State v Kimkilala [2017] PGNC 243; N6908 (14 September 2017)

N6908

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
CR NO 586 of 2017

THE STATE

V

WILLIAM JULY KIMKILALA

Kimbe: Miviri AJ
2017 : 13^th &14^th September

CRIMINAL LAW - Practise & Procedure-Plea-S302 Manslaughter-punched deceased-ducked to avoid - stabbed with knife-left lung puncture -loss of blood - DOA-adultery - defacto provocation-compensation paid - loss of life-prevalent offence - strong deterrent sentence.

Facts

Accused punched deceased whilst holding onto knife in his right hand. Deceased ducked to avoid accused. Accused stabbed him with the knife on the back. Deceased died from bleeding.

Held

1. The value of life and sanctity of life under the Constitution must be protected by strong and punitive sentences in all homicide cases.
2. Guilty plea loses its significance if aggravation outweighs.
3. Prevalence of offence.
4. Serious aggravation
5. 15 years IHL less time in custody deducted.

Cases cited:
The State v Allan Peter Utieng Unreported judgment delivered in Wewak on 23/11/00) SCR 15 of 2000

The State v. Danny Makao (2005) N2996

The State v Lawrence Simbe [1994] PNGLR 38

The State v Lialu [1990] PNGLR 487
The State v Manu Kovi (2005) SC789
The State v Marangi [2002] SC702
The State v Polin Pochalon Lopai [1988-89] PNGLR 48
The State v Simon Kama (2004) SC740
The State v Tanga [1999] PNGLR 216

Counsel:
L. Rangan, for the State
B. Popeu, for the Defendants

SENTENCE

21^st September, 2017

1. MIVIRI AJ: This is the sentence of a man who punched a relative who ducked to avoid but was stabbed on the back with the knife.

Short facts

2. Prisoner held a knife in his right hand and with the left punched Bradley Luvi who ducked to avoid but was stabbed with the knife on his back causing massive bleeding from which despite being rushed to the Kimbe General hospital he died on the 24^th February 2017. His left lung had collapsed.
   
3. The state charged him under Section 302 CCA Manslaughter which reads as:

“A person who unlawfully kills another under such circumstances as not to constitute wilful murder, murder or infanticide is guilty of manslaughter.

Penalty: Subject to Section 19, imprisonment for life.”

4. Prisoner had pleaded guilty to manslaughter though he was initially committed to stand trial on wilful murder but was the subject of plea bargaining between defence and state. There were no issues of law apparent and identifiable. The plea was in order and consistent with the evidence that was on file. I confirmed the guilty plea after perusal of the file and tendered and convicted the defendant as indicted of manslaughter.

Issue on trial

5. What is an appropriate sentence to be imposed upon the prisoner?

Evidence

6. The maximum sentence prescribed by the section is life years. The facts and circumstances did not sway that the maximum sentence of life years be imposed here but a determinate term of years be imposed. In the record of interview at question 31 when asked why he stabbed the deceased, he answered that the deceased had committed adultery with his wife back in 2013 which is why he stabbed the deceased. It did not make sense that since 2013 up to the date of the offence 24^th February 2017 a period of 4 years he had done nothing through the process of law to correct the allegation that he raised of adultery with the deceased and his wife. In court he explained on allocutus that the deceased was his nephew and his third child was fathered by the deceased but he looked after the child. On that day he was provoked when the deceased was brought to him at his house where he was sitting down prompting him to commit the offence.
   
7. It was a very serious wrong because the evidence did not show any real need to stab the deceased as he did. It was not as if the deceased was seen in “flagranto delicato” or in the act of sexual intercourse with his wife. It was adultery of the past that he had stored and acted onto to commit the offence. It did not excuse him for what he did. He acted as he did publicly in the village without regard for the others who were with the deceased. He was not deterred by their presence or of the fact that what he did may have led to confrontation because of the death. It was a single stab to the back which pierced the left lung from the back of the deceased. A knife was used with fatal consequences. "Manslaughter is a very serious matter or offence and it carries a maximum penalty of life imprisonment. And the life imprisonment is because a life is gone and that person is never going to come back.
   

"No matter whose fault it is, the person is dead and it is tragic. I cannot ignore the fact that you were carrying a knife with you at the time and unfortunately this court sees time and time again women who are walking around everywhere, not just in the Highlands, in many places of the country who are carrying knives and so much harm comes out of it. You stabbed her twice and what makes this case even sadder than everything is that the deceased was seven months pregnant. And the State has asked me to take that into consideration as an aggravating circumstance. As I understand the foetus died and the whole incident is tragic. It is sad and it should never have happened. You have done something that you will have to live with for the rest of your life.... I cannot ignore the fact that not only did the lady die but the seven months foetus has died as well. Women must realize that they cannot express their anger with the use of a knife; it is just not acceptable under any circumstances. If they do so, they can expect to go to jail." Marangi v The State [2002] PGSC 15; SC702 (8 November 2002)

8. Deceased was a 24 year old man who was cowardly stabbed with a knife on the back by the prisoner. Who was in possession of a knife that was poised and ready should he need it as was the case. He had lived with the adultery 4 years without recourse to the law. What was so prompting on this day for him to react as he did aggravating the offence?
   

Mitigation

9. In Marangi (supra), the prisoner appealed against the 9 years that was imposed for manslaughter, the Supreme Court rejected her appeal confirming the sentence of the National Court and adopting what was said by the Judge at first instance above. What the Supreme Court said is applicable here and relevant. You pleaded guilty maintaining the initial admittance to the police in the record of interview conducted on the 6^th March 2017. And in court you maintained an early guilty plea saving the court time and money in the running of the matter on a trial. You are 26 years old married with three children the last of the child you claimed was fathered by the deceased. You had no previous breach known to the law.
   
10. In allocutus you said: “I would like to apologise to the court for breaking the mother law. My first time in court. I have a family and an old mother she is blind. My small brother is deaf and dumb. My third child is from the person that I killed. My village is Buluma section 5 Saraklock. I ask court for mercy and probation or GBB.”
    
11. In Allan Peter Utieng v. The State Unreported judgment delivered in Wewak on 23/11/00) SCR 15 of 2000, it was stated:
    

“It is now settled law that, an offender should consider his or her personal and family backgrounds and needs before committing an offence. It follows therefore that, once a person is found guilty of committing an offence, it is a little too late for the offenders to raise their personal and family backgrounds and needs with a view to getting a more lenient sentence. This has been so which has been followed in a long list of National Court judgments .The State v. Danny Makao (2005) N2996.

This is applicable to you now. The situation within your family should have stopped you from committing the offence. You paid no heed to them you cannot flag them in the face of what is due to you in law now.

12. Defence counsel in mitigation apart from the personal particulars admitted that the offence was prevalent. But that there was strong de facto provocation. The deceased had engaged in adulterous affair culminating in the pregnancy of the third child that he was now looking after. It explained why the prisoner acted as he did. Compensation had been paid of K2500. In accordance with the often quoted case of Manu Kovi v the State (2005) SC789 it was category one where the range was from 8 -12 years IHL he argued.
    

Prosecution submission

13. He was wrong to take the law into his own hands in trying to solve the matter. But he had killed a relative. Tough punishment was called for in view of the prevalence of the offence. He had abused the knife which was not a weapon but a tool. It was clearly category 1 and 2 of Manu Kovi (supra) with a minimum sentence of 8 to 16 years category 1 and 2.
    
14. I take account of what both counsel have submitted and deduce that the offence falls under category 1 and 2 of the Manu Kovi case. He had deprived the right to life of the deceased under section 35 of the Constitution. It was a prevalent offence. The injury was to a venerable part of the body, the back penetrating into the left lung from which the deceased bled to his death despite being rushed to the Kimbe General Hospital. Like in Murder Simon Kama v The State (2004) SC740 sentence imposed by the court was not deterring would be offenders of the crime of manslaughter like murder. You plea to be accorded mercy by the court you did not accord the same to the deceased at all. You persisted without mercy and compassion even though you are a Christian, a Catholic. You acted without regard for the life of another fellow human being. You stuffed the life out of him depriving him from his family. You will go to prison knowing that your family is complete but not the deceased family.
    
15. Life is sacred and can never be taken at the whim of a person just like that. The sanctity of life derives from our teaching us Christians that only GOD can give and take life not man as you did here. Our Constitution recognizes Papua New Guinea as a Christian country and one of the fundamental rights under the Constitution is the right to life under section 35. The court will give effect in all material form to ensure that you understand and that others like you are deterred and observe that the right to life is basic and fundamental to every living human being. You were the author of the death of the deceased. First you punched him and when he avoided you stabbed him on the back piercing his left lung from which he bled to his death. In the record of interview you said you merely wanted to give him pain. You have now not only given him pain but you caused his death. He was aged 24 years old in the prime of his life still had a long way to go in life you abruptly ended it over a matter if you had followed the due process of law he would still be alive now and you would not be facing what you are now: Lialu v The State [1990] PNGLR 487 (30 November 1990). I therefore agree entirely with the views of Bredmeyer J in The State v Polin Pochalon Lopai [1988-89] PNGLR 48, where his Honour held that:
    

“Sentences for manslaughter should be slightly higher than for rape as death is a more serious consequence than the trauma of rape. A range of sentences from five years for a plea of guilty, six years for conviction following a plea of not guilty going up to ten years in a case with aggravated features is appropriate for manslaughter’ .In making these comparisons, the point is made that there is a need to take into account that, in manslaughter cases, there is the element of death, whereas in the case of robbery or rape, death is not involved. Death is, of course, a significant element of the offence of manslaughter. However, that does not necessarily mean that every manslaughter case should receive a higher penalty than robbery or rape. If that principle was accepted, then all manslaughter cases would get a higher penalty than offences of robbery or rape on the basis that death is present in manslaughter cases.”

16. The victim of rape will live and breathe that is not so of the deceased here. That fact along is very serious to call that sentences of homicide will reflect its gravity and each case is depended on its own facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38. I am inclined to follow that the facts and circumstance will determine what sentence is passed upon the prisoner now. It is a category two matter in accordance with Manu Kovi (supra) which in effect means that he is looking at a sentence between 8 years and 16 years imprisonment. Tanga v The State [1999] PNGLR 216.
    
17. I am minded given the facts and circumstance discussed and set out above that an appropriate sentence proportionate to your plea, taking a life abruptly, sanctity of life, resorting against the rule of law would be 15 years IHL. I so impose because with the lapse of time this offence is as prevalent as ever resort to killing with a knife be it a kitchen knife, a Rambo knife, a bush knife, a sickle or hook knife or whatever kind make of knife must be deterred with strong and deterrent sentences. I consider that this is the lower end of the range for sentences for manslaughter given the facts above and I so impose that sentence upon you.
    
18. Accordingly you are sentenced to 15 years IHL and I deduct the time on remand forthwith.
    

Ordered accordingly.
________________________________________________________________
Public Prosecutor : Lawyer for the State
Public Solicitor: Lawyer for the Defendant