State v Joel [2014] PGNC 169; N5797 (23 August 2014)

N5797

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 97 OF 2014

THE STATE

V

BILLY JOEL

Kimbe: Cannings J
2014: 11, 22, 23 August

CRIMINAL LAW – sentence – manslaughter – Criminal Code, Section 302 – guilty plea – offender killed a man – stabbed him with a knife

The offender pleaded guilty to the manslaughter of a man. He tried to intervene, to stop a fight, and in the process of doing so, stabbed the deceased in the chest with a knife. The deceased collapsed and died soon afterwards. This is the judgment on sentence.

Held:

(1) The maximum penalty for manslaughter is life imprisonment. The starting point for sentencing for this sort of killing (use of offensive weapon) is 13 to 16 years imprisonment (Manu Kovi v The State (2005) SC789 guidelines applied).

(2) Mitigating factors: he cooperated with the Police; he made early admissions; he pleaded guilty; he has expressed remorse; he is a first-time offender.

(3) Aggravating factors: use of offensive weapon.

(4) A sentence of 12 years imprisonment was imposed. The pre-sentence period in custody was deducted and no part of the sentence was suspended.

Cases cited

The following cases are cited in the judgment:

Ignatius Pomaloh v The State (2006) SC834
Manu Kovi v The State (2005) SC789
Saperus Yalibakut v The State (2006) SC890
The State v Vincent Matana Laore and 3 Others (2008) N5466

SENTENCE

This was a judgment on sentence for manslaughter.

Counsel

F K Popeu, for the State
D Kari, for the offender

23rd August, 2014

1. CANNINGS J: Billy Joel has pleaded guilty to manslaughter and has been convicted of that offence under Section 302 of the Criminal Code. The offence was committed on 15 August 2013 at Kimbe Lodge. The deceased, Junior Peter Kamara, had been drinking all night and at 10.30 pm asked his brother Cedric to borrow his boom box. Cedric refused and an argument was about to start between the two. The offender Billy Joel tried to intervene, to stop the fight, and in the process of doing so, he stabbed the deceased in the chest with a knife. The deceased collapsed and died soon afterwards.

ANTECEDENTS

2. The offender has no prior convictions.

ALLOCUTUS

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

It is true that I committed this offence but it was not meant to happen this way. I had no intention of killing the deceased. Please be lenient with me and give me a non-custodial sentence.

OTHER MATTERS OF FACT

4. As the offender has pleaded guilty he will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State (2006) SC890). I will take into account that he made admissions and a confessional statement to Police when interviewed on 23 August 2013.

PRE-SENTENCE REPORT

5. The court was presented with a report prepared by the Kimbe office of the Community Based Corrections Service. The offender is 27 years old, from Matalau East New Britain. He is married happily with children. He is the second born from his father's first marriage. His father is a sign-writer, who lives at the Kimbe Lodge precinct, and strongly supports his son. The victim's family gave their views through the deceased's mother: her son was a qualified aircraft engineer, she is still grieving her loss and originally asked for K100,000.00 compensation but brought it down to K50,000.00.

SUBMISSIONS BY DEFENCE COUNSEL

6. Mr Kari submitted that a sentence of 13 years would be appropriate and that a partial suspension is warranted.

SUBMISSIONS BY THE STATE

7. Mr Popeu did not take issue with the defence counsel's submissions.

DECISION MAKING PROCESS

8. 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 equivalent offences?
• step 4: what is the head sentence?
• 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?

9. Section 302 (manslaughter) of the Criminal Code states:

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

Penalty: Subject to Section 19, imprisonment for life.

10. The maximum penalty is therefore 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?

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

SENTENCING GUIDELINES FOR MANSLAUGHTER: KOVI'S CASE

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

12. I agree with counsel that this is a category 2 case and therefore the starting point is 13 to 16 years imprisonment.

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

13. A 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?

14. Mitigating factors are:

• he cooperated with the Police;
• made early admissions;
• he pleaded guilty;
• he has expressed remorse;
• he is a first-time offender.
  

15. Aggravating factors are:

• use of offensive weapon.
  

16. In weighing all these factors I consider that though there are more mitigating factors it was nonetheless a very serious case. I impose a sentence of 12 years imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED?

17. Yes. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment the whole of the pre-sentence period in custody, which is one year, three months.

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

18. No. The attitude of deceased's family is still to impose a compensation demand, which is too much and is unrealistic.

SENTENCE

19. Billy Joel, having been convicted of one count of manslaughter contrary to Section 302 of the Criminal Code, is sentenced as follows:

Length of sentence imposed	12 years
Pre-sentence period to be deducted	1 year, 3 months
Resultant length of sentence to be served	10 years, 9 months
Amount of sentence suspended	Nil
Time to be served in custody	10 years, 9 months
Place of custody	Lakiemata Correctional Institution

Sentenced accordingly.
______________________________________________________

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender