State v Tiki [2013] PGNC 51; N5219 (14 May 2013)

N5219

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR No.811 of 2011

THE STATE

V

ALBERT TIKI
Prisoner

Mt. Hagen: David J
2013 : 12th March, 7th & 14th May

CRIMINAL LAW - sentence - manslaughter – conviction on alternative verdict after a trial on a charge of murder – killing by criminal negligence – killing occurred when prisoner pursued wife following an argument inside store operated by the prisoner – prisoner attempting to hit his wife with a brick-like object – prisoner held by a person to stop him from assaulting wife - deceased sitting nearby in front of shop operated by the prisoner – prisoner struck at the back of head – fractured skull – death due to severe subdural and intracranial bleeding - 8 years imprisonment in hard labour – Criminal Code, 302.

PNG cases cited
R v Tsagaroan-Kagobo (1965-66) PNGLR 122
The State v Mathew Marut (1979) PNGLR 181
Acting Public Prosecutor v John Airi (1981) SC214
The Public Prosecutor v Vangu'u Ame (1983) 424
Kesino Apo v The State [1988] PNGLR 182
Java Johnson Beraro v The State (1988–89) PNGLR 562
Rex Lialu v The State [1990] PNGLR 487
The State v Wallen Yamevi and Kem Dano (1990) N949
Ivoro Kaumin Lupu v The State, SCRA No.2 of 1997, Unreported & Unnumbered Judgment dated 13 June 1997
Manu Kovi v The State (2005) SC 789
The State v Amos Dickson (2011) N4539
The State v Grace Samuel Goi, CR No.238 of 2011, Unreported & Unnumbered Judgment delivered in Mt. Hagen on 21 October 2011
The State v Albert Tiki (2013) N5103, PGNC40

Overseas cases cited
R v Phillips (1985) 7 Cr App R (S) 235

Counsel
Joe Kesan for the State
Philip L. Kapi for the prisoner

SENTENCE

1. David J: A trial was conducted following the prisoner entering a plea of not guilty to a charge of murdering the deceased, Frank Wak at the Dobel Market, Mt. Hagen city on 21st April 2011 contrary to Section 300 (1)(a) of the Criminal Code. On 12th March 2013, I found the prisoner not guilty of murder, but found him guilty of manslaughter by criminal negligence pursuant to Section 539 (2) of the Criminal Code.
   
2. The prisoner appears before me for sentence from custody.
   
3. The short facts are that on 21st April 2011 at around 10:00 am and 11:00 am, the deceased and three other persons were in the vicinity of the Dobel Market outside Mt. Hagen city, but more particularly in the vicinity of the trade store operated by the prisoner telling stories. The deceased was sitting on a form with two others with their backs to the trade store while the fourth person was standing facing the store. The prisoner and his wife had an argument in the trade store. The prisoner's wife then ran out of the trade store and was pursued by the prisoner. One of the persons sitting with the deceased grabbed the prisoner to prevent him from assaulting his wife. The prisoner managed to pick up a brick-like object from the ground and hurled it intending to hit his wife. The scuffle between the prisoner and the other person caused the brick-like object to ricochet of the wall of the store and hit the deceased with his back to the wall at the posterior skull base (back of the base of the skull). The deceased was admitted to the Mt. Hagen General Hospital following the incident and died at the hospital on 25th April 2011. He was then aged about 43 years. The deceased died as a result of cardiac arrest due to severe subdural and intracranial bleeding from the posterior skull base fracture. Death was caused accidentally or unintentionally. The prisoner and the deceased are from Dobel village and are related. Full reasons for my verdict have been published: see The State v Albert Tiki (2013) N5103, PGNC40.
   
4. Following his conviction, the prosecution tendered the prisoner's antecedent report. The prisoner has no prior convictions.
   
5. On his allocutus, the prisoner said:
   
   • the deceased was not his enemy therefore he did not plan to kill him;
   • the killing was accidental and unintentional, his problem with his wife caused the incident;
   • the welfare of his family including the education of his children was now greatly affected with his incarceration;
   • Part compensation or belkol comprising K24,000.00 and eighteen pigs was paid to the deceased's immediate family soon after the incident;
   • He is willing to pay additional compensation in future through the coordination of the local Peace and Good Order Committee;
   • following the incident, the deceased's relatives destroyed his family property to the value of about K5,000.00 to K6,000.00;
   • sorry to God, the Court and the deceased's relatives and pleaded for mercy;
   • he suggested that he be placed on a good behavior bond or on probation.
     
6. Following the administering of the allocutus, the prisoner made application for a pre-sentence report and a means assessment report to be complied and filed by the Probation Service, Mt. Hagen and that hearing of submissions on sentence be deferred pending the compilation and filing of the reports. I granted the application without any objection raised by the prosecution. The pre-sentence report was filed on 21st March 2013 whilst the means assessment report was filed on 27th March 2013. I thank Ms. Lilly Songoa and Ms. Theresa Puk, Probation Officers for producing both reports.
   
7. The primary issue for consideration and determination is, what is the appropriate sentence for the prisoner?
   

8. The prisoner is aged about 29 years now. He is from Dobel village which is situated just outside the city of Mt. Hagen in the Western Highlands Province. Until the incident, he was residing at his village and operating a trade store and also engaged in cash crop and subsistence farming. He has never been employed the formal sector. He is married and has four children from the marriage. His marriage has been dogged with problems and the incident giving rise to his conviction is testament to that fact. His parents are alive. There are five siblings in the family, three brothers and two sisters. He is a baptized member of the Roman Catholic Church. He obtained Grade 8 formal education from the Mt. Hagen Secondary School. He voluntarily surrendered to the police in Mt. Hagen two days after the incident on 23 April 2011. He has been in custody since that time and that works out to be 2 years and 3 weeks. He is currently physically and mentally healthy and fit and has no prior adverse medical history.

9. I have considered the matters contained in the pre-sentence report. It is generally not favourable to the prisoner. It recommends that a custodial sentence should be imposed based on interviews conducted with relatives of the deceased and the prisoner and other persons of standing in the community including Mr. Fox Wimbra currently Chairman of the Balg Village Court and Senior Pastor Steven Yara of the Reform Lutheran Church who is the Chairman of the Peace & Good Order Committee for the sake of maintaining peace, harmony and normalcy within the community. The report reports that the deceased's relatives do not favour compensation to be paid to them although the prisoner's relatives are willing to do so.

10. I have also considered the means assessment report. Just like what was reported in the pre sentence report, the means assessment report also reports that; the prisoner's relatives paid belkol to the deceased's relatives comprising K24,000.00 cash and 18 pigs; and the deceased's relatives do not favour compensation to be paid to them although the prisoner's relatives are willing to do so. It also reports that the prisoner; has about K1,000.00 in an account he operates with the Microfinance Bank in Mt. Hagen; and he does not own any asset of value now because all his properties and assets were destroyed and burnt to ashes perpetrated by the deceased's relatives following the incident. The prisoner therefore does not have the means to pay compensation on his own without financial assistance from family members and other members of the community.

11. In mitigation, it was submitted by the prisoner through his counsel, Mr. Kapi that:

1. he is a first offender;
2. this was an accidental killing;
3. he expressed remorse;
4. he paid compensation comprising K24,000.00 and 18 pigs to the deceased's relatives;
5. no dangerous weapon was used;
6. there was no planning; and
7. he voluntarily surrendered to the police soon after the incident.
   

12. In aggravation, the prosecution submitted that:

1. the killing was committed by criminal negligence of the highest degree given the brick-like object was swung negligently by the prisoner within a market place and hit the deceased;
   
2. the deceased was a young businessman whose death brought upon his family a lot of suffering because they heavily depended on him and his business fell apart.
   

13. The factors which mitigate the offence are:

1. the prisoner is a first offender;
2. this was an accidental killing;
3. this was a killing of a relative or tribesmen;
4. the object used in the killing was not a lethal weapon per se although the manner in which it was used converted it to a dangerous weapon;
5. the prisoner through his relatives paid compensation comprising K24,000.00 and 18 pigs to the deceased's relatives;
6. there was no planning;
7. the prisoner voluntarily surrendered to the police soon after the incident;
8. welfare of prisoner's family including children; and
9. the prisoner lost property of substantial value through destruction caused by the deceased's relatives after the incident.
   

14. It was stated in Kesino Apo v The State [1988] PNGLR 182 that the traditional self-punitive aspects relating to the killing of a relative are matters which may be taken into account in mitigation of sentence.

15. As to the welfare of the prisoner's young children, the Supreme Court in The Public Prosecutor v Vangu'u Ame (1983) 424 has warned that the effect a custodial sentence might have on the welfare of the children of an offender must not be allowed to override the seriousness of an offence committed to escape punishment. In Ivoro Kaumin Lupu v The State, SCRA No.2 of 1997, Unreported & Unnumbered Judgment dated 13 June 1997, the Supreme Court dealt made these observations on the issue:

"Welfare of loved ones such as wives and children and parents have been raised by accused persons on numerous occasions both in the National Court and this Court as mitigating factors on sentence. Those are important factors which a person should bear in mind before he sets out to commit serious crimes such as murder or wilful murder using dangerous weapons against the victim as death of such person may lead to a long period of imprisonment if convicted. Welfare of wives, children and parents are becoming lame excuses and should be treated with caution."

16. Despite considering the welfare of the prisoner's family and his young children as a mitigating factor, I have treated the issue with caution.

17. The factors which aggravate the offence are:

1. the killing was committed by criminal negligence of the highest degree given the brick-like object was swung negligently by the prisoner within a market place and hit the deceased;
2. the deceased was a young businessman whose death brought upon his family a lot of suffering because they heavily depended on him and his business fell apart;
3. a trial was conducted to determine the prisoner's guilt;
4. he is a mature adult person who should have known better;
5. the offence of manslaughter was prevalent irrespective of whether they were committed by criminal negligence or not.
   

18. The defence submitted that a sentence be considered within category 1 of the range of sentences recommended by the Supreme Court for manslaughter convictions in Manu Kovi v The State (2005) SC 789.

19. I was also referred to and requested to be guided by my decision in The State v Grace Samuel Goi, CR No.238 of 2011, Unreported & Unnumbered Judgment delivered in Mt. Hagen on 21 October 2011 although not a case of manslaughter by criminal negligence in determining an appropriate sentence for the prisoner. There, I sentenced the prisoner to fourteen years imprisonment on a plea of guilty to one count of manslaughter of a female victim who had been stabbed on the right chest with a knife while in the company of two other persons causing instant death. A head sentence between 8 to 12 years was appropriate in the circumstances of this case Mr. Kapi said. Counsel however urged the Court to impose a short and sharp sentence.

20. Mr. Kesan of counsel for the prosecution submitted that manslaughter by criminal negligence was not covered by the Manu Kovi sentencing guidelines. In the absence of specific guidelines, he submitted that a sentence should be considered under categories 1 or 2 of the Manu Kovi sentencing guidelines. He suggested however that the facts of the present case warranted a sentence between 12 to 13 years to be imposed.

21. I refer to some comparable manslaughter sentences where conviction was by criminal negligence.

22. In R v Tsagaroan-Kagobo (1965-66) PNGLR 122, the prisoner threw a tick at his wife intending to hurt her, but it hit and killed their one month old child instead. The prisoner was placed on a good behaviour bond and to come up for sentence if called upon.

23. In The State v Mathew Marut (1979) PNGLR 181, the prisoner threw an empty coffee jar at his wife intending to hurt her, but it missed her and hit and killed their five month old son instead. The prisoner was sentenced to the rising of the Court having already spent one month in custody and had paid some compensation to his wife's family.

24. In Acting Public Prosecutor v John Airi (1981) SC214, the respondent who was aged fifteen years and eleven months and drunk at the time of the offence threw a stone at a passing PMV which struck a five year old male child on the neck on the truck which lacerated the child's jugular vein and caused his death. The respondent pleaded guilty to a charge of manslaughter and was sentenced to two years imprisonment with light labour which was partly suspended on terms. The appellant appealed the sentence imposed, but was dismissed.

25. In Java Johnson Beraro v The State (1988–89) PNGLR 562, the appellant who lived in Gerehu Stage 5 took a gun and went to shoot something for dinner at the Gerehu Stage 5 end of the Waigani swamp. The area is accessible by road. The area was frequented by the public including children to shoot, fish, collect firewood, for exercise and other purposes. The appellant saw some birds and fired several shots at them. The deceased who was near his bandicoot trap at the time was hit and killed. The incident happened after 06:00 pm when the light was less than perfect. The appellant was convicted after a trial of wilful murder and sentenced to 18 years imprisonment with hard labour labour. On appeal against conviction and sentence after a trial, the conviction for wilful murder was quashed, the Supreme Court holding that the appellant was guilty of the high degree of negligence and substituted with a verdict of manslaughter. The original sentence was quashed and substituted with a sentence almost equivalent to four months imprisonment taking into account the period of two years, seven months and three weeks already served and one-third remission of sentence for good behavior.

26. In The State v Amos Dickson (2011) N4539, the prisoner was convicted for manslaughter following a trial on a charge of wilful murder. The short facts of the case were that the prisoner had an argument with his father and got out his home made gun from its hiding place. He loaded the gun with a live cartridge, cocked it to the firing position and walked towards his father intending to scare him. He accidentally touched the trigger and the gun went off fatally shooting his father. A sentence of eighteen years was imposed.

27. Section 302 of the Criminal Code creates the offence of unlawful killing or manslaughter and prescribes the penalty for the offence. The maximum penalty is life imprisonment subject to the Court's discretion to impose a lesser determinative term under the various options available to the Court under Section 19 of the Code.

28. The sentencing guidelines for manslaughter convictions whether they are entered on a plea or after a trial are set out in Manu Kovi.

29. I would concur with the prosecution submission that the sentencing guidelines in Manu Kovi do not specifically cover manslaughter by criminal negligence. For the present purposes however, I would consider a sentence within the range of sentences recommended in category 1 of the Manu Kovi sentencing guidelines as the circumstances of death demonstrate that there was no preparation by the prisoner to kill the deceased by a brick-like object or at all.

30. In the present case, mitigating factors significantly outnumber those in aggravation.

31. I am required to have careful regard to the circumstances of death and the way death was caused in considering an appropriate sentence for the prisoner which I have: see R v Phillips (1985) 7 Cr App R (S) 235, Rex Lialu v The State [1990] PNGLR 487.

32. It is settled law in this jurisdiction that the maximum penalty is reserved for crimes of the worst kind for the particular offence under consideration.

33. It is also settled law in this jurisdiction that each case must decided on its own facts.

34. In my respectful view, the circumstances in which the killing occurred in the present case are less serious than those in Java Johnson Beraro v The State and State v Amos Dickson because guns were involved there.

35. The cases of R v Tsagaroan-Kagobo, The State v Mathew Marut and Acting Public Prosecutor v John Airi involve killings of victims by objects hurled by the offenders without interference. The present case can be distinguished from those cases because there was some intervention of the flight of the brick-like object through a third party's involvement in a scuffle with the prisoner. The sentences imposed in those cases are also generally not comparable with the kind of sentences imposed by the courts now for manslaughter cases.

36. The degree of criminal negligence of the prisoner in the present case was high such that a conviction for manslaughter was returned. I found that the prisoner acted with such a reckless disregard for the lives and safety of those near him.

37. I will be further guided by a statement of Brunton, J in The State v Wallen Yamevi and Kem Dano (1990) N949 which I find useful for these purposes where His Honour said:

"A killing that did not have deliberation, planning, cruelty, but rather had an element of the incidental, accident, stupidity, or negligence, a somewhat lower, increment would be justified."

38. I consider that the prisoner has made out a case for his sentence to be fixed in the lower range of the tariff recommended under category 1 of the Manu Kovi sentencing guidelines.

39. In all the circumstances of the present case, I consider that a head sentence of eight years to be served in custody in hard labour is most appropriate for purposes of specific and general deterrence. From the head sentence, I will deduct 2 years and 3 weeks for time spent by the prisoner in pre-trial confinement leaving 5 years, 11 months and 1 week to serve (the remaining term). The prisoner will serve the remaining term at the Baisu Correctional Institution subject to any remission of sentence for good conduct whilst incarcerated.

40. A warrant of commitment shall issue forthwith to execute the sentence.

Sentence accordingly.

____________________________________________________

Pondros Kaluwin, Public Prosecutor : Lawyer for the State
Fraser Pitpit, Public Solicitor : Lawyer for the prisoner