N3316

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 575 of 2007

THE STATE

-V-

ROBERT POTOU

Buka: Kandakasi, J.
2008: 14, 15 and 20 February

DECISION ON SENTENCE

CRIMINAL LAW – Sentencing – Manslaughter – Conviction after trial – Arguments over land and preventive orders – Attack on prisoner’s house – Retaliation by wife – Wife attacked – deceased later trying to attack prisoner – Prisoner striking deceased once on the back of the head with pinch bar – Death resulting from prisoners attack –First time offender – Expression of remorse without tangible evidence of - Sentence of 16 years imposed - Criminal Code Sections 302 and 19. 

Cases cited:
Sakarowa Koe v. The State 01/04/04) SC739
Anna Max Marangi v. The State (08/11/02) SC702.
Antap Yala v. The State (Unreported judgment in, SCR 69/96 delivered on 31/05/96).
Jack Tanga v. The State (19/04/99) SC602
John Kapil Tapi v. The State (30/03/00) SC635
The State v. Dominic Mangirak (29/04/03) N2368
The State v Jimmy Morgan (17/12/01) N2171
The State v. Samuel Benimo (18/04/02) N2203
The State v. Hobert Erick (18/04/02) N2201
The State v. Saku Sogave (15/12/00) N2086
Sakarowa Koe v. The State (01/04/04) SC739
The State v Charles Maniwa and Joseph Utura Maniwa (22/06/04) N2674
The State v. Hiliong Gunaing (25/02/05) N2803
The State v. Daniel Ronald Walus (25/02/05) N2802
Manu Kovi v. The State (31/05/05) SC789
CR No. 448 of 2005: The State v. Elias Peter Wano Miva (unreported and unnumbered judgment delivered in 24/10/06)
Simon Kama v. The State (01/04/04) SC740

Counsels:
D. Mark, for the State.
P. Kaluwin, for the Prisoner.

20 February, 2008

1.	KANDAKASI J:	You were convicted on the alternative charge of manslaughter following a trial on a charge of murder. That was on the basis that, you acted under provocation which reduced the severity of the offence you committed to manslaughter. I now need to determine an appropriate sentence for you. 

2.	For the purposes of sentencing, I note that your conviction was based on your admissions in the record of interview and again in your oral testimonies in Court in addition to the State’s witnesses’ testimonies against you. You admitted to hitting the deceased on the back of his head with a pinch bar which is in evidence. But you stated that, you only intended to stop him from attacking you when he came charging at you with his bare hands. Prior to your attacking the deceased, the deceased and his relatives or supporters came over to you and your wife’s house and threw stones and sticks over a preventive order that was obtained against him. At the time of the deceased attacking your family home, your wife was asleep and was woken up by the attack. On getting up and realizing what was going on, she went away, got help and returned and attacked the deceased’s house.

 3.	In the return attack the deceased and your wife fought and both of them landed on the ground with the deceased landing on top of her. At about that time, you heard your wife shouting or screaming in the direction of the deceased’s house and you went to help her. You armed yourself with a pinch bar for your defence. When you got to the deceased’s house, you found the deceased on top of your wife and the deceased’s son was attacking your wife from her head area. You repeatedly told them to stop and when they eventually did, the deceased stood up and walked away from the scene. You claimed that the deceased then charged back at you after you said something to him. At that time, you struck him on the head with the pinch bar.

4.	According to other evidence before the Court which I accepted, show that, soon after you attacked the deceased, he fell onto the ground. He was later taken to the hospital and pronounced dead sometime later. There was no evidence of any other intervening force or attack that caused the deceased’s death. On the evidence before me, I found that it was your attack of the deceased on his head that caused his death.

Allocutus and Submissions

5.	In your address on sentence, you told the Court that you are a married man. You have 6 children, one in grade 11, another in grade 8 and the others are in the village as they are small. These children depend on you for their school fees and sustenance. When the incident occurred, the deceased’s people destroyed your home, leaving you and your family members with no clothes, killed two of your pigs, took food from the garden, destroyed your coconut and cocoa. You then asked for mercy of the Court and put you on probation, after saying sorry for the death of the deceased.

6.	Your lawyer added by informing the Court that, you were aged 46 and that, both of your parents are deceased. You come from a family of 7, 4 brothers and 3 sisters. You have reached grade 8 at the Hutjena High School. 

7.	Your lawyer then correctly reminded the Court that, the maximum sentence for manslaughter is life imprisonment. At the same time, he urged the Court to note before sentencing you that, you are a first time offender and you acted under provocation. He also urged the Court to note that, you have already been punished in that the deceased’s relatives destroyed your properties and helped themselves. Further, your lawyer drew the Court’s attention to the decision of the Supreme Court in Sakarowa Koe v. The State 01/04/04) SC739, which revised the guidelines for sentencing in manslaughter cases, especially the tariffs. He then argued for a sentence between 10 to 15 years.

8.	The State also referred to the decision of the Supreme Court in the above case and pointed out that your case falls under the second or third category. Counsel for the State then asked for a sentence in the range of 18 years to life imprisonment. 

9.	 These submissions give rise to only one issue for this Court to determine, which I have already stated in the opening parts of this judgment. For clarity, the issue again is, what is an appropriate sentence in your case? This issue can only be appropriately decided by having regard to the sentence prescribed by Parliament, the sentencing guidelines and trends per the Supreme and National Court judgments and the particular circumstances in which you committed the offence from which comes, the factors in your aggravation as well as those in your mitigation. I will therefore, first turn to a consideration of the offence and its sentencing guidelines, trends and tariffs. 

The Offence and Sentencing Trend

10.	Section 302 of the Criminal Code creates and prescribes the penalty of life imprisonment as its maximum penalty subject to s. 19 of the Code for the offence of manslaughter. However, the courts have imposed sentences lower than that in the exercise of the discretion vested in them by s. 19. The Supreme Court reviewed nearly all of the previous decisions on sentences in manslaughter cases, in its judgment in Anna Max Marangi v. The State. In so doing, the Court had particular regard to its earlier decisions in Antap Yala v. The State; Jack Tanga v. The State; and John Kapil Tapi v. The State. 

11.	The Supreme Court decision in Anna Max Marangi v. The State, spoke of three categories of manslaughter in the context of domestic killings. I identified those categories in my decision in The State v. Dominic Mangirak, as follows:

"The first consists of cases in which force is used accidentally or in an uncalculated manner, such as a single blow, punches or kicks on any part of deceased’s body. This also includes cases in which death is caused by an acceleration of a pre-existing disease or condition leading to death. These kinds of killings attract sentences between three (3) years and seven (7) years. 

The second are cases that 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. Deaths caused by a single or multiple knife stab wounds applied to the head, neck, chest or abdomen or on any other vulnerable part of the body, even if there is no other special aggravating factors, come under this category. This category attracts sentences between 8 and 12 years.

The third and final involve cases in which there is direct application of force in a calculated manner, on the body using a weapon such as a knife, bush knife or axe causing serious bodily injuries, such as piercing vital organs or severing vital parts of the body. Deaths caused by chopping the neck, legs and arms with an axe or bush knife are examples of this kind of killings. This includes 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. These kinds of killings attract sentences between 13 and 16 years."

12.	As I noted in that case, the Supreme Court considered killings in the third category more serious and those in the first category less serious. Those in the second category are the median between the two. Further, I noted that, the Supreme Court went on to say, the category into which a particular case may fall under, depends on the way in which force was applied, the nature of the assault, the manner in which the injuries were inflicted and the seriousness of injuries resulting in death. It also noted that, killings which come under the second and third categories could constitute murder or even wilful murder if the necessary intentions either to cause grievous bodily harm or to kill are present. The Supreme Court also held that, imposing sentences between 3 and 6 years was too lenient and no longer appropriate nowadays. 

13.	Furthermore, I noted that, having said all of that, the Supreme Court in the case before it, which was a case of a wife killing her husband’s girlfriend by the use of a kitchen knife to twice stab the deceased who was pregnant caused her to have an early termination of her foetus, found it serious and falling in the second and or the third categories. However, the Court decided to uphold the National Court’s sentence of 9 years, saying the appellant was fortunate enough to receive that sentence as it was of the view that, she deserved a higher sentence.

14.	Well before the decision of the Supreme Court under consideration, the National Court had already been imposing sentences beyond the 9 years mark for manslaughter cases. Good examples of this are my decision in The State v Jimmy Morgan, my later brother, Jalina J.’s decision in The State v. Samuel Benimo (18/04/02) N2203 and The State v. Hobert Erick (18/04/02) N2201 and my brother Gavara-Nanu J.’s decision in The State v. Saku Sogave (15/12/00) N2086, which was a worse case of manslaughter that attracted 20 years imprisonment.

15.	In April 2004, the Supreme Court in Sakarowa Koe v. The State, considered most of the foregoing and reviewed the classification of unlawful killing cases. There, the Court varied the judgment in Anna Max Marangi v. The State in three respects. First, the Court held that the categorization of the offence of manslaughter in that case applies with appropriate modification to all other cases of unlawful killings. Secondly, it suggested a fourth category and finally, it suggested a new range of tariffs in terms of the following (from the head note): 

"Given the prevalence of the offence and past sentences not appearing to deter other would be offenders as well as the fact that there can be no excuse except as provided for by law for the taking away of any other person’s life, the sentencing range for the three categories of manslaughter identified in Anna Max Marangi v. The State (08/11/02) SC702 was varied to cover all types of manslaughter cases and increased the tariffs in terms of, seven (7) to twelve (12) years for the first category, thirteen (13) to seventeen (17) years for the second category and eighteen (18) years to life imprisonment for the third category. The use of a firearm, which was not considered in the categorization of manslaughter cases, could fall at the worse end of the third category if not a separate category."

16.	Applying these guidelines in The State v Charles Maniwa and Joseph Utura Maniwa, I imposed a sentence of 19 years. There, the prisoners acting together attacked a church pastor in breach of an injunctive court order already in place against them. The victim died from a single stone fired from a catapult. That was on the prisoner’s guilty pleas. They were both first time offenders. 

17.	Later, I imposed a sentence of 13 years in The State v. Gerald Kirafe. That was in a case of a drunkard using an ice beer bottle with its contents to hit the deceased from which the deceased eventually died. The case fell into the second category per Anna Max Marangi v. The State as modified by Sakarowa Koe v. The State. This was because the Court found that the injury occasioned to the deceased was not accidental but deliberate. 

18.	Around the same time, I imposed a sentence of 15 years in The State v. Timothy Diwa, having regard to the foregoing outline of sentencing trends and tariffs for manslaughter cases. There, the prisoner armed himself with a spade and struck the deceased with it. The deceased bled heavily from it and eventually died. The incident arose out of a village soccer game that ended up in a fight. One of the persons involved in the fight punched the prisoner and the prisoner went to his house and armed himself with a spade. He then returned to where the fight was with intent to shoot another person but that person escaped so he picked on the deceased, cutting one of the deceased’s ankles from which the deceased bleed to his death. On appeal, the Supreme Court confirmed the sentence.

19. 	A similar sentence was imposed by Cannings J., in The State v. Hiliong Gunaing. He started with a head sentence of 15 years. That was in a case of the prisoner suspecting his then wife, of having an affair with another man. He went to that man’s home where he saw his wife and the man. He chased his wife and she fell. He then pulled out a small knife and stabbed her once on her right breast. The prisoner’s wife eventually died as a result of the wound and loss of blood. The facts disclosed a case of provocation in the non legal sense. 

20.	On the same day, His Honour imposed a sentence of 18 years in the case of The State v. Daniel Ronald Walus. In that case, the prisoner walked to the deceased’s house and punched the deceased who was on the steps of her house, on the side of her face. That caused her to fall to the ground. While she was on the ground, the prisoner punched her on each side of her stomach. He then kicked her in the ribs, while she was still on the ground. The deceased then urinated, passed faeces, vomited and died shortly afterwards.

21.	This sentencing trend clearly shows an increase in the kind of sentences imposed in manslaughter cases. The Supreme Court endorsed this trend in its most recent judgment in Manu Kovi v. The State. There, the Court reviewed all cases of homicide and suggested four categories of manslaughter and recommended an increased range of sentences. The first category is at the lower end of the scale for simple cases of manslaughter which does not involve any weapons, brutality or viciousness, pre-mediation and or planning and the offender pleads guilty. That should attract sentences between 8 to 12 years. The second category is for cases which involve an offensive weapon, some planning, viciousness or brutality and an intention to do harm. This category attracts sentences between 13 to 16 years, whether or not the offender pleads guilty. The third category is for cases which involve offensive weapons such as guns and axes, some planning, viciousness or brutality and an intention to do harm. This attracts sentences between 17 to 25 years, whether or not the offender pleads guilty. The fourth and final category is cases in which all of the aggravating elements missing under the first category and the other categories exist. This attracts life imprisonment, whether or not the offender pleads guilty. 

22.	In my view, with respect, there is a serious fallacy in this further categorization of manslaughter cases, particularly in relation to the third and fourth categories. I have fully covered the reasons for that view in a number of cases for example my decision in CR No. 448 of 2005: The State v. Elias Peter Wano Miva (unreported and unnumbered judgment delivered in 24/10/06). There, I said Parliament had already provided for categories of homicide cases depending on the intention of the offender with their penalty prescribed and it was not necessary for the courts to again further classify. 

23.	I noted the decision of the Supreme Court in Simon Kama v. The State (01/04/04) SC740 where I took a close look at the basis for the courts to further categorize homicide cases and confirm the view that the Court should not further categorise homicide cases. After noting that Parliament has already provided for the categorization of homicide cases, the decision in that case went on to observe and said:

"As already noted, there is now a prevalence of the offence of unlawful killings. This requires a close examination of sentencing approaches and before that the presentation of indictments. As we noted before, there are clear cases of serious willful murder cases reduced to murder or manslaughter and murder cases reduced to manslaughter. This is affecting the way in which sentence is approached. We therefore suggest (for we cannot direct) that the Public Prosecutor 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 for which benefit, both that office and the criminal justice system exists.

On the Court’s part, we suggest that 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. With these qualifications in mind, we are of the view that the guidelines set by State v. Laura (No. 2)… and Simbe v. The State… for murder cases is relevant…"

24.	A perusal of the decision in Manu Kovi reveals that the Supreme Court did not consider what its earlier decision in Simon Kama said about the further categorization of homicide cases, although it referred to that decision. The Supreme Court in Manu Kovi merely proceeded on the basis of The Anna Max Marangi case. In my view, there is clearly a conflict here as to the correct sentencing approach. One is as per Simon Kama and the other is per, Anna Max Maringi as modified by Sakarowa Koe and Manu Koivi. 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.

Your Sentence

25.	In your case, going by the submission of counsel before me, it is clear to me that the decision in Manu Koivi has been overlooked perhaps because of my earlier indications not to be guided by it. Now that I have hopefully clarified my position, I will allow myself to be guided by all these cases and do the best I can and arrive at a decision on your sentence.
 
26.	I accept the State’s submission that your case is not in the lower end of manslaughter cases. Similarly, I do not find your case at the higher or worse end of the case. It falls some where in between but much higher than say a case of someone using a piece of wood or his fist or boots to bring about the death of another. You went armed with a pinch bar for your defence as you claim. When you were sufficiently provoked, you used the pinch bar with force and applied to the back of the deceased head. A second or third blow was not necessary, the first was sufficient. It brought about the death of the deceased. These facts warrant a sentence beyond what you through your lawyer have been arguing for.

27.	Before settling on the actual sentence for you, I take into account your personal background and your needs as outlined by yourself in your address on sentence and your lawyer’s submissions. I also take into account the fact that, you are a first time offender. That means you have not been in trouble with the law until now. Further, I note that, you did not apply vicious force repeatedly. Furthermore, I note that you were provoked into doing what you did. If it were not for the attack on your house and defiance of the preventive order by the deceased, you could not have attacked him and cause his death. Still further, I note in your favour that, your properties have been destroyed in the hands of the deceased relatives. I do not consider this should drastically reduce your sentence but only a part of it to avoid a sense of double punishment.

28.	Against you is firstly, the fact that you used a very dangerous and deadly instrument, a pinch bar which is heavy and soil. A forceful application of such a weapon on a person in the way you did can be very fatal as was the case here. It does not matter how many times such a weapon is used against a person because, the end result is the same, causing the death of another. Secondly, I note against you that, your conviction came after a trial. Guilty pleas do operate in favour of offenders when it comes to sentence. You denied yourself of such a favour by your not guilty plea, although I do appreciate that, had you been charged with manslaughter, you might have pleaded guilty. But that is neither here no there. 

29.	Thirdly, you prematurely brought about the death of another person. You had no regard to human dignity and respect as well as the peaceful means of resolving conflicts. This leads to the next factor against you which is the prevalence of the offence. The ready resort to violence and taking away of the lives of others is now on the increase right around the country.

30.	Weighing all of the foregoing factors both for and against you, I note that they seem to even out although more swaying in your favour. I am therefore of the view that a sentence of 18 years is appropriate and I impose that sentence against you. Of that, the time you have already spent in custody shall be deducted. That would leave you with the balance to serve. I order that you serve your sentence in hard labour at a correction facility here in the Autonomous Region of Bougainville or the Kerevat Correction Service in East New Britain Province. A warrant of commitment will issue in those terms.

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