State v Ignas [2007] PGNC 115; CR 373 of 2005 (12 April 2007)

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 373 OF 2005

THE STATE

V

WESLEY IGNAS
of Kimbangua, Maprik, East Sepik Province
‘Prisoner’

Kimbe: Davani .J
2007: 11 & 12 April

Counsel:
A. Kupmain, for the State
P. Kapi, for the Accused

SENTENCE

12 April, 2007

1. DAVANI J: On 11 April, 2007, the court handed down decision on verdict after a trial, where it found the prisoner guilty of the offence of manslaughter charge laid under s. 302 of the Criminal Code Act (‘CCA’).

Facts

2. The evidence upon which the prisoner was found guilty were that on 23 December, 2004 at about 1am at Sarakolok settlement, block 809, section 2, Kimbe, whilst in a state of intoxication, the prisoner approached a group of people playing cards and kicked a lamp which was seated or placed in the middle of the group. This then led to the prisoner attacking various people by using a bush knife then his fists. It was whilst fighting the deceased that he punched him in his side which resulted in the deceased’s spleen rupturing.

Mitigating factors

3. On administering the allocatus, the prisoner said he was sorry for what he did and apologized to the court for making it conduct a trial.

4. The prisoner is 20 years old and comes from Kimbangua village, Maprik in the East Sepik Province. His parents are deceased and he is the seventh child in a family of nine. He is educated up to grade 6 and at the time of the offence, was unemployed.

5. He was in custody for 3 months and was then released on K500.00 bail and other reporting conditions.

Aggravating factors

6. Mr Kupmain for the State asked the court to consider these factors as aggravating and which I find are indeed aggravating. These are;

1. That the offence is very serious which is why the penalty for this offence is life imprisonment subject of course to the courts sentencing discretion;
   
2. This was a contested matter where the court had to conduct a trial, then sift through the evidence and finally pronounce verdict;
   
3. Unintentional killings of fellow human beings, of which this is one, are very prevalent in this country and that therefore, the courts must consider the public and individual deterrence;
   
4. The prisoners remorse should not be taken seriously because the court had to conduct a trial to determine his guilt.
   

Discussion on sentence

7. Both the National and the Supreme Courts have continuously expressed their concern about the seriousness of the offence of manslaughter because the loss of human life cannot be restored and sentences should reflect this. As Amet .J said in The State v Rex Lialu [1988 – 89] PNGLR 449 at 452;

"I consider that our sentences for manslaughter must reflect the serious view which the legislature took over loss of human life in fixing the maximum sentence as life imprisonment. This is also a reflection of the community’s view against wanton killings. I repeat my view that sentences for manslaughter must be relatively higher than sentences for rape and robbery to reflect the importance and sanctity of the life given by God which no man has the right to take or deprive prematurely. A life has been taken which cannot be restored...".

8. In Antap Yala v the State (1996) SCR 69 of 1996, Amet CJ, Salika .J and Injia .J in dismissing an appeal against a sentence of 10 years for manslaughter of the deceased (wife) by her husband who chopped off her head with a bush knife said;

"The maximum penalty for the offence of manslaughter is life imprisonment. Whilst sentences for manslaughter will normally be lower than sentences for murder and wilful murder, there are those cases which will justify the imposition of heavy punishment and even the maximum punishment. The sentence in any given case will of course depend on its own peculiar facts. We are unable to prescribe any range of sentences for this offence as it is all too difficult to fix any range of sentences with some degree of precision".

9. In Rex Lialu v the State [1990] PNGLR 487, the Supreme Court established various criteria which a court should consider in relation to the circumstances of death and the way in which death was caused.

10. These factors are;

1. The nature of frequency of the attack or assault;
2. Whether the injury which caused the death arose directly from an attack or assault or was caused by e.g the falling of an object;
3. Whether the injury was caused by the person or a weapon;
4. Whether there was deliberate intention to harm;
5. Whether there was provocation in a non-legal sense;
6. Whether the deceased had a thin skull;
7. The degree of pre-meditation.
   

11. Of course the categories of sentence decided in Rex Lialu (supra) are now outdated so I will not rely on them. But the guidelines of sentencing are relevant to this case.

12. In this case, the following guidelines from Rex Lialu (supra) are relevant;

1. The nature and frequency of the attack or assault;

The established evidence is that the deceased was punched once in the side which resulted in the rupture of his spleen. This is confirmed by the Report on Post Mortem Examination signed by Dr Joseph Amos of the Kimbe General Hospital dated 5 January 2004 which describes the cause of death as a ruptured spleen;

2. Whether the injury which caused the death arose directly from an attack or assault;
   

In this case, the ruptured spleen caused by the punch from the prisoner, led to the deceased’s death;

3. Whether the injury was caused by the person or weapon;
   

It was caused by the prisoner’s punch to the deceased’s side.

4. Whether there was deliberate intention to harm;
   

There was no intention to harm.

5. Whether there was provocation in the non-legal sense;
   

The proven scenario is that the prisoner was fighting with various people, as individuals. These people were attempting to have him go home and to stop causing trouble. There may have been some provocation by the fact that he was there on his own surrounded by individuals, which prompted him to carry on as he did.

13. Factors 6 and 7 of Rex Lialu (supra) are not relevant.

14. What would be the appropriate sentence for this matter, where the court had to conduct a trial to ascertain guilt and where the death was as a result of some de facto provocation through a punch in the deceased’s side?

15. Both counsel referred me to Manu Koivi v the State SC 789 dated 31 May, 2005 for the relevant sentencing tariffs. I consider the second category of Manu Koivi to be relevant where the Supreme Court set out various tariffs. I consider this case falls within the higher cleft of category 1 and the lower cleft of category 2 of Manu Koivi (supra) i.e the matter was run as a trial on a manslaughter charge. The killing followed immediately after an argument. There was little or no preparation. There was minimal force used and a pre-existing disease accelerated the death, in this case an enlarged spleen. No offensive weapon was used, the attack was not vicious and the deceased did not suffer multiple injuries.

16. I consider the most aggravating factor in this case to be the fact that although the prisoner left the scene of the crime, he returned again the second time, more hell-bent on exacting some form of damage or harm to those he considered to be in his way. No human being, in his right frame of mind, should do that. Although intoxicated, the accused should have exercised some form of restraint and stayed away from the scene of the crime and not come back. In my view, Human nature, at least in Papua New Guinea, is that a man does not want to lose. No form of reasoning will placate a man, who wishes to show just how strong he is. He is always too proud and naïve to accept that. In this case it has now resulted in an unnecessary death for which the prisoner must pay the consequences.

17. Furthermore, this is not a case relevant for a pre-sentence report. A needless death has resulted, a trial was unnecessarily conducted for which the State spent time and money, a situation which warrants incarceration.

18. Sentence in this case should be for a period of 14 years. The prisoner spent 3 months in custody on remand before release on bail. He will serve the reduced time of 13 years and 7 months in hard labour. Bail monies of K500.00 will be refunded to the person who paid the bail monies.

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused