State v Kirafe [2005] PGNC 175; N3660 (22 December 2005)

N3660

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1833 of 2005

THE STATE

V

GERALD KIRAFE

Vanimo: Kandakasi, J.
2005: 13th and 21st December

DECISION ON SENTENCE

CRIMINAL LAW - Sentence – Particular offence – Manslaughter - Drunkard passenger in moving motor vehicle causing nuisance and calling on driver to stop – Risky for driver to stop immediately – When stopped, prisoner argued with driver and throwing ice beer bottle with contents at driver from close range – Driver injured on his forehead above right eye brow – Victim’s condition worsening and admitted to hospital unconscious and in state of coma – Death due to brain damage – Guilty plea by first time offender – Alcohol abuse a factor in aggravation – Strong application of force to bottle or any other object renders the object a dangerous weapon - Prevalence of offence - Deterrent sentence called for – 13 years custodial sentence imposed.

Cases cited:

Anna Max Marangi v. The State (08/11/02) SC702.
Sakarowa Kewa v. The State(01/04/04) SC739
Antap Yala v. The State, (Unreported judgment in, SCR 69/96 delivered on 31/05/96).
Jack Tanga v. The State (19/04/99) SC602.
John Kapil Tapi v. The State (30/03/00) SC635.
The State v. Dominic Mangirak (29/04/03) N2368.
The State v. Jimmy Morgan (17/12/01) N2171.
Sakarowa Kewa v. The State (01/04/04) SC739.
The State v Charles Maniwa and Joseph Utura Maniwa (22/06/04) N2674.
The State v Tau Karo (29/04/04) N2600.
The State v. Lucas Yovura (29/04/03) N2366.
The State v Isidor Kaream (11/05/04) N2610.
The State v. Henry Mapi (03/07/98) N1936
The State v. David Bawai Laiam (01/04/04) SC741.
The State v. Steven Mul Mangi CR 180 of 2001 (delivered 20/10/05)
Acting Public Prosecutor v. Don Hale (27/08/98) SC564.
In The State v. Irox Winston (21/09/00) N2304.
Edmund Gima v The State & Siune Arnold v The State (03/10/03) SC730.

Counsels:

Mr. J. Wala, for the State.
Mr. G. Korei, for the Prisoner.

22 December, 2005

1. KANDAKASI J: You pleaded guilty to one charge of manslaughter or unlawful killing contrary to s. 302 of the Criminal Code. After having administered your allocutus and receiving submissions of counsels, I reserved a decision. Here is now the decision of the Court.

Relevant Facts

2. The facts on which you pleaded guilty to are straightforward. On 11th March 2005, around 3:00 pm, you got on a Vanimo Forest Product’s company motor vehicle, which was bound for Uwa base camp. In the vehicle were other Vanimo Forest Product employees with their families. At the time, you were drunk with alcohol. Whilst in the vehicle, you were a great nuisance to the other passengers and the driver of the vehicle. As the vehicle was about a kilometre away from the Uwa base camp, you banged on the cabin roof top of the vehicle, calling upon the driver, a Lesley Mok Yin Kain to stop for you to go and relief yourself.

3. The driver could not immediately oblige you because he was driving through a portion of the road that could not allow for a safe stopping. However, as soon as he was able to get a safer place to bring the vehicle to a stop he did stop. You then got down from the vehicle, stood about a meter away from the driver, and started arguing with him as to why he could not stop immediately when you called. The driver explained the road condition and the safety issues to you. You did not accept that and threw an ice beer bottle you had with you at the driver. The bottle landed on the driver’s forehead just above the right eyebrow. That caused the deceased to bleed. Another person took over driving the vehicle to the camp thinking the driver was alright and would survive the attack on him. Unfortunately, his condition did not improve requiring hospital admission and treatment at the Vanimo General Hospital. The Hospital admitted him in a state of unconsciousness and coma. His condition did not improve despite medical intervention. He died two days later. The medical doctor put the cause of death as "brain dead due to severe blow to his head with Intracranial Bleeding and raised intracranial pressure."

Address on Sentence and Submissions

4. You informed the Court that you are first time offender and that you have not been in trouble with the law before. You also informed the Court that you are a villager and as such, you are not familiar with Court procedures. You also said sorry to the deceased relatives and friends for killing the deceased. At the end of your address, you asked the Court to exercise mercy toward you.

5. Your lawyer added that, you are about 22 years old. You come from the Mumulu Village here in the Sandaun Province. He further informed the Court that, you are married with a 10 month old baby. Education wise, you have been up to grade 4. Prior to the commission of the offence, you were employed as a crew of a bulldozer with Vanimo Forest Products Company.

6. In his submissions, your lawyer asked the Court to take into account your personal background, your guilty plea and that you are a first time offender in your mitigation. Your lawyer then drew my attention to s. 19 of the Code as well as the Supreme Court judgment in Anna Max Marangi v. The State[1] and asked the Court to start with a sentence of 3 years and asked that part of that be suspended.

7. On the other hand, the State’s lawyer submitted that an innocent life has been unnecessarily brought to an end prematurely. Your case involved an abuse of alcohol. The offence of unnecessary killings is very prevalent and is a crime of violence. Learned counsel for the State, then drew the Court’s attention to the recent Supreme Court judgment in Sakarowa Kewa v. The State[2] and submitted that your case falls in the first category of Anna Max Marangi v. The State[3] as varied by Sakarowa Kewa v. The State.[4] Therefore counsel for the State submitted that your sentence should be somewhere between 7 years and 12 years.

Offence and Sentencing Trend

8. Section 302 of the Criminal Code creates and prescribes the penalty of life imprisonment as its maximum penalty subject to s. 19 of the Code for the offence of manslaughter or unlawful killing. In Anna Max Marangi v. The State[5] the Supreme Court reviewed nearly all of the previous cases on manslaughter particularly its earlier judgments in Antap Yala v. The State;[6] Jack Tanga v. The State;[7] and John Kapil Tapi v. The State.[8] As I observed in The State v. Dominic Mangirak,[9] the Supreme Court spoke of three categories particularly in the context of domestic killings as follows:

"The first consists of cases in which force is used accidentally or in an uncalculated manner, such as a single blow, punches or kicks on any part of 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 three (3) years and seven (7) years.

The second are cases that involve 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 deliberate intention 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 and final involve cases in which there is direct application of force in a calculated manner, on the 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."

9. The Supreme Court considered killings in the third category as more serious whilst those in the first category less serious. Then obviously, the Court considered those in the second category as the median between the two.

10. 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 either to cause grievous bodily harm or to kill are present. The Supreme Court also held that, imposing sentences between 3 and 6 years was too lenient and no longer appropriate nowadays.

11. Having said all of that, the Supreme Court in the case immediately before it which was a case of a wife killing her husband’s girlfriend by the use of a kitchen knife twice to stab the deceased who was pregnant and the foetus terminated, found it serious and falling in the second and or the third category. It then upheld the National Court’s sentence of 9 years and said, the appellant was fortunate enough to receive that sentence as it was of the view that she deserved to receive a higher sentence.

12. On my own part, in the case of The State v Jimmy Morgan,[10] I imposed a sentence of 12 years. A drunkard woke up a sleeping man and attacked him with a piece of wood. The deceased had a swollen spleen that ruptured in the attack resulting in his death. The prisoner was a first time offender and he pleaded guilty.

13. Subsequently, I imposed a similar sentence in The State v. Dominic Mangirak.[11] In that case, the prisoner was also a first time offender pleading guilty. He used a sharp bamboo spear to spear the deceased on the chest and then pulled the spear out and tried to also, shoot the deceased brother out of an argument turning into a physical fight over an alleged gossip.

14. Proceeding on from that, I noted that the Supreme Court in Sakarowa Kewa v. The State,[12] considered all of the foregoing and reconsidered the classification of unlawful killing cases. It then varied the judgment in Anna Max Marangi v. The State[13] in two respects. First, it held that the categorization of the offence of manslaughter in that case applies with appropriate modification to all other settings. Secondly, it suggested a new range of tariffs in terms of the following:[14]

"Given the prevalence of the offence and past sentences not appearing to deter other would be offenders as well as the fact that there can be no excuse except as provided for by law for the taking away of any other person’s life, the sentencing range for the three categories of manslaughter identified in Anna Max Marangi v. The State (08/11/02) SC702 was varied to cover all types of manslaughter cases and increased the tariffs in terms of, seven (7) to twelve (12) years for the first category, thirteen (13) to seventeen (17) years for the second category and eighteen (18) years to life imprisonment for the third category. The use of a firearm, which was not considered in the categorization of manslaughter cases, could fall at the worse end of the third category if not a separate category."

15. I have followed the Sakarowa Kewa v. The State,[15] guidelines in The State v Charles Maniwa and Joseph Utura Maniwa[16] and The State v Tau Karo.[17] In the first case, a group of men attacked a church pastor in breach of a court order already in place. The victim died from a single stone fired from a catapult. Taking into account these and other aggravating factors and the guidelines per Anna Max Marangi v. The State[18] and Sakarowa Kewa v. The State,[19] I imposed a sentence of 19 years. That was on a guilty plea by two first time offenders. In Tau Karo’s case, I imposed a sentence of 8 years. In that case, the deceased provoked the prisoner in the non-legal sense and the prisoner pushed the deceased, who was then drunk, fell to the ground and eventually died from injuries he received when he fell on the ground. I found there were no serious aggravating factors.

Sentence in Your Case

16. I note and take into account both of your personal and family backgrounds as noted above. I quickly point out however that, there is ample authority for the proposition that, an offender should consider his personal and family background and needs first before committing an offence. It is therefore a little too late to talk about an offender’s personal and family background after he has committed an offence.[20]

17. I note in your mitigation that, you are a first time offender and that you have pleaded guilty to the charge of manslaughter. Further, you said sorry but there is no evidence of you either paying compensation or doing something tangible to show your remorse to the deceased relatives, friends and employer who have lost a relative a friend and a worker. Even if you did that, that would not have brought the deceased back to life. Your guilty plea has saved the State substantial time and costs that could have otherwise been outlaid to mount a trial against you.

18. I further note that, you are relatively young. At the same time, I note that, the law has now turned against pleas of youthfulness, because more and more young men like you are now committing most of the serious and violent offences in the country. A recent statement of the law on that is the Supreme Court judgment in The State v. David Bawai Laiam.[21]

19. Furthermore, I note you did not use a bush knife, an axe or such other dangerous weapons like that to attack the deceased. Instead, you used an ice beer bottle with its contents. It was a case of a single ice beer bottle with its contents thrown at and landing on forehead of the deceased resulting eventually in his death. Nevertheless, this does not render the attack on the deceased any less serious. For it does not matter what you used, whether a gun, a bush knife, an axe or stone, an ice beer bottle or any other object. What matters is that, you prematurely terminated the life of another person. That meant much loss, pain and suffering to the deceased’s family, friends and employer.

20. Against these factors in your mitigation, there are a number of aggravating factors. First, you were drunk and it seems you were drinking on a moving vehicle. There were other employees of the company. I would assume there would have been some women and children amongst the passengers. The road to Uwa Base Camp is unsealed. Hence, the drive could not have been that smooth. You became a nuisance not only to the driver by banging on the motor vehicle’s cabin rooftop but the other passengers as well.

21. As you were drunk, you were very selfish and thought only about yourself. In so doing, you cared less about the safety of the other persons in the motor vehicle at the time. You were intent on getting the driver to stop the vehicle immediately, regardless of whether it was safe to do so or not. Once the driver brought the vehicle to a stop, you picked an argument with him and threw at him an ice beer bottle with its contents.

22. There are many instances of alcohol abuse, with many people like you becoming unnecessarily violent and showing no respect whatsoever for the rights and interests of other people. The law reports and published judgments do have a number of deaths resulting from alcohol abuse. The case of The State v Jimmy Morgan,[22] and my most recent judgment in The State v. Steven Mul Mangi[23] are examples that quickly come to mind. One could safely conclude that, cases of death resulting one’s drunkard behaviour is a prevalent crime.

23. Alcohol abuse is a growing problem, so much so that some provinces have prohibited the importation and sale of alcohol. Before the society disintegrates into much more cases of alcohol abuse and lawlessness that follows it which could mean, a total break down of society by your kind of conducts, the Court must act decisively. It can do so by appropriately punishing people of your kind with a view to deterring this kind of behaviour. Your kinds of people are not good news, but bad news for the majority of peace and order loving people in our communities. The sentence this Court or any other Court in similar situation imposes must have that deterrent element so that this bad development creeping into our societies can be eliminated, if it were at all possible.

24. I think it is time now to make it clear to anyone who gets drunk and becomes disorderly causing deaths or committing any other offence is only creating a serious aggravating factor against him or herself. This is necessary because a person chooses to get drunk and so therefore, what follows from one’s drunkardness should follow him or her in aggravation rather than in his or her mitigation.

25. Secondly, when you threw that beer bottle at the deceased, I have no doubt in my mind that you wanted to cause him grievous bodily harm, if not his death for no good a reason. In so doing, you were reckless and showed no respect for human life and the rights of the many other people that were travelling with you. I note that if there was no other driver in the vehicle at the time, all of other passengers would have been stranded for some time.

26. Thirdly, I note that, an ice beer bottle is in itself not a dangerous weapon, but when one uses it in the way you did, in my view, it becomes a dangerous weapon because it can easily cause serious injuries, if not, death as in this case. The same could be said of any person who uses a stone, a stick, a piece of timber or anything like that. What matters, in my view, is how much force is applied and how the object is used. This must be contrasted with someone using only his fist or legs. In this case, you deliberately used it to throw it at the deceased knowing that it could kill if not seriously injure the victim. If all you wanted was to relief yourself, you could have easily attended to that as soon as the vehicle was brought to a stop. Instead, it is clear that you immediately picked up an argument with the driver and soon thereafter threw the bottle at him.

27. Finally, as has been noted again and again by both this Court and the Supreme Court, the latest examples of which are the judgments in Sakarowa Kewa v. The State[24] and Anna Max Marangi v. The State,[25] such senseless killings is on the increase. More than ample warnings have been issued that the sentence for unlawful killings will increase and they have in fact started to increase, because of the prevalence of the offence.

28. Weighing all of the above factors, I find that the factors in aggravation outweigh those in your mitigation. This places your case not in the first category as your lawyer and that of the State submitted. This is because as I elaborate in The State v. Dominic Mangirak[26] which received the endorsement of the Supreme Court in Sakarowa Kewa v. The State,[27] the first category covers cases of accidents and not deliberate acts. The next two categories provided for deliberate acts, as in your case. I am of the view that your case falls under the second category. The sentence recommended by the Supreme Court for this category is 13 to 17 years per Sakarowa Kewa v. The State.[28]

29. Whilst I appreciate that the guidelines provided by the above Supreme Court decisions are only guidelines, I am bound to follow them as the National Court unless a convincing case is made out for me to depart from those guidelines. Your counsel has asked me to start with a very low starting sentence of 3 years and then have part of that suspended. Not only is that submission way out of touch with the sentencing trend I have gone through above, but it also does not have the support of a pre-sentencing report going by the dictates of Acting Public Prosecutor v. Don Hale.[29] There, the Supreme Court held that there can be no suspension of sentence without the support of a pre-sentence report. The Supreme Court also held that young offenders up to age 19 could get their sentences suspended with the support of a pre-sentence report in appropriate cases. In The State v. Irox Winston,[30] I followed the Supreme Court decision and held that:

"...[I]f the Court is minded to give a lenient sentence because of tender age or other good mitigating factors, it must first have before it a pre-sentence report supporting such a sentence. This is because criminal sentencing is a community response to an offence and has to reflect the community’s view of the kind of sentence an offender should receive. Without such a report supporting either the suspension of a sentence or the imposition of a lenient sentence, a Court can not arrive at such a sentence."

30. Subsequently, the Supreme Court endorsed these views and reaffirmed the need for a pre-sentence in its judgment in Edmund Gima v The State & Siune Arnold v The State[31].

31. In your case, I am not convinced that you made out a case for this Court to depart from the guidelines and sentencing range and have either the whole or part of the sentence this Court will short announce against you, suspended either in whole or in part.

32. Taking into account all of the factors for an against you, the sentencing trend and guidelines set by the Supreme and National Court judgments and the particular circumstances in which you committed the offence, I consider a sentence of 13 years is appropriate and impose that sentence against you. Out of that, I order that the period you have already spent in custody awaiting your trial and now sentence be deducted. This will leave you with the balance to serve in hard labour at the Vanimo Correction Services. A warrant of commitment in those terms shall issue forthwith.

__________________________________________
The Public Prosecutor: Lawyers for the State
The Public Solicitor: Lawyers for the State

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^[1] (08/11/02) SC702.
^[2] (01/04/04) SC739.
^[3] Opt Cit note 1.
^[4] Opt Cit note 2.
^[5] Opt Cit note 1.
^[6] (Unreported judgment in, SCR 69/96 delivered on 31/05/96).
^[7] (19/04/99) SC602.
^[8] (30/03/00) SC635.
^[9] (29/04/03) N2368.
^[10] (17/12/01) N2171.
^[11] Ibid.
^[12] (01/04/04) SC739.
^[13] Opt Cit note 6.
^[14] From the head note.
^[15] Opt Cit. note 8.
^[16] (22/06/04) N2674.
^[17] (29/04/04) N2600.
^[18] Opt Cit note 6.
^[19] Opt Cit. note 8.
^[20] See The State v. Lucas Yovura (29/04/03) N2366; see The State v Isidor Kaream (11/05/04) N2610; The State v. Henry Mapi (03/07/98)N1936 for similar views and approaches.
^[21] (01/04/04) SC741.
^[22] Opt Cit note 10.
^[23] CR 180 of 2001 (delivered 20/10/05).
^[24] Opt Cit note 12.
^[25] Opt Cit note 6.
^[26] Opt Cit note 10.
^[27] Opt Cit note 12.
^[28] Opt Cit note 12.
^[29] 27/08/98) SC564.
^[30] (21/09/00) N2304.
^[31] (03/10/03) SC730.