State v Wanam [2010] PGNC 31; N3981 (24 March 2010)

N3981

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 970 OF 2008

THE STATE

V

PETER WANAM

Kokopo: Sawong, J.
2010: 24 March

CRIMINAL LAW – Manslaughter – Plea – Sentence – serious prevalent crime of violence – custodial sentence – S.302 Criminal Code Act.

CRIMINAL LAW – Manslaughter – Sentence – Accused drunk and used bushknife to cut deceased – Deceased bleed to death – Compensation paid
11 years imprisonment.

Cases Cited

Manu Kovi –v- The State, SC789
State –v- Alphonse Kaparo, N3189
State –v- Abraham Nobi, N3412
Rex Lialu –v- The State [1990] PNGLR 487
Antap Yala –v- The State (Unreported, SCR 69/96, 1996)
Jack Tanga –v- The State (1999) SC602

Counsel

S. Luben, for the State
J.M. Ainui, for the Accused

1. SAWONG, J.: On 12 March, 2010, you pleaded guilty to a charge of unlawfully killing one Albert Rudolf, an offence contrary to Section 302 of the Criminal Code Act. On that day, I convicted you and adjourned sentencing you to receive a Pre - Sentence Report. That Report has now been prepared and filed in the Court. Counsels have also been given copies of that Report.

2. I have also read the Report and heard and considered carefully the submissions from both Counsels. You are now being considered for sentence.

3. The relevant brief facts for the purposes of sentencing you are as follows: On Saturday 18 May, 2008, you and several others were drinking alcohol at Ramandu. At around 11-12 midnight, you and others left and came to Klinwara Plantation, where you lived and worked. Upon arriving at Klinwara, you went to your room and slept. A short time later you came out and had an argument with another man and you chased him. As you were chasing him, the deceased came and hit you with a beer bottle on your head. Upon being hit, you used a bushknife you were carrying with you, swung it and cut the deceased on his right leg and head. Naturally, he bled profusely, and lost a lot of blood. He died as a result. You were drunk when you committed the offence.

4. In your allocutus, you said you were sorry to the Court. But more importantly, you said sorry to the deceased and his relatives. You also told the Court that your relatives have paid some compensation to the deceased and his relatives, totaling K3,900.00. I have taken note of your other personal antecedents. You are not a first offender, because there is a conviction against you for assault. It is not clear when this occurred. However, I do not give too much weight on this aspect.

5. The Pre-sentence report contains, amongst other things, statements from the prisoner, his brother, a Community leader and the deceased’s father. The prisoner’s brother confirms that some compensation was paid amounting K3,900.00 in cash and in kind. However, he says they are still living in fear of being attacked by the deceased’s relatives. He stated that the family would therefore like to see the prisoner serve some time in jail.

6. The Community leader, on the other hand says that there is no threats between the two families and that there is peace and harmony between the two families. I would treat his remarks with some skeptism, because human nature being what it is, it would be highly unlikely that people would easily forget what happen here.

7. The father of the deceased says that he would like to see the prisoner sent to jail. I can well understand his view, after all, he has lost his son forever whilst the prisoner still has his life to live upon him being released from jail after he serves his sentence.

8. Finally, I take note of the recommendations in the pre-sentence Report.

9. Ms Ainui, for the Prisoner submitted the Court should not impose a heavy crushing sentence on the prisoner, because of the existence of several mitigating factors. She submitted that the mitigating factors far outweigh the aggravating factors against the Prisoner. She relied on the Supreme Court decision in Manu Kovi –v- The State, SC 789, State –v- Alphonse Kaparo, N 3189 and State –v- Abraham Nobi, N 3412.

10. She submitted that, in accordance with the decision of the Supreme Court in Manu Kovi –v- The State (supra), this case would fall into the 2 category of manslaughter cases, attracting a sentence of between 13-16 years imprisonment.

11. She further submitted that the Courts should seriously consider suspending part of the sentence and impose a lesser sentence, as was the case in State –v- Kaparo (supra) or State –v- Nobi (supra). She submitted that a sentence of between 10 to 12 years imprisonment would be appropriate in the circumstances of this case.

12. Ms. Luben submitted that whilst the State concedes that, there are present strong mitigating factors in favour of the prisoner, nevertheless there are also serious aggravating factors which warrant the Court in imposing a sentence consistent with the guideline set out by the Supreme Court case: Kovi (supra). She submitted that the accused was drunk and armed himself with a dangerous weapon and used it to attack and cut the deceased twice and injuring him severely. She submitted that a sentence of between 13-16 years should be imposed.

13. As I have alluded to earlier, I have considered carefully the submissions put to me by both Counsels.

14. Sections 302, of the Criminal Code states that the maximum sentence for the crime of manslaughter, is subject to Section 19 of the Code, life imprisonment.

15. There have been many cases of manslaughter and the National Court has imposed sentences ranging from part suspended sentence to wholly custodial sentences.

16. The Supreme Court has in the recent past given sentencing guidelines for various categories of manslaughter cases.

17. In Rex Lialu –v- The State [1990] PNGLR 487, the Supreme Court issued some useful guidelines to be applied in determining an appropriate sentence in manslaughter cases. The Court held (from the headnotes) that in sentencing for manslaughter the Court:-

1. Must have careful regard to the circumstances of death and the way in which death was actually caused;
   
2. Consider the nature of the act causing the death, which would include;
   
   • (i) The nature and frequency of any attack or assault,
     
   • (ii) Whether the injury which caused death arose directly from an attack or assault or was caused by, for example falling on an object;
     
   • (iii) Whether the injury caused by the person or by a weapon.
     
   • (iv) Whether there was provocation in the non legal sense.
     
   • (v) Whether the deceased have a thin skull.
     
   • (vi) Whether the deceased had an enlarge spleen.
     
   • (vii) Whether there was deliberate intention to harm.
     

18. The Supreme Court in that case did not give any sentencing guidelines as to the tariff for the various types of manslaughter cases.

19. In Antap Yala –v- The State (Unreported, SCR 69/96, 1996) the Supreme Court said:-

"The maximum punishment for the offence of manslaughter is life imprisonment. Whilst sentences for manslaughter will normally be lower than sentences for murder or willful murder, there those are cases which will justify the imposition of heavy punishment and even the maximum punishment. The sentence in any given case will of course depend on its own perculiar facts. We are unable to prescribe any particular range of sentence for this offence as it is all too difficult to fix any range of sentence with some degree of precision. However, we would suggest whatever the extenuating or mitigating circumstances might be, the application of vicious force, with or without the use of a weapon, causing seriously bodily injury resulting in death may attract sentences between 10 years and above and in some cases, even life imprisonment."

20. Then in Jack Tanga –v- The State (1999) SC 602, the Supreme Court confirmed a sentence of 12 years imprisonment for the unlawful killing of his wife.

21. More recently the Supreme Court in Manu Kovi –v- The State, SC 789, the Court reviewed the range of tariffs and suggested some sentencing guidelines or tariffs for various homicide cases. The Court categorized about 4 general categories for the various homicide cases.

22. For manslaughter cases, the first category would involve cases where it is a plea with mitigating factors or without any aggravating factors, a sentence of between 8-12 years imprisonment should be imposed.

23. The second category, would be where it was a trial or plea with mitigating and aggravating factors, such as use of a dangerous weapon, vicious attack, multiple injury, a sentence of between 13-16 years imprisonment should be imposed.

24. The third and for the categories are not relevant for the present purposes.

25. I would accept and apply the principles set out in the above cases to the facts of the present case.

26. Applying the guidelines set out in Rex Lialu –v- The State (supra) to the facts of the case, the following factors are present. The death was caused by the knife wounds inflicted by the prisoner. The attack was repeated in that you cut the deceased two times, one on his head and one on his knee, nearly severing the knee. There is no doubt that death arose directly from those actions and the injuries were caused by you using a bushknife. There is also, provocation in the non legal sense and there was no deliberate intention to harm the deceased.

27. I accept in his favour several mitigating factors. First he has pleaded guilty. Secondly when he was arrested, he co-operated with the Police and readily made admissions. His plea before the Court was therefore consistent. I also accept in his favour that he said sorry to the Court. But more importantly, he said sorry to the deceased and his family for what he had done. Consistently with that is some compensation has been paid to the deceased’s relatives. I also accept that there was provocation in the non legal sense, in that just before he attacked the deceased, the deceased hit him with a beer bottle.

28. There are however, aggravating factors which I cannot ignore. The first is that he used a dangerous weapon. He cut the deceased twice, on the head and another one around the leg. The doctor in his post mortem report sets out the natures of the injuries inflicted. These were severe injuries.

29. Moreover, you were drunk at the time you attacked the deceased. Unfortunately, we see once again the abuse of alcohol, which has led to the tragic end of young life. This was a senseless killing. The crime of manslaughter is a serious and prevalent crime of violence. There is just too much unlawful killings happening nearly everyday in this Country. Our people need to change their attitudes and realize that there are better ways of solving their problems than using offensive weapons to take someone’s life.

30. Having considered all the above matters, I consider that the circumstances of your case are such that I do not accept the recommendation of the Community Based Correction Officer to suspend part of your sentences.

31. In the circumstances and for the reasons I have given, you are convicted and sentence to 11 years IHL. From that I deduct the remand period of 1 year 10 months and 6 days leaving a balance of 9 years 1 month and 24 days to serve.

__________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused