State v Repo [2011] PGNC 286; N4944 (27 September 2011)

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CRIMINAL LAW – Unlawful Killing (s.302 of Criminal Code Act) – Plea of guilty – Sentence – Principles of – Mitigating factors – Early plea of guilty – First time offender – Co-operated with police – provocation from wife – Aggravating factors – Use of offensive weapon – No provocation from the deceased – Domestic killing.

1. Where issues raised by the prisoner in allocutus that are not contained in the prosecutor's summary of fact and which the prosecutor has raised no objections to and that the issues raised in allocutus have in no way affects the plea of guilty, such issues shall be accepted as mitigating factors for the prisoners.

2. Where the act is not pre-meditated and the prisoner acted alone and just one blow is executed that results in the death of the victim, the appropriate head sentence should be 9 years imprisonment.

3. Where Court considers the appropriate sentence range for manslaughter is at the top range of a certain category and the Court imposes the head sentence to be well below the top category, the head sentence imposed should no be disturbed.

Cases Cited:
The State v Arron Lahu (2005) N2798
Manu Kovi v The State (2005) SC789
The State v Roy Wani (17 June 2011) N4328
The State v Josephien Las Minjipa CR No. 1314 of 2009 N4135
The State v Jenny Dei CR No. 407 of 2010 N4260
The State v Issac Ulul CR NO. 203 of 2007
The State v Anita Kelly (2009) N3642
The State v Michael Langa Sapri (2008) N3434
The State v Hanson Poponi (2008) N3433

1. GAULI AJ: The accused Lazarus Pepo, pleaded guilty to one count of unlawful killing or manslaughter pursuant to section 302 of the Criminal Code Act, Chapter 262. The accused entered his guilty plea and was convicted on the 02nd of September. I adjourned the proceedings to 27 September for sentencing since I had to go on the National Court circuit to Porgera for the next two weeks.

2. The accused was indicted under section 302 of the Criminal Code Act, Chapter 262 for unlawful killing, which carries a penalty of life imprisonment, subject to section 19 of the Criminal Code. Section 302 of the Criminal Code Act states:

"A person who unlawfully kills another under such circumstances as not to constitute willful murder, murder or infanticide is guilty of manslaughter."

3. The killing occurred about 8.00 o'clock at night on the 20th of May 2010 at Mondop village in Wapenamanda, Enga Province. Prior to that, on 18 May 2010 the accused had an argument with his wife Jacklyn Sabakawan over some kaukau in their garden at Sambakamanda village, Wapenamanda. As the result of that argument, the wife ran away to her village Mondop. On 20th May 2010 the accused went to his wife's village and stayed with her. Later in the evening the accused got ready to go back to his village. He got angry with his wife. Armed with a bush knife, he went to the house where she was. He swung the bush knife threatening to cut his wife but he missed her and the bush knife struck a seven year old boy Korak Mapia on the head behind the left ear. The victim received serious would on his head and he died as a result. Having seeing what happened, the accused threatened to chop his wife with the bush knife and he ran away.

4. The accused pleaded guilty to the facts and I entered a provisional plea of guilty. After reading the District Court depositions, particularly the record of interview, the confessional statement accused gave to the police, the statements witnesses Polio Seta, Jackline Pepo Lazarus and Pes Mathias, I was satisfied that it is safe to accept the accused plea of guilty. And I convicted the accused of unlawful killing.

5. The accused is aged 27 from Sambakamanda village, Wapenamanda, married with two daughters aged 7 and 4 years respectively. He is a Pastor of the Holy Spirit Movement Church. He was educated up to grade 8 and had no formal employment. He has no prior convictions.

5. The accused in expressing his views of the offence he is been charged with and the type of punishment that would be imposed on him by the Court, he said:

"I got married in the year 2000, had our first daughter in 2004 and the second daughter in 2007. We have been regular church goers. In 2008, my wife's attitude changed. I heard from people that she was having an affair with another man. Occasionally she would get back to her village and spent a lot of time there. In an attempt to reconcile, I would give her live pigs. In February 2010 she went back to her village again. I went looking for her. She was not in her village. I heard she was at lower Lai some 15 kilometers away. I found her there. I heard she was having affairs with one elementary teacher. I went there with her mother, her brother and one little girl and brought her home. And I have to kill a pig for them.

On the night of 18th May 2010 while we were sleeping she left and did not return for 3 days. On 20 May, my father and other men, went to her village to try and settle the matter in court. During the hearing, her parents and the leaders said she was wrong she should return to me. But she did not return. I found her in the house of the deceased's father who is my cousin. It was getting dark. I had concern for my children and I decided to return to my village. I asked for a torch and the deceased's mother gave me the torch. Just when I got up to leave, my wife said to me: "Those two children are already in Enga. So how you look after them is your problem. I am not going back. And don't come back to my place anymore." She was sitting on a log weaving a bilum when she said these to me. I got angry and I swung the bush knife and cut the log she was sitting on to scare her in front of her parent. I did not mean to hit her. Her father Polio said "be careful otherwise you might cut the child there". I was surprised that I had already hit the child. Knowing that I had already hit the child, I got angry with the woman (wife) and I left. Next day on 21 May, I gave myself up to police.

I am sorry for the death of the child who is my nephew. I did not mean to kill him. I wish to send my apology to the deceased's relative. I also say sorry to this Court and I say sorry for breaking the law of this country. To show my remorse, I followed the Engan custom and paid compensation both in money and pigs. My parents are very old and they are looking after my two children after the woman had gone off. I ask the Court to have mercy on me."

6. Defence counsel and the Public Prosecutor made oral submissions on sentence. The defence counsel submitted that Court to consider the circumstances under which the offence was committed, the factors both in mitigation and aggravating. The points raised by the prisoner were not addressed in the prosecutor's summary of facts nor did the prosecutor object to them therefore he asked the Court to admit the points raised by the prisoner being the circumstances in which the offence was committed. He referred to the case of the State v Arron Lahu (2005) N2798, by Cannings, J. which was faced with similar situation. In that case the prisoner on entering a plea of guilty told the Court in allocates that he was not in the group that planned the crime, his participation was very minimal and he only joined the group by chance.

7. His Honour Cannings, J. was concerned that the prisoner has already pleaded guilty to the charge then in allocates he raised issues of mitigation which were not contained in the prosecution's summary of facts presented to the Court. Cannings, J. then formulated the following rules:

1. The effect of guilty plea is that the accused person admitted to the allocates of the offence had the facts been put to the accused.

2. Once Court receives the depositions, accepts the plea and accepts a conviction, the accused must then be given the benefit of any reasonable doubt of matters pending.

3. If the judge contends in the mitigation factors in the allocates that were not put to the accused, the judge should ascertain whether there is an agreement between the prosecution and the defence in those matters.

4. If there is an agreement the judge should work on the basis of what has been agreed to, unless the case made in allocates is beyond the bounds of possibility as to be unbelievable.

5. If there is a dispute between the parties of these matters, it will be appropriate for the Court to take sworn evidence. The accused then be given the right evidence but cannot be forced into the witness box.

6. If however the Court does not take sworn evidence and there is no agreement between the parties as to the contentious matter, the Court must act on the version of facts which within the bounds of possibility are more favourable to the Court.

8. Defence counsel submitted that since the issue s raised by the prisoner in his allocates were not contained in the prosecutor's summary of facts and have not been objected by the prosecutor, the court should accept them as mitigating factors of the prisoner. The prosecutor failed to rebut the defence submission.

9. I noted that the matters raised by the prisoner in allocates are merely matters for mitigation. They are not the matters that raised the issue of whether the prisoner is guilty or innocent. Where the issues raised by the prisoner in allocates, which are not contained in the prosecutor's summary of facts and which the prosecutor has not objected to and such issues do not in any way affects the plea of guilty entered by the prisoner, the Court should accept those issues as mitigating factors of the prisoner. And I accept the issues raised by the prisoner in allocates as mitigating factors.

10. Prisoner entered plea of guilty at the earliest opportunity which saved time and costs than had he pleaded not guilty. He is the first time offender. He has being a good law abiding citizen until this incident. He voluntarily surrendered to police the day after the crime was committed and he cooperated with the police during the investigation by admitting the offence and made a confessional statement. Prisoner's relatives paid the compensation. He is married with two daughters aged 7 and 4 years respectively. There was a defector provocation by the prisoner's wife that resulted in the prisoner killing the innocent young boy. The deceased is relative to the prisoner as his nephew. The defector provocation relates to the wife having affairs with one of the elementary school teacher and she told the accused never to come back to her again. The killing was not pre-meditated nor was it intentional. Only a single blow resulted in the death of the deceased. And the prisoner acted alone.

11. The prisoner used an offensive weapon, namely a bush knife. Killing occurred in a domestic setting. He threatened to cut his wife but the bush knife struck an innocent young boy on the left side of his head causing severe injury. Excessive force was used. There was no provocation from the deceased person. The deceased was an innocent person.

12. The offence of unlawful killing, pursuant to s. 302 of the Criminal Code Act, has a maximum penalty of life imprisonment, but subject to s. 19 of the Criminal Code Act, which allows the Court to impose sentence lesser than the sentence prescribed under the provision charged. The Court has an enormous task of deciding what would be the appropriate sentence to impose. Sentencing is an art, it is not a science and there are no easy or ready formulars that can be applied to arrive at an appropriate sentence. Each case depends on its own merits and circumstances. In sentencing the Court is asked to consider the following issues:

1. Whether or not this case is one of a worst type of manslaughter cases for which maximum sentence should be imposed.

2. What is the appropriate head sentence to be imposed considering the circumstances of the case.

3. Whether or not the sentence equal to, less than or more than the head sentence be imposed.

4. Whether or not this is an appropriate case to suspend either whole or part of the sentence.

ISSUE 1: Whether or not this case is one of a worst type of manslaughter cases for which maximum sentence should be imposed.

13. Defence counsel submitted that this case is not a worst type of manslaughter. He referred to a Supreme Court decision in Manu Kovi v The State (2005) SC 789, which provides a schedule of category of homicide cases. It provides sentencing guidelines on manslaughter cases as follows:

CATERGORY	DESCRIPTION	DETAILS	TARIFF
1	Plea: Ordinary case Mitigating factors with no aggravating factors	No weapons used – Offender emotionally under stress- de facto provocation e.g. killings in domestic settings. Killing follows straight after argument – Little or no preparation – Minimal force used – Victim with pre-existing diseases which caused or accelerated death e.g. enlarged spleen cases.	8 – 12 Years
2	Trial or Plea: Mitigating factors with Aggravating factors.	Using offensive weapon such as knife on vulnerable parts of body – Vicious attack – Multiple injuries – Some deliberate intention to harm – Pre-planning	13 – 16 Years
3	Trial or Plea: Special aggravating factors – Mitigating facts reduced in weight or rendered insignificant by gravity of offence.	Used dangerous weapons e.g. gun or axe – Vicious and planned attack – Deliberate intention to harm – Little or no regard for human life.	17 – 25 Years
4	WORSE CASE Trial or Plea: Special aggravating factors – No extenuation circumstances – No mitigating factors or mitigating factors rendered completely insignificant by gravity of offence.	Some element of viciousness and brutality – Some pre-planning and pre-meditation – Killing of innocent, harmless person – Complete disregard for human life.	Life Imprisonemnt.

14. Defence counsel submitted that this case would fall at the very lower end the Category 2 of Manu Kovi case above Prosecutor submitted that the offence involved killing of an innocent person. Though only a single blow was employed, it was vicious attack on the deceased person. Therefore it falls within the second category of Manu Kovi.

15. I have considered that there are both mitigating and aggravating factors present. An offensive weapon was used. There was no provocation from the deceased person, he was an innocent person. The deceased was struck on the head which is a vulnerable part of the body. Anyone been hit on the head is likely to die. However it was just one blow and it was not premeditated act. I consider that this case falls within the lower end of category two but on the top end of category one of the case in Manu Kovi.

ISSUE 2: What is the appropriate head sentence to be imposed considering the circumstances of the case.

16. Having considered that this case falls in between the top of category one but on the lower end of category tow, defence counsel submitted that appropriate sentence to be imposed is 9 years imprisonment. He referred to the case of The State v Roy Wani (17 June 2011) N4328, where my brother Ipang AJ, sentenced the accused to 9 years imprisonment on plea of guilty. In that case the accused and his wife had an argument. The accused pick up a spade and threw it at his wife. The head of the spade struck their own child causing grievous harm and the child died as a consequence of that blow.

17. Prosecutor submitted that this is a prevalent offence both here in Enga Province and in Papua New Guinea as a whole, therefore a deterrence sentence is called for the prevent like-minded people from committing similar offences. He submitted that a sentence between 13 to 16 years to be appropriate.

18. Having considered both the mitigating and aggravating factors and the circumstances of the case, I consider that the appropriate head sentence of this case would be on the top end of category one but on the lower end of category two of Manu Kove, that is between 12 and 13 years of imprisonment. The case of The State v Roy Wani (above) is similar both in facts and circumstances to the present case. The only difference is the type of weapons used in each of these cases. I consider that a bush knife is more offensive and dangerous than a spade.

19. There are many manslaughter cases where offensive weapons such as bush knifes or kitchen knives were used and sentences below 12 years were imposed. In The State v Josephine Las Minjipa CR No. 1314 of 2009 N4135, Makail J, sentenced the prisoner to 9 years for stabbing her husband with a kitchen knife during fight following a domestic argument over money. In The State v Jenny Dei (CR. NO. 407 of 2010) N4260, the accused was found guilty of manslaughter for killing her husband by stabbing him on the neck during a domestic argument and sentenced to 9 years as there were strong mitigating factors. And in The State v Issac Ulul CR No. 203 of 2007, the accused on plea of guilty for manslaughter for killing his brother by slashing him with a bush knife for strong de facto provocation, was sentenced to 10 years imprisonment. In The State v Carol Alfred (2009) N3602, Makail J; sentenced the prisoner to 10 years for manslaughter for stabbing her husband with a kitchen knife on his thigh in a domestic setting. He bled to his death. In all these cases the deceased were killed using offensive weapons and there were elements of provocation and fighting between the prisoners and the deceased which resulted in the deaths.

20. The circumstances are slightly different to the present cases here were an innocent person was killed who offered no provocation to the prisoner. I accept that the killing was not pre-meditated or intended. I consider the case of The State v Roy Wani (above) is relevant to the present case. In the circumstances where the act is not pre-meditated and the prisoner has acted alone and only executed just one blow that caused the death of the deceased, I consider that the appropriate head sentence should be 9 years imprisonment.

ISSUE 3: Whether or not sentence equal to, less than or more than the head sentence should be imposed.

21. A life of a young person has been lost forever. A human life is more precious and valuable than gold or silver and no compensation or remorse can adequately compensate valuable human life that was lost. A death is a death, lost life cannot be restored. I adopt what my brother Makail J; said in The State v Anita Kelly (2009) N3642 at para 9.

22. Where Court considers that appropriate sentence range for manslaughter is at the top range of a certain category and the Court imposes the head sentence to be well below the top category, the head sentence imposed should not be disturbed. I consider that the head sentence of 9 years shall remain undisturbed.

ISSUE 4: Whether or not this is an appropriate case to suspend either whole or part of the sentence.

23. Sentence may be suspended either whole or part depending on the circumstances of the particular case. In some manslaughter cases, the National Court has suspended sentences while in others cases suspensions were been refuse. It would be unjust to suspend the whole of the sentence for the offences of manslaughter for a reason that the sentence ought to have a deterrence effect for the future like offenders. Sentence may be partly suspended if it is shown that some compensation is paid and or there is reconciliation made with the relatives of the deceased and the prisoner had good community record.

24. In The State v Michael Langan Sapri (2008) N3434, the prisoner kicked his wife over an argument of a betel nut when she told him to chew his testicles. He kicked her on her ribs and she died of spleen rapture. He was sentenced to 12 years with time in custody deducted. In respect to suspending of sentence, Cannings J; said:

"No. Given all the circumstances in which this tragic event took place, this is not an appropriate case in which any part of the sentence be suspended. Though some compensation has been paid it seems fairly small and there is no evidence of reconciliation with the deceased's relatives."

25. But in The State v Henson Poponil (2008) N3433, in sentencing the prisoner to 13 years imprisonment on plea of guilty for manslaughter where he killed his wife by throwing a stone at her abdomen in a domestic argument, Cannings, J. suspended 3 years for reasons that the prisoner had good community record, he made genuine attempts to reconcile with his wife's mother and she accepted his good intentions and she sympathized with him and so it was a case for suspending part of the sentence.

26. I have considered the prisoner's pre-sentence report provided by Mr. Andrew Rai, the Probation Officer in Wabag. Prosecutor submitted that the pre-sentence report was done one sided only to favour the prisoner. I do partly agree with the prosecutor. For instance the report stated that his children are age 4 years and 1 year but the prisoner in his allocates said the children are aged 7 years and 4 years respectively. However I do accept that the prisoner has a good community record, he built a local church and he became the pastor of the Holy Spirit Movement Church. He would not have committed this offence had his wife supported him in his ministry. A compensation of K8,000.00 was paid by the Prisoner's relative plus 60 pigs which were accepted by the deceased parents but he disputes the balance of K3,800.00 which they have yet to receive. And so the situation is still unsettled. It is therefore correct to say that reconciliation is yet to be settled. Taking into account of all the circumstances in which this tragic event took place and having considered the circumstances of the prisoner, I am of the view that this is an appropriate case to suspend part of the sentence. I have to ask myself how much of the sentence to be suspended.

27 Defence counsel submitted that this case being similar to that of the case in The State v Roy Wani (2011) N4328, the Court should apply the same. In that case, a sentence of 9 years was imposed, time in custody deducted and from the balance of 8 years 9 months 26 days, he was to serve over half of the sentence while 4 years was suspended and the prisoner placed on probation with conditions.

28. Where an offensive weapon is used in the killing but the killing was unintentional and the prisoner has a good strong mitigating factor, such as an early guilty plea, no prior conviction, good community record and substantial amount of compensation paid, I consider that one third of the sentence should be suspended after deducting the pre-sentence period. The prisoner had been in custody for 1 year 5 months 1 week since 21 May 2010. I deduct the pre-sentence period. The prisoner to serve 4 years 6 months 3 weeks at Baisu Correctional Services in Mt. Hagen while the remaining 3 years of the sentence is suspended with conditions that:

(1) The prisoner to keep the peace and be of good bahviour for a period of 2 years with the surety of K500.00 and must not cause any trouble to anyone.

(2) The prisoner is to perform 5 hours of community work free of charge, during the week days each week for a period of 5 months at any public institutions like hospital, schools etc, in the township of Wapenamanda, to be supervised by the Probation Officer.

(3) The prisoner must reside in his Sabakmanda village at Tsak Valley in Wapenamanda District and nowhere else during the period of his suspended sentence unless he obtains the approval of the National Court.

(4) The prisoner must pay the remaining K3,800.00 to the parents of the deceased within the first 12 months of his 3 years suspended sentence if that amount still remains to be unpaid.

(5) Should the prisoner breached any of these conditions, the 3 years suspended sentence will be automatically uplifted and be recalled to serve the suspended sentence.

29. I sentence the prisoner to 9 years imprisonment. I deduct the Pre-sentence period of 1 year 5 months 1 week. I suspend 3 years of the sentence with conditions attached. The balance of 4 years 6 months 3 weeks of sentence is to be served in prison at Baisu C.S.

_________________________________________________________________
Public Prosecutor's Office: Lawyers for the State
Paul Paraka Lawyers: Lawyers for the Prisoner

National Court of Papua New Guinea

State v Repo [2011] PGNC 286; N4944 (27 September 2011)