N3296

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1099 of 2006

THE STATE

-V-

TOU AITSI

(No.2)

Waigani: Kandakasi, J.
2007: 19 October
2008: 28 March

DECISION ON SENTENCE

CRIMINAL LAW – Sentence – Manslaughter – Conviction after trial – First time offender – Use of iron bar to cause deceased death – No genuine remorse expressed – Prevalence of offence – Relevant and correct sentencing guidelines – Sentence of 17 years imposed. 

Cases Cited:
Rex Lialu v. The State [1988-89] PNGLR 487.
Manu Kovi v. The State (31/05/05) SC789.
Anna Max Marangi v. The State (08/11/02) SC702.
Sakarowa Koe v. The State (01/04/04) SC739.
Antap Yala v. The State (Unreported Supreme Court Judgment dated 31 May 1996).
Jack Tanga v. The State (19/04/99) SC602.
John Kapil Tapi v. The State (30/03/00) SC635. 
The State v. Elias Peter Wano Miva (Unreported and yet to be numbered judgment delivered in Kerema on 24th October 2006).
Simon Kama v. The State (01/04/04) SC740.

Counsel:
 M. Zurenuoc, for the State.
R. Inua, for the Prisoner.

28 March, 2008 

1.	KANDAKASI J: In October of last year, this Court found you guilty of committing the offence of manslaughter contrary to s. 302 of the Criminal Code, after a trial. After receiving both yours and that of the State’s submission on sentence, the Court reserved its decision on your sentence to a later date. Here now is the decision of the Court.

Relevant Issue

2.	The issue for the Court to decide therefore is simply, what is an appropriate sentence for you? A proper determination of that issue is dependant on the relevant facts and or the circumstances in which you committed the offence, your personal and family backgrounds and the factors operating both for and against you as well as the offence and its sentencing guidelines, trends and tariffs.

Relevant Facts

3.	Turning firstly, to the relevant facts, I note that the decision on verdict handed down on 19th October fully sets out the relevant facts. I will however, note the following facts as pertinent for the purposes of working out a sentence for you:

•	There was a fight between two other people in your village, one of whom was your relative.
•	The fight attracted a crowd of people who either came to see what was happening or to stop the fight.
•	The deceased came to stop the fight.
•	You attacked the deceased without good reason.
•	You used a piece of iron to hit the deceased on the head which caused a serious head injury which eventually led to his death.
•	You did not accept any responsibility for his death even after this Court has found you guilty of causing the death of the deceased. 

Submissions of the Parties 

4.	When the Court asked for, you left your address on your sentence to your lawyer. Your lawyer informed the Court and I note that, you are 27 years old and the first born in your family. You are not married and have been up to grade 6 primary education. You have no formal employment. This is the first time you have ever committed an offence. 

5.	Your lawyer drew my attention to the decision of the Supreme Court in Rex Lialu v. The State, which provides the relevant guidelines for sentencing in manslaughter cases. Your lawyer also drew the Court’s attention to the decision of the Supreme Court in Manu Kovi v. The State which seems to vary the guidelines set by the Rex Lialu case. In the end, your lawyer submitted that, your case falls in the second category under the Manu Kovi guidelines and asked for a sentence between 13 and 16 years. 

6.	The State through its learned counsel highlighted the aggravating features in your case. This includes, the use of a piece of iron which counsel for the State described as an offensive weapon, you acted without any provocation from the deceased and finally, the fact that, the Court found you guilty after a trial. Counsel for the State ably drew the Court’s attention to the other decisions of the Supreme Court in Anna Max Marangi v. The State and Sakarowa Koe v. The State. In the end, the State agreed that, your case falls in the second category under the Manu Kovi case and asked for a sentence between 13 and 17 years.

Offence and Sentencing 

7.	The arguments before me require a close examination and consideration of the offence you committed and the sentencing trends, tariffs and guidelines. Accordingly, I turn to that consideration now. 

8.	The decision of the Supreme Court in the Rex Lialu case set the following guidelines for sentencing in manslaughter cases at page 497 of its judgment:

(a)	The Court must have careful regard to the circumstances of death and the way in which death was actually caused.

(b)	The following matters may be relevant to the nature of the act causing death:

(i)	the nature and frequency of any attack or assault;
(ii)	whether the injury which caused the death arose directly from an attack or assault or was caused by, for example, falling on an object;
(iii)	whether the injury was caused by the person or by a weapon;
(iv)	whether there was deliberate intention to harm;
(v)	whether there was provocation in the non-legal sense;
(vi)	whether the deceased had a thin skull, and
(vii)	whether the deceased had an enlarged spleen.

9.	Later, the Supreme Court in its decision in the Anna Max Marangi case reviewed and summarized the kind of sentences imposed by the Supreme and National Courts as at the time of its decision. In that case, the Supreme Court referred to three of its earlier judgments in Antap Yala v. The State; Jack Tanga v. The State; and John Kapil Tapi v. The State. The prisoners in those cases received lenient sentences, which caused the Court to sound a warning in the first of these cases that, unintentional killing is becoming prevalent and that, sentences will increase. The Court also reiterated that, whilst murder sentences would be higher than manslaughter sentences, there are killings that would be serious and would attract the maximum penalty of life imprisonment.

10.	Based on those and other cases, the Supreme Court in the Anna Max Marangi case came up with three categories of manslaughter particularly, in domestic settings. The first category is for cases which come in the lower end of manslaughter cases. These cases involve the application of force in an uncalculated manner, such as a single blow, punch or kick on any part of deceased’s body. An example of that would be a single or multiple kick or punch causing rupture of the spleen, resulting in death. These kinds of killings attract sentences between three (3) years and seven (7) years. As can be seen, cases in which there had been a 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.

11.	The second category involves cases in which, there are say, 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. Sentences for this category range between 8 and 12 years.

12.	Finally, the third category is for cases which involve the application of direct force in a calculated manner, on the body using a weapon such as a knife, bush knife or axe, 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 bush knife are examples of these kinds 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. Cases falling in this category attract sentences between 13 and 16 years. 

13.	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 the injuries which caused the death. As I have observed and as did the Supreme Court in the Sakarowa Koe case, 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. At the same time, the Supreme Court in the Sakarowa Koe held that, this categorization should apply with appropriate modifications to all other settings. The Court added that, where a killing clearly constitutes wilful murder or murder and not manslaughter but the charge is for manslaughter, the Court should not further reduce the sentence unless exceptional circumstances exists warranting a further reduction in sentence. 

14.	The Supreme Court went on to note that, the decision in the Anna Max Maringi case did not mention the use of a firearm to kill another person. It then held that, where such a weapon is used, it becomes a very serious matter, given the kind of damage or destruction it can bring. Accordingly, the Court suggested an additional category to cater for killings using a firearm and put that at the worse end of the scale. 

15.	Additionally, the Supreme Court noted that, the judgment in the Anna Max Marangi case did not recommend any particular range of sentence. Then duly noting the prevalence of the offence, the Supreme Court said the sentences should be increased to help deter others from committing the offence. Having said that, the Supreme Court went on to suggest sentencing ranges of seven (7) to twelve (12) years in the first category, thirteen (13) to seventeen (17) years in the second and eighteen (18) years to life imprisonment in the third categories. At the same time, the Court said, the National Court should be at liberty to progressively, increase the tariffs if there is still no decline in the number of unlawful killings. The Supreme Court also held that, the National Court still has the discretion to impose a sentence less than the ones it was suggesting in exceptional circumstances where very good mitigating factors exist but not as a matter of course.

16.	Since the above decisions, the National Court continued to increase sentences in manslaughter cases because of the prevalence of the offence. That caused the Supreme Court in the Manu Kovi case to review the categorization of manslaughter cases and came up with four categories and their suggested but increased tariffs. In the first category, which is at the lower end of the scale, the Supreme Court put simple cases of manslaughter which do not involve any weapons, brutality or viciousness, pre-mediation and or planning and where the offender pleads guilty. Killings falling in that category should attract sentences between 8 to 12 years. In the second category, the Supreme Court put cases which involve an offensive weapon, some planning, viciousness or brutality and an intention to do harm with a suggested sentencing range of 13 to 16 years, whether or not the offender pleads guilty. In the third category, it put cases which involve offensive weapons such as guns and axes, some planning, viciousness or brutality and an intention to do harm, with a suggested sentencing range of 17 to 25 years, whether or not the offender pleads guilty. In the fourth and final category, the Supreme Court put worse cases of manslaughter with aggravating features missing under the first and other categories exist, with a suggested sentence of life imprisonment, whether or not the offender pleads guilty.

17.	I maintain the view I expressed in The State v. Elias Peter Wano Miva, that there is an error in the Supreme Court’s further categorization of homicide cases in the Manu Kovi case, particularly, in relation to the third and fourth categories. I had regard to the decision of the Supreme Court in the case of Simon Kama v. The State where the Supreme court said prior to the decision in the Manu Kovi case:

"… 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 willful 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)

18.	Proceeding on the basis of that decision, I commented in the Elias Peter Wano Miva case as follows:

"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, evidenced 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."

19.	Until this apparent and serious error is corrected, this Court being only a National Court can go by the latest decision of the Supreme Court, which is the decision in the Manu Kovi case. Accordingly, I allow myself to be guided by that judgment most reluctantly and accept your lawyer’s and that of the State’s submission that your case falls in the second category according to Manu Kovi. Whilst I note that the Supreme Court suggested a sentencing range of 13 to 16 years, I find this is only a guide. For if it was otherwise, it would be an illegal impediment placed on a trial judge’s discretion to impose a sentence limited only by the prescribed maximum penalty which is life imprisonment in this case.

Sentence in Your Case

20.	Before coming to a decision on the actual term of your sentence, I note and take into account your personal and family backgrounds as outlined to the Court by your lawyer. I also take into account in your favour that, you are a first time offender. This means, you have not been in trouble with the law since the day you were born. Usually, the law allows for leniency toward such an offender in appropriate cases.

21.	The other factor I note in you favour is the fact that, you did not use a bush knife or a gun or an axe to bring about the death of the deceased which suggests a lack of premeditation or planning to kill the deceased. Nevertheless, you used a piece of iron bar which was a heavy and obviously a dangerous weapon in your hands. This is borne out by the fact that, it needed only one blow to the deceased head to cause his death. In making this observation, I note that the State charged you with the offence of manslaughter and you have been convicted on that charge. As I noted in the foregoing, the issue of intention to kill or cause grievous bodily harm or commit another offence turning into murder is not an element in manslaughter cases.

22.	Against you, I note there are at least four factors. First, you committed an offence that is too prevalent in the country. This alone calls for a stern penalty in a bid to deter you first and then, other like minded persons from committing this kind of offences. This is necessary in our country’s struggle to make our society a safe and peaceful society for everyone of us to live in the present and beyond. 

23.	Secondly, I note that, you have been found guilty after a trial. This forced the State to incur additional costs to secure the appearance of its witnesses. It also meant that, the Court had to take some time to hear the testimonies and make findings of fact to come to the conclusion that you committed the offence you have been charged with. As I noted in the decision on verdict, you forced the trial without any convincing evidence favouring you. So it was all a waste of the Court’s time.

24.	Thirdly, you used a piece of iron which I find was a dangerous weapon as I note earlier. You caused only one blow to the deceased head with a dangerous weapon, which led to the deceased death. I contrast your case to that of a case of death caused by a kick or punch, whether or not, any pre-existing condition is aggravated.	

25.	Finally, you remain unrepentant. In fact, you said nothing in your address on sentence and left it all to your lawyer. Hence, the Court has not had the benefit of hearing whether you are remorseful over committing the offence. This is worsen by the fact that, there is no evidence of you paying any compensation or taking such other steps to appease the wrong and loss you brought up to the deceased immediate family and relatives.

26.	 Weighing the factors for and against you, I note that, the factors in aggravation far outweigh those in your mitigation. Given the particular factors in your aggravation, as I have outlined above, and taking into account all that I have discussed and noted above, I find that, your case warrants a sentence between 15 and 18 years. The State has asked for a sentence of up to 17 years. I accept that submission and impose a sentence of 17 years against you. 

27.	Of the head sentence of 17 years, I order a deduction of the period you have already spent in custody while waiting for your trial and now sentence. Further, I order that, you serve the balance of your sentence in hard labour at the Bomana Correction Service. A warrant of commit in those terms shall issue forthwith.

___________________________

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