State v Poiye [2014] PGNC 343; N5790 (23 August 2014)

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CRIMINAL LAW – sentence – guilty plea – manslaughter – Criminal Code, Section 302 – offender killed an innocent and un-armed woman by cutting her with a bushknife

The offender pleaded guilty to the manslaughter of a woman, his sister-in-law. He was angry with his wife and took out his frustration on her sister who he met on the road. The deceased was innocent and un-armed. This is the judgment on sentence.

Manu Kovi v The State (2005) SC789
Saperus Yalibakut v The State (2006) SC890
The State v Daniel Ronald Walus (2005) N2802

1. CANNINGS J: This is a decision on sentence for a man who pleaded guilty to manslaughter. The offence was committed on 30 December 2012 at Navo in the Bialla area of West New Britain Province. Prior to that date the offender and his wife, Filma Nikuniku, had separated. The offender was living and working at Lihir, while his wife was living and working at Navo. Filma Nikuniku's sister, Emmie, was living with her. On 29 December 2012 the offender returned from Lihir. He soon found out that he was not welcome by his wife and this made him angry and frustrated. On the morning of 30 December 2012 he met Emmie on the road. They talked and she told him that Filma did not want him back. This made him more angry and he used a bushknife to cut Emmie Nikuniku on the head and shoulder. She fell and died and he carried her to a cliff and pushed her body off over the cliff. He has been convicted of manslaughter under Section 302 of the Criminal Code as he killed a person without any lawful justification or excuse.

It is true that I committed this offence. I say sorry to the court and to the Nikuniku family. I admitted everything to the Police. Please give me a sentence that is not too crushing.

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). He made admissions and a confessional statement when interviewed by the Police within a week after the crime was committed.

5. The court was presented with a report prepared by the Kimbe office of the Community Based Corrections Service. The offender is aged 23. He is from Simbu Province. He is a graduate of Moramora Technical College. He has electrical trade qualifications. He was employed by Lihir Gold when he committed the offence.

6. Mr Kari submitted that a sentence in the range of 13 to 16 years would be appropriate. He submitted that this is in line with category 2 of the Kovi guidelines on sentencing (Manu Kovi v The State (2005) SC789).

7. Mr Popeu took issue with the categorisation of the case under the Kovi guidelines. This was a particularly serious incident. He submitted that a sentence of life imprisonment is warranted, otherwise 20 to 25 years.

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

9. The maximum penalty is life imprisonment. The court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code.

10. 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.

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

11. I uphold Mr Popeu's submission that this is a category 3 case: a dangerous and offensive weapon used, it was a vicious planned attack on an innocent and unarmed person, and there was no regard for sanctity of human life.

12. It is unusual that this is a manslaughter case. The offender should have been indicted for murder, at least. That there was an intention to do grievous bodily harm is inescapable. It is a very bad case; the only real equivalent is The State v Daniel Ronald Walus (2005) N2802 where a savage attack resulting in the death of an innocent woman led, on a guilty plea, to a sentence of 17 years imprisonment.

13. In weighing all these factors I consider that though there are mitigating factors they are heavily outweighed by the aggravating factors. I impose a sentence of 22 years imprisonment.

14. 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, seven months, three weeks, one day.

15. No. There is no justification for a suspended sentence. This was a wicked crime. A lengthy jail term is the only just outcome.

16. Peter Poiye, having been convicted of one count of manslaughter contrary to Section 302 of the Criminal Code, is sentenced as follows:

Length of sentence imposed	22 years
Pre-sentence period to be deducted	1 year, 7 months, 3 weeks, 1 day
Resultant length of sentence to be served	20 years, 4 months, 6 days
Amount of sentence suspended	Nil
Time to be served in custody	20 years, 4 months, 6 days
Place of custody	Lakiemata Correctional Institution

Sentenced accordingly.
_____________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender

National Court of Papua New Guinea

State v Poiye [2014] PGNC 343; N5790 (23 August 2014)