State v Tutuba [2017] PGNC 174; N6792 (15 May 2017)

N6792

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1250 of 2016

BETWEEN:

THE STATE

-V-

NOAH TUTUBA
Defendant

Popondetta: Liosi AJ
2017: 8^th & 15^th May

CRIMINAL LAW – MANSLAUGHTER – S.302 Criminal Code – Guilty plea – Deceased died from spear wound – Juvenile offender – S.2, 75, 76, 77, & 79 of Juvenile Justice Act 2014 discussed – Mitigating and aggravating factors discussed – Age requirement for Juvenile discussed – Prisoner sentenced to 5 years in light labour less 1 year pre-trial custody – 1 year of the 4 year resultant sentence is suspended – Prisoner to serve 3 years at Erap Boys Town in Lae.

Cases Cited:

Avia Aihi v. State [1982] PNGLR 92
Goli Golu v. State [1979] PNGLR 653
Manu Kovi v. State [2005] SC789
Rex Lilu v. The State [1990] PNGLR 487
State v. Alphonse Polpolio & Jeffrey Baru CR 701& 865 2006
State v. Reuben Naidi (2016) N6430
Ure Hane v. State [1984] PNGLR 105
Ume v. The State (2002) SC836

Counsel:

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

DECISION

15^th May, 2017

1. LIOSI AJ On 8^th May 2017, I convicted the offender on 1 count of manslaughter pursuant to S.302 Criminal Code after he pleaded guilty, that he on the 23^rd day of August 2015 at Ainabobo Creek, Safia, in Papua New Guinea unlawfully killed one Tolbon Biamaga.
2. On arraignment, the prisoner pleaded guilty to the following facts. Between 12 noon and 1 pm on 23^rd August 2015, at Ainabobo Creek in the Safia area of Oro Province, the deceased and the accused one Toben Biamaga were washing at the creek. After washing, the deceased took out a mirror from his bag and groomed himself. The accused then took the mirror from the deceased to comb his hair. Whilst he was still using the mirror, the deceased tried to grab the mirror off him when it broke. The deceased became angry. He took out a knife and cut the accused on his head. In fear of his life the accused picked up his hunting spear and ran away. The deceased chased him and ran into the spear held by the prisoner, the spear penetrating his body. The prisoner than ran away to his village. The deceased died as a result of the injury. His decomposed body was found some days later.
3. The offence of manslaughter pursuant to s.19 of the Criminal Code carries a maximum penalty of life. However, the Law also states that the maximum penalty is normally reserved for the worst category cases. Goli Golu and Ure Hane (supra).
4. To consider the appropriate penalty for you. Firstly, I will need to determine whether the maximum penalty of life imprisonment applies to your case. If not then what should be the appropriate penalty I should give you.
5. I must consider various matters including your personal particulars, your allocatus, submissions by your lawyers and State lawyer, circumstances of your case, mitigating and aggravating factors and comparable cases.
6. You are 16 years old, you were a student at Safia Primary School attending Grade 7 when this incident happened. You are from Arimo Village in Ijivitari. You are a follower of Anglican faith.
7. On allocatus you said, “I want to say sorry to the Constitution and to the deceased. The deceased and I are not enemies. After washing at the river, he got a mirror from his bag. After using it, he gave me the mirror to use. Whilst I was using the mirror he tried to pull it from my hand. In the process of pulling the mirror it broke. He then got angry, pulled out a knife and cut me on my head. He is a big person so I got my hunting spear to hunt magani and ran away. He chased me to cut me and he ran into the spear. I got scared and ran away with blood stains. When I arrived at the village I advised the community that I did not mean to cause his death but somehow death occurred. That is all.”
8. Your lawyer submits your case does not fall into the worst category case of its kind and so the maximum penalty does not apply to you. This is because of a number of factors. The Supreme Court in Rex Lilu -v- The State (supra) said 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.
3. Whether the death was caused by a fist or a weapon.
4. Whether the offender deliberately set out to hurt the deceased.
5. Whether there was provocation in a non-legal sense.
9. Your lawyer submits that the deceased was very angry because of his broken mirror. He pulled his knife out and cut you on the head. After you ran away he chased you. When you ran away you had with you your spear which you used for hunting magani. Whilst chasing you, he ran into the spear causing the fatal injury.
10. Your lawyer also referred me to the case of Ruben Naidi -v- The State (2016) N6430. Therein the deceased stole the prisoner’s properties while he was a sleep. He woke up and followed the footprints on the sand, caught up with the deceased and confronted him. The deceased punched him and a scuffle ensued. The deceased had a spear with him. The prisoner grabbed the spear as they struggled and as a result the deceased got speared on the left thigh and died from the injury. He pleaded guilty. The court found no intention to harm the deceased he was defending himself. The court imposed 10 years less time in custody. He submits the current case is similar.
11. Further, there was defacto provocation in a non-legal sense which amounted to extenuating circumstances. See Ume -v- The State (2002) SC836. He further submits your mitigating factors include early admissions, cooperation with the police, pleaded guilty, no priors and your young age. He submits your case falls into category 1 of Manu Kovi which attracts a sentence of 8 – 12 years.
12. Finally, your lawyer submits that you are a juvenile within the meaning of s.2 of the Juvenile Justice Act 2014 which describes a juvenile as a person who is 10 years old or older but less than 18 years old. Therefore, whatever sentence that is imposed must be within the spirit of the Act.
13. Section 75 of the Juvenile Justice Act 2014 is in the following mandatory terms;
    1. Notwithstanding any other Act or law, if a Court is satisfied that an offence has been proven against a juvenile, or if the juvenile pleads guilty to the offence, the Court shall impose sentence on the juvenile in accordance with this Part.
    2. A Court that sentences a juvenile for an offence shall disregard a requirement under any other Act of law that an amount of money or term of imprisonment shall be the minimum penalty for the offence.
14. Section 76 outlines the purposes and principles of sentencing which must be applied when sentencing juvenile offenders in line with section 6 of the Act. Section 6 provides that an appropriate sentences in light of the general principals concerning juveniles must be followed. Section 77 provides the factors to be taken into account in sentencing. Section 79 makes it mandatory that a Pre-Sentence Report is required for sentencing purposes.
15. The State in response agrees that the matter falls into category 1 of Manu Kovi. On the issue of whether the offender is a juvenile. The State submits there is no proof of age hence he should be sentenced as an adult.
16. The offence of manslaughter for which you have been charged is serious. This is reflected by the penalty imposed which is life imprisonment. It is at the lower end of the homicide category of cases after wilful murder and murder. It is also a reflection of what life is all about. That is we all have one life. Once it is taken away it is gone for good and we cannot replace it.
17. The need for respecting sanctity of life continues to be the main reason why our laws provide stiff punishment for homicide offences. This includes wilful murder, ultimate penalty for which is death, while murder and manslaughter attract life sentences.
18. Homicide cases continue to rise and so the Supreme Court in Manu Kovi case set out guidelines. For each offence it sets out 4 categories enumerating the circumstances and range of penalties from the less serious to the serious.
19. I accept the circumstances under which the offence was committed. That is explained by yourself in your allocatus and your lawyer. That is that the mirror broke, the deceased got angry and he cut you with a knife. You then got your spear and you ran away in fear. He chased you and ran into the spear injuring himself from which he died. I accept your case falls into the first category of Manu Kovi.
20. Your lawyer also referred me to the case of Reuben Naidi -v- The State, N6420, where 10 years imposed was imposed less time in custody. The facts in that case are very similar to your case (see paragraph 10) in that there was no intention to kill. I also find there was also defacto provocation in a non-legal sense.
21. I take into account your mitigating factors which includes the facts that you are a youthful offender, you pleaded guilty to the charge, you cooperated with the Police and you have no prior convictions.
22. I also find that you are a juvenile within the meaning of Juvenile Justice Act 2014. The Act defines a juvenile to be a person 10 years or older but less than 18 years. The interpretation provision of the act provides the onus is on the State to disprove an allegation of fact that a person is under the age of 18 years. In the absence of evidence to the contrary I accept that you are a juvenile.
23. Having found that, the Law also requires that whatever penalty I impose must be within the spirit and the guidelines of the Juvenile Justice Act 2014. One of those requirements is that I must have a Pre-Sentence Report provided before sentencing. I have such a report at hand provided by the probation services for which I am grateful given the very short notice as it is very useful to assist the Court.
24. Having considered the circumstances of the killing, the mitigating factors for and the aggravating factors against you. I impose a head sentence of 5 years. I deduct 1 year for the time spent in custody leaving a balance of 4 years to be served. 1 year is further suspended leaving a balance of 3 years to be served.
25. Given my findings that you are a juvenile with the meaning of the act, I Order that you serve your term in a juvenile centre as opposed to serving time in a jail. There is no juvenile centre in Popondetta. However, I am advised that there is such a rehabilitation centre in Lae, I therefore direct that the offender serve the balance of his 3 year term in Erap Boys Town in Lae, Morobe Province.
26. I make the following orders on sentence.
    1. Noah Tutuba is sentenced to 5 years imprisonment in hard labour.
    2. Pre-trial custody period of 1 year is deducted.
    3. Period of 1 year is suspended.
    4. Period to serve is 3 years.
    5. Place to serve is at Erap Boys Town in Lae, Morobe Province.
    6. Executive Director Juvenile Justice Services is to facilitate immediate repatriation of the offender to Erap Boys Town, Lae.
    7. The Executive Director Juvenile Justice Services is to immediately repatriate the offender to his home after serving his time.
       

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