State v Aven [2016] PGNC 87; N6260 (28 April 2016)

N6260

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1035 OF 2013

THE STATE

V

MURU AVEN

Kundiawa: Liosi, AJ
2016: 21^st March, 28 April

CRIMINAL LAW – Sentence – Manslaughter – Deceased Adult male – Death arose from Domestic Dispute Setting – Offender Killed son in Law after finding him Sleeping In bed with his wife – Death caused by Knife wounds to head and neck – Provoked Assault – Mitigating and Aggravating factors considered – Sentence of 10 Years imposed – Criminal Code – Sections 19 and 302.

Cases Cited:

The State v. Carol Alfred (2009) N3602
The State v. Anita Kelly (2009) N3624
Anna Max Marangi v. The State ( 2002) SC 702
Manu Kovi v. The State ( 2005) SC 789
State v. Rex Damun (2011) N4295
State v. Steven Lucas (2008) N3540
Thress Kumbamong v. The State (2008) SC 1017

Counsel:

Mr. P. Tengdui, for the State
Mr. M Yawip, for the Offender

SENTENCE

28^th April 2016

1. LIOSI AJ: On 21^st March 2016, I convicted the offender on 1 count of unlawful Killing (Manslaughter) of one Chuave Wame under Section 302 of the Criminal Code after he pleaded guilty to the crime and after having satisfied myself from the depositions presented by the State the charge had been sufficiently made out against him.

Brief Statements of facts

2. Brief allegations of Fact put to him on arraignment upon which he pleaded guilty are these: The deceased is his son in law. On Saturday 11^th February 2013 the offender Muru Aven was at his village at Elemale, Gumine District. The deceased at that material time was also there as they had come for a visit, at about 12 pm midnight that night, the offender went out to the toilet. Upon returning he caught the deceased sleeping in bed with his wife. The offender grabbed a bush knife and cut the deceased on the head and the neck resulting in his death. The offender took the body out and dumped it in the river nearby. The matter was reported to the Police and the offender was arrested and charged.

Allocutus

3. On Allocutus, the offender refused to say anything.

The Law

4. Section 302 of the Criminal Code provides as follows:
“302 Manslaughter.
A person who unlawfully kills another under such circumstances as not to constitute wilful murder, murder on infanticide is guilty of manslaughter.

Penalty:

Subject to section 19 imprisonment for life.

5. The prescribed penalty under Section 302 of the Criminal Code is life Imprisonment. The Court however can impose a lesser sentence under s. 19 of the Criminal Code.

Defence Counsel’s Submissions

6. Mr. Yawip of Counsel submitted as follows:
   He is now 55 years old and is from Elemale village, Gumine, Simbu Province, member of the Evangelical Brotherhood church, Village man with no formal education, married with 4 children.
7. In mitigation, Mr. Yawip points to the following mitigating factors:
   • The offender pleaded guilty to the charge.
   • He is a first time offender.
   • He has cooperated with the Police.
   • He has expressed remorse and has acknowledged his wrong doing by saying sorry to God and to the court.
   • Compensation payment of K2, 000.00 cash plus 7 live pigs have been paid to the deceased relatives.
   • There is presence of very strong defacto provocation given that he saw the deceased sleeping with his wife and who is also the mother of the deceased wife.
   • The Killing was unplanned and happened in the heat of the moment.
   • He is an aging old man and was the sole attacker and has been in custody for 3 Years.
   • The offender has a good Pre-Sentence Report. The deceased caused the problem and therefore the offender should be on probation. The case is not the worst category case usually reserved for the worst cases.
8. Finally in respect of the sentencing tariffs set by the courts, the court has been referred to Manu Kovi v. The State (2005) SC 789. Mr. Yawip submits that given the present mitigating factors this case falls within category 2 of the Manu Kovi case which calls for a term of 13 – 16 years. He however urges the court to use the courts unfettered discretion to depart from the guidelines set out in Manu Kovi’s case as held in the Supreme Court case of Thress Kumbamong v. The State (2008) SC 1017.

States Submissions

9. Mr. Tengdui for the State submits that there are present aggravating factors: They are multiple wounds inflicted to the head and neck, death was a direct result from the attack, a bush knife been a dangerous weapon was used. Prevalent offense and was a vicious attack.
10. The State also agrees that this case falls under the second category of Manu Kovi’s case, However he also urged the court to be wary of the Guidelines set in Manu Kovi and for the court to properly exercise its discretion for purposes of consistency as held in Thress Kumbamong v. The State (Supra). That is that the courts must be careful and not to allow themselves to fetter their sentencing discretion by conforming to set guidelines in Manu Kovi’s case. He further argues that it is not the worst category case. He submits a head sentence of 10-12 Years is appropriate. He submits that whether to suspend any part of the sentence is within the courts discretion.
    

Reasons for Decision

11. I have considered the facts of this case and submissions of both counsels. I agree generally with most of their submissions in relation to the sentencing tariff that: - There is discretion under section 19 of the Criminal Code to impose a lesser sentence. I also agree that whilst the Supreme Court has set some guidelines for the courts to follow in sentencing offenders found guilty of manslaughter, the court is also entitled to decide each case on its own peculiar circumstances.
12. For the record offenses of unlawful Killing has been a common occurrence. Unlawful Killing is the premature termination of life. The offender must therefore be reminded that he is responsible for the death of the deceased. No matter how remorseful you can be, the life is gone for good and you cannot bring it back.
13. I agree with both counsels that there was defacto provocation here which was the ultimate reason for the Killing. Both counsels have cited various cases to me by way of comparable verdicts. This are the cases of State v. Anita Kelly N3624, State v. Carol Alfred N3602, case of the State v. Rex Dumun N4295, State v. Steven Lucas N3540 and State v. Issac Ulul.
14. In most of this cases the problems arose out of domestic settings. In this cases the sentences imposed ranged from 10 to 12 years. For the current case the State submits that a head sentence of 10 – 12 Years is appropriate. The Defence counsel submits a head sentence of 10 Years, submitting that the above comparative case laws are much more serious than the current case. The reason been that there were some degree of Preplanning involved in the above cases. Although

15. Mr. Yawip agrees that this case falls under the second category of Manu Kovi’s case; he urges the court to apply the principle in the recent Supreme Court case of Thress Kumbamong v. The State. That is that the court should be careful not to fetter their sentencing discretion by confining itself to strict guidelines set in Manu Kovi’s case.

16. In all the circumstances of the case and weighing those factors in the offenders favour and those against him. I consider that 10 years Head Sentence is appropriate and so I order. The times spent in custody shall be deducted accordingly. I order that the term of 3 Years pre-trial custody be deducted.
17. Should all or part of the Sentence be suspended? I take note of the fact that the Pre-Sentence Report has strongly recommended Suitability for Probation Supervision. That the offender's family and community are very supportive and show willingness to assist the offender rehabilitate in the community. The favourable Pre-Sentence Report may appear to warrant a partial suspension. However I agree that the use of a bush knife and the seriousness of the crime will mean that the offender will have to spend some time in custody. Given all the factors I suspend 5 Years of the balance of 7 Year period.

Sentence

18. Muru Aven having been convicted of 1 count of Unlawful Killing is sentenced as follows:-
    • Length of Sentence imposed 10 Years.
    • Pre-Sentence Period deducted 3 Years.
    • Resultant length of Sentence to be served 7 Years.
    • Amount of Sentence suspended 5 Years.
    • Time to be served in custody 2 Years

Sentenced Accordingly,

_____________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Accused