State v Diwa [2005] PGNC 184; N3381 (21 December 2005)

N3381

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 889 of 2005

THE STATE

-V-

TIMOTHY DIWA

Vanimo: Kandakasi, J.
2005: 15th and 21st December

DECISION ON SENTENCE

CRIMINAL LAW - Sentence – Particular offence – Manslaughter - Village fight out of soccer game – Prisoner armed with spade – Spade thrown at deceased – Deep cut to deceased’s ankle – Death resulting from substantial loss of blood – Spade a dangerous weapon – Guilty plea by first time offender – 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.
The State v. Gerald Kirafe CR 1833 of 2005 (Judgment delivered 22/12/05).
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.
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

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

21 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 to today. This is now the decision of the Court.

Relevant Facts

2. The facts on which you pleaded guilty to are these. On 30 June 2005, you and several other men and boys had a game of soccer in your village, Amto No. 1, Green River, here in the Sandaun Province. You carried on with your game despite calls by the village elders to stop, to avoid injury or damage to any person or property. The game came to a stop when one of the players kicked the ball into the forehead of another causing him to fall to the ground. On getting up, that person picked up a fight with the person who kicked the ball at him. The rest of you took sides and a fight took place. Attempts by the village elders to stop the fight fell on deaf ears.

3. During the fight, one of the persons involved punched you. On that happening, you ran to your house, armed yourself with a spade and returned with it. You aimed to spear or shoot another person, a John Ainim but he escaped and you picked on the deceased, Enosh Mauri, who was a few meters away from you. You threw the spade at the deceased and it landed on the deceased’s right ankle. That resulted in a very deep cut almost severing his ankle. The deceased bled heavily from the deep cut. No one in the village could do anything to stop the bleeding. The aid post there had long closed and the nearest functional aid post was far away. The deceased eventually died due to loss of a lot of blood later the same day.

4. Realizing what you had done, you surrendered to police. Police carried out the necessary investigations and decided to charge you for causing the death of the deceased.

Address on Sentence and Submissions

5. In your address on sentence, you told the Court that you are a first time offender and that you have not been in trouble with the law before. You therefore asked the Court to exercise mercy toward you and give you a shorter sentence.

6. Your lawyer added that, you are about 22 years old and partly deaf. You come from Amto No.1 Village in Green River here in the Sandaun Province. You are married with one child. Further, he told the Court that you are uneducated and therefore unsophisticated. Furthermore, your lawyer asked the Court to note and take into account these factors, including your guilty plea and being a first time offender when considering your sentence. 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 the latest decision of the Supreme Court in Sakarowa Kewa v. The State.[2] He then asked the Court to start with a sentence of 7 years.

7. On the other hand, the State’s lawyer drew the Court’s attention to the fact that an innocent life has been unnecessarily brought to an end prematurely. You used a dangerous weapon being a spade to bring about the death of the deceased when not called for. He then submitted that your case falls in the second category under Anna Max Marangi v. The State[3] as improved by the Supreme Court decision in Sakarowa Kewa v. The State.[4] He thus asked for a sentence within the recommended range of 13 to 17 years.

Offence and Sentencing Trend

8. I repeat my discussion of the sentencing trend in the judgement I just handed down in the matter of The State v. Gerald Kirafe.[5] There I said, s. 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[6] the Supreme Court reviewed nearly all of the previous cases on manslaughter particularly its earlier judgments in Antap Yala v. The State;[7] Jack Tanga v. The State;[8] and John Kapil Tapi v. The State.[9] As I observed in The State v. Dominic Mangirak,[10] 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 to twice stab the deceased who was pregnant resulting in the termination of her foetus, 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. I made reference to my decision in The State v Jimmy Morgan,[11] where I imposed a sentence of 12 years. There 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. I also referred to my decision in The State v. Dominic Mangirak[12] where I imposed a similar sentence. 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, more recently, the Supreme Court in Sakarowa Kewa v. The State,[13] considered all of the foregoing and reconsidered the classification of unlawful killing cases. There, the Court varied the judgment in Anna Max Marangi v. The State[14] in two respects. First, the Court 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:[15]

"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 noted further that I have followed the Sakarowa Kewa v. The State,[16] guidelines in The State v Charles Maniwa and Joseph Utura Maniwa[17] and The State v Tau Karo.[18] 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[19] and Sakarowa Kewa v. The State,[20] I imposed a sentence of 19 years. That was on a guilty plea by two first time offenders.

16. In Tau Karo’s case, I imposed a sentence of 8 years. In that case, the deceased provoked the prisoner in a 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.

17. In the decision I just handed down a while ago in The State v. Gerald Kirafe,[21] I imposed a sentence of 13 years. That was in a case of a drunkard using an ice beer bottle with its contents to hit the deceased from which the deceased eventually died. I also noted that contrary to counsels’ submission I found that, that case fell into the second category per Anna Max Marangi v. The State[22] and Sakarowa Kewa v. The State,[23] as I found that the injury occasioned to the deceased was not accidental but deliberate.

Sentence in Your Case

18. I note and take into account both your personal and family backgrounds put to me by both yourself and your lawyer. I quickly point out however that, there is ample authority for the proposition that, an offender should consider his personal and family backgrounds and needs first before committing an offence. It follows therefore that, it is a little too late to talk about an offender’s personal and family backgrounds and needs after he has committed an offence.[24]

19. 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’s relatives and friends, who have lost a relative and a friend. Even if you did that, I note that, that would not bring the deceased back to life. Your guilty plea has saved the State substantial time and costs that it could have otherwise outlaid to secure your conviction.

20. Against the factors in your mitigation, there are a number of aggravating factors. First, you were part of a disobedient group of men and or boys playing in the village despite warnings that someone or something might get damaged. Your continued disobedience and playing eventually led to one of the players kicking the ball onto the forehead of another and a fight between the two of them got started.

21. Secondly, instead of you and the others helping to prevent the fight between those two, as did the village elders, you took sides and participated in the fight. This was again despite attempts by the village elders at stopping the fight. You and the others involved in the fight continued with your attitude of disobedience. This was again a clear case of young men and boys in your village showing total disrespect for the elders’ wisdom, foresight and leadership in the village.

22. Thirdly, it seems most of those who were in the fight used just their hands. You however went to your house and got yourself armed with a spade, which is a dangerous weapon when used to attack another person contrary to its intended purpose. The spade in itself is not a dangerous weapon, but when one uses it in the way, you did, 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 a spade against the deceased knowing fully well that it could kill if not seriously injure the victim. There was no need for the use of such a weapon, yet you used it because someone else punched you.

23. Fourthly, when you used the spade against the deceased, I am sure 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 need of him as a fellow villager.

24. 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[25] and Anna Max Marangi v. The State,[26] such senseless killing I prevalent. More than ample warnings have been issue that the sentence for unlawful killings will increase and they have in fact started to increase because of the prevalence of the offence.

25. Weighing all of the above factors, I find that the factors in aggravation outweigh those in your mitigation. I am of the view that your case falls under the second category under Anna Max Marangi v. The State[27] as I elaborate in The State v. Dominic Mangirak[28] which received the endorsement of the Supreme Court in Sakarowa Kewa v. The State.[29] The sentence recommended for this category is 13 to 17 years per Sakarowa Kewa v. The State.[30]

26. 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 asked me to start with a very low starting sentence of 7 years. This does not have the support of the current sentencing trends and or tariffs.

27. I am not convinced that you made out a case for this Court to depart from the guidelines and sentencing trends. Thus taking into account all of the factors for and 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 15 years is appropriate and I impose that sentence against you. Out of that, I order that the period you have already spend in custody awaiting your trial and now sentence be deducted. This will leave you with the balance to serve in hard labour. A warrant of commitment in those terms shall issue forthwith.

__________________________
The Public Prosecutor: Lawyers for the State
The Public Solicitor: Lawyers for the Prisoner

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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] CR 1833 of 2005 (Judgment delivered 21/12/05).
^[6] Opt Cit note 1.
^[7] (Unreported judgment in, SCR 69/96 delivered on 31/05/96).
^[8] (19/04/99) SC602.
^[9] (30/03/00) SC635.
^[10] (29/04/03) N2368
^[11] (17/12/01) N2171.
^[12] Ibid.
^[13] (01/04/04) SC739.
^[14] Opt Cit note 6.
^[15] From the head note.
^[16] Opt Cit. note 8.
^[17] (22/06/04) N2674.
^[18] (29/04/04) N2600.
^[19] Opt Cit note 6.
^[20] Opt Cit. note 8.
^[21] Opt. Cit. note 5.
^[22] Opt Cit note 6.
^[23] Opt Cit. note 8.
^[24] 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.
^[25] Opt Cit note 12.
^[26] Opt Cit note 6.
^[27] Opt Cit note 6.
^[28] Opt Cit note 10.
^[29] Opt Cit note 12.
^[30] Opt Cit note 12.