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State v Mondo [2002] PNGLR 48 (2 September 2002)

NATIONAL COURT OF JUSTICE

THE STATE

V

GIBSON MONDO

Lae: Injia J
9 September 2002

CRIMINAL LAW – Sentence – Manslaughter – Head injuries inflicted on young man suspected of stealing radio – Punitive and deterrent sentence appropriate to deter mob attack on young "suspected criminal" which is common and on the increase – Thirteen (13) years imprisonment.

SENTENCING – Manslaughter – Categories of sentences.

Facts

The accused and his friends were drinking beer on 10 November 2000 at about 7 p.m. at Bumbu Settlement in Lae when the deceased and his friend passed by. The deceased was questioned by one of the accused's friends as to whether he had stolen the accused's radio. The deceased denied the allegation and started running away. The accused and his friends caught the deceased and the accused held him tight whilst his friends punched and kicked the deceased all over his body.

The deceased was rushed to the hospital, treated and a week later he died. Medical reports showed that the deceased died as a result of brain injuries and intra-cranial internal bleeding. The accused pleaded guilty to the charge of manslaughter.

Held

1. There are three categories of sentencing in manslaughter cases:-

a) the first category relates to the cases involving application of direct blow or punch to the stomach area resulting in the rapture of the spleen and attracts sentences between 3-7 years;

b) the second category relates to cases involving the use of brutal force to the deceased's body without the use of weapons. This kind of killing attracts sentences between 8-12 years; and

c) the third category relates to cases involving application of direct force to the body using a weapon. This category of killing attracts sentences between 14-16 years.

2. The kind of killing in this case is very serious because it involved mob attack and the killing of a helpless person. The increasing incidences of mob attack of suspected criminals in our cities or towns, streets, in the settlements and even in villages is not warranted in a civil democratic society such as PNG.

3. The court may in the exercise of its powers under the Criminal Code (Compensation) Act refuse to make an order for compensation even if the accused promises to pay additional compensation to the deceased's relatives.

Papua New Guinea cases cited

Jack Tanga v The State [1999] PNGLR 216.
John Kapil Tapi v The State (2000) unreported SC635.
Public Prosecutor v John Mela unreported & unnumbered Supreme Court Judgment dated 28/06/01.
Rex Lialu v The State [1990] PNGLR 487.

Counsel

Mr Ruari, for the State.
Mr Siminji, for the accused.

9 September 2002

Injia J. The accused pleaded guilty to one count of unlawful killing or manslaughter laid under s 302 of the Criminal Code.

The facts of the case are that on 10/11/00, at about 7 p.m., the accused was drinking beer with his friends at the Bumbu Settlement when the deceased, one Vera Ravu and another young man passed by. The deceased was questioned by one of the accused's friends Vellan Gideon, as to whether he stole his radio. When questioned, the deceased denied it and started to run away. The boys then surrounded him and the accused grabbed him and held him tight whilst the other boys punched him and kicked him all over his body. The accused admitted in Court through his lawyer that he only punched the deceased on his head but denied kicking him on his head. This version conflicted with the State's allegation on the basis of which he pleaded guilty, that he also kicked the deceased on his head. In the absence of any proof to the contrary by the State of this disputed version of facts, I accept the accused's version of the facts.

While the attack was in progress, another person intervened and distracted their attention which enabled the deceased to escape. The deceased was however seriously hurt in the attack and he was taken to the hospital where he was admitted and treated for his wounds. One week later the deceased died. The medical report shows that the deceased sustained grievous bodily injuries inflicted on his head by a blunt and heavy object in a traumatic way, and that he died from brain injuries and intra-cranial internal bleeding.

The unlawful killing of another person is a serious crime. This is reflected in s 302 when it provides a maximum sentence of life imprisonment. The Court has a discretion to impose a term of years depending on the circumstances of each case. The principles applicable to sentencing in manslaughter cases are set out in the case of Rex Lialu v The State [1990] PNGLR 487. In the past, in uncontested manslaughter cases where vicious application of direct force results in the death of another person the courts have imposed sentences in the range of 6 – 16 years imprisonment: Rex Lialu v The State [1990] PNGLR 487; Jack Tanga v The State SC602 (1999), John Kapil Tapi v The State SC635 (2000). There are 3 categories of sentences within this range. As to which of these 3 categories a particular case falls into, depends on the seriousness of the assault or injuries inflicted which caused death. The first category relates to cases involving the application of a direct blow or punch on the stomach area resulting in the rupture of the spleen. This kind of killing falls into the lower part of this range and it attracts sentences between 3 years – 7 years: see Public Prosecutor v John Mela SCRA 17/01 unpublished Supreme Court Judgment dated 28/06/01. The second category relates to cases where there is a repeated application of brutal force on the deceased's body without the use of weapons resulting in the person's death. This kind of killing attracts sentences between 8 – 12 years: see Jack Tanga. The third category relates to cases involving the application of direct force to the body using a weapon such as a bush knife and severing vital parts of the body such as the head, legs or hands which causes death. This kind of killing falls into the top range, and attracts sentences between 14 – 16 years: see John Kapil Tapi.

In my view, the manner of the attack and the nature of the injuries inflicted on the deceased which caused his death make this case somewhat more serious than the killing in Jack Tanga's case. Firstly, the killing in Jack Tanga's case involved the killing of a spouse in a domestic context. Killings in a domestic context when compared to other types of killing are not regarded as serious because they are prompted by domestic hardships or differences within the family. Secondly, the deceased was wrapped tight around his body by the accused and repeatedly kicked and punched all over his body in a mob attack, particularly on his head. As the medical report shows, grievous bodily injuries were inflicted on his head and this caused the death of a healthy young boy.

This kind of killing is a serious form of unlawful killing. I repeat what I said recently in CR 1518/00 The State v Geong Quarang Unpublished National Court Judgment dated 19/06/02. In that case, although I made the remarks when sentencing that accused in a willful murder case, the principles are also relevant here:

"The value the society places on the sanctity of human life must be understood in it entirety. The life of a person cannot be placed on equal footing with the value of land, the life of pigs, taros and chickens (and in this case, a radio). Any person who takes any other person's life to avenge his grievances over land, pigs, taros and chickens, ought to be visited with a strong punitive and deterrent sentence correct his behaviour."

"The unlawful killing of another person for whatever reason is forbidden. Criminals, convicted or otherwise, reputed or not, are entitled to the protection of the law. A suspected criminal or wrongdoer cannot be summarily executed, without giving an opportunity to give his account on the allegation leveled against him. If he is charged with a crime and is brought before the Court, those who accused him must allow the law to take its normal course. It is cruel and inhuman for a person to summarily execute another person, be he a reputed criminal or not, without hearing his side of the story of any allegations leveled against him."

The mob attack of suspected young criminals in our cities, towns, streets, or in the settlements and even in villages appears to me to be increasing as if it were an accepted practice. Because of the increasing prevalence of serious crimes involving violence such as stealing, break and enter, robbery, rape and the like committed by young men in this country, there appears to be a prejudice against them in our society today. This prejudice is contributing to this self-help summary-execution style punishment meted out on young suspects before they are brought to Court. This is not warranted in a civil democratic society such as PNG which is governed by respect for the rule of law. Only the Courts have this power to mete out punishment after they are found guilty of the alleged offence. People who take the law into their own hands to mete out punishment are no better than or even worse than the suspected offenders, of breaking the law. A strong deterrent punishment is called for to punish such offenders and deter others who take the law into their own hands.

In the present case, I also take into account as an aggravating factor that the accused was influenced by intoxicating liquor.

Having said all these, I however, take into account the following mitigating factors and extenuating circumstances of the offence:

1. Mature man aged 27 years old with a wife and young child. He is educated up to Grade 8. He comes from a stable family background. He has an unblemished good character. He is also a committed Christian and an active member in community groups such as youth. This is clearly evident from information the accused himself and his counsel put to the Court and his antecedent report prepared by the police. In addition, I have before me a number of character references from various sources. They are from:

(a) Leonard Sikoko, Bumbu Catholic Parish.

(b) Jim Gawi, Village Chief of Angriman Village.

(c) Mr. Oliver Angonome, Pastor, SDA Church, Bumbu.

(d) Cr. Ian Nathaniel, Ahi LLG

(e) Operations Section, Mountain Freighters Ltd. (His employer who employed him as a crew).

(f) Const. Daniel Tenige, Police Arresting Officer, CID, Lae Police Station, Lae.

All these people speak well of the prisoner's behaviour in the community.

7. First offender.

8. Pleaded guilty to his first offence and saved the Court's valuable time. I also accept his plea as a sign of a good man who is prepared to realize his wrong and accept the punishment. That is a manifestation of his unblemished previous good character as spoken of by all these persons.

9. Co-operated with police by giving 2 statements at different times. In the first statement, he gave on 21/11/00, he fully admitted the offence and his role in the attack. In the second statement when he was interviewed by police, he gave some information which assisted the police in their investigations.

10. The prisoner did not act alone. Other young men also contributed to his death. He did not boot the deceased on his head but punched him on his head. No weapon was used in the attack. Also, the fact that the deceased died 1 week later may suggest a lesser degree of force compared with cases where a person dies instantly or shortly after the attack. Further, the deceased's actions, if he indeed stole the radio, may have brought about the attack.

11. Payment of compensation payment of K1,500.00 to the deceased's relatives.

The prisoner has offered to pay another K5,000.00 as compensation. An order for compensation as an additional form of punishment is allowed by the Criminal Law (Compensation) Act 1991. The Act provides for a compensation order up to a maximum of K5,000.00 and in default, a maximum default penalty of 6 months. In deciding whether I should make a compensation order under that Act, I have had regard to the seriousness of the crime, which in my view will attract a sentence far in excess of the maximum default period of 6 months prescribed by that Act for non-payment of the maximum amount of compensation which is K5,000.00. As such, any order for compensation, even in the maximum amount, is of little consequence because it will not affect the punishment in any substantive way. Therefore, I do not think a compensation order under the Act is appropriate in this case.

The maximum punishment for this crime as I have already said is life imprisonment. In determining the appropriate punishment, I also bear in mind the loss of a young man's life. The medical report shows that the deceased was aged 24 years old. The prisoner is also a young man but he has his own life intact. The accused is aged 27 years. Given the life expectancy of males in this country of 60 years, the prisoner has another 33 years to live, whilst the deceased's remaining life expectancy of 36 years has been prematurely terminated. It would seem unfair of me to impose a soft sentence which would favour the prisoner significantly and pay little regard to the loss of a young man's life. Of course I do not intend to give him life imprisonment or even sentence him to 33 – 36 years because that would again be in effect tantamount to imposing life imprisonment: Life imprisonment is reserved for the worst case of its kind and this present case is not one of those kinds of manslaughter killing. But the sentence in terms of years must be sufficient to reflect the aggregated balance of all those factors I have discussed above. In order to arrive at the appropriate punishment, I must now balance all those factors for and against him, and then impose a punishment which fits the crime. Balancing all these factors then, I consider that an appropriate sentence is one of 13 years imprisonment and I impose the same. From this sentence, I deduct the period of 2 weeks and 1 day. He will serve the balance of 12 years 11 months and 29 days. I do not think there exists any proper basis for suspending the whole or any part of this sentence as requested by the prisoner. His bail money will be refunded to him.

Lawyer for the State: Public Prosecutor.
Lawyer for the accused: Public Solcitor.