State v Lalai [2018] PGNC 33; N7092 (8 February 2018)

N7092

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1714 OF 2016

THE STATE

V

MAKIS LALAI

Kimbe: Miviri AJ

2017: 8^th &15^th December
2018: 8^th February

CRIMINAL LAW – PRACTICE AND PROCEDURE – Manslaughter S302 CCA – Plea ––deceased hit over head with tree branch—internal head injuries death-self-induced drunkenness no excuse-prevalent offence—youthful offender—application of Juvenile Justice Act-no evidence to invoke-sanctity of life-strong deterrent sentence.

Facts
Accused beat the deceased during a drunken fight over his head with a tree branch causing internal injuries leading to his death.

Held
Drunken youth fight
Use of a weapon
Venerable part of the body head
Plea
Prevalent offence
14 years IHL

Cases:
Avia Aihi v The State (No 3) [1982] PNGLR 92
Acting Public Prosecutor v Nitak Mangilonde Taganis [1982] PNGLR 299.
Allan Peter Utieng v. The State Unreported judgment delivered in Wewak on 23/11/00) SCR 15 of 2000
Acting Public Prosecutor v Mailai [1981] PGSC 7; [1981] PNGLR 258
Hane v The State [1984] PNGLR 105
Kovi v The State [2005] PGSC 34; SC789
Kairi v The State [2006] PGSC 8; SC831
Lialu v The State [1990] PNGLR 487
Mamote-Kulang v Regina [1963] PNGLR 163
State v Kaiwa Iasumi (1978) N163
State v Ben Paul Sepitio CR 52 of 2011
State v Kaso [2012] PGNC 381N4660
State v Hagei [2005] PGNC 60; N2913
State v Aitsi No 2 [2008] PGNC 21; N3296
State v Hurotove [2017] PGNC 114; N6754
Tapi v The State [2000] PGSC 2; SC635
Thress Kumbamong v The State (2008) SC 1017

Counsel:

A Bray, for the State
D Kari, for the Defendant

SENTENCE

8^th February, 2018

1. MIVIRI AJ: Makis Lalai of Kubaibus village, East Yangoru, East Sepik Province , appears now to receive sentence in that he hit Gedion Rowan on the head with a tree branch on the 4^th June, 2016 causing internal bleeding therein from which he died.
   

Charge

2. He was charged with manslaughter contrary to Section 302; he pleaded guilty drawing the imposition of a maximum sentence of life years imprisonment discretionary prescribed by the section. Given the facts and circumstances of the case a term of years was appropriate not the maximum as it was not the worst case of its kind, Avia Aihi v The State (No 3) [1982] PNGLR 92 (5^th March 1982).
   

Allocutus

3. When given an opportunity to speak as to what sentence to be imposed this is what he said in his allocutus:
   

“I would like to apologise for breaking the law of the country and our creator. I apologise to the family of the deceased and mine. I apologise to the Court for taking the time to hear my case. I am a first time offender. I’d like to give my reason that fight between myself and Jesrael Winuan he pulled me from the road to the block. Whilst we were fighting Gedion Rowan came and both fought me and I fell onto the wood. I picked up the wood and wanted to hit Jessy Winowan but I hit Gedion Rowan. I did not mean to kill him I had no grudges with him. Our family lived together in the past till this incident happened. In my family there are four of us three girls and I am the only male in the family. Three sisters married and gone I am the one alone with family. My father has a 3 hectare block that has a chicken and pig farm I help them. I am attending my education and my aim is to be a good citizen of this Province. I ask the courts mercy to give me good behaviour bond so that I can be outside to complete education”.

Criminal Responsibility no issue.

4. By his allocutus criminal responsibility in law was settled, causation self- defence and provocation was inapplicable, it was a direct consequence of the wood that he hit out with at the deceased. It did not matter that he had intended to hit Jesrael Winuan because the action was illegal and unlawful even intended there but landing on the deceased, and the result it brought about was by his action and he was in law criminally responsible for it. It was not the same situation as in Kairi v The State [2006] PGSC 8; SC831 (28 April 2006) where appellant stabbed deceased to stop the beatings that were exerted continuously upon her. She therefore had defences that came out of her allocutus of provocation, self defence and causation. The Supreme Court set aside the verdict and sentence and ordered a re-trial.
   
5. It wasn’t an accidental act, or an act which occurred independently of the mind of the prisoner, or an unforeseeable act which arose by an act of God, as in Mamote-Kulang v Regina [1963] PNGLR 163 (4 December 1963). He was criminally negligent, because it was not a simple lack of care such as will constitute civil liability, but a very high degree of negligence and therefore a felony, State v Kaiwa Iasumi (1978) N163. He became liable to be punished for it, which I now consider firstly with the general circumstances of the offence itself.

Circumstances of the crime

6. What is undeniably clear is that, both the prisoner and deceased were seriously affected by alcohol which brewed the fight leading to the demise of the deceased who was hit on the head with a hard tree branch. And it was serious internal injury to the head a very vulnerable part of the body depicted by the death that followed suit. It was a single hit and not repeated. Prisoner had no prior criminal record and was a first time offender a student in grade 9 at Poinini Catholic Secondary School. And the deceased was a neighbour no more than 20 years old who had just recently married. They were both in their youth not versed with life’s long journey. In particular the dos and don’ts of use and abuse of alcohol. What emerged here was a trend now common amongst young people country wide in our cities, towns, villages and settlements to live their lives uncontrollably on the fast lane. And the peer pressure uncontrolled by good responsible parenting led in many instances to disaster as here. Kimbe was no exception rampant with money flowing from the oil palm industry in everyone’s pocket including here both prisoner and deceased. Illicit spending on alcohol and drugs led in many instances to disorder and unlawfulness which I considered in the case of State v Ben Paul Sepitio (2018) N7093, a young men also who stabbed another in the chest over alcohol brewed fight leading to death there. When the life of the community and society was threatened by this behaviour violent and prevalent it was a serious matter where stern and deterrent sentences were in order unless proper material was placed to deviate. One such matter was as to unstable upbringing of the offender as observed by the Deputy Chief Justice Sir Salika in State v Kaso[2012]PGNC 381N4660 (27^th April 2012) an offender should not pay with imprisonment but a chance to rehabilitate. That was robbery. Here is manslaughter graver than the former considering the facts and circumstances it would be disproportionate to impose a non custodial or part suspended sentence. In so holding I am fortified by the words of Deputy chief Justice Sir Mari Kapi in the case of Lialu v The State [1990] PNGLR 487 (30^th November 1990);
   

“The exercise of the sentencing discretion must be guided by proper principles. These include the characteristics of the offence or the offender which may aggravate or mitigate the seriousness of the crime taken together with all other relevant considerations. In this regard, it is desirable that the courts must be consistent in the application of these principles. These principles of sentence do not necessarily resolve the difficult task of fixing a particular term of sentence for any one particular case. The reason is clear and it has been pointed out in previous cases that there is no mathematical or scientific formula for arriving at a particular specific sentence from the general principles. An attempt to apply a mathematical calculation was rejected by this Court in Acting Public Prosecutor v Nitak Mangilonde Taganis [1982] PNGLR 299. In that case I said (at 303):

“This raises the question of proper approach to sentencing. In practice most judges take into account the aggregate effect of all the relevant facts, mitigation factors and principles when coming to a term of sentence. There is no mathematical formula for determining the actual length of sentence. In determining the term of sentence in this way, the experience and the good judgment of the judge is a big factor. A judge who is comparatively less experienced can get a lot of assistance from the range of sentences customarily imposed by the court for the particular offence.”

7. I adopt in full what his Honour stated as good law applicable and accordingly I apply it here in the determination of an appropriate sentence for the prisoner. Which I set out in the various headings relevant and pertinent here to arrive at a just and proportionate sentence for the case befitting here.
   

Antecedents

8. Prisoner was a first time offender aged 17 years old at the time he committed the offence. He was a grade 9 student at the Poinini Agricultural Technical High School. And was resident with his parents at Block 1266 section 4 Buvussi, Kimbe and was of the Revival church. The family had a house a family trade store, stand-alone kitchen, boy houses, and chicken houses evidence of very hard working parents to live life here in Kimbe. All these were destroyed as a result of the actions of the prisoner by the relatives of the deceased who lived just next door. The value as confirmed by the Presentence report is K 9, 647. 60.
   

Mitigation

9. Prisoner admitted the offence to police upon arraignment which he maintained in court saving valuable court time, money and resources. He was remorseful for the offence. The presentence report that was ordered by court confirmed and verified that a village court ordered mediation saw payment of K5,000 in cash, three live pigs to the family of the deceased confirmed by the deceased relatives. It also confirmed and verified that K 9, 647. 60 worth of properties of the parents of the prisoner were taken by the deceased relatives as their houses were next door to each other. The house, kitchen, trade store and boy house were destroyed and could not be used. And all properties inside were taken and the itemized value is as set out above.
   
10. The prisoner sufficiently explained both in his record of interview and allocutus why he did what he did. He was affected by voluntary consumption of alcohol together with the deceased and the others. And the offence was out of character. He was a practising Christian of the Revival church confirmed by Pastor Emmanuel who spoke of him as a good person.
11. Prisoner pleaded that he was the only male person and if he went to prison who would help his parents take care of the 3 hectare block of land and the pig and chicken farm there would be no body because the elder sisters had all married and gone. The Supreme court in Allan Peter Utieng v. The State Unreported judgment delivered in Wewak on 23/11/00) SCR 15 of 2000 settled that considerations in these regard should have been at the forefront of the prisoner at the time of the commission of the crime and did not alternate nor deviate or down play the discretion of the court. It was not an extenuating fact or circumstance for example as in the State v Hagei [2005] PGNC 60; N2913 (21 September 2005) where the prisoner raped the victim who tried to run away naked, he chased after her punched her causing her to fall to the ground, as she did he picked up a stick hit the back of her head causing internal injuries to the neck and the head from which she died. This court imposed life years upon the prisoner because of the extenuating circumstance that as soon as he was taken in by Police he was taken to the relatives of the deceased girl who severely beat him up, speared him with spear that come out just below his chest. He died and his body was wrapped up with plastic and as he was about to be put in the morgue, he became alive again. He pleaded guilty before this court the death penalty was envisaged but not pursued because of this extenuating circumstance. That is not the case here.
    

Tariff and range of sentences

12. Generally all like cases must be treated alike Kovi v The State [2005] PGSC 34; SC789 (31 May 2005) is the leading case on homicide sentences which sets the facts and circumstances of this case as category 2 manslaughter case attracting the range of sentence between 10 to 16 years in jail. Both defence and prosecution agree that is the category and the range applicable here. Both also agree that compensation was paid as itemized and set out above. That a piece of wood was used to deliver the blow to the most venerable part of the body which is the head from which there was internal bleeding that led to the death of the deceased and that both deceased and Prisoner were affected by alcohol at that time. The Prisoner was aged 17 years at the time of the offence and deceased 20 years. The medical officer surgical registrar Dr. James Apamumu swore a medical affidavit dated the 27^th June 2016 attaching a Report of Post Mortem examination 22^nd June 2016 of one Gideon Rowan wherein he issued a medical certificate of death of the same date of the deceased that he had died because of severe head Injuries, Extensive Sub-Dural Haematoma and Scalp Haematoma. There were also photographs tendered of the injuries of the deceased and the piece of wood that was used.
    
13. It is important and fundamental that life is lived only once and is therefore sacred. It is a fundamental right under our Constitution section 35 and only by process of law can life be taken. The Sentence will reflect that. Deputy Chief Justice Sir Gibbs Salika said in State v Hurotove [2017] PGNC 114; N6754 (5 June 2017:
    

“The court has a duty to impose sentence that are not only punitive on the prisoners but must have a deterrent effect on not only the offenders but other likeminded Papua New Guineans who plan on taking the law into their own hands. I do not say this lightly because in this country there are so many wanton killings as if life is some form of a commodity or a replaceable item that can be borrowed or bought from a hardware shop in town. Moreover killings in this country are becoming more daring, without fear and with no respect for the sanctity of life. Spending a lot of time in prison is not an inhibiting factor, it seems. Being separated from family and loved ones is not an inhibiting factor. The mere fact of taking a human life is not an inhibiting factor. Even the imposition of a death penalty for wilful murder seems not be an inhibiting factor. Our People need to be educated to a level that will instil some moral values in people’s lives. Living in a city with church influences has not helped to curtail these wanton killings.”

Following trial His honour imposed a head sentence of 22 years IHL for murder on both Prisoners.

14. Manslaughter is the third out of the homicide offences. It is very prevalent therefore sentences have increased alongside. That observation was made in Tapi v The State [2000] PGSC 2; SC635 (30 March 2000) by the supreme court maintaining that it was the top end of manslaughter cases for 16 years to have been imposed on a husband who had cut up the wife causing massive bleeding from which she died.
    
15. Where a weapon is used the sentence goes up. A piece of iron rod was used to hit the deceased over the head and he died as a result which attracted 17 years imprisonment upon the prisoner: State v Aitsi No 2 [2008] PGNC 21; N3296 (28 March 2008). This is reflected in the range that Kovi’s case (supra) makes out echoing Norris v. The State [1979] PNGLR 611 at 618 where it said:
    

“the following matters may be relevant to the nature of the act causing death: (i) the nature and frequency of any attack or assault; (ii) whether the injury which caused the death arose directly from an attack or assault or was caused by, for example, falling on an object; (iii) whether the injury was caused by the person or by a weapon; (iv) whether there was deliberate intention to harm; (v) whether there was provocation in the non-legal sense; (vi) whether the deceased had a thin skull, and (vii) whether the deceased had an enlarged spleen”.

16. Here the facts and circumstances urges as drawing 8 to12 years for manslaughter when that is the lower end of the range of manslaughter sentences because the intent of the legislature is paramount and should be complied with as that is the intent of the people through the parliament. Hane v The State [1984] PNGLR 105 (28 May 1984).
    
17. Youthfulness and youth is no longer to be pleaded by itself without any facts and evidence to sway away from the full impact of the law when the offence is a very prevalent and serious offence Acting Public Prosecutor v Mailai [1981] PGSC 7;[1981] PNGLR 258 (31^st July 1981) as is the case here.
    
18. Further the sentencing discretion of the court is never fettered Thress Kumbamong v The State (2008) SC1017 and no material has been placed to determine otherwise than to come to the aggregate of the aggravating and the mitigating factors which I consider as 14 years IHL and I impose that upon you. Had it not being for the damage to properties including your plea and compensation paid this sentence would have been higher. There are no extenuating circumstances. I order that the time in custody will be deducted from that sentence.
    
19. The sentence of the court is 14 years IHL less time in custody.
    

Sentenced accordingly.
__________________________________________________________________

Public Prosecutor: Lawyer for the State

Public Solicitor : Lawyer for the Defendant