State v Ano [2007] PGNC 162; N3465 (15 June 2007)

N3465

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 396 of 2007

THE STATE

V

JAPHET MARSHALL ANO

Daru: Kandakasi, J.
2007: 07th and 15th June

DECISION ON SENTENCE

CRIMINAL LAW – SENTENCING – Manslaughter – Fatal blow to the head with thick wood using both hands – Fracture of skull – Bleeding into the head – Provocation in the non legal sense raised but rejected –First time offender – Guilty plea – Sentencing guidelines per Manu Kovi v. The State (31/05/05) SC789 considered inappropriate especially when it effectively varies Parliaments intention – Courts duty is to interpret and apply the legislation enacted by Parliament – Court’s have no power to legislate in the guise of interpreting and applying the law – Only Supreme Court has power to correct apparent error – Until corrected National Court obliged to follow Supreme Court decision - Sentence of 17 years imposed

Cases cited:

Manu Kovi v. The State (31/05/05) SC789.
Simon Kama v. The State (01/04/04) SC740.
The State v. Laura (No. 2) [1988-89] PNGLR 98.
Lawrance Simbe v The State [1994] PNGLR 38.
Anna Max Marangi v. The State (08/11/02) SC702.
Sakarowa Koe v. The State (01/04/04) SC739.
The State v. Elias Peter Wano Miva (24 /10/05) N3454.
The State v. Rony Aike (24/10/05) N3455

Counsel:

D. Mark, for the State
P. Kapi, for the Prisoner

15th June, 2007

1. KANDAKASI J:You pleaded guilty to a charge of unlawfully killing or manslaughter under s. 302 of the Criminal Code. Through your lawyer, you asked for a sentence between 10 and 12 years. In making that submission, your lawyer relied on the Supreme Court decision in Manu Kovi v. The State,[1] placing your case in the first category of manslaughter cases per that judgment. The Court pointed out that decision in that judgment runs contrary to the views expressed by the Supreme Court in Simon Kama v. The State.[2]

Issues

2. This presents two issues for me to deal with. The first is which of these two Supreme Court decision or authorities are correct and appropriate for me to follow? Secondly, after having decided which of the Supreme Court decision is correct and appropriate, what is an appropriate sentence for you?

Whether the decision in Manu Kovi or Simon Kama is the Correction Decision and Guideline to go by?

3. The first of these two issues is a legal question which can be answered without reference to the relevant facts of your case. I turn to a consideration of that issue first.

4. There is no dispute that the duty and power of the Courts is to interpret and apply the law as is laid by Parliament, particularly where there is a relevant and applying Act of Parliament. Then given the well accepted principle of separation of powers between the three arms of government namely, the legislative, the executive and the judiciary, the Courts should be careful not to enter into the sphere of Parliament when considering the application of the provisions of an Act of Parliament.

5. In relation to the law on homicide cases, the Supreme Court in the Simon Kama case after carefully considering earlier Supreme and National Court judgments correctly expressed, in my view, the view that:

"...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 [exist], it is manslaughter."

6. The Court then noted also correctly, in my view, that, there was a prevalence of the offence of unlawful killings. In the Court’s view, that required a close examination of the sentencing approaches of the Courts and before that, the presentation of indictments. In so noting, the Court noted that, there were clear cases of serious wilful murder cases reduced to murder or manslaughter and murder cases reduced to manslaughter. That was affecting the way in which sentence was being approached. Accordingly, the Court suggested the Public Prosecutor to 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.

7. Then on the parts of the Courts, the Supreme Court suggested:

"...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."

8. With these qualifications in mind, the Court was of the view that, the guidelines set by The State v. Laura (No. 2)[3] and Lawrance Simbe v The State[4] for murder cases are relevant with the following variations:

"(a) where there is a guilty plea with no factors in aggravation, a sentence of twelve (12) to sixteen (16) years;

(b) where there is a guilty plea with aggravating factors other than the use of firearms and the commission of another serious offence, a sentence between the range of seventeen (17) to thirty (30) years;

(c) where there is a guilty plea with aggravating factors and where there is a use of firearms and such other dangerous weapons in the course of committing or attempting to commit another serious offence, a sentence of thirty one (31) years to life imprisonment;

(d) on a plea of not guilty, with no other aggravating factors, a range of sentences from seventeen (17) to twenty one (21) years;

(e) on a plea of not guilty, with aggravating factors other than the use of firearms and in the course of committing or attempting to commit another offence, a range of sentences from twenty two (22) to forty (40) years;

(f) where there is a not guilty plea with aggravating factors where there is a use of firearms and or such other dangerous weapons and or in the course of committing or attempting to commit another offence, a sentence of forty one (41) years to life imprisonment."

8. The Court did not intend these guidelines to be rigid but were only to serve as a guide. It did provide for lesser sentences to be imposed where good mitigating factors, such as the youthfulness of the offender or being persuaded by others to commit the offence, exists.
   
9. The decision in the Manu Kovi case came after the decision in the Simon Kama case. That decision carried on the categorization of manslaughter cases in the earlier case of Anna Max Marangi v. The State.[5] Whilst I have no problem with the first of the categories according to that judgment, I have serious difficulties with the second and third categories, which talk about a "deliberate intention to wound or cause bodily harm" in the second category and the "application of direct force in a calculated manner."
   
10. There can be no argument that, where there is an intention to wound or cause bodily harm resulting in death, it is a case of murder and not manslaughter. Also, where direct force is applied in a calculated manner, it signifies or indicates an intention to cause grievous bodily harm or death and so a death occasioned by such an application of force would qualify for murder or wilful murder and not manslaughter. Indeed the Supreme Court itself acknowledged that in its own judgment where it said that a case falling under the second and third category "may well constitute murder or even wilful murder, if the necessary intentions to either cause grievous bodily harm or kill are present" respectively.
    
11. Prior to the decision in the Manu Kovi case, the Supreme Court in the case of Sakarowa Koe v. The State,[6] without considering the points mentioned above, merely endorsed and varied the categorization of manslaughter cases per the Anna Max Marangi case, and suggested specific tariffs for each category of manslaughter.
    
12. In the two decisions I handed down in Kerema on 24th October 2006 in The State v. Elias Peter Wano Miva[7] and The State v. Rony Aike,[8] I noted with respect that:
    

"...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."

13. I then quoted what the Supreme Court had regard to and said in the Simon Kama case, (the relevant part of which was already quoted above) and I went on to say:

"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 an intention to cause grievous bodily harm or some other unlawful purposes as manslaughter under s. 302."

14. I went on to observe that the decision in Manu Kovi case did not consider what its earlier decision in Simon Kama said about the further categorization of homicide cases, although it referred to that decision. Instead, the Court merely proceeded on the basis of the decision in Anna Max Marangi. I then expressed the view that, there was clearly a conflict here as to the correct sentencing approach. One is as per Simon Kama and the other is per, Anna Max Marangi 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. Until that is done, sentence in manslaughter cases have to proceed under the Manu Kovi case guidelines.

What is the Appropriate Sentence in this Case?

15. Having decided that Manu Kovi guideline is the appropriate guideline to go by at least until the Supreme Court corrects the apparent error, I now need to decide what is the appropriate sentence in your case. This is dependant on the particular facts of your case and the circumstances surrounding the commission of the offence to which I now turn.

16. In the early morning of 26th November 2006, between 2:00 and 2:30 am, you were at the Severimabu Kona, here in Daru. At that time, a Kovio Kakao, who is now deceased, and his wife Aiau Kakao were walking home after a dance at the Bara Bar. As the couple was just about to enter their yard, a Tim Papu who was a nephew of the deceased demanded a can of beer off from the deceased. The deceased became angry over the demand on him and he punched Tim Papu down to the ground. You tried to help stop the fight but the deceased also punched you and you fell to the ground. Then the deceased pulled Tim Papu up and they started walking home.

17. Meanwhile, the deceased in law, a Sibau chased you and you ran way from the scene into the Deer Compound. There, you got yourself armed with a thick piece of wood or timber and returned to the scene and followed the deceased from his back. You lifted the thick timber with both of your hands and hit the deceased on his head, causing the deceased to fall on the ground. After that, you ran away from the scene. At the same time, the deceased was taken to the hospital where he was pronounced dead a few hours after the attack on him and after failed attempts to save his life.

18. Medical examination revealed that the deceased suffered a severe head injury consisting of basal skull fracture, extradural, subdural and intracranial haematoma and haemorrhage or bleeding into the head, shocking the brain, which was perforated. The deceased died in the consequence. This, in my view, speak of serious force being applied with the timber to the deceased head causing the skull to fracture and directly lead to the bleeding and damage to the brain resulting in the deceased death. This was not surprising given that, you are younger and a stronger man, the weapon you used was a thick timber which required both of your hands to lift and hit the deceased on his head with it. That is not all. At the time when you tried to intervene but were punch down to the ground, you were not armed with anything. However, after you were punched down and was chased out of the place where the fight between the deceased and Tim Papu took place, you went looking for something to arm yourself with. You eventually found the thick timber, armed yourself with it and returned with the aim of attacking the deceased with it. To my mind, these facts speak of you having an intention to cause the deceased serious grievous bodily harm if not, to murder him. You should therefore have been charged with murder or wilful murder but fortunately for you, the State charged you with the lower offence of manslaughter.
    
19. Your lawyer submitted on your behalf that, you were provoked in the non legal sense. However, I note also that you had time and opportunity to cool off and not to attack the deceased. There is no evidence of what kind of injury, if any, you received. In the absence of any evidence to the contrary, I note that you were only punched with no injuries or serious damage whatsoever which required your retaliatory action. You used force and a dangerous weapon, if not, an object which was disproportionate to the force and the manner in which the forced was exerted against you. These factors displace your claim of acting under some non legal provocation.
    
20. The facts of your case, in my view, puts your case in the second or third category under the Manu Kovi guidelines, because there a both mitigating and aggravating factors. The mitigating factors are your guilty plea and being a first time offender. The aggravating factor is your intention to either kill or, if not, cause grievous bodily harm to the deceased for the reasons I have already given. Although you did not repeatedly attack the deceased, your single blow achieved, in my view, your intended objective, which was to knock the deceased out. In so doing, you committed an offence that is prevalent with far too many killings taken place right around the country in an unprecedented manner. This renders into insignificance any benefit you may get from your guilty plea and being a first time offender, especially in a case where a human life has been unnecessarily and quiet deliberately taken away pre-maturely. The deceased life has been lost for good when you still have your life and the only issue we are concerned with is, to what extend your freedom should be restricted for your unlawful actions resulting in the death of the deceased.
    
21. Considering all of the foregoing, including your personal antecedent and family backgrounds as submitted by your lawyer, I consider a sentence of 17 years appropriate and I imposed that sentence upon you to be served in hard labour. Of that sentence, I deduct the period of 6 months and three weeks you have already spent in custody, awaiting your trial and sentence. You shall serve the balance of 16 years and 5 months and 1 week in hard labour.
    
22. In arriving at that decision, I note that, the Daru Prison system is non functional. The duty is on the provincial and national leaders of this province to take the necessary steps to fix that part of the problem. Until that is done, I will order that you serve your sentence either at the Ningerum or Bomana Correction Service in Port Moresby or any other Correction Service that has the space to take you. Pending your transfer to any Correction Service, you shall be in the custody of the Police and Correction Service personal here in Daru. The Police and Correction Service personal here shall organize a work schedule for you from Monday through Friday each week from 8:00 am to 4:00 pm with a one hour lunch break. Your work shall consist mainly of general cleaning work here in Daru under their supervision. Unless the Police and Correction Service are able to find appropriate accommodation to keep you each night, you shall reside at your home at Samari Kona and remain in doors between the hours of 5:00 pm and 7:00 am. You shall not leave the Township of Daru at any time without the leave of the Court. A warrant of commit in those terms shall issue forthwith.
    

_____________________________________________

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

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^[1] (31/05/05) SC789.
^[2] (01/04/04) SC740.
^[3] [1988-89] PNGLR 98.
^[4] [1994] PNGLR 38.
^[5] (08/11/02) SC702.
^[6] (01/04/04) SC739.
^[7] (CR 448 of 2005) (Unreported and Unnumbered judgment delivered on 24/10/05).
^[8] (CR 244 of 2006) (Unreported and Unnumbered judgment delivered on 24/10/05).