State v Kendiagl [2009] PGNC 272; N4212 (26 November 2009)

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CRIMINAL LAW –Manslaughter - s 302 Criminal Code Act- Sentence after trial – Sentencing Guidelines - Offender attacked deceased with piece of wood- Mistaken identity - Relevant considerations – special mitigating factors – Offender's behavior towards deceased wife and children; compensation in excess of K5,000.00, Properties damaged of substantial value – Whether appropriate to suspend sentence, either in whole or part - Consideration of Pre-sentence Report balance view- Purpose of sentence- conflicting interest States, community and need for Offender to rehabilitate - Offender unlikely to re offend – sentence of 8 years - balance of sentence wholly suspended.

Anna Max Maringi v The State (2002) SC 702
Edmund Gima & Suine Arnold v State
Simon Kama v The State (2004) SC 740
Manu Kovi v The State (2005) SC789
St. Jacky Vutnamur (No. 2)(2005) N2868
Acting Public Prosecutor v. John Airi (1981) SC214
Acting Public Prosecutor v. Don Hale (27/08/98) SC564
The State v. Abel Airi (2000) N2007

Mr. Steven Kesno, for the Public Prosecutor
Ms. Tiria Ohuma, for the Public Solicitor

1. SAGU AJ: This is a decision on sentence of the Offender James Kendiagl. On the 20th day of October 2009 the offender was found guilty of Manslaughter for the unlawful killing of Gabriel Wanpis Aramba contrary to section 302 of the Criminal Code Act.

2. Sentence was reserved and I requested for the Pre- Sentence Report to be filed under Section 13(2) of the Probation Act. I now have the Pre-sentence Report and proceed to give reason for sentence.

3. The relevant facts are set out in the decision on verdict. However, for the purposes of sentencing, the following are the brief facts. The deceased and the Offender are clan brothers from the same village. On the Christmas Eve of the 24th day of December 2005 at about 8.30pm the Offender and his family, comprising of his wife and three children were returning home from a Christmas Eve Church Service at Siure village, Kerowagi, Simbu Province.

4. As they were walking along the Kerowagi road in Siure village they saw a lot of drunk people gathered in groups. They were drinking home made brew and smoking Marijuana as part of their Christmas Eve celebrations. One group was near the video show house while one group was at Fabian's Store, another was at Waine Namba's Store and the last group was at the Bus Stop. These groups were only a few meters apart.

5. The lighting condition was pretty poor as I gather. There were Florescent lights from Fabian and Waine's stores. There are two things not clear here. Firstly, how far could one see from the Florescent light and also the distance from the point of impact to where the light was?

6. As the offender and his family walked past near Fabian's store they heard Waine Namba who is the Offender's younger brother who was in the third group shouting out in a drunken manner words to this effect:-

"if any man comes we will cut their penis and put them on the road and if any women we will rape them"

7. Tobi Bige & Fabian were also drunk and they supported Waine Namba. Fabian then came towards the Offender's wife and the Offender came to her rescue and stopped him. When Fabian realized who the Offender was, he apologized and retreated. The Offender told him to go to sleep.

8. The Offender and his family continued to walk and as they passed the fourth group at the Bus Stop, Waine Namba and others in the group called out wanting to know who they were. The Offender replied and Waine Namba hearing his voice came out of the group and punched him two times on his right ear and eye. Namba further assaulted him on his back three times with the flat side of the bush knife upon which he fell to the ground. Then the offender heard Gabriel Wanpis, the deceased come to his assistance and fought with Waine Namba saying why is it that he had assaulted the Offender. Namba and the deceased then moved away as they were hanging onto each other.

9. As they were moving away, the Offender grabbed hold of a piece of heavy wood measuring about one and half meters long that was lying there and went after Waine Namba. As he approached them they were hanging on to each other and the offender swung the piece of wood at Namba Waine. Twice on his head and once on his back. He just swung at him wildly those three swings one after the other.

10. Immediately after that Willie Philip shouted out that the blows had landed on Gabriel Wanpis, the deceased. The Offender shouted back saying it could not possibly be true as he had hit Waine with the stick and not the deceased. However, the accused was surprised that it was true, that he had landed the blows on the deceased by mistake, instead of Namba Waine.

11. The Offender and other boys poured water on the deceased and took him to the Mingende Hospital, which could not provide immediate and adequate medical services to the deceased, so the Offender hired the hospital ambulance for K30.00 and took the deceased to the Kundiawa Hospital at about 9.00pm. Gabriel died around 3.30am despite the doctor's attempts to save him. He died from brain injury as a result of cerebral hemorrhage from occipital skull fracture sustained after being hit on the head with the piece of wood that night.

12. The Offender immediately gave himself up to policeman, Senior Sergeant Berger and informed him that he had killed Gabriel. The police men took the Offender to Barawagi, Magi and Siure village where he told them he had killed Gabriel.

13. He further told his family he had done wrong so if Gabriel's brother came to kill him, they should not retaliate as he thought it was fair he should also die with Gabriel. He is sorry that Gabriel died from the blow intended for his brother Waine Namba.

14. Prior to the incident the offender's relationship with his brother Waine had deteriorated, due to an allegation by Waine that the Offender's son had committed adultery with his wife. Waine had gone on a rampage and had destroyed the Offender's food crops and house. A preventive order was out against Waine.

15. The offender was allowed bail after six months from the date of offence. While he was awaiting trial in the last three and half years, the Offender took it unto himself to provide a fortnightly allowance from his pay to the deceased widow and her two children. (I will come to that later).

On the Record of Interview (ROI) I admitted everything and I stand on it. In the last paragraph of the ROI, I said sorry and I stand on it. This is my first time to commit any offence.

In 1979-1989, I worked as a Lay man in the Evangelical Church in my village which I help pioneered.

In 1989, I worked as a peace & land mediator for 13 years. Then I was elected as a ward councilor for 6 years.

2007-2009 I was employed as Public Relation Officer for Shorncliff company for the road construction from Kondiki to Kerowagi.

My three houses including my semi permanent house, food crops and pigs were all destroyed by the deceased relatives in retaliation.

COMPENSATION was paid in K10,000.00 cash, 9 pigs valued at K1000 each and 3 goats to the deceased relatives.

I never intended this trouble and I feel bad all the time. Every fortnight I give money to the deceased two wives and children out of my pay as I feel responsible.

17. The Offender sincerely apologized to the Court and the family of the deceased. He also regrets that by his actions the deceased died. He did not plan to kill the deceased. He has taken responsibility of the Offender's family. He asks the Court for mercy.

18. To help me make a decision on the appropriate sentence, I requested and received a Pre-Sentence Report under Section 13(2) of the Probation Act in relation to the Offender. I have the report now and I am grateful for that. The report, was prepared by the Kundiawa Probation officer of the Community Correction and Rehabilitation Service which I will be referring to later.

19. 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 year imprisonment. This maximum penalty is subject to the Court's discretion under section 19 of the Criminal Code of which the relevant sections provide the following:-

"(1) In the construction of this Code, it is to be taken that, except when it is otherwise expressly provided—

a person liable to imprisonment for life or for any other period, may be sentenced to imprisonment for any shorter term; and

(d) a person convicted on indictment of an offence not punishable with death may—

(i) instead of, or in addition to, any punishment to which he is liable—be ordered to enter into his own recognizance, with or without sureties, in such amount as the Court thinks proper, to keep the peace and be of good behaviour for a time fixed by the court; and

(ii) comply with such other conditions as the Court may, in its discretion, impose; and"

20. The maximum punishment is reserved for the worst case and this is primarily determined with reference to the circumstances of the killing which aggravate or extenuate the crime or mitigate the offence.

21. The Supreme Court in a number of its judgments has set the sentencing tariffs in homicide cases ie, manslaughter, murder and wilful murder cases such as Anna Max Maringi v. The State (2002) SC 702. The Supreme Court in Simon Kama v. The State (2004) SC 740 did set out guidelines for sentence for murder cases in a domestic setting. More recently the Supreme Court revisited the Kama guidelines in Manu Kovi v The State (2005) SC789, Injia DCJ (as he then was), Lenalia J, Lay J . I agree with Cannings J when he said of these two cases Kama and Kovi in passing sentence in St. Jacky Vutnamur (No. 2)(2005) N2868 when he made the following remarks:

"While the guidelines in Kama and Kovi are not identical but in both decisions the court highlighted the increase in murder sentences over the years and the need to consider each case on its merits."

22. The decision in Manu Kovi v. State (supra) is the latest of the Supreme Court touching on sentences in manslaughter cases which generally agreed with the judgment of Simon Kama v State (2004) SC740 that it is time to increase sentence in manslaughter cases and established four categories of sentencing principles and suggested that manslaughter convictions could be put in four categories of increasing seriousness, as shown below:-

SENTENCING GUIDELINES FOR MANSLAUGHTER DERIVED FROM SUPREME COURT'S DECISION IN MANU KOVI'S CASE

CATEGORY ONE (1) Plea Ordinary cases Mitigating factors with no aggravating factors	8 – 12 YEARS No weapons used Victim emotional under stress and de facto provocation, eg killing in domestic situation Killing follows immediately after argument Little or no preparation Minimal force used Victim with pre-existing which caused or accelerated death, eg enlarged spleen cases
CATEGORY TWO (2) Trial or plea Mitigating factors with aggravating factors	8 – 12 YEARS Using weapons such as a knife on vulnerable parts of the body. Vicious attack Multiple injuries Some deliberate intention to harm. preplanning
CATEGORY 3 Trial or Plea Special Aggravating factors Mitigating Factors reduced in weight or rendered insignificant by gravity of offence	17-25 YEARS Dangerous weapon used eg. gun or axe vicious and planned attack. Deliberate intention to harm Little or no regard for safety of human life
CATEGORY 4 WORST CASE – Trial or Plea Special aggravating factors. No extenuating circumstances No mitigating factors Or Mitigating factors rendered Completely Insignificant by gravity of offence.	LIFE IMPRISONMENT Some element of viciousness and brutality Some pre-planning and premeditation killing of innocent, harmless persons complete disregard for human life.

23. In this case the Offender was provoked by another drunkard man Waine Namba while he was walking home with his family from a Christmas Eve Church service at night around 8.30pm. The Offender reacted to that assault where he grabbed hold of a piece of heavy wood lying on the ground about one and a half meters long and swung it at Waine three times but it landed on the wrong and innocent person who was the deceased causing his death. The Offender reacted to an assault by another person Waine; however, the blows landed on the deceased killing him.

24. It appears this case would fall in either category one or two in Manu Kovi depending on whether the piece of wood constituted an offensive weapon. In the absence of a definition of the phrase "offensive weapon" in the Criminal Code, I resorted to other sources. The Oxford Dictionary of Law defines "offensive weapon"as:-

"any object that is made, adapted, or intended to be used to cause physical injury to a person. In theory any object may be intended to be used to cause injury, but articles commonly indeed for such use include knives, (or any house hold knife), pieces of wood, and stones."

25. I decide to view how offensive weapon is defined in other legislations such as Section 1 of the Summary offenses Act Chapter 264 . This act does not apply here but it defines the same phrase to draw some consistency in its meaning. Section 1 of that Act defines the phrase in the following terms:-

(b) any article intended by the individual having it with him for use for causing injury to the person;"

26. I adopt this definition here and hold that the Offender took the piece of wood lying on the ground with the intention of using it to cause injury to a person which landed on the deceased Gabriel killing him. A piece of wood becomes a dangerous weapon when it is used to inflict injury to another person.

27. In this case a dangerous weapon was used and used viciously as indicated by the three blows and from the medical report to which the extent of the injuries were sustained resulting in a fractured skull. This case falls within the second category of sentencing tariff of a sentence ranging between 13-16 years as established in Manu Kovi.

28. In deciding the appropriate sentence, I bear in mind the interest of the community to see offenders are punished for their crimes so potential offenders are deterred and second is for the offender to be given the opportunity to be rehabilitated. These appear to be two conflicting interests, however, they both demand for the same outcome in sentencing in that the sentence imposed should minimize the risk of an offender re-offending to the extent that society is protected. That is to say that the sentence imposed should rehabilitate the offender so he or she does not re-offend again.
29. The circumstances under which the offence was committed is a relevant consideration in determining whether the Offender is one that is likely to re-offend.

30. However, first I will generally consider the relevant aggravating factors against him and mitigation factors in his favour then decide what weight to place on each factor in the exercise of my discretion.

31. Factors in aggravation are that the Offender was found guilty. He was negligent in the use of the piece of wood. The deceased was an innocent person and the attacks were vicious.

32. In mitigation, I take into account the Offenders unblemished past record having no previous convictions against him. The Offender is also a man of good character who has a stable family background. He has played many important roles in the community. He has been in church leadership role for many years. He has been for many years a peace and land mediator. He was employed as a Public Relations Officer of a construction company whose duty involved talking to the land owners and that he has been elected as a councilor for his ward. This is indicative of the people's respect for his leadership.

33. The Offender co-operated with the Police from the initial investigation stages and told the story as it was which has been consistent throughout.

34. I also take into account that he has suffered much in his properties being destroyed, houses and food gardens.

35. I also note that there was no intention to kill the deceased as there was no preplanning involved. What happened was an immediate respond to the provocation by another other then the deceased who happened to be at the wrong place at the wrong time.

37. He has spent 6 months in pre trial custody which is in his favour to be deducted from the sentence.

38. All of the above I take into account as ordinary mitigating factors. I now consider the special mitigating factors in his favour.

39. The Offender has shown remorse by not only saying sorry but has gone further to demonstrate his remorse by taking care of the deceased wife and children. He provides for them every fortnight an undisclosed amount out of his pay as a public relations officer since the day the deceased died. He says he will continue to do that if given the opportunity by this Court. This demonstration of remorse takes it out of the ordinary mitigating category into the special mitigating category.

40. The offender has paid K10,000 in cash and 9 pigs valued at K1, 000.00 each making a total value of K19,000. Although some share the view that compensation cannot be seen to pay out of one's time in prison, compensation payment is a means of establishing peace in the community more particularly in the Highlands part of this country.

41. Compensation is a relevant mitigating factor. The amount and value of compensation determines the category it falls in ie. either ordinary or special mitigating factor as settled by the Supreme Court in Manu Kovi v. State (supra) when it said this:-

"Whether it amounts to ordinary or special mitigating factors depends on the amount and value of the compensation Whilst the Courts acknowledge that compensation should not be used to pay for crime and that no amount of remorse or compensation will restore loss of life, it is an important mitigating factor. In order for compensation to be regarded as an ordinary or special mitigating factor, two important indicators are the form and amount or value of compensation.

The Criminal (Compensation) Act provides for a maximum of compensation payment of up to K5000. However, the reality is that most compensation payments are made in excess of that amount. .........................................compensation amount or to the value of between K5000 and K10,000 or over is a substantial payment which would take the payment out of the "ordinary mitigating factor" category and place it in the "special mitigating factor" category. "

42. The total compensation amount payment of Nineteen Thousand Kina (K19,000) far exceeds the K5,000.00 stipulated under the Criminal Compensation Act . This takes it out of the ordinary mitigating factor category and places it in the special mitigating factor category.

43. The accused is an elderly man of about 56 years in age and I take special note of that. He said he has no future plans rather than to continue what he has been doing and to look after the deceased family according to the pre-sentence report.

44. After considering all the factors, the mitigating factors far out weigh the aggravating factors. I fix a term of 8 years imprisonment. The pre trial custody time of 6 months is deducted as is required under of s.3 (2) of the Criminal Justice (Sentences) Act 1986 which effectively leaves a balance of 7 years & 6 months yet to be served.

45. The Offender in his allocutus asked for a suspended term upon which I had requested for a pre-sentence report which I do have now. Section 19 of the Criminal Code gives this Court the discretion to consider suspended sentence as quoted above.

46. Suspensions of sentences are usually arrived at in consideration for future commitments required of a prisoner aimed at assisting him to rehabilitate and not to re-offend based on a pre-sentence report. That appears clearly from s. 19 (6) (b) of the Criminal Code. This is supported in the National Court case of Acting Public Prosecutor v. John Airi (1981) SC214

"The power to suspend part of a sentence derives from the provison to s.19 (f) of the Criminal Code. Portion of the sentence may be suspended upon the offender entering into a recognisance. The terms of the recognisance may be acceptable to the offender or they may not. If the offender declines to enter into a recognisance, he is obliged to serve the whole of the term of the sentence.

47. In considering whether the whole or part of the term to be suspended, the Court needs to bear in mind the interest of the community to see offenders are punished for their crimes so potential offenders are deterred and second is for the offender to be given the opportunity to be rehabilitated as well as to deter potential offenders. These appear to be two conflicting interests however, they both demand for the same outcome in sentencing in that the sentence imposed should minimize the risk of an offender re-offending to the extent that society is protected. That is to say that the sentence imposed should rehabilitate the offender so he or she does not re-offend again.

48. In Acting Public Prosecutor v. Don Hale (1998) SC564, the Supreme Court said sentencing is a community responsibility. The courts exercise a power that belongs to the people by virtue of section 158 (1) of the Constitution. The Supreme Court in that case said:

"If a judge is to consider some leniency on sentence ... it is incumbent on him to obtain the relevant report such as a pre-sentence report, especially around the age of 17 to 19. ... Then for such a drastic suspension of sentence a further help to the court would be a community report from the community to which the offender belongs and whether the community, seeing that the incident happened within that community, has any views on an appropriate punishment or whether the community is prepared to assist with any community management of any bond period. The Courts are bound under the philosophy of the Constitution to be in touch with the aspirations and attitudes of the people of PNG and the punishment of criminals definitely has an effect on the ordinary people. So community involvement with the punishment of offenders should be considered especially if the court wishes to return an offender to the community instead of imposing imprisonment."

49. The community responses to offences are usually reflected in the pre sentence report filed by a Community Based Corrections or Probation officer after conducting interviews with the offender and victim and their relatives and the community leaders. The requirement of a presentence report to be filed in Court in considering a leniency on sentencing was established in the Supreme Court case of Edmund Gima & Siune Arnold v. The State (2003) SC730.

50. The presentence report before me is a very well balanced one. The source of information was collected from interviewing a total of nine (9) people. These interviewees consisted of the offender, his family, the deceased and the deceased widow and brothers, community elders and leaders and peace mediators.

"The Offender had taken care of the deceased wife Bandi Aramba and his two children and says he will continue to do that as he feels responsible as he never meant to take their husband & father's life.

The deceased wife Bandi Aramba requests for the Offender to be free to come back to the community and look after her and her children as he has been. Particularly now that she has no one to care for them in terms of finances and gardening. The deceased brother Uru Jeff, Kombage, Aramba, Ellie Aramba all agree that the offender be released back to the community. They are at peace already.

The Offender and his sons and his brothers Lucas Agua, Raphael Poka and Peter Bolkon respectively all agree that peace is maintained in the community that the offender be released to continue to look after the deceased family.

Others interviewed were community leaders, chairman of the peace mediation committee and other leaders confirm the above response by immediate family members from both sides and generally accept that the Offender is one that is not a risk to the community. In fact the parties state that they respect his leadership and want him to be at the village to lead them. They consider what happened was an isolated incident and was a mistake. The Probation Officer in his reporting says he is not a risk to the community and appears to favour a suspended sentence."

52. The Offender had been on bail for a period of three and a half years during which time he has been supporting the deceased family in cash every fortnight from his pay and attending to the widow's gardens until in October 2009 when the court found him guilty of the charge and remanded him to custody pending decision on sentence.

53. Some relevant consideration in deciding whether to suspend the whole or part of the term would include, (1) The character of the offender from prior to offence, pending trial and post trial are relevant considerations in determining whether to suspend either or the whole of the term. (2) The communities attitude toward the offender and the crime committed; the deceased relatives views are particularly relevant in accepting the offender back into the community (3) the attitude of the offender such as the degree of remorsefulness demonstrated in some physical forms.

54. The Offender has been a leader in the many different leadership role he has played as demonstrated in his allocutus and affidavit which is not contested. He has been a church leader, to playing an active role to keep the peace in his village and most recently the community elected him as a councilor for their ward more recently recruited as the Public Relations Officer by Shorncliffe construction company during the pending of this case just indicates his leadership quality and level of acceptance by his community.

55. Such character has been further demonstrated by the offender taking personal responsibility to provide for the deceased widow and her two children from his fortnightly pay up until his bail was revoked upon conviction. The offender wishes to continue to do that if he is not detained.

56. The community does not see him as a high risk person. The community response is that they would like the offender to be released so he could lead them. The deceased widow Banki requests for his release as she says she needs him to continue to support her and her children financially. The deceased brothers also support the widow which is all contained in the Pre Sentence report. A total of Nineteen Thousand Kina (K19,000) has been paid in compensation in cash and kind and peace is maintained in the community.

57. The National Government spends so much money in Restorative Justice Programs in the hope that criminal minded persons are rehabilitated to the extent that they do not re-offend.

58. I do not consider that the offender is one that is likely to re-offend. He has already demonstrated and taken full responsibility for his actions. I form the view that this offender is one who requires treatment outside the prison and not in prison as this would damage him. The offender is repentant of his actions which he has demonstrated well before the trial and is willing and ready to take full responsibility. I decide to suspend the whole of the term of imprisonment on terms.

59. I adopted and apply the words of his honour Kandakasi J in the case The State v. Abel Airi (2000) N2007 unreported when he says:

"that the decision to suspend the whole balance of the sentence has not been lightly arrived at. It has been arrived at after carefully considering and weighing the interest of the community to punish offenders and the interest of an offender to be given the opportunity to rehabilitate. Giving the prisoner such a suspended sentence is not an exercise in leniency but is a form of punishment and serves the community interest of rehabilitating offenders with a view to help offenders not to re-offend and hence minimize the level of crime in society. "

60. This is undoubtedly a clear case to suspend the term of sentence and so I decide to suspend the whole of the remaining sentence of seven (7) years and six (6) months on the following conditions:

(8) The Offender will be at liberty to apply for a review and or variation of any of these terms including a lifting of any of these terms and conditions, provided there has been substantial compliance, which shall include a full compliance of term 1 above.

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

National Court of Papua New Guinea

State v Kendiagl [2009] PGNC 272; N4212 (26 November 2009)