State v Magirak [2003] PGNC 123; N2368 (29 April 2003)

N2368

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 625 of 2003

THE STATE

-V-

DOMINIC MANGIRAK

WEWAK: KANDAKASI, J.
2003: 24th and 29th April

CRIMINAL LAW — Sentence — Manslaughter — Guilty Plea — Provocation in the non legal sense – One spear wound leading to loss of blood and death –First time offender – Sentencing guidelines considered – Sentence of 12 years imposed.

Cases cited:

Rex Lialu v. The State [1988-89] PNGLR 487.
Anna Max Marangi v The State (08/11/02) SC702.
Antap Yala v. The State, (Unreported judgement 31/05/96).
Jack Tanga v. The State (1999) SC602.
John Kapil Tapi v. The State (2000) SC635.
The State v Jimmy Morgan (17/12/01) N2171.

Counsel:

Mr. M. Ruarri for the State
Mr. D. Kari for the Accused

28th April, 2003

DECISION ON SENTENCE

KANDAKASI J: You pleaded guilty to one charge of manslaughter or unlawful killing contrary to s. 302 of the Criminal Code. Upon reading the material in the deposition, which was admitted into evidence with your consent, I was satisfied that there was enough evidence to support your guilty plea. I therefore, accepted your guilty plea and had you convicted as charged.

The facts are straight forward. In the evening of 12th August 2002, you were in your house, when one Steven Sawingu and his relatives came to resolve some differences you had with them. That appears to have been over a gossip about your sister being spread by the Sawingu’s. When the Sawingu’s got to your house, an argument ensued between you and them. That led to a fight.

In the fight, your father who was armed with a wild palm spear fought with Steven Sawingu’s elder brother, August Sawingu. Steven Sawingu went to his brother’s aid and fought with one of your brothers, Gering Mangirak. You were also armed with a sharp bamboo spear and attacked Steven Sawingu. You shot him on his left chest below his arm pit and quickly pulled the spear out and tried to spear August Sawingu too but he avoided it.

Steven and August Sawingu then started to run away from the scene back to their house. But, before they could reach their house, Steven collapsed on the way. August Sawingu and another carried Steven Sawingu into his house and there he passed away due to heavy loss of blood.

In your address on sentence, you said it was true that you committed the offence and asked the Court to be merciful toward you. Your lawyer took it further on your behalf, urging the Court to note that you pleaded guilty and co-operated well with the police and the other authorities up to this Court. This saved the State and the Court substantial time and costs associated to a denial and trial. He also asked me to note your personal background and that, this is a case of unintentional killing unlike a case of willful murder or intentional wounding leading to death. He also urged me to distinguish your case from other manslaughter cases such as those in domestic settings and spleen deaths. Taking these factors into account, he submitted on your behalf that your sentence should start at 6 years.

In support of his argument, your lawyer drew the Court’s attention to the Supreme Court’s judgement in Rex Lialu v. The State [1988-89] PNGLR 487. That case set the following guidelines for sentencing in manslaughter cases at page 497 of its judgement as follows:

(a) The Court must have careful regard to the circumstances of death and the way in which death was actually caused.

(b) The following matters may be relevant to the nature of the act causing death:

(i) the nature and frequency of any attack or assault;

(ii) whether the injury which caused the death arose directly from an attack or assault or was caused by, for example, falling on an object;

(iii) whether the injury was caused by the person or by a weapon;

(iv) whether there was deliberate intention to harm;

(v) whether there was provocation in the non-legal sense;

(vi) whether the deceased had a thin skull, and

(vii) whether the deceased had an enlarged spleen.

The State agrees that this case sets guidelines for sentencing in manslaughter cases. But it argues at the same time that, it is now outdated and as referred to the most recent Supreme Court judgement in Anna Max Marangi v The State (08/11/02) SC702. This is the latest case on manslaughter. The Supreme Court in that case, referred to three of its earlier judgements namely Antap Yala v. The State, (Unreported judgement 31/05/96); Jack Tanga v. The State (1999) SC602; and John Kapil Tapi v. The State (2000) SC635. They represent cases in which the prisoners were treated more leniently. The Court sounded a warning in the Antap Yala (supra) case that, unintentional killing is becoming prevalent and that, sentences will increase. The Supreme Court through this judgement has also reiterated that, whilst murder sentences would be higher than manslaughter sentences, there are killings which will be regarded serious and would attract the maximum penalty of life imprisonment.

Based on these and other cases, the Supreme Court in the Anna Max Marangi (supra) case noted that, the current range of sentences for uncontested manslaughter cases in a domestic setting range from 4 years to 16 years imprisonment. It also noted that, and spoke of 3 main categories of manslaughter cases.

The first are cases in which force is used in an uncalculated manner, such as a single blow, punches or kicks on any part of the deceased’s body. This also includes cases in which death is caused by an acceleration of a pre-existing disease or condition leading to death. These kinds of killings attract sentences between 3 and seven 7 years.

The second involve cases in which there is repeated application of vicious force, with or without the use of an instrument or weapon, such as repeated kicks and punches applied to the head or chest with intent to wound or cause bodily harm. Deaths caused by a single or multiple knife stab wounds applied to the head, neck, chest or abdomen or on any other vulnerable part of the body, even if there is no other special aggravating factors, come under this category. This category attracts sentences between 8 and 12 years.

The third involve cases which where direct force in a calculated manner is applied on the deceased body using a weapon such as a knife, bush knife or axe causing serious bodily injuries, such as piercing vital organs or severing vital parts of the body. Deaths caused by chopping the neck, legs and arms with an axe or bush knife are examples of this kind of killings. This includes death caused by single or multiple knife stab wounds on the head, face, neck, chest or the abdomen if accompanied by other special aggravating factors may also fall under this category. These kinds of killings attract sentences between 13 and 16 years.

The Court said killings in the third category are more serious whilst those in the first are less serious with those in the second as the median between the two. It also noted that the category into which a particular case may fall under depends on the way in which force was applied, the nature of the assault, the manner in which the injuries were inflicted and the seriousness of injuries resulting in death. It also noted that killings, which come under the second and third categories, could constitute murder or even wilful murder if the necessary intentions to either cause grievous bodily harm or to kill are present.

The Supreme Court also said the imposing of sentences between 3 and 6 years was too lenient and now no longer relevant. Then in the case before it, which was a case of a wife killing her husband’s girlfriend by the use of a kitchen knife twice to stub the deceased who was pregnant, the foetus of which was terminated, considered it serious and falling in the second or the third category. It then upheld the National Court’s sentence of 9 years and said, the appellant was fortunate to receive that sentence as it was of the view that she deserved a higher sentence.

On my own part, I imposed a sentence of 12 years in a case of a drunkard waking up a sleeping man and attacking him with a piece of wood. The decease had a swollen spleen that was cause to rapture in the attack resulting in his death. That was in the case of The State v Jimmy Morgan (17/12/01) N2171.

Your case

In your case, there is no mention of any weapons being used by deceased and his brother and those who might have come with him. It was you and your father who were armed. You did not pick an object that happened to be around. Instead you armed yourself with a sharp bamboo spear. You used that to attack the deceased on a vital part of his body, his chest area, which houses a vital organ of a human body. Although, the deceased did not die immediately, he died soon after your attack due to loss of blood.

Further, the cause of the arguments and eventual fight leading to the deceased death was only a gossip. This could have been easily resolved peacefully without the loss of any life. There is no evidence of any step being taken by you or your father to resolve that problem peacefully. It seems you were intent on attacking the deceased and his brother, even though they were not armed.

Senseless killings in the kind circumstances in which you killed the deceased is a common occurrence not only here in the East Sepik Province but through most of the country. It is therefore a prevalent offence. Parliament having considered all things prescribed life imprisonment as the maximum penalty for this offence. However, it is the Court’s in the exercise of their sentencing discretion under s. 19 of the Criminal Code that have given sentences less than that. The Supreme Court’s recent pronouncement in the Anna Max Marangi (supra) case, is that the kind of sentences that have been imposed in the past were lenient and they ought to be increased.

Back to your case, there are only a few factors in your favour. First, you pleaded guilty to the charge. Secondly, you are a first time offender. Thirdly, you did not repeatedly attack the deceased. But I do note that, you tried to also shot the deceased brother as if shooting the deceased was not enough. I also note that you are relatively young although you are married with one child. Whilst you pleaded for mercy, you have not shown any mercy toward the deceased. There is also no evidence of you taking any steps to show your remorse to the deceased relatives and make peace with them.

Going by the categories of manslaughter case per the Anna Max Marangi (supra) case, your case falls in the second category. This is because you used a dangerous weapon and attacked the deceased in his chest area, which is a vital part of the human body. The deceased died directly from the wound you had inflicted upon him. This attracts a sentence in the range of 8 to 12 years. As noted, I have imposed 12 years in manslaughter cases, falling in the first category because of the value of life and many lives are being lost unnecessarily at the hands of careless drunkards, who are nothing but are public nuisance. Consistent with that, and in line with the Supreme Court guideline, per the Anna Max Marangi (supra) case, I consider a sentence of 12 years appropriate.

I sincerely hope that this sentence will send a strong message that it is wrong to attempt to settle disputes through violent means, instead of doing so through peaceful means. The senseless taking away of human life will now attract sentences beyond the kind of sentence that have been given in the past. This I trust will also serve both as a personal deterrence to you and a general deterrent to others in this Province and throughout the country.

Out of the 12 years, the period of 8 months and 9 days you have already spent in custody from the date of your arrest (20/08/02) shall be deducted. That will leave you with 11 years 3 months and 21 days. I therefore order that you serve the term of 11 years, 3 months and 21 days in hard labour at the Boram CIS. A warrant of commitment shall be issued forthwith in those terms.
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Lawyers for the State: The Public Prosecutor
Lawyers for the State: The Public Solicitor