State v Michael [2017] PGNC 254; N6943 (18 August 2017)

N6943

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 356 OF 2016

THE STATE

V

KOPIS MUNI MICHAEL

Kundiawa: Salika DCJ
2017: 18^th August

CRIMINAL LAW – Practice and procedure – Charge of unlawful killing – s.302 of Criminal Code – prisoner shot his wife with a home made shot gun – appropriate sentence – 20 years imprisonment.

Case Cited:
Lawrence Simbe v. The State [1994] PNGLR 33
Manu Kovi v. The State [2005] SC789
Rex Lialu v. The State (1990) PNGLR 448
The State v. Anita Kelly [2009] N3624
The State v. Bernard Hagei [2005] N2913
The State v. Douglas Mareva [2012] N4805
The State v. Kovio (2016) N6461
The State v. Kwalimu Goina (1982) SC230
The State v. Ladiah Kilala & Ors [2012] N5080
The State v. Tuma (2017) N6618

Counsel:

Ms. Roalakona, for the State
Mr .M Yawip, for the Prisoner

SENTENCE

18^th August, 2017

1. SALIKA DCJ: INTRODUCTION: The prisoner pleaded guilty to one count of unlawfully killing of Agatha Kuik. The charge is brought under S. 302 of the Criminal Code Act.
   

FACTS

2. The facts of the case are that the offender was married to Agatha Kuik. On the morning of 16^th July 2015, Agatha Kuik was at a creek washing Kaukau. After she finished she packed the kaukau and walked up to the road with a man that appeared to be her new husband. The accused then jumped out from the bushes armed with a gun and in an attempt to scare Agatha Kuik he shot her and unlawfully caused her death.
3. The State says that when the accused tried to scare the deceased and shot her without the intention to kill or cause her grievous bodily harm, he contravened section 302 of the Criminal Code Act.
   

THE ISSUE

4. Having pleaded guilty to the charge the duty of the Court is to consider the appropriate sentence to impose on the offender.
   

THE LAW

5. Section 302 of the Criminal Code says:
   

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

Penalty: Subject to Section 19, imprisonment for life.

The maximum penalty the court may impose is life imprisonment subject to s.19 of the Criminal Code.

6. The court will however consider the current sentencing trends imposed by the National Court and the Supreme Court to come to a fair sentencing decision. It will also look at case precedents and peculiar circumstances of the case to come to a decision on a sentence.
   
7. In homicide cases wilful murder is more serious than murder and murder is more serious then manslaughter. The prisoner is convicted on one count of manslaughter. The maximum sentence for wilful murder is death and for murder and manslaughter is life imprisonment and that is because taking away a person’s life is a serious thing. Human life is lived only once. Once lost it is lost forever. The maximum sentence is reserved for the worst case and is usually determined when one is dealing with the who, why, what, when, where and how questions in other words, the circumstances of the commission of the offence. The sentence is usually determined or arrived at on the circumstances of each case.
   

CIRCUMSTANCES OF THE OFFENCE

8. The offender and the deceased were husband and wife. They were married in church and have 6 children. His wife allegedly ran away with another man and when he went to get back his wife he was assaulted. So this time he went armed with his homemade gun and he saw his wife walking with her new husband and then he shot her.

9. There were two other versions in the record of interview with the police but I will give the benefit of the doubt to his new version he told in his statement in allocatus.
   

PRINCIPLES OF SENTENCING

10. The following factors are usually considered by the Courts to determine the appropriate sentence:-
    

(a) degree of level of participation

- the offender was the sole participant in the commission of the crime.
(b) degree of ignorance of the law.

- the offender is not ignorant of the law
(c) age of offender

- the offender is about 43 years old
(d) is the offender a first offender

- yes
(e) was compensation paid?

- yes he paid K6, 300.00 and 10 pigs
(f) has prisoner shown remorse?

- yes he said he is sorry for death of wife

- he now realises his children are now left without a mother while he is in jail.
(g) did the prisoner co-operate with police?

- yes
(h) did the offender plead guilty?

- yes
(i) was any aggravation offered by the deceased?

- she is said to have left him for another man and he was angry because he paid full bride price and they were married in church.
(j) will a jail term have an effect on the offenders family?

- yes, the children of offender are now without a mother.
(k) will a jail term have an effect on his employment?

- the prisoner is a villager and a subsistence farmer and will no longer attend to his daily chores as a villager

- his family will have to make do without him
(l) has customary compensation been paid?

- yes K6,300.00 has been paid with 10 pigs.

CASE PRECEDENTS

11. Relevantly the Supreme Court in Manu Kovi v. The State (supra) said:-
    

“In homicide cases, as with any other offences, the use of a tariff though has its limitations, because the determination of appropriate punishment in each case, is an exercise of discretion, having regard to the seriousness of the offence, the gravity or otherwise of the circumstances of the offence, the personal circumstances of the prisoner which aggravate or mitigate the punishment and the interests of the community in ensuring the punishment achieves its purpose.

I have said it before and I say now again that sentencing an offender is a exercise of discretion, taking into account all the relevant considerations and making a decision on sentence. I agree there is no scientific or mathematical formula. Case precedents of similar factual circumstances helps a judge to decide what a sentence is to be.

12. The sentencing tariff is to be used as a guide as in the Manu Kovi case was suggested in 2005. Some 12 years later now, manslaughter offences have not decreased; in fact they continue to increase. Are the sentencing ranges in Manu Kovi case still relevant now? I suggested they are outdated and perhaps they need to be increased. Sentences for a guilty plea case should be different from a trial case. The Manu Kovi suggested tariffs have been in use for 12 years now but have not served as a deterrent at all. Manslaughter cases continue to rise at will. In my respectful opinion this court should be at liberty to progressively increase sentences from the tariffs suggested in Manu Kovi 12 years ago as there is no decline in the number of unlawful killings. Similarly the Court must be at liberty to impose lower sentences in appropriate cases.
    
13. Counsel for the offender cited the case of The State v. Tuma (2017) N6618 for the proposition that part of the sentence be suspended. In that case the prisoner pleaded guilty to the charge of manslaughter. The deceased in that matter was having an adulterous affair with the prisoner’s wife. On the night of the killing the prisoner caught the man and the wife naked. The offender cut the man with a bush knife on his left wrist intending to hurt him. The incident took place in a remote location in the Madang Province and the man died due to loss of blood. The deceased family was of the view that the deceased brought about his own death in that the pay for his adulterous acts was death and he was a drug taker, a trouble maker and a headache in the community. It was a relief to the community that he was gone for good.
    
14. In the matter of The State v. Kovio (2016) N6461 the deceased and the prisoner were biological brothers. Their respective wives had continuous arguments and fights. Prior to the day and date of the offence, the prisoner had an argument with the deceased’s wife. The deceased was not there then. The deceased learnt of the argument in the afternoon and in the night he went and broke the wall of the prisoner’s house and the prisoner got his spear and speared him on his left thigh. The deceased died from blood loss. The prisoner was sentenced to 6 years but 2 years of that was suspended on conditions that he be of good behaviour for 2 years. He pleaded guilty and got the benefit of a reduction in sentence.
    
15. The point is made and that is that the court has discretion to suspend whole or part of the sentence on conditions and on proper basis. This court will consider whether whole or part of the sentence in this case should be suspended.
    
16. Sentencing for manslaughter offences must be lower than sentences for murder and wilful murder. The court must pay careful attention to:-
    
    • (i) the circumstances leading to the death ; and

(ii) the way death was actually caused ;when considering the

appropriate sentence. (see Rex Lialu v. The State (1990) PNGLR 448).

17. In considering what an appropriate sentence in manslaughter cases should be the following factors should be considered:-
    
    • (a) circumstances of the death and the way the death was actually caused.

-in this case the facts be referred to.
(b) was the assault on the deceased vicious or not vicious;
-it was vicious
(c) was there any deliberate intention to harm;
-yes
(d) what was the nature of the assault;
-he used a home made gun to shoot her.
(e) was the injury that caused death directly from an attack or assault or
was it caused by a fall on an object.
-yes, she died from the gunshot wound due to blood loss.
(f) was injury caused by a weapon or by the person.
-by the person
(g) was injury by fist.
-No

18. A sentence in my respectful opinion should be decided on its own peculiar facts and circumstances (see Lawrence Simbe v. The State [1994] PNGLR 33). The use of sentencing tariffs has its limitations with respect, and should only be used as a reference tool by a sentencing authority in considering an appropriate sentence.
    
19. The sentencing tariffs in the Manu Kovi case, does allow for penalty variations with those who plead guilty and those who plead not guilty. In other words the courts do recognise the benefits of a plea of guilty to an offender who pleads guilty to an offence. A plea of guilty is a clear demonstration of an accused’s acceptance of his or her actions which were wrong and his or her profound regret for what happened. It may be an expression of genuine remorse and not by talk only that he or she is remorseful about what happened. A plea of guilty saves time and costs to the court and the prosecution. A plea of guilty is indeed a mitigating factor – which must result in a reduced sentence. In consideration how much reduction is to be given for a plea of guilty is again in the discretion of the court after examining the circumstances giving rise to the plea of guilty.
    

MITIGATING CIRCUMSTANCES

20. The following are mitigating factors:-
    

(a) the prisoner is a first time offender
(b) the prisoner pleaded guilty to the charge
(c) expressed some remorse

AGGRAVATING FACTORS

21. The following are aggravating factors:-
    
    • (a) the prisoner had a home made gun and the home made gun is out there somewhere.
    • (b) how and where he got the cartridge from is a mystery.
    • (c) he used the homemade gun to kill the wife.
    • (d) there was some planning for him to do what he did.
    • (e) a life has been lost.
      

ALLOCATUS STATEMENT

22. On allocatus the prisoner said his wife the deceased and him were married in church and they have 6 children. He said he paid full bride price but the woman walked out on him and found a new husband. He tried to get her back but he was assaulted by the woman’s family so he decided to do what he did. He said he went and saw his wife walking with her new husband and he shot her.
    

SENTENCE

23. The end result in all homicide cases is that a human life is lost. Section 35 of the Constitution says:-
    

“35 (1) No person shall be deprived of his life intentionally except –

(a) in execution of a sentence of a court following his conviction of an offence for which the penalty of death is prescribed by law; or
(2) Nothing in Subsection (1) (b) relives any person from any liability
at law in respect of the killing of another.

Life is a gift from God and no one has the right to end another person’s life. Taking away a person’s life is repulsive and despicable. The court must be seen to be protecting human life because life is lived only once in this world. The sanctity and value of life is more precious and valuable than material wealth silver, gold or diamond and this Court takes serious notice of that undeniable fact. No amount of compensation in monetary terms, regret or remorse is ever going to restore a life that is lost. (see The State v. Ladiah Kilala & Ors [2012] N5080, The State v. Anita Kelly [2009] N3624. Agatha Kuik is now gone forever. That is the reality.

24. I agree with the sentiments expressed by the National Court in The State v. Bernard Hagei [2005] N2913, where the court said:-
    

“There are so many wanton killings happening in the country as well as though life is some form of commodity or a replaceable item that can be borrowed or bought from the hardware shop in town. Killings in this country are becoming more daring without fear and there is no respect for sanctity of life. Brutal horrific and cold blooded killings are becoming too frequent.”

There are indeed far too many cruel, violent, deliberate, wilful, unjustifiable and senseless killings as happened in this case. There appears to be no end in sight for such killings.

25. The National Court in The State v. Douglas Mareva [2012] N4805 said:-
    

“Whatever sentences the Court decides to impose must reflect the purposes of the criminal justice system that should balance over between the offender, the victim and the effect it may have on the community.”

26. One purpose for imposing a sentence is that one will have an opportunity to look back at his or her actions, and work on those weak parts of his or her habits and character with a view to reform and rehabilitate oneself.
    
27. Sentence also plays a role in educating our communities to live peaceful lives with one another and to deal with issues in a civilised manner. Our people must identify and practice proper standards of conduct in the community, that includes proper respect and tolerance for one another and have common decency. The Court should be seen as an educational tool in that sense.
    
28. The Court also sentences offenders to imprisonment to prevent reoffending by the same person. In some cases the Court sends offenders to serve jail terms to ensure peace and safety in the community is safe guarded.
    
29. Another purpose for sentencing is to try and reconcile the parties so that previous good relationship is restored. Another purpose for sentencing an offender is the need for retribution that is the need for the offender to be punished for the crime he or she committed. The offender must realise that he or she has committed a crime, in some instances, a very serious crime and that he or she deserve to be punished for doing wrong.
    
30. I take into account the case precedents referred to by counsel to assist me. I have referred to some of them in the decision. This case falls into category two (2) of the Manu Kovi at the lower range and I am guided by that decision although with respect I am of the opinion that it is now outdated.
    
31. I am reminded by what the Supreme Court said in Kwalimu Goina (1982) SC230 when it said:-
    

“We are mindful of the increase in crimes of violence and the undisputed public concern about such offences. Such conduct will be met by firmness on the part of the courts and we give warning that sentences will increase substantially.”

32. This killing was totally unnecessary. If the wife had left him he should have taken the matter to the Village Court and community leaders to sort out the matter. He took the law into his own hands and ended the matter his own way. This case falls in the second category of Manu Kovi case but that the Kovi decision was 12 years ago and such killings are committed undeterred. Considering the circumstances of the case and that a lethal weapon was used I consider that an imprisonment term of 20 years will surface. Accordingly, the prisoner is sentenced to 20 years imprisonment in hard labour. He has been in custody 2 years and one month. That is taken away from the two years. The balance he will now serve is 17 years 11 months in hard labour.
    

Sentenced accordingly.
_______________________________________________________________
The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Prisoner