State v Sepitio [2018] PGNC 34; N7093 (15 February 2018)

N7093

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 52 OF 2011

THE STATE

V

BEN PAUL SEPITIO

Kimbe: Miviri AJ

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

CRIMINAL LAW – PRACTICE AND PROCEDURE – Manslaughter S302 CCA – Plea ––drunken argument--deceased Stabbed with knife—chest injuries-prevalent offence—young offender—no evidence invoke Juvenile Justice Act-sanctity of life--no reason to deviate from sentencing range & tariff-strong deterrent sentence.

Facts
Accused was drunk and argued with deceased who was also drunk and fought with him. He stabbed him in the chest, suffered internal bleeding and died.

Held
Drunken youth
Use of a weapon
Venerable part of the body chest
Plea
17 years IHL

Cases Cited:

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

Angitai v The State [1983] PNGLR 185

Avia Aihi v The State (No 3) [1982] PNGLR 92

Acting Public Prosecutor v Mailai [1981] PGSC 7; [1981] PNGLR 258

Kovei v The State [2001] PGSC 5; SC676

Kovi v The State [2005] PGSC 34; SC789

Kairi v The State [2006] PGSC 8; SC831

Marangi v The State [2002] PGSC 15; SC702

R v. Kopal Wamne (1974) N809.

R v Oa [1967-68] PNGLR 26.

Rex Lialu v The State [1990] PNGLR 487.

State v Kasira [2002] PGNC 65; N2269

State v Aitsi No 2 [2008] PGNC 21; N3296

State v Walus [2005] PGNC 147; N2802

State v Kimkilala [2017] PGNC 243; N 6908

State v Kaiwa Iasumi (1978) N163

Thress Kumbamong v The State (2008) SC 1017

State v Hurotove [2017] PGNC 114; N6754

Tapea Kwapena v The State [1978] PNGLR 316.

The State v Mai and Avi, [1988-89] PNGLR 56

Tapi v The State [2000] PGSC 2; SC635
Counsel:

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

SENTENCE

15^th February, 2018

1. MIVIRI AJ: Ben Paul Sepitio of Aukur village Kandrian, West New Britain Province appears before me for sentence for unlawfully killing Michael Sakawi, a 25 years old man on the 2^nd October, 2010 at Section 21 here in Kimbe when he stabbed him with a knife in the chest area.
   

Charge

2. He pleaded guilty to the charge of manslaughter under Section 302 of the Code which inscribed the maximum penalty of life years imprisonment. This was as a result of plea bargaining between the state and defence reducing the initial committal of wilful murder contrary to Section 299 on the 28^th January, 2011 to manslaughter. I read the file tendered determining that argument over alcohol between deceased and prisoner led to prisoner stabbing the deceased in the chest. I determined from these facts that there was no self- defence or provocation apparent and identifiable by the facts circumstances and the allocutus, because the knife was drawn out by the prisoner with the specific intent to stab the deceased and 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 and continuing upon her. She reacted as she did to stop deceased continuing the assaults upon her with their children, 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.
   
3. The prisoner initially explained in the record of interview with police that the deceased came and tried to pull off his six bottles of beer unsuccessfully and he told him to go and look for the person he drank with. Deceased complied and then returned to pull the bag where he was told by the prisoner to go away wherein he swore at prisoner using the “f” letter word prompting the prisoner to punch him in the face and a fight between them erupted. To the police, the prisoner recounted, “We fought and I saw that I was going to be beaten because he was bigger than me. So I removed my knife and struck him with it. I struck him in the chest”. Prisoner was the instigator of the fighting with the deceased and was going to be beaten by the deceased when he resorted to the knife with grave consequences due to his own making. He is not saying it was a matter of life or death and so he reacted in the way he did. It was a fist fight not that the deceased was armed with a deadly weapon which was used to the extent where the prisoner had no option but to react as he did, even though it may have been unloaded shotgun as in Tapea Kwapena v The State [1978] PNGLR 316.
   
4. Prisoner could not complain that he was provoked by the utterance of the “f” letter word, as the act provoked must bear some reasonable relation to the provocative act: R v. Kopal Wamne (1974) N809: R v Oa [1967-68] PNGLR 26. Essentially, (1) he was not deprived by the provocation of the power of self-control; (2) he acted on the provocation on the sudden; (3) before there is time for his passion to cool; and provided further that the force used by the person charged; (4) is not disproportionate to the provocation; and (5)is not intended to cause death or grievous bodily harm and (6)(the force used) is not likely to cause death or grievous bodily harm,” Angitai v The State [1983] PNGLR 185. It cannot be said to be provocation when he initiated the fight with the deceased escalating to his resorting to the knife with grave consequences here. Provocation is inapplicable given, nor is it an accident as in Mamote-Kulang v Regina [1963] PNGLR 163 (4 December 1963) the drawing out of the knife with the intent of stabbing the deceased, an unarmed person because he was bigger than prisoner, was an unlawful act of an assault and the consequences were due in law. Prisoner accepted responsibility in law and made an unequivocal plea. I adjudge that self- defence is inapplicable because his conduct went beyond a matter of compensation but a conduct deserving punishment, R v Abe (1964) N299A ; including provocation and causation, State v Kaiwa Iasumi (1978) N163, he was the author of the act he acted unlawfully and caused the consequences that eventuated. I confirmed the guilty plea to manslaughter and convicted him.

Issue
What then is the appropriate sentence given these for the prisoner here?

5. The maximum sentence under Section 302 is imprisonment for life. And that can be imposed if the case is the worst case of its kind Kovei v The State [2001] PGSC 5; SC676 (14 November 2001) adopting and following Avia Aihi v The State (No 3) [1982] PNGLR 92 (5^th March 1982).This is a case of two drunken men who argued over alcohol leading to one of them stabbing the other with a knife in the chest causing serious internal injuries from which he died despite being rushed to the hospital. It would not have eventuated had the prisoner being not intoxicated by alcohol including the deceased. This is a classical trend that has emerged common and growing in all of life now in all major towns cities villages and settlements where abuse of alcohol and drugs is rampant and is the root causes of serious problems in law and order, it has become an evil if misused abused and Kimbe is no different or exception as here, section 21 bush camp in particular on this occasion. There is not a day that goes by without youth intoxicated beyond reason and humanness on public places streets and roads causing all sorts of lawlessness and disorder. This is one such case that has climaxed to a brutal stabbing of another also effected by alcohol. The continuous and blatant abuse of alcohol has before me this morning two young men going to jail and young lives gone because of reverence to it. It is not a light matter.

No evidence to apply Juvenile Justice Act

6. I am further urged that the prisoner be treated as a 15 year old even though no evidence has been placed before me to prove his age and to invoke the considerations set out by part VII of the Juvenile Justice Act 2014 on the sentence that will be passed upon him to be treated differently from the tariff and range of this offence set out by Kovi v The State [2005] PGSC 34; SC789 (31 May 2005). I am sitting as a tribunal of fact and law and it is elementary that evidence is properly placed before me upon which the benefits under law will be invoked not otherwise: The State v Mai and Avi, [1988-89]PNGLR 56 (3^rd June 1988). Here I do not have the benefit of evidence to prove his age as contended and therefore the provisions of the Act invoked are inapplicable in his case. He will therefore be treated like an adult. I am fortified by his consumption of alcohol on this occasion and of his marriage and fathering of two children whilst he was on the run from the law. In any case there is no material before me to treat him any different from any other prisoner in similar situation there is no exceptional case demonstrated: Acting Public Prosecutor v Mailai [1981] PGSC 7;[1981] PNGLR 258 (31^st July 1981) so as to deviate from that which is normal accordingly. His sentence will follow like tariff and range in Kovi v The State (supra).
   

Application of Tariff and Range

7. Given the facts and circumstance, in accordance with Kovi v The State (supra) category 1 of the manslaughter cases runs and the range is between 8 to 12 years in jail which state affirmed addressing. In my view it is good practice to consider range and tariff of like offences and sentences drawing, but does not take away the discretion of the court to consider the facts and circumstances of a given case Thress Kumbamong v The State (2008) SC1017 and to deduce an appropriate sentence befalling. Here also Allan Peter Utieng v. The State Unreported judgment delivered in Wewak on 23/11/00) SCR 15 of 2000, stands that the personal circumstance of a prisoner will not override what is due in law to him because protection of the law is equal both to the prisoner and the deceased in this case. Particularly considering 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. Which this court stressed in bold yet again 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 to 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,” per Sir Gibbs Salika, Deputy Chief Justice. His honour imposed a head sentence of 22 years IHL on both Prisoners Hurotove (supra). The conviction and sentence were for murder but the principles considered in the sentence determined are relevant here and applicable and which I apply here.
   
8. Given the general principle that like offences are treated alike, I consider and determine that it is appropriate to have proper materials placed so as to apply the factors set out by the Act to treat him different from the sentencing range and tariff. And this is fulfilled in my view by the presentence report returned to court 15^th December 2017, where relevantly is the fact that the prisoners case has been outstanding for seven years because on 6^th May 2011 a bench warrant was issued for his apprehension. He had not fronted up and his lawyers Paul Paraka lawyers then filed a notice of ceasing to act for him because he could not be located. Further his wife confirmed that he escaped on 2012 from prison consistent with confirmation by Corrective Institution that he escaped on the 24^th April 2011. His deliberate defiance of the law coupled with the fact that on admission into CIS on 6^th November 2017 he was charged, convicted and serving 8 months sentence for unlicensed ammunition.
9. Prisoner has pleaded guilty accepting responsibility for this action. He has now lived in prison and seen what it is to defy the law. Presentence report confirms that the parents did not exert discipline upon him because he was the only male amongst his other siblings who were female. He escaped 24^th April, 2011 and was at large for almost seven years from initial detention into custody. By it he has demonstrated maturity by pleading guilty and accepting the consequence of his action.

Antecedents

10. He is married and has two sons one aged 5 years old whilst the second born is 3years old. He has no record of formal employment because his highest education level is grade 6 at the Karl Hesse Primary School in 2010. He is the 5^th born out of 6 children and is the only male child. His parents are old and reside at Bush camp section 21 originally from Aukur village, Kandrian West New Britain.
    
11. In allocutus he said:

“I say sorry before the Court, God, for the death, to the family of the victim and mine. For the court to hear my case. My reason is that before the deceased died he came and took our drinks without asking permission. So I got up told him to go and look for the persons he was drinking with. After he heard that he got up and we fought. Whilst we were fighting he was bigger than me he was holding my hand and when I feel that he was going to hurt me I pulled out knife we were struggling with the knife and accidently the knife pierced him.”

12. The facts before me establish that the deceased was stabbed in one of the most venerable part of the body, the chest where the lungs and the heart are. Medical certificate of death dated the 7^th October, 2010 attached to an Affidavit by Doctor Karl Samuel showed penetrating wound to the third intercostal space, penetrating wound to the left upper lobe left lung, penetrating wound to the right atrium including the pericardium, massive pneumo-haemothorax. Michael Sakawi was stabbed in the left lung and the right side of the heart and suffered massive bleeding from there and died. He had no hope of survival as he was stabbed in the most vulnerable part of the body.
13. The prevalence of this offence including all other homicide offences has drawn the court in appropriate cases to give increased sentences: Tapi v The State [2000] PGSC 2; SC635 (30 March 2000). The Supreme Court maintained 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. 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 imposed upon the prisoner: State v Aitsi No 2 [2008] PGNC 21; N3296 (28 March 2008). This is also reflected in the range that Kovi’s case makes out which echoes Rex Lialu v The State [1990] PNGLR 487.
14. A further fact that increases the sentence is the viciousness of the assault with very serious injuries leading to death as this court held in State v Walus [2005] PGNC 147; N2802 (25 February 2005) where 18 years IHL was imposed upon the prisoner who pleaded guilty to assaulting the deceased who sustained a broken neck as well as a ruptured spleen from which she died. The assault was vicious drawing very serious injuries from which the deceased succumbed. The same is in here where the assault with the knife is vicious as there is really no need to draw out the knife given that the deceased was unarmed and it was the prisoners own initiation at the outset that led to the knife and the injury and death.
15. In the State v Kimkilala [2017] PGNC 243; N 6908 (14 September 2017) 15 years IHL was imposed where the prisoner had stabbed the deceased in the back piercing the lung from which he died. He pleaded guilty. It is the same here with a use of a knife to the most vulnerable part of the body - the lungs and the heart. A knife whether a pocket knife, a kitchen knife, a bush knife, or oil palm sickle, a Rambo knife is readily available, time and again its use as a weapon has led in many instances to death and grievous bodily harm. It is a grave matter to be reflected in the sentence that is passed upon you and any others similar to send the message to the community that the court will not tolerate the continued abuse and misuse of the knife as weapon.
16. In Marangi v The State [2002] PGSC 15; SC702 the Court stated:

"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)

17. I consider in all the circumstances weighing the aggravating as well as the mitigating factors of the case that a just and proportionate sentence in your case would be 17years IHL and I impose that upon you regarding that you pleaded guilty but you escaped from the law and was in custody serving sentence for another offence particulars are set out above. There are no extenuating circumstances; I order that the time in custody will be deducted from that sentence.
18. The formal orders of the court are that you are sentenced to 17 years IHL minus the time in custody.
    

Sentenced accordingly.
__________________________________________________________________

Public Prosecutor: Lawyer for the State

Public Solicitor : Lawyer for the Defendant