State v Chawanin No.2 [2016] PGNC 180; N6371 (23 June 2016)

N6371

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 786 OF 2015

THE STATE

V

GERARD CHAWANIN No.2

Lorengau: Geita J
2016: 22, 23 June

CRIMINAL LAW – Sentence – After Trial - Manslaughter - First time offender – Expressed genuine remorse Aggravating, and Mitigating factors considered.

CRIMINAL LAW – Sentence – 12 years less pre-trial custody period – The first ten years to be served – Remainder of sentence suspended on Probation with conditions - Section 302 of the Criminal Code.

Cases Cited:

Avia Aihi v The State (N0.3) [1982] PNGLR 92
Goli Golu v The State [1979] PNGLR
Manu Kovi v The State SC 789
Rex Liau v The State [1990] PNGLR 484
The State v Abraham Nobi (2008) N3412
The State v John Banuk (No. 2) [2014] N5757
Ure Hane v The State [1984] PNGLR 105

Counsels:

Ms. R Koralyo, for the State
Mr. L Mamu, for the Prisoner

JUDGMENT ON SENTENCE

23 June, 2016

1. GEITA J: The prisoner was indicted for murder under section 300 (1) (a) of the Criminal Code to which he pleaded not guilty. He was found guilty after trail on 21 June 2016 with an alternative verdict of manslaughter instead and convicted pursuant to section 539 (2) Criminal Code. This is his judgment on sentence.

The Law

2. The offence comes under section 302 Criminal Code and attracts a maximum penalty of life imprisonment.

Brief Facts

3. The facts surrounding this case are contained in his Judgment on conviction on 21 June 2016.

Allocutus

4. In his allocutus the prisoner said he was sorry to the Court and to the deceased’s relatives for what had happened. He also said sorry to his family and to God and asked for forgiveness. He said this was his first time in Court and asked for leniency and to be considered for probation.

Antecedents

5. No prior convictions.

Mitigation Factors
6. 1. Cooperated with police
2. Reconciliation
3. Expressed remorse
4. First time offender
5. Deceased’s conduct
6. Just one blow
7. Only one person in the attack
8. Attack not vicious
9. De facto provocation

Aggravating Factors
7. 1. Life being lost
2. Prevalence
3. Found guilty after trial
4. Assault not provoked

Defence Submissions

8. Defence Counsel Mr. Mamu submitted that the maximum should not be applied in this case saying this was not the worst case of its kind. ( Goli Golu v The State [1979] PNGLR, Ure Hane v The State [1984] PNGLR 105 and Avia Aihi v The State (N0.3) [1982] PNGLR 92.) Mr Mamu advanced that his client’s case was one which could easily fall within Category 1 of Manu Kovi v State [2005] SC 789 - within a prison term of between 8 -12 years. He submitted that the prisoner was not a hard-core criminal but a simple villager and fisherman which unfortunately landed himself on the wrong side of the law. The prisoner’s mitigation factors out-weighted his aggravating factors save the loss of a life. Mr Mamu further invited the Court to have regard to the case of Rex Liau v The State [1990] PNGLR 484: The aggregate of all relevant considerations to be considered in determining an appropriate penalty in manslaughter cases. The court was further invited to exercise its discretion under Section 19 of the Criminal Code and consider an alternative form of punishment. The Court was also referred to the case The State v John Banuk (No. 2) [2014] N5757. His Honour Lenalia J re-echoed the call made in Rex Liau case (supra).

State Submissions

9. Ms Rebecca Koralyo conceded that the case was not the worst of its kind and the maximum sentence not applicable under the circumstances. She however submitted that the crime was serious in that a life has been lost. Furthermore the Court must be seen to protect the sanctity of a human life with a deterrence or rehabilitive sentence. In her response to the lead case of Manu Kovi (supra) she submitted that the court apply and adopt the tariff guidelines set in Category 1 i.e. 8 – 12 years in view of the prevalence of this crime and for purposes of deterrence.

Sentence in your Case

10. The main issue now before me is to decide on what is an appropriate sentence for you, bearing in mind all relevant facts including your personal and family background and the circumstances under which you committed the offence. I will also be looking at the mitigating and aggravating factors. Both Lawyers have referred me to some important cases in which Courts have extensively discussed situations for and against sentencing guidelines.

11. May I state here that the tariffs of sentences prescribed in Manu Kovi case (supra) for manslaughter are mere guidelines in my view and should not take away the National Court’s discretion to impose sentences that maybe over or above or well below the suggested tariffs. Sentences to be imposed by the Court must of course depend on the peculiar circumstances of each case.

12. In the present case, your mitigating factors outweigh your aggravating factors. There is no pre-sentence report to assist this Court however since you do not have any prior conviction, I do not consider you to be a danger to your community. To your credit you have demonstrated this by visiting the victim and his family in hospital unbeknown to you that he would die the following day.

13. Notwithstanding favourable mitigating factors in your favour the sanctity of a human life must not be down played. Together with that consideration and the mere fact that you were found guilty after trial my view is that that must amount to aggravation against you. Not only was the State machinery put into great expense in running this trial but the victim’s 13 years old daughter was forced to come to Court and relived the horrors of how her father died and to come face to face with her father’s assailant.

14. Whilst I acknowledge that Defence Lawyer has taken issue with this consideration: the conduct of a trial as an aggravating factor, I am loathe to think the prisoner in this case or other similar cases for that matter cannot choose and pick considerations relevant in their cases. I would like to think that these are peculiar considerations falling with the spirit and tenor of the Rex Liau (supra) case precedent referred to me earlier by Defence. In so doing I acknowledge that the prisoner’s right under the Constitution to protect his innocence until proven guilty still remains paramount. This includes the right to plead not guilty and force a trial as has happened in this case.

15. To this end Mr Mamu for the prisoner has submitted that this Court be guided by the case authority in The State v John Banuk No. 2 [2014] N5757. In that case four police officers were implicated for the murder of a student at Kokopo Business College. Only the prisoner in that case was indicted for murder under section 300 of the Code but subsequently reduced to manslaughter under section 302 of the Code. That alternative conviction was secured by operation of Section 7 (1) (a) of the Criminal Code. (1) I quote the relevant section:

“When an offence is committed, each of the following persons shall be deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it:—

(a) every person who actually does the act or makes the omission that constitutes the offence;”
His Honour Lenalia J in John Banuk case (supra) sentenced the prisoner to 7 years, suspended 2 years to be on good behaviour bond after serving 5 years in prison. The criminal culpability in that case was greatly reduced and rightly reflected in his sentence.

16. The same cannot be said in this case in that the identity of the assailant/prisoner was not in issue and he was the primary assailant. His criminal culpability remains undisturbed. To this end the case of The State v John Banuk (supra) is distinguished. The sum total of all consideration in mitigation and aggravation I consider a head sentence of 12 years to be appropriate under the circumstances. By considering this sentence, I do not for one moment downplay the seriousness of the crime committed. I acknowledge that a precious life has been lost and a family, more so a young girl denied of her loved one, her father.

17. In the exercise of my residual discretion under Section 19 of the Criminal Code parts of the sentence will be suspended. I order that upon serving a sentenced of 10 years you will be released on probation with conditions for the remaining years.
18. Sentence

Length of sentence imposed : 12 years IHL

Pre-sentence period deducted : 6 months, 11 days

Resultant length of sentence to be served : 10 years

Sentenced accordingly,

___________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner