State v Burida [2017] PGNC 136; N6794 (15 May 2017)

N6794

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1362 OF 2016

THE STATE

-V-

CAMILLUS BURIDA
Defendant

Popondetta: Liosi, AJ
2017: 12^th & 15^th May

CRIMINAL LAW – manslaughter – S.302 &19 Criminal Code Act – Reckless and careless use of knife – Juvenile offender – S.2, 3, 4 & 79 of Juvenile Justice Act 2014 discussed – Pre-Sentence Report mandatory – Prisoner sentenced to 10 years in light labour less time spent in custody – 2 years and 7 months of the resultant sentence is suspended – Prisoner to effectively serve 5 years in light labour at Juvenile section of Biru Corrective Institution Services.

Cases Cited:

Manu Kovi v. State [2005] SC 789
Public Prosecutor v. Don Hale [1998] SC 564

Counsel:

K. Umpake, for the State
L. Mamu & C. Namono, for the Prisoner

DECISION

15^th May, 2017

1. LIOSI AJ: The prisoner pleaded guilty to 1 count of manslaughter pursuant to s.302 Criminal Code Act.
   
2. On arraignment you pleaded guilty to the following facts. On the evening of 24^th April 2016, at Ononda Village you and the other youths including the deceased Kudd Nathaniel were drinking and were causing nuisance in the village. The deceased Kudd Nathaniel then cut you on your left hand in a drunkard confrontation. The villagers mobilised and chased you and the other youths out of the village. You ran away and hid in the bushes outside the village. After some time you came out and saw the deceased talking to two ladies on the main road leading to the village. You went to the deceased armed with a small knife. You swung the knife intending to cut him on the arm but you lost your balance due to your drunkard state and stabbed him on the left side of the neck. The knife cut the blood vessels and the windpipe. He died from loss of blood and respiratory failure due to blockage of the windpipe by the blood.
   
3. The offence of manslaughter carries a maximum penalty of life imprisonment. However, the Courts have a discretion to impose a lesser penalty depending on the circumstances of a case.
   
4. The issue herein then would be, what would be an appropriate penalty for you. The first issue is whether your case falls into the worst category. Considering the circumstances of your case, your counsel submits your case does not fall into the worst category.
   
5. In mitigation, your lawyer submits you made early admission in the record of interview, cooperated with police by surrendering, you pleaded guilty, this he says is an expression of remorse and you have no priors. Further, there was provocation as evidenced in question and answer 14 in the record of interview. However, because a weapon was used your counsel submits your case falls into both category 1 and 2.
   
6. You were about 16 - 17 years old at the time of the offence and you were a Grade 7 student at Kikira Primary School at the time of killing and you are a follower of the Anglican faith. Your lawyer submits that because you are a juvenile, the sentencing requirements under the Juvenile Justice Act 2014 must be complied with.
   
7. The State submits that you have pleaded guilty, this is a very prevalent offence in Oro, there was consumption of alcohol involved, and careless use of a knife and so clearly the case falls into second category of Manu Kovi.
   
8. I will need to decide first what category your case falls in under Manu Kovi. Your lawyer submits that your case falls under both the first and second category of Manu Kovi as a knife was involved. The State submits because a knife was involved it has to fall into second category.
   
9. I agree with the State that your case clearly falls within the second category of Manu Kovi as a knife was involved. So what then should the appropriate penalty be for you? In discussing this issue, I am also mindful of the fact that you are a juvenile within the meaning of the Juvenile Justice Act 2014. The State argued that at the time your record of interview was conducted in May 2016, you were 17 years old hence by now you would be 18 so you are not a juvenile.
   
10. The interpretation provision of the Juvenile Justice Act 2014 describes a juvenile as follows, “juvenile means a person who is or in the absence of evidence to the contrary appears to be 10 years or older but less than 18 years old”.

Section 3 – Application and criminal capacity

1. Notwithstanding any other act or Law this Act applies to a person who

1. .........................
2. is under the age of 18 years at the time of the alleged commission of the offence.

Section 4. Age Determination

1. ...................

1. ...........................
2. ...........................

2. Without limiting the power of a Court to determine the age of a person in accordance with Section 63 of the Evidence Act (Chapter 48) and despite a member of the Police Force treating a person as a juvenile in accordance with Subsection (1), a Court must determine the age of the person if he or she is a defendant in any legal proceedings and there is doubt or a dispute about the person’s age.
   
11. I am satisfied from information from the Court depositions that you are under 18 years old. The relevant question is whether you were a juvenile at the time of the commission of the offence. I am satisfied that you were, consequently whatever determination on penalty would have to be done within the ambits of the Juvenile Justice Act 2014.
    
12. Having determined the above, what then should be an appropriate sentence for you? You have pleaded guilty which I accept to be an expression of remorse, you have cooperated with the Police and you have no prior convictions. As against this you have taken away a life. The other aggravating factor is the prevalency of this offence particularly in Oro Province. In this Criminal sitting alone, I have already dealt with over 10 of these cases. This is a very high number and it appears to be on the rise. More alarming is the fact that primary school students like you are now been charged for this very serious offences which never happened before. The other aggravating factor is that you were under the influence of alcohol when this happened.
    
13. Pursuant to s.79 of the Juvenile Justice Act 2014, a pre-sentence report is a mandatory precondition to be provided within 14 days from the date of the request. Such a report has been prepared and forms the basis of this sentence.
    
14. Considering the totality of the evidence including the circumstances of your case, your mitigating and aggravating factors, the provisions of the Juvenile Justice Act 2014, I consider your head sentence to be 10 years which is 3 years below the range for category 2 offences in Manu Kovi case. I deduct 2 years 5 months for pre-trial custody leaving the balance of the sentence at 7 years 7 months.
    
15. Should any of that be suspended? Pursuant to Don Hale case there is a pre-sentence report available. The pre-sentence report is a detailed one and states you are not a threat to the community. On suitability for probation supervision, due to the severity of the offence a rehabilitation sentence is appropriate. The report recommended a custodial sentence to be served at the juvenile section of Biru Corrective Institution Services in line with s.18 (2), (3) & (4). I use my discretion under s.19 of the Criminal Code to suspend 2 years and 7 months. By way of comparison. I dealt with a similar case earlier on in the case of the State -v- Noah Tutuba. I consider this case to be more serious as the circumstances of this case involved consumption of alcohol.
    
16. The Orders of the Court are as follows:
    
    1. The prisoner is sentenced to 10 years in light labour.

2. 2 years 5 months is deducted for pre-trial custody period leaving the balance of 7 years 7 months.
   100. A further period of 2 years 7 months is suspended leaving a balance of 5 years to be served.
   4. Per the pre-sentence report of 14^th May 2017, the prisoner is to serve 5 years imprisonment in light labour at the Juvenile Section of Biru Corrective Institution Services.
5. Given that the offender will attain the age of 18 years next year the orders for custody review pursuant to s.81(4) is not appropriate.
   6. Upon attaining 18 years of age the offender shall be removed from the juvenile section to the main jail.
      

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