State v Tommy [2014] PGNC 103; N5647 (25 June 2014)

N5647

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 296 OF 2012

THE STATE

V

SAPIK TOMMY

Madang: Cannings J
2014: 4, 12, 25 June

CRIMINAL LAW – sentencing – manslaughter, Criminal Code, Section 302 – sentence after trial – offender killed another man during course of a drunken, group fight – struck the deceased on his head with piece of timber.

The offender was convicted after trial of the manslaughter of another man in the course of a drunken fight between two groups of men in a village setting. The offender killed the deceased by striking him on the head with a piece of timber.

Held:

(1) The starting point for sentencing for this sort of killing (use of offensive weapon on vulnerable part of body) is 13 to 16 years imprisonment.

(2) Mitigating factors: death was inflicted by a single blow, at the instant that the blow was inflicted the offender was acting alone, it was not a pre-meditated attack, there was an element of de facto provocation, the offender cooperated with the Police and the Courts, no prior convictions, expression of remorse, good family and community record.

(3) Aggravating factors: there was no intervening cause of death, use of offensive weapon (the timber), no evidence of active reconciliation with the deceased's relatives.

(4) A sentence of 14 years imprisonment was imposed. The pre-sentence period in custody was deducted and three years of the sentence was suspended due to a good pre-sentence report showing that the offender has a good family and community record and that the offence was committed out of character.

Cases cited

The following cases are cited in the judgment:

Ignatius Pomaloh v The State (2006) SC834
Manu Kovi v The State (2005) SC789
The State v Melchior Kapus, Essau Kapus & Derick Kapus (2010) N4114
The State v Sapik Tommy & Fidel Nami (2014) N5575
The State v Vincent Matana Laore and 3 Others (2008) N5466

SENTENCE

This was a judgment on sentence for manslaughter.

Counsel

M Pil, for the State
B W Meten, for the offender

25th June, 2014

1. CANNINGS J: The offender, Sapik Tommy, was convicted after a trial of the manslaughter of a 34-year-old man, Alfred Murusin, at Bahor village, near Madang town on Friday 5 November 2010. He is now before the court to be sentenced.

2. The offender struck the deceased on the head with a piece of timber after chasing him into a dark area of the village following a drunken fight between two groups of men. Both groups had been involved in separate drinking sessions in the village in the hours leading up to the fight, which occurred between 8.00 and 9.00 pm. The deceased had been actively involved in the fight and was himself chasing a member of the other group when he was chased and struck by the offender. The deceased collapsed when he was struck with the timber but was able to get up and walk with the assistance of others to a relative's house. He lay under the house, obviously unwell, and was later that night taken to Modilon General Hospital where he died the next day from the blow to the head inflicted by the offender.

2. The offender was indicted, with three other accused, on a charge of murder. The State presented no evidence against two of them and they were acquitted. The trial proceeded against the offender and one other who was acquitted. The offender was found not guilty of murder due to the inability of the State to prove beyond reasonable doubt that he intended to do grievous bodily harm, but guilty of manslaughter due to the offender's killing of the deceased being unlawful (The State v Sapik Tommy & Fidel Nami (2014) N5575).

ANTECEDENTS

4. The offender has no prior convictions.

ALLOCUTUS

5. The offender was given the opportunity to address the court. He said:

I apologise to the deceased, who was a father to me, and to his dear wife and their children and other family members for my involvement in this incident. I apologise to the Court and to the Judge and the State lawyers and defence counsel and the officers of the Court who have been dealing with my case for four years. Furthermore I extend my utmost apology to my family and relatives and my wife and children for lowering the name of the entire family. I ask the Court for forgiveness and mercy so that I can be granted a pardon and put on probation.

PRE-SENTENCE REPORT

6. Sapik Tommy is 26 years old and is married with two children. He has always lived at Bahor village. He runs a trade store in the village and he and his wife earn extra income from the sale of cooked food and other items at the local market at Four Mile. His parents are alive and they live in the same part of the village. He has four sisters and two brothers and he is the second-born. He is strongly supported by his wife who is concerned about the welfare of their children if the offender is given a prison term. She is presently six-months pregnant. His parents also strongly support him. His wife and his parents still do not believe that it was the offender who killed the deceased.

7. The offender completed grade 9 at Good Shepherd Lutheran High School. He has no major health problems, though he has been experiencing heartburn since his conviction and being remanded in custody pending sentence. He has a good reputation in the village. He has no record of aggressive behaviour. Councillor Braro Riri regards him as a humble person with no enemies and someone who is a friend to all in the village, who relates particularly well to children. The offender is an active member of the Lutheran Church. Pastor Brodi Baro speaks highly of him. He is a Sunday School teacher, highly regarded, a good youth leader and church musician, a quiet and humble person, never known to be a troublemaker. The Pastor is willing to supervise and counsel him if he is given a non-custodial sentence.

SUBMISSIONS BY DEFENCE COUNSEL

8. Mr Meten submitted that the case fell within the second category of the guidelines given by the Supreme Court in the case of Manu Kovi v The State (2005) SC789. Because of the mitigating factors a head sentence of no more than 12 or 13 years imprisonment should be imposed, a substantial proportion (7 to 10 years) of which should be suspended because of the strong pre-sentence report. He should be given a second chance as he comes from a good family and he is happily married with two young children who do not deserve to be deprived of their father and whose education and well being will be adversely affected if the offender is to spend a long term in gaol.

SUBMISSIONS BY THE STATE

9. Mr Pil agreed that this is a category 2 case according to the Kovi guidelines. He compared this case with The State v Melchior Kapus, Essau Kapus & Derick Kapus (2010) N4114, in which three brothers were sentenced to 13 years each for the manslaughter of a 52-year-old man who they jointly fought with following a neighbourhood dispute. Mr Pil submitted that this was not as serious a case as Kapus, so a sentence of 10 to 12 years would be sufficient. He did not oppose the idea of a partial suspension of the sentence.

DECISION MAKING PROCESS

10. To determine the appropriate penalty I will adopt the following decision making process:

• step 1: what is the maximum penalty?
• step 2: what is a proper starting point?
• step 3: what sentences have been imposed for similar offences?
• step 4: what should the head sentence be?
• step 5: should the pre-sentence period in custody be deducted?
• step 6: should all or part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

11. The maximum penalty for manslaughter under Section 302 of the Criminal Code is life imprisonment. The Court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code.

STEP 2: WHAT IS A PROPER STARTING POINT?

12. In Manu Kovi v The State (2005) SC789 the Supreme Court suggested that manslaughter cases could be put in four categories of increasing seriousness, as shown in the following table.

SENTENCING GUIDELINES FOR MANSLAUGHTER

No	Description	Details	Tariff
1	Plea – ordinary cases – mitigating factors – no aggravating factors.	No weapons used – offender emotionally under stress – de facto provocation – killing in domestic setting – killing follows straight after argument – minimal force used – victim had pre-existing disease that caused or accelerated death, eg enlarged spleen cases.	8-12 years
2	Trial or plea – mitigating factors with aggravating factors.	Use of offensive weapon, eg knife, on vulnerable parts of body – vicious attack – multiple injuries – some deliberate intention to harm – some pre-planning.	13-16 years
3	Trial or plea – special aggravating factors – mitigating factors reduced in weight or rendered insignificant by gravity of offence.	Dangerous or offensive weapon used, eg gun, axe – vicious and planned attack – deliberate intention to harm – little or no regard for sanctity of human life.	17-25 years
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.	Some element of viciousness and brutality – some pre-planning and pre-meditation – killing of harmless, innocent person – complete disregard for human life.	Life imprisonment

13. I agree with counsel that this is a category 2 case. The absence of a guilty plea and use of what in effect was an offensive weapon (the piece of timber) on a vulnerable part of the body (the head) mean that this cannot be a category 1 case. The absence of premeditation or planning prevents it from falling within categories 3 or 4. The starting point is 13 to 16 years imprisonment.

STEP 3: WHAT SENTENCES HAVE BEEN IMPOSED FOR SIMILAR OFFENCES?

14. I agree with Mr Pil that Kapus, in which three brothers each received sentences of 13 years imprisonment, provides a useful benchmark. However, it must be borne in mind that two of the offenders were juveniles and they were the two that had a greater level of involvement in the offence than their elder brother.

15. Another useful point of comparison is the West New Britain case of The State v Vincent Matana Laore and 3 Others (2008) N5466. Four men were convicted of manslaughter after a trial in which they and eight others had been charged with wilful murder. It was a group fight, the deceased was a relative who was directly killed with a lethal weapon (bushknife) by one of the offenders and indirectly killed by the others. I took into account the different degrees of involvement of the offenders in accordance with the Supreme Court decision in Ignatius Pomaloh v The State (2006) SC834 and imposed a sentence of 15 years on the principal offender and 12 years each on the other three.

STEP 4: WHAT IS THE HEAD SENTENCE?
16. To determine the head sentence I will focus on the starting point range of 13 to 16 years and assess the mitigating and aggravating factors. The more mitigating factors there are, the more likely the head sentence will be at the bottom of or below the starting point range. The more aggravating factors present, the more likely the head sentence will be at the top of or above the starting point range. It is not, however, only the number of mitigating and aggravating factors that determines the head sentence. The strength or weight to be attached to each of those factors is more important.

17. Mitigating factors:

• death was inflicted by a single blow,
• at the instant that the blow was inflicted the offender was acting alone,
• it was not a pre-meditated attack,
• there was an element of de facto provocation,
• the offender cooperated with the Police and the Courts,
• no prior convictions,
• expression of remorse,
• good family and community record.
  

18. Aggravating factors:

• there was no intervening cause of death,
• use of offensive weapon (the timber),
• no evidence of active reconciliation with the deceased's relatives.
  

19. There are more mitigating factors than aggravating factors. However, the sentence must reflect the fact that the matter was taken to trial and that the 'discount' on the sentence that would have applied if the offender had pleaded guilty is not available. Comparing this case with the facts in Laore and Kapus, the appropriate sentence is 14 years imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

20. Yes. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the head sentence, the whole of the pre-sentence period in custody, which is 5 months, 2 weeks, 5 days.

STEP 6: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

21. The offender has a very good pre-sentence report, showing that the offence was committed out of character and that he has a good community record and is strongly supported by his family. He also has a good record of co-operating with the police and the courts.

22. I will suspend three years of the sentence on strict conditions. There is insufficient justification for suspending any more than that. If there had been real and active progress towards reconciliation with the deceased's relatives or clear evidence of customary resolution of all problems created by the death, there would be a case for considering a greater length of suspension. However, there is no evidence of that. The following probation conditions will apply:

1. must appear before the National Court within one month before the due date of release from custody, to be reminded of probation conditions;
   
2. must within seven days after release from custody report to Probation Office in Madang;
   
3. must reside at a place to be nominated by the National Court and nowhere else except with the written approval of the National Court;
   
4. must not leave Madang Province without the written approval of the National Court;
   
5. must perform at least six hours unpaid community work in accordance with a program approved by the National Court;
   
6. must attend Church every Sunday for service and worship and assist the church in its community activities under the supervision of the Parish Pastor;
   
7. must not consume alcohol or drugs;
   
8. must keep the peace and be of good behaviour;
   
9. must have a satisfactory probation report submitted to the National Court Registry at Madang every six months after the date of release from custody;
   
10. if the offender breaches any one or more of the above conditions, he shall be brought before the National Court to show cause why he should not be re-detained in custody to serve the rest of the sentence.
    

SENTENCE

23. Sapik Tommy, having been convicted of one count of manslaughter under Section 302 of the Criminal Code, is sentenced as follows:

Length of sentence imposed	14 years
Pre-sentence period to be deducted	5 months, 2 weeks, 5 days
Resultant length of sentence to be served	13 years, 6 months, 1 week, 2 days
Amount of sentence suspended	3 years, subject to conditions
Time to be served in custody	10 years, 6 months, 1 week, 2 days
Place of custody	Beon Correctional Institution

Sentenced accordingly.
___________________________________________________________
Public Prosecutor: Lawyer for the State
Meten Lawyers: Lawyers for the offender