State v Uranau [2006] PGNC 99; CR 1364 of 2003 (20 October 2006)

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1364 OF 2003

THE STATE

V

JOHN URANAU

Kokopo: Lay J
2006: 20 October

CRIMINAL LAW - manslaughter - sentence 12 years Imprisonment In light labour - 3 years suspended.

Counsel:
Mr. A. Kupmain, for State
Mr. N. Motuwe, for Defendant

1. LAY J: You were convicted on the 20 September 2006 of one count of manslaughter.

2. The full facts of the case are set out in my judgment on verdict. For sentence it is sufficient to say that I found that you were one of the leaders of an angry mob which planned to force the victim and others off a block of land at Valirua, on the Warangoi River, on which they were living, and over which you claimed ownership. You were forcing them off by threats, intimidation, assault and destruction of property.

3. One of the residents, a female, started running away. You called out to a group of people who appeared to be coming down to join you – in pisin "Chase that woman and kill her". As a result she was chased, punched, kicked and cut under one eye with a bush knife. The victim died as a result of a ruptured spleen, having collapsed at the scene of attack. On your allocutions you said:

"I have problems with my health. This is my first time to court. I now realise where I was wrong, what’s bad and what’s good. I sincerely apologise to this Court for what arose. I ask for mercy. If the Court would consider a non custodial sentence. I have 4 children at high school. Also education is their future; their mother is not with us, she is in Kimbe. My 2 houses, family house and house for the girls were burnt down while I was in custody. At this moment we are living in the kitchen. I have not decided on building a new house.

I realise what I have done is wrong and once again I ask mercy from the Court".

4. Affidavit evidence was also tendered confirming that your houses have been burnt down and that the deponent believed it was connected with the killing.

5. A doctor’s report was tendered in evidence which said you are suffering from severe low backache, cough, aching feet with radiation up to your hip region and heavy feeling in your lower abdomen. You were found to be suffering from pneumonia (crepitations in your left lung), and osteoarthritis of lower back and limb joints (as indicated by presence of grating noises and tenderness in your knee and ankle joints). Your blood sugar was normal. You were prescribed antibiotics.

6. Your lawyer informed me that you are now 51 years old, you are from Rataubar village, married with 8 children aged 4 ½ to 26 years. You are a Catholic.

7. Your lawyer asked me to note that you had no part in the actual physical assault which led to the death. He asked me to take into account your ill health and the fact that your house had been burnt by the victim’s relatives and you are now living in what was your kitchen.

8. The State concedes that you are a first offender, and have poor health. The State has drawn attention to the following matters as aggravating factors.

1. application of vicious force;
2. use of bush knife, a dangerous weapon;
3. attack carried out with pre-planning in a calculated manner;
4. there was serious bodily injury to the victim, resulting in death;
5. you went in a large group to carry out your plan.
   

9. The State suggested the appropriate sentence in this case was 17 years. Your lawyer said in reply that the sentence should not be more than 10 or 12 years.

10. The aggravating factors in this case are that your shouted instructions commenced the whole episode. If you had not shouted the instruction, the death would not have occurred. In that sense you were not a ‘bit player’, you were the captain giving orders. Secondly you took the law into your own hands. Thirdly the attack was upon a person quietly going about her own business.

11. The mitigating factors of the case are that you are a first offender. You were a respected person of previous good character in your community. You were substantially involved in your local church and donated a piece of land on which a church was built. You were helpful to others in your community and others sought your advice.

12. You now regret that you did not keep your temper under control.

13. I accept that you had a firmly held belief that the deceased and her family were in the wrong; that they were wrongly farming and living on the land.

14. I note that you did not take part in the physical assault.

15. However, the law requires that you be punished as a principle offender. You should receive a sentence very similar to those who actually physically assaulted the deceased.

16. The use of the bush knife was almost incidental in the attack. The small cut under the deceased’s eye in no way contributed to her death. Therefore I exclude the use of the bush knife as having any significance on sentence.

17. Also it seems to me the assault was only pre planned in the sense that you issued the instruction immediately before the assault. There was pre planning of the intention to go and eject the victim and her family from the block. I do not consider that pre planning extended to the offence of which you have been convicted. Therefore I place no weight on pre planning as a factor in aggravation of the offence.

18. I take into account that you have lost property as a result of retaliation taken by the victim’s relatives. I note what your counsel and the Pre-Sentence Report say about your personal circumstance. It is sad that your wife and children may suffer as a result of your sentence. But you must understand that such suffering comes directly from your actions. It is not something on which I can place much weight to lighten your sentence.

19. In the case of Manu Kovi v State SC 789, the Court suggested a sentencing range of 8-12 years under the following sets of circumstances.

• No weapon used, prisoner under emotional stress and de facto provocation e.g. killing in a domestic situation;
• Killing following immediately after an argument
• Little or no preparation
• Minimum force used
• Victim with pre existing disease which caused or accelerated death e.g. enlarged spleen cases.
  

20. Considering all of the facts and circumstances of the case and all that your counsel advanced on your behalf I consider that this case falls into the first category in Manu Kove v State.

20. I also consider that the case falls into the upper end of that category and that the appropriate sentence is one of twelve (12) years imprisonment. I sentence you to that term less time spent in pre trial custody.

21. The Pre Sentence report recommended that you are a suitable candidate for part suspension of your sentence. I do consider that after service of an appropriate period of imprisonment you would be of no further threat to the community. A partial suspension of sentence would allow you to re integrate with the community while still under the supervision of the Court.

22. In exercising the judicial power of the people I must keep in mind that the primary purpose of a sentence is to punish the guilty. The part of the sentence to be served in prison must be sufficient to reflect community values, where a life has been taken.

23. I will suspend 3 years of the sentence on condition that you be of good behaviour and report quarterly to the Community Based Corrections Officer and report your activities.

24. The prison times to be served in light labour until such time as a medical officer certifies in writing that you a fit for hard labour.

25. Reconciliation is a matter for custom and I make no order in that regard.

26. Finally your doctor said you should be sent home and not kept in a cell. I do not accept that observation. Medical attention will be available to you at Kerevat CIS if it is required.

Public Prosecutor: Lawyer for State
W. Donald: Lawyers for the Defendant