4 comparable cases of murder to guide this court. The sentences in these case range from 6 to 10 years imprisonment. The cases referred to are:

• State –v- Darryl Yakali [2024] PGNC 60; N10711:
  

Here, the deceased and his accomplices held up a PMV. When a police unit arrived, they ran away. Offender who was part of the unit saw that the thieves continue to run away, he discharged gun shots at them to prevent them from escaping. Deceased and other victim sustained bullet wounds to their legs. Deceased succumbed to the injuries and died. A trial was conducted on the charge of Murder, s. 300 of the Code in which court returned the alternative verdict of Manslaughter under s. 302 of the Code. A term of 8 years imprisonment was imposed.

• State –v- Elisha Mema [2012] PGNC 21; N4602:
  

Here, the deceased was the cousin to the prisoner. “Prisoner struck the deceased with a piece of firewood on his head in order to immobilize him from further assaulting, her sister and mother when he had already caused harm to her mother and herself that evening. The deceased was stunned by the blow and fell to the ground bleeding from the cut on his head. He died a day or so later”. A term of 6 years imprisonment was imposed. In its discretion, court suspended 5 years, deducted the pre-trial custody period, and allowed the balance to be served in prison.

• State –v- Simon Moses [2017] PGNC 17; N6617:
  

Here, the offender pleaded guilty to the manslaughter of his baby child. The baby was in hospital, and the offender assumed the task of swinging the baby, which was in a bilum, to relax the child. He negligently swung the bilum with too much force, causing the baby’s head to hit a hard metal object. The baby died instantly due to intracranial bleeding. Imposed 10 years imprisonment less pre-trial custody period.

• State –v- Turuk Willie CR# 446 of 2010,
  

Here the offender was in the bush near his village, hunting pigs. He fired indiscriminately from his spear gun into a bush, when he saw leaves rustling. He shot and killed the deceased who was having consensual sex in the bush”. Imposed a 10 years imprisonment less pre-trial custody period.

17. Mr Tengdui for the state on the other hand submitted that a dangerous weapon was used and so this case falls within category 3 of the Manu kovi guidelines relating to murder which sentences ranging from 20 to 30 years. He urged the court to consider the following as aggravating factors:

1. An offensive weapon, a gun was involved.
2. A young life is lost.
   

18. Mr. Tengdui for the State referred the court to 3 comparable cases of murder to guide this court. The sentences in those cases range from 20 to 22 years imprisonment. The cases referred to are:

Manslaughter cases involving Section 287 of the Code are not so many. A recent celebrated case involving the section is in the recent case of State v Namaliu (2020) N8506. This case involved the use of a motor vehicle being driven recklessly by the prisoner and caused the death of the accused. It is to be distinguished from this case, from the facts, in that case, the prisoner was convicted after trial and was sentenced to 15 years imprisonment.

In another case in The State v Albert Tiki (2013) N5219 the deceased and three other persons were sitting outside a trade store in Mt Hagen when the offender and his wife had an argument inside. The prisoner's wife then ran out of the trade store and was pursued by the prisoner. One of the persons sitting with the deceased grabbed the prisoner to prevent him from assaulting his wife. The offender picked up a brick-like object from the ground and hurled it intending to hit his wife. The scuffle between the offender and the other person caused the brick-like object to ricochet off the wall of the store and hit the deceased at the base of his skull. The deceased was admitted to hospital but died from his injuries four days later. The offender was convicted of manslaughter through criminal negligence following a trial for murder. He was sentenced to eight years of imprisonment from which time spent in custody awaiting trial was deducted.

19. Mr. Tengdui further submitted that this case fell within category 1 of the guidelines set out in the case of Manu Kovi v The State (2005) SC789. He suggested a term of years between 8 and 12 years. Mr. Tengdui submitted that a term of 8 years was appropriate in this case.

DELIBERATIONS

20. The mitigating factors which I find present in this case are that;

1. Prisoner pleaded guilty at his earliest opportunity, and save court’s precious time;
2. First time offender with no prior conviction.

100. He surrendered to the police.

4. Prisoner showed and expressed genuine remorse.
5. Prisoner admitted to the offence right from the beginning; and
6. Primary compensation paid with K5000.00 cash, 36 live pigs and 20 coke cartoons.
7. There was no preplanning
8. There was no intention to commit the offence
9. The prisoner is related to the deceased as first cousins. In other words, he will live with the fact that he killed his own brother.
   

21. The aggravating factors which I find present in this case are that;

1. A life was lost and that
2. An offensive and dangerous weapon was used.
   

22. I find that the mitigating factors outweigh the aggravating factors and this is not a worst case of manslaughter. This case would fall within category one and two of the Manu Kovi guidelines and I accept the submission by Mr. Tengdui that a term of years that fall within category one is appropriate in light of the mitigating factors present.
I take these factors for and against the prisoner into consideration. I also accept that it is not a worst case of manslaughter and so the maximum is not applicable.

23. I have taken into consideration the personal particulars and the lack of prior conviction as per the antecedent report of the offender. I have also taken into account his statement on allocutus, his appeal for mercy of the court and also the mitigating factors which are in his favour. I have also taken into account the aggravating factors which are present in this case and the circumstances surrounding the commission of the offence. I have also considered the comparable cases which both counsels have referred the court to and have arrived at my decision on sentence.

SENTENCE

24. Therefore, the sentence of this court is as follows:
The prisoner is sentenced to 8 years IHL less time in custody which is 1 year 3 months, 2 weeks. The prisoner shall serve the balance of 6 years, 8 months, and 1 week IHL. In the exercise of my discretion and I suspend further 2 years considering the number of mitigating factors present. So, the prisoner shall serve the balance of 4 years 8 months 1 week IHL.

25. Those are the orders of this court.
_______________________________________________________________
P Kaluwin, Public Prosecutor: Lawyer for the State
L B Mamu, Public Solicitor: Lawyer for the Prisoner