State v Namah (No.2) [2015] PGNC 64; N5997 (18 June 2015)

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CRIMINAL LAW – Sentence - Victim shot with a 9 mm calibre pistol on his thigh – The bullet penetrated his muscles and severed his right femoral artery and veins – Deceased died as a result - Section 302 Criminal Code Act-Manslaughter.

CRIMINAL LAW – Sentence – Aggravating factors outweigh mitigating factors – contested case – Duty of care and responsibility high for persons in higher echelons of society – Care and control of high powered firearms paramount - the shooting was vicious - a deliberate intention to harm and little or no regard for the safety of human life - Section 302 Criminal Code Act.

CRIMINAL LAW – Registrar of Firearms ordered to immediately revoke prisoner’s firearm and permit pursuant to Section 12 (1) and (2) Firearms Act – prisoner barred for life from owning or applying for a new license.

Goli Golu v The State [1979] PNGLR 653
John Elipa Kalabus –v- The State [1988] PNGLR 193
Manu Kovi v The State (2005) N 789
Paulus Pawa v The State [1981] PNGLR 498
State v Taulaola Pakai (2010) N4215
The State v Lucas Yovura (2003) N2366
Thress Kumbamong v The State (2008) SC 1017

1. GEITA J: The prisoner has been found guilty after trial for manslaughter pursuant to Section 302 (1) (a) of the The Criminal Code Act. The offence attracts a maximum penalty of life imprisonment however courts may impose lower sentences pursuant to Section 19 of the Criminal Code.

2. The brief facts as found during trial for purposes of completeness and conviction on 10 June 2015 are these. That on 22 September 2012 between 7pm - 8pm the prisoner shot Abraham Nok on his right thigh with his 9 millimetre calibre pistol. The deceased had accompanied a friend to the accused house at Waramon Oil Palm Base Camp to enquire about his friend's wife when he was shot. He was rushed to Vanimo General Hospital and received emergency medical treatment. On 24th September 2012 he suffered an epileptic fit around 6pm and eventually died one hour later around 7 pm that evening.

4. Upon administering the allocutus pursuant to section 593 of the Criminal Code, the prisoner said this was his first time in court and he was sorry to the deceased's family for what had happened. He said the crime was accidental and pleaded for leniency from the court. He is married with four children and now worried for their welfare. Furthermore he said he has ongoing agricultural projects on his land and asked for non custodial sentence in order to attend to his projects including taking care of the welfare of the deceased's children.

7. The prisoner is aged 40 years and comes from a family of three brothers and a sister. He is married with four children attending primary education. He attained grade 10 education and later attained a certificate in book-keeping at PNGIPA. He is self employed and has the means to pay additional compensation over and above the initial K10, 000.00 paid as "belkol" to the victim's family. His family members stand ready to pay compensation if ordered by court. He appears to be in good health save for the accidental gunshot wound with a bullet still wedged in his left thigh. His future plans are to continue working on his business and continue to look after his children. He plans to negotiate with the deceased's relatives on their demand for a K250, 000.00 compensation.

8. Councillor Tom Sepi and SDA Church Pastor Samuel Mah spoke very highly of you as God fearing and an active leader in your church. Both leaders attributed the killing to sorcery and land dispute related. They called for a non custodial sentence with Probation to allow you to pursue outstanding land disputes and also help with church activities. The deceased's wife's concern was for the continued maintenance of their children aged 3 to 6 years and urged that the prisoner be allowed a non custodial sentence to continue paying maintenance. The deceased's father in- law Peter Wanai also agreed with her daughter's views. The Prisoner's cousin Issac Wani supported Pastor Samuel and Councillor Tom's views that the death was sorcery related which was common in the inland Bewani and Imonda areas and called for a non custodial sentence. The prisoner's attitude to this crime was also attributed to sorcery. Put simply all the persons interviewed share his belief in sorcery and were supportive of him. The prisoner is well regarded in his community and the SDA Church, not to mention that his family is equally held in very high regard by the local people.

9. The Probation Office recommended your suitability for part probation sentence with conditions to be supervised by the two community leaders who have willingly volunteered to do this job. The Officer was of the view that you were not a danger to the community.

10. In her brief oral submissions Defence Lawyer Ms. Yayabu conceded that the crime was serious however invited court to also look into other sentencing options available to it. She submitted that sentencing tariffs for homicide case were available in Manu Kovi v The State (2005) N 789 however strenuously submitted that the courts powers to go outside of the guidelines set in Manu Kovi were not curtailed. The case of Thress Kumbamong v The State (2008) SC 1017 was referred to the court as a case in point however acknowledged that the facts differed to the case now before me to which I agree. Ms Yayabu submitted for a Section 19 Criminal Code consideration and asked that the prisoner be released on a non custodial sentence of Probation with conditions.

11. The State Prosecutor Mr. Emmanuel Thomas submitted that the upper range of category 3 sentencing tariff in Manu Kovi case (supra) of between 17 years to 25 years be considered in light of the seriousness and gravity of the murder. He advanced that the case was contested and the prisoner found guilty, resulting in huge costs in time and resources of the State consumed. He said the assault was unprovoked in which a dangerous weapon, a gun was used resulting in death. Mr Thomas conceded that compensation was paid and the prisoner was willing to pay an additional K5000. Mr Thomas submitted that the prisoner was held in high regard and was God – fearing however advanced that that high calling comes with it a high level of responsibility. The State strenuously submitted for a deterrence sentence as an example to deter others from committing such similar crimes. Furthermore Mr Thomas submitted that persons in the prisoner's standing ought to lead by example and follow proper procedures in resolving their disputes. He said a suspended sentence called for by Defence was not appropriate under the circumstances.

12. Both counsels have correctly pointed the often quoted case of Manu Kovi and the sentencing tariffs contained therein on homicide cases. Ms Yayabu has also referred me to another Supreme Court case of Thress Kumbamong v The State (2008) SC 1017. That Supreme Court decision however departed from the fixed sentencing tariffs in Manu Kovi. The 2008 Supreme Court was of the view that the proscribed minimum and maximum sentences restricted the discretionary sentencing powers of trial judges. With the greatest of respect I too, hold the view that trial judges discretionary powers in sentencing should be jealously guarded and not curtailed, save for Parliamentary intervention. However notwithstanding Thress Kumbamong case (supra) I will hold myself to be guided by the sentencing tariffs in Manu Kovi this time around. I set out here under the tariffs for ease of reference.

CATEGORY	WILFUL MURDER	MURDER	MANSLAUGHTER
CATEGORY 1	-15 – 20years	-12 – 15 years	-8 – 12 years
Plea. -Ordinary cases. -Mitigating factors with no aggravating factors.	-No weapons used. -Little or no pre-meditation or pre-planning. -Minimum force used. -Absence of strong intent to kill.	-No weapons used. -Little or no pre-planning. -Minimum force used. -Absence of strong intent to do GBH.	-No weapon used. -Victim emotional under stress and de facto provocation e.g. killings in domestic setting. -Killing follows immediately after argument. -Little or no preparation. - Minimal force used. -Victim with pre-existing diseases which caused or accelerated death e.g. enlarged spleen cases.
CATEGORY 2	-20 – 30 years-	-16 – 20 years	-13 – 16 years
Trial or Plea. -Mitigating factors with aggravating factors.	-Pre-planned. Vicious attack. - Weapons used. -Strong desire to kill.	-No strong intent to do GBH. -Weapons used. -Some pre-planning -Some element of viciousness.	-Using offensive weapon, such as knife on vulnerable parts of body. -Vicious attack. -Multiple injuries. -Some deliberate intention to harm. -Pre-planning.
CATEGORY 3	-Life Imprisonment-	- 20 – 30 years-	-17 – 25 years
Trial or plea -Special Aggravating factors. -Mitigating factors reduced in weight or rendered insignificant by gravity of offence.	-Brutal killing. Killing in cold blood -Killing of innocent, defenceless or harmless person. -Dangerous or offensive weapons used. -Killing accompanied by other serious offence. Victim young or old. -Pre-planned and pre-meditated. -Strong desire to kill.	-Pre-planned. Vicious attack. -Strong desire to do GBH. -Dangerous or offensive weapons used e.g. gun or axe. -Other offences of violence committed.	-Dangerous weapons used e.g. gun or axe. -Vicious and planned attack. -Deliberate intention to harm. -Little or no regard for safety of human life.

14. Now considering whether the offence committed by the prisoner was of the worst type and whether the court should impose the maximum prescribed sentence i.e. life imprisonment. To this end I remind myself that the maximum prescribed sentence are best left for the worst types of cases. (Goli Golu v The State [1979] PNGLR 653 and John Kalabus 1988 PNGLR 193). Although I agree with the State submission that this act of manslaughter was uncalled for, I do not consider this murder any more vicious, callous and or gruesome under the circumstances it was carried out. I will not impose the maximum sentence of life imprisonment.

15. Secondly, what than should the appropriate sentence be in this case. Having had the benefit of oral submissions from both lawyers on all relevant issues including the mitigation and aggravating circumstances for and against the prisoner, I find that the aggravating factors far outweigh his mitigating factors. I hold the view that the few mitigating factor favourable to you must be the huge amount of compensation paid in cash and kind, that you are a first time offender and you co-operated with police throughout.

16. Thirdly your pleas for your family's welfare and business concerns are noted however they now fall insignificant to the gravity of this offence. The Court's liberal views on family concerns and welfare with regards to one's plea in mitigation have changed over time. Far too often such excuses have been used to avoid what is a just and fair punishment on an offender. Your case is no different in my view. In the case of The State v Lucas Yovura (2003) N2366 Kandakasi J had these to say:

"..., it is a little too late to talk about an offender's personal background including the needs of his family concerns once he is proven guilty according to law. His background and concerns should have little or no weight against the need to impose a sentence or punishment that best befits an offence he has committed in the particular circumstances in which the offence was committed."

17. The similar sentiments were expressed by Hartshorn J in the case of the State v Taulaola Pakai (2010) N4215:

"An offender should consider his family obligations and commitments first before he goes out and commits an offence. A plea for leniency to avoid the suffering of one's family should have little or no weight when an appropriate sentence is being considered."

18. I too share the same views in the two judgments and will adopt and apply the sentiments in this case as they bear a resemblance in your pleas for leniency.

19. In this case the prisoner's family has paid more than K10, 000.00 in cash and kind as compensation. A near new Toyota motor vehicle forming part of the compensation payment was also handed over to the victim's family members. This vehicle has since been repossessed. One questions the genuineness and sincerity of his remorse at all fronts? May I add here that an order for compensation is an additional form of punishment allowed by the Criminal Law (Compensation) Act 1991? Certainly the compensation paid already exceeds the maximum, K5, 000.00 allowed by the Act: nonetheless the seriousness of the crime, which in my view will not compensate the loss of a life hence it, is of little consequence because it will not affect the punishment in any substantial way. I have however considered the huge compensation paid to the relatives of the deceased. That has reduced the sentence I would have otherwise imposed had such compensation not been paid. The payment of compensation cannot exonerate the prisoner; it can only mitigate his sentence.

20. Might I add here that persons who are holders of firearms of any kind owe it to the general public to use those weapons of killing with great care and responsibility. Failure of which often results in those firearms together with the permits being revoked from them by the Firearms Registry of the Police Department. You now find yourself in such a situation hence orders will be made to have your firearm and permit revoked and forfeited to the State at the rising of this court in the exercise of my inherent jurisdiction. The Registrar of Firearms shall be directed to ensure compliance of my Orders pursuant to section 12 (1) (2) of the Firearms Act Chapter 310.

21. At this juncture, I am compelled to make some observations in the conduct of both counsels in this matter. The two Offices that you represent i.e. The Office of The Public Prosecutor and the Office of The Public Solicitor were mandated by The Constitution to uphold the rule of law in their respective responsibilities. Your primary responsibility is towards your clients and they must be given the best possible advice, be they savoury or unsavoury. The worst thing that can happen to your client is to deliberately withhold such crucial information and or advice from them. Furthermore you are Officers of the National and Supreme Courts of Papua New Guinea and duty bound to assist the court in arriving at the best possible outcomes in its decision making process. It follows that Courts must be assisted throughout the criminal justice process, failure to match up to those expectations in my view are tantamount to dereliction of duty and lacking in professionalism.
Whilst I am mindful of the sensitivity of this case and the air surrounding intimidation ever present, we all have a duty to uphold the rule of law, without fear or favour.

22. Now turning to the standard of lawering in this case I cannot say with honesty that I am content with the level of professionalism displayed by the Public Solicitors Office. The Court and more so the general public has been misled into believing that accused persons committing serious homicide cases as has happened in this case, can expect to walk away free, devoid of any criminal sanctioning. That is a misnomer in my view and must be gotten rid of quick smart.

23. In deciding what an appropriate sentence in your case might be from amongst the four main pillars of sentencing i.e. deterrence, rehabilitation, restitution, and retribution, I consider a general and specific deterrence sentence appropriate under the circumstances. The more serious the offence or crime, deterrence and rehabilitation are often employed by trial Judges. In the case of John Elipa Kalabus –v- The State [1988] PNGLR 193, the former Chief Justice Sir Buri Kidu had this to say:

"There are various purposes of punishments and they include rehabilitation. But rehabilitation of a criminal must not be allowed to obscure the consideration of deterrence and protection of the public from the commission of crimes".

25. Having had the benefit of cases researched, and the arguments for and against I have arrived at a conclusion that the appropriate sentence to be imposed upon you would be in the mid range of Category 3 in the Manu Kovi sentencing tariffs i.e., 17 – 25 years. Regrettably the required factors manifested in your case falls within Category 3 range: the use of a dangerous weapon, a high powered pistol, the shooting was vicious, a deliberate intention to harm and little or no regard for the safety of human life. It follows that a sentence of 20 years is considered appropriate in my view. Furthermore I do not consider a non custodial sentence or Probation appropriate as it would amount to a travesty in my view.

1. You are convicted and sentenced to 20 years in hard labour at a Correctional Service Institution goal to be elected by the Correctional Services Commissioner;

2. Your 9mm calibre pistol together with your permit to carry will be revoked and forfeited to the State forthwith and destroyed soon after the expiry of the set 40 days appeal period;

4. Your bail monies together with any cash sureties for your guarantors will also be returned to them.

Sentence accordingly.
____________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner

National Court of Papua New Guinea

State v Namah (No.2) [2015] PGNC 64; N5997 (18 June 2015)