State v Deiko [2017] PGNC 135; N6793 (15 May 2017)

N6793

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 369 OF 2017

BETWEEN

THE STATE

-V-

JOHN DEIKO
Defendant

Popondetta: Liosi, AJ

2017: 4^th & 15^th May

CRIMINAL LAW – MANSLAUGHTER – S.302 & 19 Criminal Code Act – Guilty plea – Offender hit deceased on head with stick causing deceased death – Offender asthmatic and aged – No proof of age and asthma – Principles discussed – Whether jail sentence appropriate in the circumstances – Sentence of 5 years 6 months suspended on conditions.

Cases Cited:

Goli Golu v. The State [1979] PNGLR 653
Ure Hane v. The State [1984] PNGLR 105
State v. Laura (No.2) [1988-89] PNGLR 98
State v. Ravu [2000] PNGLR 181

Counsel:

K. Umpake, for the State
L. Mamu, for the Prisoner

15^th May, 2017

DECISION

1. LIOSI AJ: On 4^th May 2017, I convicted the prisoner on 1 count of manslaughter of one Daniel Ogaita after confirming from the depositions that the conviction was safe.
2. On arraignment, you pleaded guilty to the following facts. Between 1 and 2 p.m. on 24^th September 2016 at Timbeki Village, Popondetta, a drunkard brawl erupted between Langford Deiko and the deceased Daniel Ogaita. The fight was stopped and they dispersed. Short while later the deceased and one Christopher Kakamei returned and started the fight again. The deceased fought with the prisoner during which the prisoner hit the deceased on the head with a stick from which the deceased sustained head injuries and died.
3. The offence of manslaughter pursuant to s.302 of the Criminal Code carries a maximum penalty of life imprisonment. However, the law also states that maximum penalty is normally reserved for the worst category cases.
4. First, I will need to consider whether the maximum penalty of life imprisonment is applicable to your case or not. To enable me to do this I will need to consider various matters including your personal particulars, your allocatus, submissions by both your lawyer and the State, circumstances under which the offense was committed, mitigating factors for and aggravating factors against you and comparable cases.
5. Although counsel cannot give your exact age, you appear quite old and in my observation you maybe well over 60 years old. You are from Timbeki Village, Sohe in Oro Province.
6. On allocatus you said, “I am asthmatic. I am a sick person and I do not have any other children. My wife is old and I am also old. I do not have any other person to help me. I therefore want my son to replace me. I have only daughters at home and there is no man so I want to go back home and help my daughters as they are all in school and there is nobody to help them so I want to go home”.
7. It is submitted that your case does not fall into the worst category cases and so the maximum penalty should not apply to you. In the Supreme Court case of Rex Lialu -v- The State, the Court held that the following matters are relevant considerations in determining an appropriate sentence for manslaughter cases. They include:
   1. Nature and frequency of attack or assault on the victim.
   2. Whether the injury that caused death arose directly from the assault or from an object when the deceased subsequently fell.
   100. Whether the death was caused by a fist or weapon.
   4. Whether the offender deliberately set out to hurt the deceased.
   5. Whether there was provocation in a non-legal sense.
8. Your lawyer submits that it acknowledges a life is lost however, considering the circumstances of the case and your advanced age, the case should fall into the first category of Manu Kovi which calls for a period of 8 - 12 years imprisonment.
9. Your lawyer further submits that although your specific age cannot be ascertained, your physical appearance can be noted. He cited the case of Laura (No.2) (supra). In that case the court in a murder case said a sentence of 6 years may be imposed only in cases where there are special mitigating factors such as youthfulness or very advanced age of the prisoner.
10. He further cites the case of the State -v- Ravu [2000] PNGLR 181 by way of comparison. In that case the prisoner was charged for murder. He was sentenced to 5 years imprisonment in hard labour after deduction of pre-trial custody and suspensions.
11. Considering all the factors he submits a suspended sentence below 8 years would be an appropriate sentence.
12. The offence of manslaughter for which you have been charged is serious. This is reflected by the imposition of life imprisonment as the maximum penalty. The need for respecting the sanctity of life continues to be the main reason why our laws provide stiff penalties for homicide offences.
13. I accept the circumstances under which the offence was committed. That is that the fight initially broke out between your son Landford Deiko and the deceased. The fight was then stopped. However, the deceased and one Christopher Kakamei returned and started the fight again which got you consequently involved and you hit the deceased with a stick causing his death.
14. I also note the two cases that were cited by your lawyer. That is the case of Laura No.2 that was a murder case where in the process of sentencing the Court said a sentence of 6 years maybe imposed only in cases where there are special mitigating factors such as youthfulness or very advanced age of the prisoner.
15. Your counsel also cited the case of State -v- Ravu where the prisoner was charged for murder. He was sentenced to 5 years imprisonment in hard labour after deductions for pre-trial custody.
16. In your allocatus, you say you are asthmatic and that you are a sick man. You and your wife are old. You also pleaded in your allocatus that you want to go home and you want your son to replace you if you were to serve time. Unfortunately, your son cannot replace you as the law does not operate that way.
17. In any event, I have considered the circumstances under which the offence was committed. That is that the fight was stopped and everybody dispersed but after sometime the deceased came back and started the fight again which ultimately led to his death.
18. I have also noted that you cooperated with the Police by pleading guilty and you have no priors. Whilst there is no proof of your age, I accept the fact that you are an old man and in my view you are well over 60 years old. That is evident from your physical appearance. I also note that whilst there is no evidence of asthma, I have also physically observed you and you look sick. You have also maintained from the committal proceedings that you are asthmatic. I therefore give you the benefit of that doubt. Given all that I agree your case falls into the first category of Manu Kovi.
19. Whilst I note all the above in your favour, I cannot overlook the fact that a life has been lost and is gone. Considering the circumstances of your case, your mitigating factors, your age and your condition, the cases of Laura No.2 and Ravu a head sentence of 6 years is in order which I do so order. I therefore send you to 6 years imprisonment in hard labour.
20. I deduct 6 months for pre-trial custody, leaving 5 years 6 months for you to serve.
21. The next issue is whether all or any of the portion of this term should be suspended. The Supreme Court case of Don Hale states that there should be no suspension of sentence unless accompanied by a Pre-Sentence Report. Despite this the Court still has an unfettered discretion to suspend a sentence pursuant to s.19 of the Criminal Code. A compelling factor in your favour is the fact of your advanced age: The State -v- Laura No.2 (supra). There is also the factor of whether you will reoffend which in my view is highly unlikely considering the factors outlined. In my view it serves no purpose for you to remain in jail. Consequently, I suspend the 5 years 6 months that has been imposed on the following conditions.
    1. You enter into your own recognizance to be of good behaviour for 1 year after your release.
       

Ruling accordingly
________________________________________________________________
The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Prisoner