N7458
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 942, 943 & 944 OF 2017

STATE

V

NOEL EINE, BENO KUPER AND NELSON NUMBA

Aitape: Gora, AJ
2018: 06th, 12th, 18th June

CRIMINAL LAW – Change of manslaughter – Criminal Code Section 302 – Guilty plea

CRIMINAL LAW – Sentence – First time offender – Expressed genuine remorse – Mitigating and Aggravating factors considered - Section 7 of the Criminal Code – Aided and abetted

Cases Cited –

Goli Golu v The State [1979] PNGLR 653
Manu Koivi v The State (2005) SC 789
The State v Kanupi (2005) 159 N2800

Counsel: 

Paul Tusais, for the State
Cecilia Koek, for the Defendant    

	RULING ON SENTENCE

18th June, 2018

1.   GORA AJ: INTRODUCTION: All three prisoners pleaded guilty to one count of manslaughter pursuant Section 302 of the Criminal Code.

FACTS

2.   Brief facts are that between 12:00 midnight and 3:00am on Sunday 12th February 2017 there was a confrontation between the three prisoners and one Hilary Arino, now deceased. Noel Eine hit Hilary on his chest but Hilary retaliated and punched him to the ground. Nelson Numba and Beno Kuper both went to help Noel Eine and fought Hilary. During the fight Hilary was proving to be too strong, so Beno Kuper held Hilary’s hands at the back and told Noel Eine to stab him. Noel Eine took out a kitchen knife and stabbed Hilary several times on his chest and abdomen completely severing his left kidney. Hilary died a short while later.

3.    State invoked Section 7 of the Criminal Code on the three prisoners aided and abetted each other in the commission of the crime.

ISSUES

4.   The issue is what would be the appropriate penalty to be imposed against each of the three prisoners.

THE LAW

5.   Section 302 creates the offence of Manslaughter. It also prescribes the penalty. It reads; “A person who unlawfully kills another under such circumstance as not to constitute wilful murder, murder or infanticide is guilty of manslaughter. Penalty: Subject to Section 19 imprisonment for life.” 

6.   Imprisonment for life is the maximum which falls short of the death penalty. This reflects the very serious nature of the offence and hinges on the constitutional and human rights aspect of right to life of every individual person.

7.   This raises the question of whether court should impose a maximum sentence or life imprisonment for each of the three prisoners.

8.  Their lawyer submitted that the maximum penalty is reserved only for the worse type of cases, I agree as this is now a settled law in this jurisdiction as in the case of Goli Golu v The State [1979] PNGLR 653.

9.   The question is whether this is a worse type of case.

10.   Their lawyer submitted that this case does not fall in the worse category of manslaughter cases which would attract the maximum penalty of life year imprisonment.

11.   That may be correct but this is one of those cases where senseless killing of another has resulted from a drunken brawl. A senseless killing under senseless circumstances. The three prisoners where all drunk at that time and deceased was also drunk. They were all under the influence of liquor when a fight started.

12.   Such drunken brawls resulting in unnecessary deaths are now too common these days throughout our communities in the country. Too many lives are often lost under unwarranted circumstances. In my view the tide has to change. It is about time such cases are now treated as the worse type of cases so that offenders face the maximum penalty of life imprisonment in order to warn other would be offenders that such killings are no longer tolerated in our society.

13.   However, this court is reminded that the maximum penalty of life imprisonment is subject to Section 19 of the Criminal Code. This section gives discretion to the court to consider lesser penalty than the maximum and their lawyer has asked the court to impose a lesser penalty.

14.   Court is also mindful that it is also a settled principle of law that each individual case must be considered on its own peculiar facts and circumstances when it comes to considering appropriate penalties to be imposed.

15.   I therefore take into account sentencing guide or criteria adopted by the courts in respect of sentencing on manslaughter cases.

COMPARATIVE CASE AUTHORITIES 

16.  Firstly, the counsels, particularly the defence counsel has asked the court to take particular note of the mitigating factors and the aggravating factors concerning each prisoner when considering appropriate sentence for each of them.

17.   Counsels also referred court to certain case authorities to assist the court.
Firstly, I take particular note of the case of Manu Koivi v. The State (2005) SC 789. In this case the Supreme Court outlined 4 categories of sentencing as guideline in manslaughter cases;

i)	First category is where upon plea – an ordinary case, mitigating factors present with no aggravating factors, no weapon used, offender emotionally under stress, defector provocation, killing in domestic setting following an argument – victim had pre-existing disease, enlarged spleen – Sentencing Tariff 8 – 12 years.

ii)	Second category, where guilty after trial or plea, mitigating factors with aggravating factors present, use of offensive weapon eg; Knife on deliberate intention to harm – some pre planning. Sentencing Tariff 13 – 16 years.

iii)	Third category, where guilty after trial plea – special aggravating factors – mitigating factors reduced in weight or rendered insignificant by gravity of offence – Dangerous weapon used eg; Gun, axe – vicious and planned attack – deliberate intention to harm – little or no regard for sanctity of human life. Sentencing Tariff 17 – 25 years.

iv)	Fourth category, worst case – guilty at trial or plea – special aggravating factors – no extenuating circumstance – no mitigating factors, factors rendered completely insignificant by gravity of offence – some element of viciousness and brutality – some pre planning and pre meditation – killing of harmless innocent person – complete disregard for human life. Sentencing Tariff is Life imprisonment.

18.   Secondly the case of The State vs. Kanupio (2005) 159 N2800. In this case the court analysed “the degree of involvement of each prisoner in the commission of the crime charged with and the sentencing ranges for each of the offenders were determined upon consideration of what I would term as checklist of what each prisoner has done prior to the commission of the offence, at the time of the commission of the offence and after the commission of the offence. There are total of 17 considerations on the checklist which also include the mitigating and aggravating factors”. This checklist in my view is not conclusive and is not an exact science as stated in that decision but should be used as a guide.

19.  The methodology used in respect of this checklist is that an affirmative (yes) answer to any one can be regarded as a mitigating factor, a negative (no) answer will be an aggravating factor and a neutral answer will be neutral factor. The more mitigating factors that are present, the more likely that the head sentence will be reduced. The more aggravating factors present, the more likely the head sentence will be lifted above the starting point. In this case it was stressed however, that sentencing is a discretionary process. When a factor is marked as mitigating factor or aggravating, it does not mean necessarily that it is given the same weight as another mitigating or aggravating factor. Some mitigating factors may be “strongly mitigating”. Others may be mildly mitigating. The same goes for aggravating factors.

20.   Therefore, applying these criteria or considerations pronounced in the above two cases counsel for the prisoners made submissions to the court that this is not a worse type of manslaughter case and therefore, court should take into account the mitigating factors and personal particulars of each of the prisoner when deciding on appropriate sentences for each of them which I will now do.

DECISION

i.	Firstly, for prisoner Noel Eine, he is 19 years old and single from Karaite village, Aitape Lumi. He was 18 years old when he was involved in the commission of the crime, he pleaded guilty to the charge, and he had no prior convictions and is a first time offender. He is a member of the SDA church and was remorseful in his allocutus and said sorry for what he did and has apologized to the family of the deceased. Compensation in the sum of K19,000.00 in cash and foodstuff worth K6,000.00 was paid and that the prisoner was a juvenile (18 years old) at the time of committing the offence. He even assisted in taking deceased to the hospital to save his life.

Counsel submitted for head sentence of the lower part of category number two which is 13 – 16 years’ imprisonment. He recommended 13 years with 4 years to be suspended on mitigating factors and further 1 year 4 months to be deducted for time spent in pre-trail custody. But he is the one who stabbed the deceased twice on the chest and once on the abdomen severing his kidney causing death.

ii.	Secondly, for prisoner Beno Kuper he is 27 years old married with four children, he is from Tanapin village Aitape Lumi. He has expressed remorse in court for his involvement on committing this crime. He is a young offender with a young family; they have paid compensation of K19, 000.00 cash and foodstuff worth K6, 000.00. He pleaded guilty to the charge and has said sorry in court for what he did. He even assisted in taking the deceased to the hospital to save his life. But Beno is the one who held deceased’s hands at the back and told Noel to stab him.

Counsel recommended for lower part of category number one which is 8 – 12 years imprisonment. 8 years is recommended by defence counsel, 4 years to be suspended on mitigating factors and further 1 year, 4 months to be deducted for time in custody with balance to be served in prison.

iii.	Thirdly, for prisoner Nelson Numba, he is 25 years of age from Nugwaiya village Wosera Gawi ESP. He is single and of the SDA faith. He has pleaded guilty to the charge, no prior convictions, a first time offender. He has cooperated with police and has expressed remorse in court for his involvement. His family have contributed to paying compensation of K19, 000.00 plus K6, 000.00 worth of foodstuff. He punched the deceased only once.

Defence counsel recommended lower penalty under category number one which is 8 – 12 years’ imprisonment. Recommend head sentence of 8 years’ imprisonment, 4 years to be deducted on mitigating factors, 1 year 4 months to be deducted for time in custody and to serve the balance in jail.

SUMMARY

21.  Noel Eine though 18 years at that time is the main offender. He stabbed the deceased twice on the chest and once on the abdomen severing his kidney causing death. I agree his sentence be in category number two which is 13 – 16 years.

22.   Beno Kuper – he held deceased by his hands at the back and told Noel Eine to stab the victim. In my view his role is equivalent to stabbing the deceased. He told Noel to stab him whilst he held deceaseds hands at the back. His sentence should also be in category number three 13 – 16 years.

23.   Nelson Numba punched the deceased only once. I agree that his sentence should be in category number one which is 8 – 12 years.

SENTENCES

24.   Accordingly I impose sentences in the following;

1.	Prisoner Noel Eine is sentenced to 13 years In Hard Labour (IHL), 2 years suspended for mitigating factors, 1 year, 4 months deducted for time in custody. Balance 10 years, 6 months in custody.

2.	Prisoner Beno Kuper is sentence to 13 years In Hard Labour (IHL), 2 years suspended for mitigating factors, 1 year, 4 months deducted.
Balance 10 years, 6 months in custody.

3.	Prisoner Nelson Numba is sentenced to 8 years In Hard Labour (IHL). 2 years suspended on mitigating factors, 1 year, 4 months deducted for time in custody. Balance 5 years, 6 months in custody.

4.	All three prisoners to serve their imprisonment terms at the Vanimo Correctional Institution.

Public Prosecutor: 	Lawyer for the State
Public Solicitor: 	Lawyer for the Prisoners