State v Morgan [2001] PGNC 38; N2171 (17 December 2001)

N2171

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1184 of 2001

THE STATE

-V-

JIMMY MORGAN

WEWAK: KANDAKASI, J.
2001: 13th and 17th December

CRIMINAL LAW - Sentence – Manslaughter – Two serious blows to the deceased resulting in rapture of spleen and lung - Drunkards disturbing sleeping community – Disturbance woke up deceased from his sleep – Prisoner has habit of getting drunk and disturbing the peace – Guilty plea – No prior convictions – Sentence of 12 years in hard labour imposed – Criminal Code ss. 302 & 19.

Cases cited:

The State v. Jonathan Apamba Wangu (CR 544 of 2001)
The State v. Oddillya Hurayua (CR 1710 of 2001)

Rex Lialu v. The State [1990] PNGLR 487
Jack Tanga v. The State SC602

John Elipa Kalabus v. The State [1988] PNGLR 193.
Ala Peter Utieng v. The State (unreported and unnumbered judgement of the Supreme Court delivered in Wewak on the 23rd of November 2000) SCRA 15 of 2000

Counsel:

M. Ruarri for the State
G. Korei for the Accused

17the December, 2001

DECISION ON SENTENCE

KANDAKASI J: On Thursday the 13 of this month, you pleaded guilty to one count of unlawful killing of one Francis Kainor, at Namba 2 Basis here in Wewak on the 19th of May 2001, contrary to section 302 of the Criminal Code.

The relevant facts are not much in dispute. At about 4:00pm, on the 19th of May 2001, you went down to the beach and joined other boys there. At the beach, you and your friends drank some strong alcoholic drink, you describe as "OP hot drink", three in total, according to your record of interview. Thereafter you went to a black market and bought one more of the same alcoholic drink and drank it. That was about 7:30 p.m. Then at about 9:00pm, you decided to go and buy some smoke.

According to your record of interview, you went to the deceased’s house and asked to buy some smoke from his wife. But there was no response so you say you went to the next door neighbour of the deceased, an old man called Kopi and knocked on his door and knocked several times for him to open his door and sell you smoke. He did not do that so you decided to leave. You then left the old man Kopi’s house when you saw the deceased standing next to his house. So you say you said good night to him. He responded with a swear, accusing you of getting drunk and every time and behave like the way you were behaving at that time. He then charged at you with a bush knife in his hands first. He swung the bush knife at you and you avoid it. At that stage, you say you pretended to hit him with a piece of wood. The deceased then charged toward you with the bush knife. This time, you thought he was going to get you so you struck him with the piece of wood you had. You then ran away from the scene. Later you found that the deceased was seriously injured and eventually died some hours later. You decided not to raise a defence based on your claims even though I raised with you and your counsel. Instead you chose to raise this only in your mitigation.

Other material on file, which I am entitled to take into account show that you are used to getting drunk and disturbing the peace. On this occasion, you and your friends hit an empty drum and banged on Mr. Kopi’s house several times. You were obviously disturbing and waking up a sleeping community as you always do each time you get drunk. The material on file also shows that, you and your friends asked to buy some smoke from the deceased. You and your friends did not succeed in getting a favourable response. As result, you and your friends got very angry and attacked the deceased. You hit the deceased with a piece of wood twice. The wood is described as a 4x2, which is obviously a heavy object. The first of your hits was on the deceased’s stomach area, which cause the deceased to struggle for breath. Whilst he was in that condition, you hit him again on his chest area. Thereafter, you and your friends left the scene.

The deceased’ neighbours managed to take him to the hospital. However, he was dead at the scene hours after the assault on him before getting to the hospital. There was nothing the hospital could do to save the deceased. The hospital subsequently conducted a post mortum. This revealed that the deceased suffered serious injuries to his spleen resulting in rapture and injuries to his left lung causing serious internal bleeding about two liters, from which and the deceased eventually died. There is no evidence or suggestion of the deceased having a swollen spleen. So I assume that he had a normal spleen.

The Law

The offence of unlawful killing and its penalty is prescribed by section 302 of the Criminal Code. It prescribes a maximum penalty of life imprisonment. The offence is therefore, a very serious one, regardless of how it is committed. The section in relevant parts prescribes the offence and the penalty in these terms:

"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."

As I said last week here in Wewak in The State v. Jonathan Apamba Wangu (CR 544 of 2001) and The State v. Oddillya Hurayua (CR 1710 of 2001), it is trite law that the maximum penalty for any offence must be reserved for the worse type of the offence under consideration. There is not much contention that your case does not fall under the worse type of unlawful killing. Nevertheless, it is a serious offence to kill someone unlawfully. That is why, the maximum penalty prescribed is life imprisonment.

The Supreme Court in Rex Lialu v. The State [1990] PNGLR 487, set out the relevant guidelines for sentence in this type of cases. It held that the following factors must be taken into account before sentencing:

"(i) the nature and frequency of the attack or assault on the deceased.

(ii) did the injury which caused death arise directly from the assault or was the injury caused by an object when the deceased subsequently fell?

(iii) was death caused by a fist or weapon?

(iv) did the offender deliberately set out to hurt anyone?

(v) was there any provocation in the non-legal sense?

(vi) did the deceased have a thin skull?

(vii) did the deceased have an enlarged spleen?"

In the case before it, the Supreme Court found that the appellant and the deceased were both drunk. The decease said something that was suggestive to the appellant’s wife. So the appellant punched the deceased once on the head and the deceased fell backwards on the bitumen surface and eventually died from landing hard on the bitumen surface. The appellant was sentenced to 4 and half years by the National Court but the Supreme Court increase that to 6 and half years.

Subsequent Supreme Court decisions have increased the tariffs to as high has 12 years as in Jack Tanga v. The State SC602. In that case, the National court imposed a 12 years sentence on what was considered as one of the worse cases of manslaughter. The appellant was drunk when he picked an argument with his wife and then proceeded to kick her repeatedly several times and even mocked her when she was in a most seriously injured condition. The deceased was unarmed through out the attack on her.

After reviewing most of the manslaughter cases up to that time, the Supreme Court warned that the sentences in these types of cases will need to be increase to correspond with the increase in the crime itself. This is what the Supreme Court said:

"The sentence in any given case will of course depend on its own peculiar facts. We are unable to prescribe any particular range of sentences for this offence as it is all too difficult to fix any range of sentences with some degree of precision. However, we would suggest that in an unintentional killing case which is uncontested, whatever the extenuating and mitigating circumstances may be, the application of vicious force, with or without the use of a weapon, causing serious bodily injury resulting in death may attract sentences between 10 years and above and in some cases, even life imprisonment. Such stern punishment should reflect the seriousness and prevalence of this offence throughout the country which this Court and the National Court has emphasised time and time again."

(Emphasis mine)

Then for the case before it, the Supreme Court considered the sentence of 12 years appropriate and confirmed that sentence.

Drunk and disorderly in public places and more particularly in residential areas both in the cities and towns or villages is on the increase and more prevalent. The law does not provide that being drunk is an excuse for any crime. In the past, the Courts have made it clear that people who get drunk and commit criminal offences can not escape being appropriately dealt with: see for example John Elipa Kalabus v. The State [1988] PNGLR 193.

The law does not permit the killing of another human life in this kind of setting. Indeed Parliament in enacting section 302 of the Criminal code considered such a killing unlawful and a very serious offence. At the same time however, Parliament gave the Courts a wide discretion under s.19 of the Criminal Code to impose a term of imprisonment that is less then the prescribed maximum sentence of life imprisonment. This is because the circumstances in which a person could kill another can not be the same. In some cases, the circumstances may be serious whilst in others, it may be less serious. I am bound to consider and follow past judgements of the Supreme and the National Court unless there is a valid reason to depart from them especially with the latter.

Your Case

In your case, your lawyer has asked me to impose a sentence between 1 – 5 years. In so doing, he relied on my decision in The State v. Oddillya Hurayua (supra), a decision I delivered here in Wewak last week. That case is however, distinguishable from your case on its facts. The prisoner in that case was a young woman who initially started a fight with the deceased over a common boyfriend. That fight stopped some hours back. However, the deceased did not treat it has finished. She waited near her house at the Wom junction for the prisoner to turn up. When she did, the deceased started to retaliate. In the process the prisoner was forced down to the ground. Of course, the deceased carried on fighting the prisoner from the top. At the same time the prisoner was fighting her way out. She did so by using a pocketknife she had with her. She delivered a seriously penetrating knife wound to the chest into the deceased’s heart. The deceased was taken to the hospital and the doctors did all they could to save her without success. She eventually died.

In your case, on the evidence, I find that you started the tragedy. You chose to take in strong alcoholic drinks with others. You took about a total of 5 hours according to your own record of interview to finish drinking all of the strong drink you could afford to find and drink that day. You consumed the alcohol at a public place because it was not taking place at a private place. You then decided to go looking for smoke. By that time, it was well into the middle of the night when most people had already gone off to sleep.

You went to the deceased’s house and woke him up from his sleep. You asked to buy smoke from him and he told you that the man who used to sell smokes was already asleep meaning he could not sell you any smoke. You did not accept what he was telling you. Instead, you and your friends then took a fight with the deceased as if he was under a duty to comply at such a time of the night. In the process, you took a heavy piece of wood and hit the deceased twice. The first one was across his stomach area and the second one at his chest area when he was already fighting for breath due to the first blow. About 4 hours later, the deceased died from the injuries you inflicted upon him.

The deceased did not provoke or invite you into a fight. He did not cause you to drink or look for smoke. Sleep time had already arrived and he was asleep when you woke him up. You claim the deceased charged at you with a bush knife according to your record of interview with the police. You decided not to raise a defence on this when I specifically raised that with you and your lawyer. In so doing, you accepted the States allegation that the attack on the deceased was not provoked in any way, be it legal or otherwise.

There is other evidence also in the hand up brief, which shows that you have a habit of getting drunk and disturbing the peace of the community. On the fateful day, witnesses, who are the neighbours of the deceased say that you went and banged on the deceased house about three times and before that you banged on the nearby rubbish drums. They say this is something you usually do each time you get drunk.

The problem of people getting drunk and disturbing the peace of the community is a serious problem. It is happening almost everywhere in the country. It therefore, calls for a tougher penalty to send a strong message that this kind of behaviour is unacceptable because it not only disturbs the peace but it also brings in other very serious social problems like death in this case. If it were not for your drunkard behaviour, you might not have caused the death of the deceased and you would not be in Court.

Our country and or Constitution are built on the Christian principles. Those principles are set out in the "Holy Bible", the word of God. The bible in Proverbs 20 verses 1 and also Ephesians 5:18 teaches against getting drunk with wine or alcohol for it is a mocker. Instead it teaches us to be filled with the Holy Spirit of God and be filled with love for one another (Solomon 1:2). God in his futuristic eye saw that being drunk could cause a lot of problems. He has therefore, spoken against the consumption of alcohol. The Holy Bible also teaches us against the taking away of another man’s life. It is in the 10 commandments. Commandments number 6 specifically states "You shall not kill" (Exodus 19:13). A failure to follow these instructions has the penalty of death. The Bible in Romans 6 verse 23 makes it clear that disobedience to these instructions, which is called sin, is death unless we turn way from our disobedience and start loving one another and live in peace with each other.

The offences under the laws of our country such as section 302 of the Criminal Code go back to the bible for their origin. Only if society returns to the teachings of the Bible and does as it says, we would have no law and order problem and our society would be a paradise on earth. Until we reach that stage, the law requires penalties to be imposed against those who break the law. The good news is that, death is not the penalty under section 302 of Criminal Code. That is nevertheless a penalty everyone of us stand to face when Jesus Christ returns to take his obedient people to heaven.

Now returning to your case, I take into account the particular circumstance in which you committed the offence and the factors that operate against you on the one hand. Then on the other hand, I also take into account your guilty plea, having no prior convictions and your expression of remorse. Nevertheless, the lost of an innocent life can not be replaced by any such factors as has been noted by a large number of cases already. In respect of your expression of remorse, what the Supreme Court on circuit here in Wewak said in Ala Peter Utieng v. The State (unreported and unnumbered judgement of the Supreme Court delivered in Wewak on the 23rd of November 2000) SCRA 15 of 2000 at page 5 is instructive and I adopt them. The Supreme Court said:

"In passing, we make one observation in relation to the Appellant’s plea for mercy and leniency both before the National and this Court on the basis that, he is married, his parents are deceased and he is sorry for what he has done.... Also, as the Bible says, he should have shown mercy and care first before asking the Courts to be merciful with him. Besides, as we said yesterday in the Rudy Yekat case, the Appellant’s utterance of sorry must be accompanied by something tangible which befits the wrong he has brought upon the victim, her family and relatives, if such utterances are to be of any value and meaning. In the present case, there is no evidence of the Appellant paying any compensation or has taken any step to correct the wrong he has perpetrated. This Court or any other court for that matter should be slow to act on such meaningless and or valueless pleas for mercy or leniency."

There is no evidence of what steps if any, you have taken to appease the loss you have brought upon the deceased immediate family and his relatives and the community which you disturbed in the middle of the night. You not only hit the deceased once but when he was fighting for breath, after your first blow, you hit him the second time using a heavy object. Clearly, you showed no mercy and leniency. An innocent life has been lost in your hands. There is nothing this Court can do to bring him back to life.

In all of the circumstances I consider your case coming closure to Jack Tanga v. The State (supra) although I note that, that was a case of a drunkard man killing his wife by kicking and hitting the deceased repeatedly and mocked her. As the Supreme Court said in that case, the sentences of such unlawful killing must now start at 10 years and then move up or down depending on the factors in mitigating as well as those in aggravation. In my view the particular circumstances in which you committed the crime, your past habits of disturbing the peace when drunk and hitting the deceased twice with an heavy object resulting in his death warrants a sentence up to or beyond ten years.

I consider a sentence of 12 years in hard labour appropriate. This does of course, reflect your guilty plea to a charge that carries a maximum of life imprisonment and having no prior conviction. In other words, your plea of guilty as well as you being a first time offender is able to bring the sentence down to 12 years. If it were not for that, you would be looking at a sentence well beyond 12 years.

From that 12 years, the period you have already spent in custody awaiting your trial will be deducted. You will then be left to serve the balance. I hence order that you serve the term of 12 years less time already spent in custody at the Boram CIS in hard labour.
______________________________________________________________________
Lawyer for the State: Public Prosecutor

Lawyer for the Accused: The Public Solicitor