State v Ipiri [2008] PGNC 159; N3512 (20 October 2008)

N3512

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1596 OF 2006

THE STATE

V

YUANIS IPIRI

Mendi: Makail, AJ
2008: 13 October
: 20 October

CRIMINAL LAW - Unlawful killing - Plea - Sentence - Criminal Code - Section 302 - Deceased adult male - Principles of - Mitigating and aggravating factors - Mitigating factors - Early guilty plea - First offender – De facto provocation - Deceased stealing food crops from garden of prisoners - Argument over stealing - No premeditation or pre planning - Acted as responsible head of family - Aggravating factors - Blood relative of prisoner - Use of bush knife - Multiple blows during fight - Legs and hands of deceased - Prevalence of offence - Maximum penalty - Life imprisonment - Mitigating factors outweigh aggravating factors - Principal offender - Criminal Code - Section 7 - Sentence of 10 years imposed - less time spent in pre-trial custody - No suspension of sentence - Sentence sufficiently reduced - Criminal Code - Section 19.

Cases Cited:
Anna Max Maringi -v- The State (2002) SC702
Manu Kovi -v- The State (2005) SC789
Simon Kama -v- The State (2004) SC740
The State -v- Bernard Hagei (2005) N2913

Counsel:
Mr J Kesan, for the State
Mr P Kumo, for the Prisoner

SENTENCE

20 October, 2008

1. MAKAIL AJ: On 13 October 2008, the prisoner and a co prisoner pleaded guilty to one count of unlawful killing of one Maria Ipiri under section 302 of the Criminal Code.

BRIEF FACTS

2. The brief facts put to the prisoner during arraignment are these; the prisoner is the father of the co prisoner and comes from Soyapu village in Kagua of the Southern Highlands Province. The deceased is the brother of this prisoner. Sometimes prior to 11 February 2006, the deceased had been stealing food crops and peanuts from the garden of the two prisoners. On 11 February 2006, at about 8 o’clock in the morning, the prisoners went on a hunting trip. They were armed with bush knives, bows and arrows. On their way, they stopped at their garden to check on it only to find the deceased and his wife collecting food crops. The deceased was also armed with a bush knife.

3. The prisoner started an argument with the deceased. Obviously he was upset and angry that the deceased so fit to go to his garden and steal his food crops. During the argument, the prisoner grabbed the deceased and held him and the co prisoner chopped the deceased on his legs and hands. The deceased sustained multiple wounds on his legs and hands. As a result he lost a lot of blood and died.

4. The State says that when the prisoners held and chopped the deceased, they intended to cause grievous bodily harm to the deceased but he died. It says that it holds the prisoners equally culpable of the death of the deceased by virtue of section 7 of the Criminal Code.

ALLOCUTUS

5. On his allocutus, the prisoner sincerely apologized to the Court and the family of the deceased. He says that he regrets that by their actions, the deceased died. He says that that he is the brother of the deceased. Their parents are dead and the deceased is notorious for taking drugs and stealing from other people in the village. For many years he assisted the deceased to make restitution to the victims of the deceased’s bad actions and the deceased did not appreciate what he did on his behalf. Fed up with the deceased’s unappreciative attitude, he moved with his family including the co prisoner to his wife’s village to get away from the deceased and to rebuild a new life.

6. Even though he moved away from his village and more so from the deceased, the deceased still followed him to his wife’s village and stole food crops from his garden that he and the co prisoner had made. He says that he did not plan to kill the deceased as he and the co prisoner were on a hunting trip that morning with their dogs when they stumbled into the deceased and the wife in their garden, collecting food crops.

7. He says that he was upset and angry that the deceased so fit to come and steal from his garden and told the deceased that he had made the garden to feed his children. The garden was not for the deceased and his wife to come and steal. He told the deceased that this was the very reason for him to leave his village and move to his wife’s village, that is, to remove himself away as far as possible from the deceased. During the argument, the deceased punched him and from there a fight broke out. He says that the deceased held his throat and was going to choke him and the co prisoner came to his aid and chopped the deceased on his legs. As a result, the deceased lost a lot of blood and died.

8. He says that, that is the reason for him standing before this Court. He further says that since he was detained, he does not know what has become of his family back in the village and also the family of the deceased. He is worried that things might not be well. He asks for leniency.

THE LAW

9. Section 302 of the Criminal Code makes it an indictable offence for a person to unlawfully kill another person and the maximum penalty is life imprisonment. It states as follows:

"302. Manslaughter.

A person who unlawfully kills another under such circumstances as not to constitute wilful murder, murder or infanticide is guilty of manslaughter.

Penalty: Subject to Section 19, imprisonment for life".

10. The Supreme Court in a number of its judgments has set the sentencing tariffs in manslaughter, murder and wilful murder cases. For example in the Supreme Court judgment of Anna Max Maringi -v- The State (2002) SC 702, it set the sentencing tariff in manslaughter cases as follows:

"The current range of sentences for uncontested manslaughter cases in a domestic setting as set out in the above three cases and other cases range from four (4) years to sixteen (16) years imprisonment. There are 3 categories of sentences within this range.

The first category relates to cases which come in the lower end of this range. These cases involve application of force in an uncalculated manner, such as a single blow, punch or kick on any part of deceased’s body. For instance a single or multiple kick or punch causing rupture of the spleen. This kind of killings attract sentences between three (3) years and seven (7) years. Cases where the deceased has pre-existing disease which accelerated or contributed to the death such as enlarged spleen are treated as less serious than the death of a normal person and they attract sentences in the lower end of this scale: see Public Prosecutor v. John Mela SCRA 17/01 unpublished Supreme Court Judgment dated 28 June 2001.

The second category relates to cases which fall in the middle part of this range. These cases 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. An example is Jack Tanga’s case. Death caused by a single or multiple knife stab wounds applied on the head, neck, chest or abdomen or on any other vulnerable part of the body, without any other special aggravating factors, also come under this category. Unintentional killings which come under this category attract sentences between 8 and 12 years.

The third category relates to cases which fall on the top end of the range. Those cases involve application of direct force in a calculated manner, on the body using a weapon such as a knife, bushknife or axe thereby inflicting serious bodily injuries, such as piercing vital organs or severing vital parts of the body. Death caused by chopping the neck, legs and arms with an axe or bushknife are examples of this kind of killing. 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. This kind of killing attract sentences between 13 and 16 years. An example of this type of killing occurred in John Kapil Tapi. The case of Antap Yala could also come under this category although the sentence imposed in that case was 10 years.

As to which of these 3 categories a particular case falls into, depends principally on the viciousness of the assault, the manner in which the injuries were inflicted and the seriousness of those injuries which caused death.

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

11. The judgment of the Manu Koivi -v- The State (2005) SC 789 is the latest of the Supreme Court touching on sentences in manslaughter cases. That judgment agreed with the judgment of Simon Kama -v- The State (2004) SC740 that time has come for an increase in the penalties and recommended that sentences in manslaughter cases be increased. I summarize the increase in the tariff below:

MANSLAUGHTER

CATEGORY 1- 8 - 12 years

Plea.

– No weapon used,

- Victim emotional under stress and de facto, e.g. killings in domestic setting,

- Killing follows immediately after argument,

- Little or no preparation,

- Minimal force used,

- Victim with pre-existing diseases which caused or accelerated death e.g. enlarged spleen cases.

CATEGORY 2 -13 - 16 years

Trial or Plea.

- Using offensive weapon, such as knife on vulnerable parts of body,

- Vicious attack,

- Multiple injuries,

- Some deliberate intention to harm,

- Pre-planning.

CATETORY 3 -17 - 25 years

Trial or plea.

- Dangerous weapons e.g. gun or axe,

- Aggravating,

- Killing of innocent,

- Vicious and planned,

- Deliberate intention to harm,

- Little or no regard for safety of human life.

CATETORY 4 - IMPRISONMENT

WORST CASE

Trial or Plea.

- Some element of viciousness and brutality,

- Some pre-planning and pre-meditation,

- Killing of innocent, harmless person,

- Complete disregard for human life.

PRISONER’S CASE

12. And so, the question I ask is which category of manslaughter case does the prisoner’s case fall under?

13. In this case, I take into account Mr Kumo’s brief account of the prisoner’s personal details. Here, the prisoner is from Soyapu village in Kagua of the Southern Highlands Province. He is 41 years old and married with 4 children. He is a member of the Catholic faith and is illiterate as he did not obtain any formal school.

14. I take into account the prisoner’s early plea of guilty, expression of remorse, and apology to the Court and to the family of the deceased. I accept that the prisoner’s guilty plea is a sign of his acceptance of criminal responsibility. This has also saved the Court time and the need to go through a full trial to determine his guilt.

15. I also take into account that the prisoner has a clean criminal record. This is the first offence he has committed. I find this factor favours the prisoner. I also did take some time to read the Confessional Statement of the prisoner which Mr Kumo referred me to in his submission and it essentially reinforces what the prisoner says on his allocutus.

16. I accept the deceased is a person who goes around causing trouble. He is a person that likes to destroy properties and steal from other people. He is a person who lives off other people’s hard work. I also accept that the prisoner did do his best to assist the deceased to give up a trouble life and live a trouble free life but the deceased did not appreciate what the prisoner did for him. This is a very favourable factor for the prisoner

17. It follows from there that there is some element of de facto provocation. I accept that what the prisoner did was because the deceased never appreciated all the assistance the prisoner did for the deceased in times of trouble. Even when the prisoner moved away from the deceased in order to be far as possible from the deceased, the deceased followed him there. I can understand the frustration and stress placed upon the prisoner. I find this factor operating in favour of the prisoner.

18. Next, I take into account that the deceased assaulted the prisoner during the course of the argument and a struggle ensured where the co prisoner came to his aid and chopped the deceased with a bush knife. I accept that the co prisoner did what he did to prevent the deceased from attacking this prisoner.

19. Furthermore, I accept that there was no intention to kill the deceased as there was no pre planning by the prisoner and the co prisoner to kill the deceased. In fact, I find that the prisoner and the co prisoner were on a hunting trip that day when they stumbled into the deceased and his wife in their garden stealing. It was only natural for the prisoner to be up set and angry that the deceased saw fit to steal from his garden. After all, it was the prisoner who had worked hard to toil the land to make a living for himself and his family and it was simply unfair for the deceased to come and steal from him. And so, I find that the prisoner did not plan to kill the deceased.

20. This leads me to find in the prisoner’s favour the submissions of Mr Kumo that the prisoner is a responsible father who wanted to build a life for his family. He had a brother who did not respect him. A brother who is irresponsible, and had a no care attitude! I find this factor operates in favour of the prisoner.

21. Finally, whatever sentence I am to impose on the prisoner, I will also deduct the time the prisoner spent in pre trial custody since 14 February 2006. This is a period of 2 years, 8 months and 2 days.

22. Against those mitigating factors, I take into account the factors that do not favour the prisoner as submitted by Mr Kesan of counsel for the State. First, I take into account that the prisoner used an offensive weapon during the commission of the offence, namely a bush knife. Although he did not actually swing the bush knife at the deceased, he is nonetheless tied by section 7 of the Criminal Code as a principal offender in that he was the one who fought with the deceased and the co prisoner came to his aid and cut the deceased with the bush knife. Thus, I hold him equally responsible as his co prisoner.

23. Secondly, notwithstanding that there is no Medical Report produced to show the extent and seriousness of the injuries, I can safely say that the deceased died from wounds he sustained from the bush knife when the co prisoner cut him on his leg and hands. Also, what is important for the Court to note is that this is another homicide case where a bush knife was the medium. As this Court has said in so many past cases, the use of bush knives to commit this kind of offence is prevalent in this part of the country. And so I hold this factor against the prisoner.

24. Next, I take into account that the offence committed by the prisoner is prevalent in this country and more so in the Highlands region. This is not a good indication at all as no matter how many strict penalties this Court has dished out to offenders in past cases, they have had minimal to no impact on the lives of people. To my mind, people have no regard for fellow human beings; no sense of fear that taking another person’s life could mean going to jail; and no respect for the law of this country. For this reason, I find this a serious aggravating factor against the prisoner.

25. Finally, I find that the prisoner killed his own brother, a close blood relative. He will live with that for the rest of his life. I am sure that this has caused him great pain and loss, but that is a matter for him to live with and deal with.

26. But I do not accept Mr Kesan’s submission that the prisoner’s case falls under the third category of manslaughter cases as set out in the case of Anna Max Maringi which is 13 to 16 years imprisonment and if we apply the new sentencing tariff in the case of Manu Koivi (supra), it will be between 17 to 25 years imprisonment in a contested or uncontested case, where there are mitigating factors and aggravating factors.

27. In my view, when I weigh the factors for and against the prisoner, I find that the factors operating in his favour outweigh the factors against the prisoner. In saying this, I consider that to impose a lesser sentence is a matter at the Court’s discretion and that one fundamental fact must not be lost sight of and that is one person’s life has been prematurely lost because of the prisoner’s actions. The Court must protect human life because there is only one life for each of us to live in this world. I remind the prisoner and other would be offender of the words of His Honour Lenalia J, in the case of The State -v- Bernard Hagei (2005) N2913 where he said:

"It is the duty of this Court to protect human life and uphold the Constitution to protect life and property. It is too late now to protect the life of Georgina Giobun, but what the Court will do is exercise its powers given it by the Constitution and the Criminal Code to punish the accused for the wrong he has committed. (See s.35 of the Constitution and s.299 (1) and (2) of the Criminal Code).

There are so many wanton killings happening in the country at will as though life is some form of commodity or replaceable items that can be borrowed or bought from the hardware shops in town. Killings in this country are becoming more daring without fear and there is no respect for the sanctity of life. Brutal, horrific and cold - blooded killings are becoming too frequent.

In the recent past, the National Court Judges have been trying to impose higher penalties for all forms of homicides but obviously imposition of very high penalties has not achieved the intended aims of containing the rate of manslaughter, murder and wilful murder cases and the punitive aspect with the view for public deterrence and the intended effect on the likely would be offenders".

28. Bearing in mind the duty of this Court to protect lives of people, I also consider that each case must be considered on its own peculiar circumstances and a sentence be imposed accordingly. And so, I find that this case falls into the second category of manslaughter cases set out in the case of Manu Koivi (supra). This means that the case attracts a sentence of imprisonment term between 13 and 16 years. I will use a head sentence of 13 years and will increase or decrease it depending on the factors for or against the prisoner.

29. For the mitigating factors I have already set out above, I am prepared to give the prisoner a shorter prison sentence especially where he has demonstrated to my satisfaction that he is a very responsible and concerned brother. Not only that but also a responsible parent. He deserves some leniency from the Court and I will give him that.

ORDER

30. In all the circumstances of the case, I consider that a sentence of 10 years imprisonment in hard labour is appropriate. I will not suspend any of it as I consider I have sufficiently reduced the sentence. In the end, as the prisoner has been convicted of one count of manslaughter under section 302 of the Criminal Code, I now sentenced him to 10 years imprisonment less 2 years, 8 months and 2 days for time spent in pre trial custody. This leaves a balance of 7 years, 3 months and 28 days to serve in hard labour at Buihebi Corrective Institute.

31. A warrant of commitment for the prisoners in those terms will be issued forthwith.

Sentence accordingly.

________________________________________

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