State v Mondo [2009] PGNC 315; N3882 (29 June 2009)

N3882

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 59 of 2009

THE STATE

V

EDDIE MONDO

Kimbe: Kandakasi, J.
2009: 12th & 29th June

CRIMINAL LAW – Sentence – Manslaughter – Armed gang attack – Arms removed by others – Deceased seriously assaulted until he fell unconscious – Hits on the deceased head –Guilty plea - First time offenders – Prevalence of offence – Deterrent sentence called for – Sentence of 20 years imposed – Section 302 Criminal Code.

Cases Cited:

Sakarowa Koe v. The State (2005) SC739
Joe Giamur v. The State, (2006) SC884
The State v. Lawrence Matau (2007) N3865
James Pangnan & Patrick Ponat v. The State 1 SCRA 39 & 54 OF 2004
The State v. Nobert Windu CR 1670 of 2003
Anna Max Marangi v. The State (08/11/02) SC702
The State v. Robert Potou(2008) N3316
The State v. Elias Peter Wano Miva(2006) CR No. 448 of 2005
Simon Kama v. The State (2004) SC740
Thress Kumbamong v. The State (2008) SCRA 39 of 2007

Counsel:

F. Popeu, for the State
D. Akeya, for the Accused

26th June, 2009

1. KANDAKASI J.: You pleaded guilty to one charge of manslaughter contrary to Section 302 of the Criminal Code and the Court convicted you of that offence. Submissions were then received in relation to sentence. Without any contest from the State, your lawyer, Mr. Alkeya argued for a sentence between 14 and 20 years. In support of their respective submissions, both learned counsel referred the Court's attention to the case of Sakarowa Koe v. The State (2005) SC739.

Relevant Issue

2. The issue for the Court to determine therefore is what is an appropriate sentence for you? I remind myself that, your sentence must reflect the particular circumstances of your case. Put it another way, the law requires the Court to impose a sentence that befits the crime you have committed. It is thus necessary to take into account the relevant facts.

Relevant Facts

3. So what are the relevant facts and circumstances in which you committed the offence? On 19th January 2001, you were at Taviliai Village, here in Kimbe. You and two other friends armed yourselves with weapons, hunting spears and approached a Martin Aulu who is now deceased and started to assault him. Other people who were around at the scene of your attack, came and disarmed you. Despite that, you continued your attacking of the deceased. One of your companions, a Philip Kembu hit the deceased from the back, causing him to fall on the ground. As he was on the ground, you picked a 10kg rice bag filled with stones and hit the deceased on his head with it. Some of your other companions hit the deceased also on his head until he fell unconscious.

4. As a result of your attack of the deceased, the deceased sustained a number of injuries including a serious stab wound to his right thigh. That particular injury caused the deceased to suffer shock and eventually contributed to his death. That was after admission to the Kimbe General Hospital and being hospitalized for 7 days.

5. In your allocutus, you said sorry for what you have done and asked for mercy and leniency. You informed the Court that you are married with four children and that your parents are old. You have a plantation of cocoa and coconut. You have started to build a permanent house which is incomplete. You also said there is no one else to take care of your wife, children and your aging parents.

6. Your lawyer added a few more details about you such as, you are aged 23 and that you are from Kapo Village. You have 5 sisters and that you are the eldest in your family. You have reached grade 6 primary education and have since been a villager. You were arrested and kept in custody on the same day of the offence for a week. Thereafter, you bailed out but you jumped bail which resulted in your rearrest and being remanded in custody for 8 months before released again on bail. Your lawyer submits and in the absence of any serious contest, I accept that, you have been in custody for 10 months.

Submissions

7. As noted, your learned counsel, Mr. Alkeya and the learned counsel for the State, Mr. Popeu referred me to the Supreme Court decision in the Sakarowa Koe's case to help determine an appropriate sentence for you. Your lawyer also drew the Court's attention to another National Court decision, in which a sentence of 15 years was imposed against the leader and 3 to 7 years were imposed against others. Your lawyer also drew the Court's attention to the decision of the Supreme Court in Joe Giamur v. The State, (2006) SC884, where the Supreme Court increased a 7 years sentence to 14 years. That was in a case of killing in a domestic setting where a drunkard husband killed his wife by kicking and punching her to death for no good reason.

Consideration

8. Section 302 of the Criminal Code, being the provision under which you were charged, creates the offence of unlawful killing and prescribes its penalty of life imprisonment. But this is subject to the Court's wide sentencing discretion under s. 19 also of the Criminal Code. In the exercise of that discretion, the courts have imposed varying sentences.

9. As I have noted elsewhere,[1] notwithstanding offenders being caught and dealt with accordingly to law, there are still too many killings. Given the prevalence of the offence, the Supreme Court has revisited some of its age old sentencing guidelines and have come up with new ones with increased ranges of sentences for offenders. The Supreme Court decision, in James Pangnan & Patrick Ponat v. The State[2] traced that development and ended up with the decision of the Supreme Court in The State v Manu Kovi (2005) SC789. I noted this in the decision I handed down this afternoon in the matter of The State v. Nobert Windu CR 1670 of 2003.

10. Prior to the decision in the Manu Kovi case, there were only three categories of manslaughter cases identified, with their suggested range of sentences. The then latest decision of the Supreme Court was its decision in Sakarowa Koe v. The State.[3] There, the Court reviewed the categorization of unlawful killing cases and varied the Supreme Court's earlier decision in Anna Max Marangi v. The State[4] in terms of increasing the suggested sentences in each category.

11. In The State v. Robert Potou[5], I reviewed the sentencing trend in manslaughter cases up to last year and concluded that, the decisions of the Supreme and National Courts show an increase in the kind of sentences imposed in manslaughter cases. I then observed that, the decision of the Supreme Court in the Manu Kovi case, endorsed this trend and suggested four categories of manslaughter and recommended an increased range of sentences.

12. I then noted that, 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.

13. At the same time, I have expressed the view in a number of my earlier decision that, there was a serious flaw in the decision in the Manu Kovi case, in relation to the Court's further categorization of manslaughter cases, particularly in relation to the third and fourth categories. I gave some reasons for that view in a number of cases for example my decision in The State v. Elias Peter Wano Miva.[6] In those cases, I made the point that, Parliament had already provided for categories of homicide cases depending on the intention of the offender with their penalty prescribed and it was not within the Court's power to again further classify the offence. That was in due recognition of the principles calling for the separation of powers between the judiciary and the legislature.

14. I noted that, support for that view is provided by the decision of the Supreme Court in Simon Kama v. The State[7] where the Court took a close look at the basis for the Court's further categorization of homicide cases and confirmed the view that, the Court should not further categorize homicide cases, for to do so would be entering into the sphere of legislating and hence usurp the powers of Parliament. The decision in Manu Kovi's case did not give any meaningful consideration to its earlier decision in the Simon Kama case on this point, although it referred to that decision.

15. In the Nobert Windu decision, I added two additional reasons for holding the view that, Manu Kovi cannot be right. The first is this, the further categorization of homicide cases in Manu Kovi, has effectively restricted the National Court from freely exercising its sentencing discretion under s.19 of the Criminal Code. In other words, the sentencing guidelines with the categorization of offences with their range of sentences have prevented or restricted the National Court from arriving at a sentence that best befits the crime, the circumstances giving rising to the commission of the offence and the way in which the offender committed the offence. The suggested sentencing ranges within the guidelines have caused the National Court to feel obliged to arrive at sentences within the ranges suggested by the guidelines. The ready grant of appeals by the Supreme Court against sentences departing from the suggested guidelines have strengthened the sense of the National Court being obliged to follow the guidelines and impose sentences within the sentences suggested by them.

16. I then referred to the recent decision of the Supreme Court in Thress Kumbamong v. The State.[8] There, the Supreme Court had the occasion to review the setting of sentencing guidelines by the Supreme Court. The Court carefully considered the issue in detail. It then concluded that, since Parliament has not provided for any fettering of the discretion vested in trial judges except to exercise it judicially in accordance with the law, the Courts should be careful not to prescribe or regiment the way in which sentencing judges should exercise their sentencing discretion in the particular circumstances of cases before them. It reasoned that, prescribing the way in which sentencing judges should exercise their discretion would have the effect of usurping the powers and functions of Parliament. Further, the Court reasoned that, leaving the exercise of sentencing discretion to sentencing judges recognizes the need to determine a case on its own merits and that criminal sentencing is not a matter of mathematics or precise science but logic and common sense and what is considered fair and reasonable in a given set of circumstances. By reason of that, there may well be differences of opinions and the kinds of sentences imposed.

17. Whilst expressing those views, the Supreme Court also said it was within its power to provide guidelines as to what sort of factors a sentencing judge should take into account. But that does not mean that, the Court can set sentencing ranges or tariffs with minimums as "starting points" and maximums within the maximums already prescribed by Parliament. To do so would amount to the Court legislating as opposed to interpreting and applying the law. The Court reiterated and emphasized the point that, trial judges have and should be left with their wide discretion to impose such a sentence or penalty as they consider appropriate in the particular circumstances of each case unhindered by sentencing ranges or tariffs. That discretion cannot be curtailed, restricted or interfered with except for very good reason say for example, where there is a total improper exercise of the discretion and going against any sense of logic and common sense and perceptions of justice and fairness. The Court further emphasized the point that, trial judges should be at liberty to impose sentences which might as well turn out to be either a "quantum leap" or "too crushing" for an offender which the circumstances in which the offence was committed and the factors for and against the offender might well warrant and dictate.

18. Again in the Nobert Windu case, I expressed the view that, in the context of sentencing in a manslaughter case, this means that, the National Court need not be restricted in terms of the kind of sentence the Court can impose. Instead, the Court should be at liberty to impose any sentence between zero and life imprisonment as long as the sentence to be imposed is aimed at serving one of the recognized purposes of criminal sentencing. The actual sentence should be dictated by the particular circumstances in which the offence was committed, the factors in aggravation and mitigation and the kind of sentences imposed in similar cases for consistency sake but to the exclusion of any so called sentencing range under some Court suggested category.

19. The second additional reason I mentioned in the Nobert Windu case for my view that Manu Kovi cannot be right is this. By bringing into the Court's further categorization of the manslaughter factors or elements which belong to willful murder and murder cases, makes it practically impossible to distinguish a murder case from a manslaughter case. That consequently makes it impossible to impose the maximum prescribed penalty of life imprisonment unless some of the elements that make a case for willful murder or murder exist, such as vicious attacks, pre-meditation, arming and using of dangerous weapons with intent to either kill or cause bodily harm. That has the effect of preventing a Court from properly considering sentence for manslaughter cases.

20. In the Circumstances, I expressed the view that, the best that can be done is to consider the kinds of sentences imposed in similar cases in the past and be guided by the sentencing trend. Regard ought also to be had to past sentences and their ability to meeting any of the well known purposes of criminal sentencing, such as the most important one of deterring other would be offenders. As far as I am aware, there as been no meaningful research undertaken and on the effects of criminal sentencing in the behaviour of our people and the impact that has on the social and economic life of our country. All that we have done to date is to proceed only on assumptions. We have done so without the support of any real and hard evidence that the kind of sentences that have been imposed in the past, based on which sentencing ranges have been arrived at, have indeed served one of the important purposes of criminal sentencing. In my humble view, the kind of research being mentioned is long over due and we should immediately commission if not encourage such a research if we are serious able prescribing sentencing ranges. Until we have such data or evidence at hand, we should allow the National Court to freely exercise its sentencing powers without being restraint by the so called guidelines set by the Supreme Court.

21. I then referred to the than latest Supreme Court decision in Joe Giamur, where the appellant killed his wife after returning home from a home brew drinking session. Whilst having his meal he quarreled with the deceased. That developed into a fight in which the appellant used his fists to fight the deceased. The deceased eventually gave up her last breath and passed away. She was then taken to the hospital but was pronounced dead on arrival. According to medical evidence, the deceased sustained bruises to her right elbow and face areas and died as a result of ruptured spleen due to trauma.

22. The National Court imposed a sentence of 7 years part suspended. On appeal to the Supreme Court, the Supreme Court held that, the sentence was low and increased it to 14 years. The appellant, did have some good mitigating factors, namely, guilty plea, payment of compensation, being a first time offender and the deceased relatives caused some destruction to his and his relatives properties. However, the Court was of the view that the appellant's sentence should be increased because it was a case of repeated kicks and punches that lead to the death of the deceased for no good reason.

Sentence in Your Case

23. In you case, the submission is for a sentence of 14 to 20 years. The question then is what is an appropriate sentence for you. This issue can be resolved by reference to the factors for and against you, which includes your personal and family backgrounds as outlined above.

Aggravating Factors

24. I now turn to a consideration of the factors for and against you starting with those against you first. First, I note that, you committed an offence that is prevalent. This fact makes it clear that the past sentences are not deterring other would be offenders from committing the offence. There is far to many violence in our homes and in out streets. There is a ready resort to violence to resolve conflicts. Only a few are looking for peaceful means of resolving human conflicts or difficulties. A strong deterrent sentence is thus called for all of the offences displaying some from of violence.

25. Secondly, I cannot see what if any good reason you had to warrant you attacking the deceased and eventually take his life. If he had done something wrong against you, there are legal and peaceful means to resolve all problems in our society. You decided to take matters into your own hands as are many people in this province and the rest of out beautiful country. Our nation is built on the Christian principles which teach tolerance and forgiveness and that, we should all be slow to anger. What you did not only went against the laws of our country but it also went against your Christian faith.

26. Thirdly, you were involved in a gang attack of the deceased. This kind of group attack is very prevalent. The law says that, anyone acting in the company of another to commit an offence must receive a sentence that is higher than a person acting alone. This is because people acting in the company of others give strength and courage to commit a crime and possibly to do more arm than a lone actor.

27. Fourthly, you were all armed and approach the deceased and started to attack him using the weapons you were armed with. That caused a serious injury which eventually led to his death. The involvement of weapons is often considered as a serious aggravating factor against an offender because of the kind of damage they can cause.

28. Finally, I note that, some other people had the weapons removed from you. Despite that, you were intend on attacking the deceased and did so. You continue to attack him until he was not able to stand. You stopped only when he fell unconscious. This factor and the fact that you armed yourself and attacked the deceased with them demonstrates in my view an intention to kill the deceased if not cause him serious bodily harm. There is no doubt you achieved your objective.

Mitigating Factors

29. Turning now to factors in your mitigation, I note firstly that, you pleaded guilty to the charge. That saved the State the trouble and extra costs that could have been expanded on securing the appearance of its witnesses to come and testify against you. You have maintained your admission of guilt from the day police arrested you and you cooperated well with the police save only for your jumping bail and being re-arrested.

30. Secondly, you are a first time offender, meaning you have no prior conviction. The law usually allows for a lenient treatment of first time offenders compared to repeating offenders.

31. Finally, I note your expression of remorse. But there is no tangible evidence that you are sincere or that you meant what you said. There is no evidence before the Court in terms of you paying compensation and otherwise performing a customary ceremony that restores relationships that may have been broken by your conduct.

The Decision

32. Carefully weighing the factors for and against you, I note the factors against you far outweigh those in your. I consider your case goes beyond the Joe Giamur case. It also goes beyond Nobert Windu's case.

33. In my view, it comes closure to the case of Eddie Wangoti & Ors, a case in which I handed down decision this morning. That was also a case of gang attack of an individual. There was some preplanning arming and attacking the deceased. The only difference between your case and that case was the fact that the attack was on a boat and over the sea, and that there was some provocation in the non legal sense. I imposed a sentence of 20 years against the main actor and the others 18 years each.

34. In your case, I consider the particular circumstances of your case call for a sentence similar to the one imposed in the Eddie Wangoti & Ors case. Accordingly, I impose a sentence of 20 years against you. Of that sentence, the period you have already spent in custody awaiting your trial and sentence shall be deducted. You will serve the balance in hard labour at the Lakeamata Correction Services. A warrant of commitment in those terms shall issue forthwith.

____________________________________________________________
The Public Prosecutor: Lawyers for the State
The Public Solicitor: Lawyers for the Accused

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^[1] See for example The State v. Lawrence Matau (2007) N ???
^[2] SCRA 39 & 54 OF 2004, delivered on 30^th August 2006 at Kokopo, per Sevua, Kandakasi & Manuhu.
^[3] (01/04/04) SC739, per Sevua, Kandakasi &Lenalia JJ.
^[4] (08/11/02) SC702, per Jalina, Injia & Sawong J.
^[5] (2008) N3316.
^[6] (2006) CR No. 448 of 2005.
^[7] (2004) SC740.
^[8] (2008) SCRA 39 of 2007, per Salika, Kandakasi & Yagi JJ.