State v Jimbade [2017] PGNC 173; N6791 (15 May 2017)

N6791

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 685 of 2015
BETWEEN:
THE STATE

V

MORRIS JIMBADE
Defendant
Popondetta: Liosi, AJ

2017: 5^th & 15^th May

CRIMINAL LAW – Manslaughter – Guilty plea – S.302 Criminal Code Act – Offender and deceased are brothers – Mitigating and aggravating factors discussed – Fatal stabbing occurred during struggle – Dispute over land – Suspension without Pre–Sentence Report considered – Conflicting version of facts and statements of facts – Favourable version of facts to the prisoner accepted – Prisoner sentenced to 13 years less 3 years pre-trial custody – Resultant sentence of 10 years suspended by 2 years – Prisoner to serve 8 years imprisonment

Cases Cited:

Don Hale -v- Public Prosecutor SC 564
Goli Golu -v- The State [1979]PNGLR 643
Koniel Alar & Hosea Biu -v- The State [1979] PNGLR 300
Manu Kovi -v- State [2005] SC 789
State -v- Alphonse Polpolio & Jeffrey Baru (2005) CR 701 & 865 of 2006
Thress Kumbamong -v- State [2008] SC 1017

Counsel:

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

15^th May, 2017

DECISION

1. LIOSI, AJ; On the 5^th May 2017, I convicted the offender on 1 count of manslaughter pursuant to s.302 of the Criminal Code Act after he pleaded guilty to the charge.
2. On arraignment you pleaded guilty to the following facts. You and the deceased one Alphonse Jimbade are brothers. You come from Jaride Village in Ijivitari District, Popondetta. Between 8 and 9 am on 23^rd October 2014, you were returning to your village from Popondetta. Along the way you met your brother Alphonse who was on his way to attend a meeting in a neighbouring village. At that meeting, Alphonse was to sign a deal/agreement with a company to extract gravel from your land. When you met Alphonse, he started arguing with you and eventually chased you into the nearby bushes where you fought. During the fight, you stabbed the deceased several times on his back. The deceased sustained deep penetrating knife wounds and bruised right lung. He died from excessive loss of blood from the injuries.
3. The offense of manslaughter carries a maximum penalty of life imprisonment. The Law also states that maximum penalties are reserved for the worst cases. There is also the discretion given to the Court under s.19 of the Criminal Code.
4. You are 53 years old and married with 6 children. You come from Jaride Village, Ijivitari District in Oro. You are a subsistence farmer and follower of the Anglican faith.
5. On allocatus you said, “On 22^nd October 2014, I came to town to spend the night with my daughter. On 23^rd October 2014, I caught a bus in the morning and got dropped off at Eroro Community School around 10 am. I was carrying a 5 kg rice packet and container of 5 litre petrol and my waist bag. I started walking from the bus stop at the station to the house. At the junction of my village and the main village, Alphonse was hiding in the bushes. He came out and said, “Yu tasol mi panim yu na u kam.” As he said this, he put his left hand to his right waist and pulled out a laplap with a grass knife sharpened at both sides. He held the knife and moved forward towards me saying, “I will kill you with this knife”. There was no one around. I threw the rice and petrol container and ran for my life. He chased me so I took a bush track that led to our younger brother’s house. While running, I slipped in a pool of water and fell down. He kicked me with his foot and broke my tooth. He then slipped and fell too. While on the ground we struggled for some time. During the struggle I pushed the knife towards his body stabbing him from which he died.”
6. Your counsel submits the following circumstances. There was a dispute between you and your brother (deceased) concerning gravel pit on your customary land that the deceased had committed to an agreement. The confrontation between you led to a fight and the deceased chased you with a knife. That followed a struggle between the both of you resulting in the deceased receiving wounds from which he died.
7. The medical report shows that the deceased died from loss of blood. There were two stab wounds, one from the back that exited at the hip area. The second stab wound penetrated the chest and the lung area.
8. The aggravating factors are that a life has been lost and this type of killing is prevalent in the province. This clearly shows the lack of appreciation for the sanctity of human life. The extenuating circumstance is that the offender felt cheated after been left out on the deal been negotiated. The deceased had been doing a secret deal up to the time of his death.
9. In mitigation, you pleaded guilty. This is a genuine way of saying sorry as expressed in your allocatus and you do not have any prior convictions.
10. Your counsel submits your case falls into the second category of Manu Kovi attracting 13 – 16 years though the Court has an unfettered discretion to impose an appropriate sentence in the circumstances. It is submitted that a sentence at the lower end of the range is appropriate, deduction of 3 years for pre-sentence custody and to consider suspending a portion of the sentence. Although there is no Pre-Sentence Report. The Court still has the power to suspend a portion of sentence pursuant to s.19 of the Criminal Code. It submits 13 years imprisonment in hard labour, 3 years deducted for pre-sentence custody and further suspension on conditions.
11. The State submits, this is a very prevalent offence. Fighting over land is prevalent, a life has been lost through the use of a dangerous weapon namely a bush knife sharpened on both sides. The medical report confirms the seriousness of the attack. It however submits that although death of a loved one maybe a punishment in itself. See Yalibakut (2006) SC 890 and Kesino Apo [1988-89] PNGLR 182. The prisoner has shown no remorse about his brother. He submits the matter falls into the second category.
12. As stated in so many of similar killings, the offence of manslaughter for which you have been charged is serious. That is why it carries a maximum penalty of life imprisonment. The need to appreciate and respect life is the reason why stiff penalties are imposed under our laws.
13. To decide an appropriate sentence for you I will need to consider various matters. Firstly, whether your case falls into the worst category case. I agree with your counsel that your case does not fall into the worst category case. Considering the circumstances of the killing and your mitigating factors, I agree that your case falls within the second category of Manu Kovi.
14. I note from your allocatus that your versions of facts are slightly different from the facts put to you on arraignment. The issue arises as to whose version of facts I should adopt for purpose of your plea. The law in this regard is well settled, where there is a conflict in the version of facts for and against an accused the trial Judge is bound to accept version of facts most favourable to the accused. See Koniel Alar and Hosea Biu -v- The State (1979) PNGLR 300.
15. I note from the statement of facts that your problem arose out of your traditional land which has been secretly negotiated for extraction of gravel by the deceased and which you were never aware of. This led to tensions and eventually the confrontation which led to the deceased death.
16. You are 53 years old and married with 6 children. You come from Jaride Village, Ijivitari, Oro. You are a substance farmer and follower of the Anglican faith. In mitigation you pleaded guilty and you also do not have any prior convictions.
17. I consider that a starting point of 13 years is appropriate for you and I do so order, I deduct 3 years for pre-trial custody pursuant to s.3(2) of Criminal Justice (sentences) Act 1986. You are effectively to serve 10 years.
18. Should any of this be suspended? I have been urged to suspend a portion of the balance of 10 years. Whilst there is no Pre-Sentence Report as is required by Don Hale’s case, in my view the Court still has an unfettered discretion pursuant to Thress Kumbamong case. Given the prevalency of these killings in Oro, I will suspend 2 years, leaving a balance of 8 years to be served at Biru Corrective Institution Services.
    
19. The decision of the Court is this;
    1. You are sentenced to 13 years imprisonment in hard labour.
    2. 3 years is deducted for pre-trial custody
    100. Resultant sentence is 10 years in hard labour
    4. 2 years is further suspended
    5. Offender is to serve 8 years imprisonment in hard labour
    6. Place to serve Biru Corrective Institution Service

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