State v Miva [2006] PGNC 103; N3454 (24 October 2006)

N3454

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 448 of 2005

THE STATE

-V-

ELIAS PETER WANO MIVA

Kerema: Kandakasi, J.
2006: 5 and 2 October

DECISION ON SENTENCE

CRIMINAL LAW – SENTENCING – Manslaughter – Domestic argument between husband and wife – relatives taking sides – Prisoner pulling bush knife away from deceased and seriously cutting deceased on the head – Serious brain damage accelerating asthmatic attack – Death resulting there from – Alcohol involved - Guilty plea – First time offender – Expression of remorse without tangible evidence of - Sentence of 16 years imposed - Criminal Code Sections 302 and 19.

Cases cited:
Roger Jumbo and Aidan Awatan v. The State (26/03/97) SC516.
Public Prosecutor v. Tom Ake [1978] PNGLR 469.
The State v. Roger Kivini (29/04/04) N2576.
Manu Kovi v. The State (31/05/05) SC789
Anna Max Marangi v. The State (08/11/02) SC702
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. Samuel Benimo (18/04/02) N2203
The State v. Hobert Erick (18/04/02) N2201
The State v. Saku Sogave (15/12/00) N2086
Sakarowa Koe v. The State (01/04/04) SC739
The State v Charles Maniwa and Joseph Utura Maniwa(22/06/04) N2674
The State v. Gerald Kirafe
The State v. Timothy Diwa
The State v. Hiliong Gunaing(25/02/05) N2803
The State v. Daniel Ronald Walus(25/02/05) N2802
Simon Kama v. The State (01/04/04) SC740
The State v. Ian Napoleon Setep (31/10/96) N1478
The State v. Yapes Paege & Relya Tanda [1994] PNGLR 65
The State v. Godfrey Edwin Ahupa, (20/05/98) N1789
The State v. Ben Simakot Simbu (No.2) (26/03/04) N2546
Joseph Nimagi, Gurua Kerui & David Bawai Laiam v. The State (01/04/04) SC741

The State v. Thomas Waim [1995] PNGLR 187
Bokum Umba v. The State, (02/04/76) SC92

The State v. Richard Amuna Koupa [1987] PNGLR 208
The State v. Kevin Anis & Martin Ningigan,(07/04/03) N2360

The State v. Wesley Nobudi & Ors, (19/12/02) N2310
Paulus Manadatititip & Anor. v. The State, [1978] PNGLR 128

Rudy Yekat v. The State (22/11/01) SC665

Allan Peter Utieng v. The State (Unreported judgment delivered in Wewak on 23/11/00) SCR 15 of 2000

The State v. Lucas Yovura (29/04/03) N2366

Counsels:

Mr. D. Mark, for the State.
Mr. Lunga, for the Prisoner.

24 October 2006

1. KANDAKASI J: You pleaded guilty to a charge of manslaughter contrary to Section 302 of the Criminal Code, presented against you by the State on the 5th of this instant. After receiving submissions on your behalf from your lawyer as well as that of the State on the same day, the Court reserved its Court decision on sentence. This is now the decision of the Court.

The Facts

2. The relevant facts giving rise to the charge and your guilty plea are these. On 30 November 2004, you were at your bigger brother, Greg Miva’s parents’ in-law’s place where you had been residing with your brother and his wife. During the night of that day, your bigger brother, yourself and another person with your bigger brother’s brother in-law had a beer party in the living room of Greg’s in-law’s house. You had some music played at a high volume. Greg’s wife called for the music to be stopped more than once as one of her parents who was to go for a late night work duty was sleeping. On the last of her attempts to get the beer drinking party to turn the music off or lower its volume, an argument took place between Greg and his wife, initially in the house and eventually taken outside of the house. You took sides with your brother while Greg’s wife’s brother a Chris Karulaka Haiveta, now deceased, went in aid of his sister. A physical fight then broke out. A bush knife was involved in the fight. It is not clear who first started the use of the knife as the evidence is conflicting. Those on your side say it was the deceased while those against you and on the side of the deceased say it was you. Nevertheless it is clear that you took a bush knife and attacked the deceased by cutting him on his head. You claim that the deceased was trying to cut you with the bush knife, but you managed to take the bush knife away from him and used it to cut him.

3. Where there is a guilty plea to a charge as in your case and there is conflict in the evidence, the law requires me to accept the version of facts favourable to an accused.[1] Accordingly, I accept your version of the facts and note that, when you disarmed the deceased he was no longer posing any risk of injury or serious harm to you. You nevertheless, proceeded to attack him as you did.

4. Not long after you had cut the deceased, the fight stopped. That was after the deceased was taken to the hospital. You and your bigger brother sought safety from the police but no policeman was on duty. So you went to a nearby village and secured protection from a village court official there. With the assistance of the village court official, you went to the police station where you were arrested and locked up. On 4 March 2005, the District Court here committed you to stand trial in the National Court for the killing of the deceased. Almost a month later on 2 April 2005, you escaped from lawful custody and were at large. A bench warrant was thus issued by this Court on 13 April 2005 for your arrest. With the assistance of your parents, you were recaptured by the police on 25 December 2005. Since then, you have been in lawful custody awaiting your trial.

Allocutus and Submissions

5. In your address on sentence, you only said sorry for what you have done. Your lawyer added by informing the Court that you were aged 17 when you committed the offence and now you are 19 years old. You are single and have been up to grade six community school education level. You come from Lese Kavora, in the Malalaua District of this Province and have no prior conviction.

6. Before the Court proceeds to consider an appropriate sentence for you, your lawyer urged the Court to note and take into account your family background. He also urged the Court to take into account the fact that you pleaded guilty to a serious charge. That saved the State the time and money it could have out laid to secure your conviction through a trial. He further urged the Court to take into account the fact that you are a first time offender, meaning that you have not been in trouble with the law before. This is your first ever offence. Finally, your lawyer urged the Court to take into account that, there was provocation from the deceased in the non legal sense in that, he attacked you first.

7. At the same time, your lawyer correctly acknowledged that you committed a very serious offence, which carries a maximum penalty of life imprisonment. However, he urged the Court to note that, the Supreme and the National Courts have imposed sentences below that. He then referred the Court to the Supreme Court decision in Manu Kovi v. The State (31/05/05) SC 789, per Injia, DCJ., Lenalia & Lay JJ. That decision seeks to further categorize homicide cases from what Parliament has already provided for. Going by that decision, your lawyer submits that your case falls in the second category of manslaughter or unlawful killing cases. Accordingly, he submitted that you should be given a sentence of 14 years having regard to all of the factors operating for and against you.

8. Counsel for the State, Mr. Mark, whilst noting your personal background, your guilty plea and being a first time offender, submitted that this is a prevalent offence now and that a sentence beyond what your lawyer argued for should be imposed. He pointed out the fact that, the medical report shows that the cut you inflicted upon the deceased directly contributed to his death. A life has thus been lost prematurely and directly by your actions and as such you should be appropriately punished.

9. These submissions give rise to only one issue for this Court to determine and that is; what is an appropriate sentence in your case? This issue can only be appropriately decided by having regard to the sentence prescribed by Parliament, the sentencing guidelines and trends per the Supreme and National Court judgments and the particular circumstances in which you committed the offence from which comes, the factors in your aggravation as well as those in your mitigation. I will therefore first turn to a consideration of the offence and its sentencing guidelines, trends and tariffs.

The Offence and Sentencing Trend

10. 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. However, the courts have imposed sentences lower than that in the exercise of the discretion vested in them by s. 19. The Supreme Court reviewed nearly all of the previous decisions on sentences in manslaughter cases, in its judgment in Anna Max Marangi v. The State.[2] In so doing, the Court had particular regard to its earlier decisions in Antap Yala v. The State;[3] Jack Tanga v. The State;[4] and John Kapil Tapi v. The State.[5]

17. The Supreme Court decision in Anna Max Marangi v. The State,[6] spoke of three categories of manslaughter in the context of domestic killings. I identified those categories in my decision in The State v. Dominic Mangirak,[7] 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."

18. As I noted in that case, the Supreme Court considered killings in the third category more serious and those in the first category less serious. Those in the second category are the median between the two. Further, I noted that the Supreme Court went on to say, 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.

19. Furthermore, I noted that, having said all of that, the Supreme Court in the case 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 caused her to have an early termination of her foetus, found it serious and falling in the second and or the third categories. However, the Court decided to uphold the National Court’s sentence of 9 years, saying the appellant was fortunate enough to receive that sentence as it was of the view that she deserved a higher sentence.

20. Well before the decision of the Supreme Court under consideration, the National Court had already been imposing sentences beyond the 9 years mark for manslaughter cases. Good examples of this are my decision in The State v Jimmy Morgan,[8] my brother Jalina J.’s decision in The State v. Samuel Benimo (18/04/02) N2203 and The State v. Hobert Erick (18/04/02) N2201 and my brother Gavara-Nanu J.’s decision in The State v. Saku Sogave (15/12/00) N2086, which was a worse case of manslaughter that attracted 20 years imprisonment.

21. In April 2004, the Supreme Court in Sakarowa Koe v. The State,[9] considered most of the foregoing and reviewed the classification of unlawful killing cases. There, the Court varied the judgment in Anna Max Marangi v. The State[10] in three respects. First, the Court held that the categorization of the offence of manslaughter in that case applies with appropriate modification to all other cases of unlawful killings. Secondly, it suggested a fourth category and finally, it suggested a new range of tariffs in terms of the following (from the head note):[11]

"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."

24. Applying these guidelines in The State v Charles Maniwa and Joseph Utura Maniwa,[12] I imposed a sentence of 19 years. There the prisoners acting together attacked a church pastor in breach of an injunctive court order already in place against them. The victim died from a single stone fired from a catapult. That was on the prisoner’s guilty pleas. They were both first time offenders.

26. Just toward the end of last year, I imposed a sentence of 13 years in The State v. Gerald Kirafe.[13] 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. The case fell into the second category per Anna Max Marangi v. The State[14] as modified by Sakarowa Koe v. The State.[15] This was because the Court found that the injury occasioned to the deceased was not accidental but deliberate.

27. Around the same time, I imposed a sentence of 15 years in The State v. Timothy Diwa,[16] having regard to the foregoing outline of sentencing trends and tariffs for manslaughter cases. There, the prisoner armed himself with a spade and struck the deceased with it. The deceased bled heavily from it and eventually died. The incident arose out of a village soccer game that ended up in a fight. One of the persons involved in the fight punched the prisoner and the prisoner went to his house and armed himself with a spade. He then returned to where the fight was with intent to shoot another person but that person escaped so he picked on the deceased, cutting one of the deceased’s ankles from which the deceased bled to his death.

28. A similar sentence was imposed by Cannings J., in The State v. Hiliong Gunaing.[17] He started with a head sentence of 15 years. That was in a case of the prisoner suspecting his then wife, of having an affair with another man. He went to that man’s home where he saw his wife and the man. He chased his wife and she fell. He then pulled out a small knife and stabbed her once on her right breast. The prisoner’s wife eventually died as a result of the wound and loss of blood. The facts disclosed a case of provocation in the non legal sense.

29. On the same day His Honour imposed a sentence of 18 years in the case of The State v. Daniel Ronald Walus.[18] In that case, the prisoner walked to the deceased’s house and punched the deceased who was on the steps of her house, on the side of her face. That caused her to fall to the ground. While she was on the ground, the prisoner punched her on each side of her stomach. He then kicked her in the ribs, while she was still on the ground. The deceased then urinated, passed faeces, vomited and died shortly afterwards.

30. This sentencing trend clearly shows an increase in the kind of sentences imposed in manslaughter cases. The Supreme Court endorsed this trend in its most recent judgment in Manu Kovi v. The State.[19] There, the Court reviewed all cases of homicide and suggested four categories of manslaughter and recommended an increased range of sentences. The first category is at the lower end of the scale for simple cases of manslaughter which does not involve any weapons, brutality or viciousness, pre-mediation and or planning and the offender pleads guilty. That should attract sentences between 8 to 12 years. The second category is for cases which involve an offensive weapon, some planning, viciousness or brutality and an intention to do harm. This category attracts sentences between 13 to 16 years, whether or not the offender pleads guilty. The third category is for cases which involve offensive weapons such as a gun and axe, some planning, viciousness or brutality and an intention to do harm. This attracts sentences between 17 to 25 years, whether or not the offender pleads guilty. The fourth and final category is cases in which all of the elements missing under first category and the other categories exist. That should attract life imprisonment, whether or not the offender pleads guilty.

31. In my view, with respect, there is a serious fallacy in this further categorization of manslaughter cases, particularly in relation to the third and fourth categories. The earlier decision of the Supreme Court in Simon Kama v. The State (01/04/04) SC740, per Sevua J, Kandakasi J, Lenalia J, highlighted the fact that, it is difficult to further categorize homicide cases. After all, all cases of murder results in the premature termination of a human life, regardless of how the deaths are brought about. The Supreme Court had regard to the National Court judgments in The State v. Ian Napoleon Setep (31/10/96) N1478, per Sevua J., The State v. Yapes Paege & Relya Tanda [1994] PNGLR 65, per Woods J., The State v. Godfrey Edwin Ahupa, (20/05/98) N1789, per Kirriwom J., and The State v. Ben Simakot Simbu (No.2) (26/03/04) N2546 which clearly brings that point out. It then went on to say:

"Considering these comments along with those which we already expressed, we are of the view that it is erroneous to classify murder cases except has is provided for by the Criminal Code as a starting point. The Criminal Code classifies different categories of murder in terms of wilful murder, murder and manslaughter, where intention of the offender at the time of committing the offence is a key distinguishing factor. A murder is wilful if there is an intention to kill while there is no such intention but an intention to cause grievous bodily harm in the case of murder and where there is neither of these elements, it is manslaughter." (Emphasis added)

32. It follows therefore that, where there is an element of intention to kill or an intention to cause grievous bodily harm or some other unlawful purpose, evidence by some pre-planning and the like, it is no longer a case of manslaughter. Instead, it would be a case of wilful murder, if there is the intention to kill, the deceased or if the intention is to cause grievous bodily harm or some other unlawful purpose and it ends up in a death, it would be a case of murder. To have the last two categories recognized and included under s. 302 of the Code (manslaughter) in effect amounts to an amendment to that provision to include murders with intent to kill or deaths resulting from an intention to cause grievous bodily harm or some other unlawful purpose. That runs contrary to what Parliament has already provided for under s. 300 of the Code in the case of having an intention to cause grievous bodily harm or some unlawful purpose and s. 299 of the Code in the case of having an intention to kill. The courts are empowered to interpret and apply the law as it is and not to legislate. I am respectfully of the view that, the Supreme Court in the Manu Kovi case legislated by treating wilful murders and murders arising from and intention to cause grievous bodily harm or some other unlawful purposes as manslaughter under s. 302.

33. I note that the Supreme Court was influenced by its earlier decisions in Anna Max Maringi, in the context of a domestic husband, wife or girlfriend killing where phrase the "deliberate intention to wound or cause bodily harm" appears in that cases second category of manslaughter cases. Similar terminology appears on the description of third category of manslaughter cases. Indeed toward the end of its categorization that earlier decision notes:

"It is worth noting that killings which come under the second and third categories may well constitute murder or even wilful murder, if the necessary intentions to either cause grievous bodily harm or kill are present . . ."

34. The subsequent decision of the Supreme Court in Sakarowa Koe endorsed the categorization in Anna Max Marangi without carefully examining the basis for the further categorization of manslaughter cases. It then suggested that the Anna Max Marangi decision should apply to all cases of manslaughter. Also, it suggested a further category for cases in which firearms are used and suggested some definite tariffs.

35. I note that it was the decision of the Supreme Court in the Simon Kama case that took a close look at the basis for the courts to further categorize homicide cases. After noting that Parliament has already provided for the categorization of homicide cases, the decision in that case went on to observe that:

"As already noted, there is now a prevalence of the offence of unlawful killings. This requires a close examination of sentencing approaches and before that the presentation of indictments. As we noted before, there are clear cases of serious wilful murder cases reduced to murder or manslaughter and murder cases reduced to manslaughter. This is affecting the way in which sentence is approached. We therefore suggest (for we cannot direct) that the Public Prosecutor seriously consider and present indictments according to the dictates of the law and the particular facts in any given case, in the interest of protecting the community for which benefit, both that office and the criminal justice system exists.

On the Court’s part, we suggest that following the establishment of the guilt of an accused, either on a plea or after a trial, the Court approach sentence with a serious consideration of the maximum prescribed penalty first. Then allow the offender to make out a case for a lesser sentence. An offender could easily do that by pointing out to the factors in his mitigation with the appropriate evidence were evidence is required. Once the offender is able to do that, only than should the Court carefully consider the factors both for and against an imposition of the maximum penalty. At that stage, the categorization of the kind of offence under consideration could become relevant and useful. With these qualifications in mind, we are of the view that the guidelines set by State v. Laura (No. 2)... and Simbe v. The State... for murder cases are relevant..."

35. A perusal of the decision in Manu Kovi reveals that the Supreme Court did not consider what its earlier decision in Simon Kama said about the further categorization of homicide cases, although it referred to that decision. The Supreme Court in Manu Kovi merely proceeded on the basis of Anna Max Marangi. In my view, there is clearly a conflict here as to the correct sentencing approach. One is as per Simon Kama and the other is per, Anna Max Maringi as modified by Manu Kovi. Only the Supreme Court has the power to correct this apparent conflict. This needs to be done urgently because the categorization obviously affects the way in which sentence is to be approached.

Your Sentence

36. Going by the submission of counsel before me, it is clear to me that no careful thought has been given to the matters I have just discussed. Both counsel have proceeded on the basis that the decision in Manu Kovi is the only case on point and did not have regard to the decision in Simon Kama, particularly in relation to its effect on the categorization of homicide cases and approach to sentence. To avoid any disadvantage this may bring to you, I will approach your sentence according to the Manu Kovi decision.

37. Your lawyer submitted that your case falls under the second category per the Anna Max Maringi as modified by Manu Kovi. That category attracts sentences in the range of 13 to 16 years imprisonment. You submit through your lawyer that a sentence of 14 years is appropriate in the particular circumstances of your case. The State without seriously contesting that submission argues that you should be given a sentence above 14 years.

38. In order to determine that issue, I note and take into account your family background as outlined by your lawyer in his submission. In addition, I need to take into account both the factors for and against you. I do that by first considering the factors in your favour, which appears to be only one. This is your guilty plea to a serious offence which carries a maximum penalty of life imprisonment. That saved the State the time and money it could have spent to successfully have you tried and convicted. It also saved the Court the time it could have spent in conducting a trial on the issue of your guilt or innocence. Further, it avoided the need for the relatives of the deceased to come into Court and relive the grief and pain your actions have caused them.

39. Another factor could arguably be in your favour is your claim of acting under some form of de factor provocation. This is so only to the extend that, the deceased tried to attack you with the bush knife. Nevertheless, I note that nothing further could be made out of this. You had already disarmed the deceased. There is no evidence of any further threats or acts of provocation levelled against you by the deceased. I cannot understand how you could possibly raise de factor provocation in these circumstances when you claim you are Christian following the United Church teaching as member. Christians are admonished by the Holy Bible to be slow to anger. In fact the Bible teaches that, if someone slaps you on one side of your cheek, you should allow him to slap you on the other side as well. In other words, the Bible teaches that you should not be retaliating in the way you acted if you are a true Christian. May be you are not a Christian indeed because prior to killing the deceased, you had been consuming alcohol. Christians are not to be alcoholics to the point of getting drunk and angry and becoming violent as you became.

40. A further factor that could appear to operate in your favour is the fact that you were 17 years old at the time of the commission of the offence and now you are 19 years old. Usually, the age of an offender is always a factor for consideration. The more tender the age of an offender, the lesser the penalty ought to be. However this has all changed now with more and more young men of your then and now age groups committing a lot of serious offences like murder, armed robbery rape and the like. A recent statement of the law is by the Supreme Court in Joseph Nimagi, Gurua Kerui & David Bawai Laiam v. The State (01/04/04) SC741. There, the Supreme Court endorsed the position taken by both the Supreme and National Courts judgments in The State v. Thomas Waim [1995] PNGLR 187; Bokum Umba v. The State, (02/04/76) SC92; The State v. Richard Amuna Koupa [1987] PNGLR 208; The State v. Kevin Anis & Martin Ningigan,(07/04/03) N2360; The State v. Wesley Nobudi & Ors, (19/12/02) N2310 and Paulus Manadatititip & Anor. v. The State, [1978] PNGLR 128.

41. Furthermore, I note your saying sorry to the deceased’s relatives, this Court and the community. However, it is clear that you have not paid any compensation. There is also no evidence of you trying to appease the wrong and loss you have brought upon the deceased’s relatives. As I said in a large number of cases already, a mere expression of remorse means nothing unless it is accompanied by something tangible like the payment of compensation: See Rudy Yekat v. The State (22/11/01) SC665; Allan Peter Utieng v. The State (Unreported judgment delivered in Wewak on 23/11/00) SCR 15 of 2000, in The State v. Lucas Yovura (29/04/03) N2366.

42. Against the factors in your favour are a number of aggravating factors. First, the offence you committed is a very prevalent offence. The senseless taking away of human life is on the increase throughout the country and there is a need for a strong and deterrent sentence to stop you as the offender and other like minded persons from committing these kinds of offences. The forgoing discussion of the relevant sentencing trend and tariffs testify of this. My sincere hope is that the kind of sentences the Supreme Court has suggested and are being imposed by the courts now will go toward a deterrence of you and other like minded persons from taking away the lives of other people regardless of whatever the reason. Calling ourselves a Christian nation seem to be only a claim in name when there is far to many unnecessary and uncalled for killings all around us.

43. Secondly, I note that although initially it seems that you cooperated with the police, you later became uncooperative. You escaped from lawful custody. That to my mind indicated an unwillingness or a lack of preparedness on your part to pay the necessary and lawful penalty for your crime. By escaping from lawful custody, you in effect said to the law enforcement agencies that you are above the law and that no one can get you. Your parents who turned you in ought to be commended for doing the right thing. If all other parents and relatives do as did your parents, law and order in our country will reach better levels than the present levels.

44. Thirdly, you used a dangerous weapon which was a bush knife to cause a serious injury to the deceased head. The ready use of bush knives, axes and such other dangerous weapons to bring about too manly killings are on the increase. The medical evidence describes the wound as a "linear incissional wound right across the fore head through skin (sclap), bone (skull) and brain matter (Cerebrum)." It measured 15 cm long, 1 cm wide and 5cm deep. The cause of the deceased’s death was put as "severe brain damage directly inflicted by bush knife wound. Death was accelerated by acute exacerbation of asthma attack brought about by the trauma." Clearly, you applied much force with determination to bring about such an injury. The death of the deceased was caused by the injury you inflicted upon the deceased. Initially, during the course of submission before me, I thought that the deceased had a pre-existing condition of asthma. However, a closure examination of the medical evidence does not support that suggestion. Instead, it is clear to me that the trauma you inflicted upon the deceased "accelerated" an "acute exacerbation of asthma attack" as opposed to worsening a pre-existing asthmatic condition.

45. Fourthly, the observations I have made in relation to your expression of remorse and claim of de factor provocation operate in your aggravation. To this, I add that, you and your elder brother were accommodated in the deceased’s parents’ family home. You and your brother showed no respect and appreciation for what was provided. In most parts of our society a man is expected to provide for his immediate family when he gets married. Your elder brother failed to do that. You had the privileged of being allowed to stay in his in-laws’ residence. On top of that, they allowed you to be added on for the period you were with them. Then on the night of the offence, you and your brother carried on as if you were at your own house and showed no respect for the owners of the house who needed to rest before getting up and going to work that night. Requests for the music and therefore, your noises to be turned down were not adhered to. An argument took place between your elder brother and his wife. The deceased joined in and tried to attack your brother. Instead of just stopping him you disarmed him and killed him. This is totally unacceptable. Neither the deceased nor his family deserve such an attack and such a tragic and premature termination of a very young member of their family.

46. Finally, the offence was committed within the small township of Kerema. Everyone is now aware of what you did. The community in this little town expects you to be appropriately punished and so does the rest of Papua New Guinea because what you did is total unacceptable.

47. Weighing the factors for and against you, I note that the factors in aggravation far outweigh those in your mitigation. If it were not for the Supreme Court decisions in Anna Max Marangi as modified by Manu Kovi guidelines, I would have imposed a sentence close to the prescribed maximum of life imprisonment. However, given that I am sitting as the National Court judge, I am obliged to follow those guidelines and I so reluctantly find that your case falls under the second category per the Manu Kovi case. Then given the finding that the aggravating factors far outweigh those in your mitigation, I consider a sentence up to the top of the range in that category is called for. Accordingly, I impose a sentence of 16 years in hard labour.

48. Of the head sentence of 16 years I order a deduction of the period of 1 year, 11 months, and 3 days you have already spent in custody whilst awaiting your trial. That will leave you with the balance of 14 years, and 27 days, yet to serve. I order that you serve that sentence in hard labour at the Bomana Correction Services. A warrant of commitment in those terms shall issue forthwith.

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

---

^[1] See for examples of authorities on point Roger Jumbo and Aidan Awatan v. The State (26/03/97) SC516, Public Prosecutor v. Tom Ake [1978] PNGLR 469 and The State v. Roger Kivini (29/04/04) N2576.
^[2] (08/11/02) SC702.
^[3] (Unreported judgment in, SCR 69/96 delivered on 31/05/96).
^[4] (19/04/99) SC602.
^[5] (30/03/00) SC635.
^[6] Opt Cit note 4.
^[7] (29/04/03) N2368.
^[8] (17/12/01) N2171, per Kandakasi J.
^[9] (01/04/04) SC739, per Sevua, Kandakasi and Lenalia JJ.
^[10] Opt cit n 4.
^[11] From the head note.
^[12] (22/06/04) N2674, per Kandakasi J.
^[13] Opt. cit. n 5.
^[14] Opt cit. n 6.
^[15] Opt cit. n 8.
^[16] Opt cit. n. 3.
^[17] (25/02/05) N2803, per Cannings J.
^[18] (25/02/05) N2802, per Cannings J.
^[19] (31/05/05) SC789, per Injia DCJ., Lenalia, Lay JJ.