State v Soreiu [2018] PGNC 466; N7582 (21 November 2018)

N7582

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1237 OF 2018

THE STATE

V

ASHA SIMS SOREIU

Kimbe: Miviri AJ
2017: 13^th 20^th November

CRIMINAL LAW – PRACTICE AND PROCEDURE – Manslaughter S302 CCA – Plea – long outstanding dispute over block – deceased harvesting betel nut – argument –fight – deceased cut prisoner with knife – elbow completely amputated – massive bleeding – death.

Facts
Prisoner cut the deceased on the elbow amputating his hand from which he bled to death.

Held
Plea
Long outstanding dispute over land
Use of a weapon
Elbow amputated
Bleeding
Death
17 years IHL

Cases Cited

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

The State v Hagei [2005] PGNC 60; N2913

The State v Malala [2018] PGNC 357; N7445

The State v Manu Kovi [2005] PGSC 34; SC789

The State v Mattau [2008] PGNC 269; N3865

The State v Paugari [2011] PGNC 159 N4438

The State v Philip Gibson Babaina [2018] PGNC 210; N7313

The State v. SCRA 29 of 2007 Thress v Kumbamong SC1017.

The State v Tony [2015] PGNC 154; N6054

The State v William July Kimkilala [2017] PGNC 243; N6908

Counsel:

D Kuvi, for the State
B Takua, for the Defendant

SENTENCE

21^st November, 2018

1. MIVIRI AJ: Asha Sims Soreiu of Umbi village, Kabwum, Morobe Province appears today for the crime of manslaughter to be sentenced after pleading guilty to cutting off the left elbow of Allan Gary with a bush knife causing massive bleeding leading to death.

Brief Facts on arraignment

2. On the 7^th of July 2018 he was at the block sharpening his bush knife to cut grass when the deceased arrived secretly climbed one of the betel nut trees to harvest some betel nut. Prisoner saw the tree moving and came to investigate and saw the deceased on it with a bunch of betel nut harvested. He questioned the deceased leading to an argument and then a scuffle during which the prisoner with the bush knife he was armed with chopped off the left elbow of the deceased. He left him there and the deceased died shortly from loss of blood.
   
3. The matter was the climax over the fact that the Prisoner disputed ownership possession of the oil palm block portion 1373 Barema section 20 Bialla with the deceased Allan Garry after the original owner title holder one Triwin Nanibiong died. Allan Gary is an immediate relative of the latter. Prisoner took out a preventative order to stop the deceased from coming to the block to get betel nut, food stuff and the oil Palm.
   

Charge

4. He unlawfully killed contravening section 302:
   
   • (1) 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.

Plea

5. Prisoner pleaded guilty to the charge. Initially he was committed to stand trial on a charge of murder pursuant to Section 300 of the Code. This is yet again another killing over dispute over property. Prominence and serenity have been given to property over life of a human being. The evidence tendered illuminated that there was no fighting or exchange of blows, prisoner against deceased or vice versa with any weapons. It was clear that the prisoner was prepared and expected that either the deceased or another person would be coming to the block as usual to harvest fruits and food in defiance of the position that he maintained that he was the caretaker of the block and no one should come and go as they please. It would appear that the knife was sharpened and prepared in anticipation. The file evidence did not disclose that prisoner was bleeding and blinded as a result of an attack by the deceased. There was nothing in the tendered evidence to this effect. What was depicted was that he delivered the blow upon the deceased who was harvesting the betel nut and amputated him on the elbow clean so that it fell to the ground as he did. And that prisoner left him there tossing and turning as if to revive himself from the suffering and the loss of his hand there and then. The record of interview and confession are self serving and do not par with the independent evidence of witnesses immediately at the scene who witnessed the matter. There were a total of five witnesses located at the scene of the killing not one says there was fighting between the deceased and prisoner. It was all the prisoner. To ignore the weight of this evidence will not serve Justice as it is pure without fear or favour. As much as the law protects the prisoner so does it also the deceased. Each is equal in the eyes of the law under the same Constitution and one should not be favoured over and above the other. The court is of law and is bound by the evidence not without in the decision it makes. The prisoner may have pleaded guilty and will survive the sentence to return to his family but not so for the deceased. To give him favourable treatment over and above the deceased will not be serving the intent of the legislature imprinted in the homicide sections of the Code which are explicit.
   
6. The weight of the evidence was clear that this was the climax of a dispute relating to Barema Section 20 Block 1373 where prisoner killed Allan Gary over it because he was harvesting betel nut on the day in question. Except for the reduction of the charge to Manslaughter there is no agreed statement of facts upon which the plea is taken. There is no restriction in consideration of all relevant admissible facts both for and against that must be properly screened and weighed to arrive at a proportionate sentence in the matter. This is a case of a dispute over a block of land that has climaxed to the killing of a party to that dispute by the other. He is not the owner of the subject land as he is only a caretaker from the records of one Gedion Apkosa OPIC officer with Hargy Oil Palm Bialla. The records here confirm that the next of Kin to the block is Garry Triwin. This is independent evidence confirming prisoner is not the owner of the subject block.
   
7. It is my view that where the gravity and seriousness of the offence outweighs justice will not ignore what is due on the facts because the ultimate authority is the legislature whose imprint is the maximum that is prescribed under the particular section or provision. Here the maximum is life imprisonment. Tariff and range will enforce consistency but individual facts and circumstance will not be ignored to dispense justice in a particular case as is here: Thress Kumbamong v. The State (2008) SC1017. In State v Paugari [2011] PGNC 159 N4438 (7 October 2011) before the Deputy Chief Justice were three defendants involved in murder and his honour was of the view that the courts should not be bound by the range suggested either by the Supreme Court or the National Court. That the discretion of the court must not be watered down that the prisoner who instigated must receive the higher sentence. In my view given the facts and circumstances, this is applicable here.
   
8. I canvas Manu Kovi v The State [2005] PGSC 34; SC789 (31 May 2005) and make reference that the present set of facts and circumstances would fall under category 2 at the higher end of Manslaughter cases drawing the range 13 to 16 years imprisonment because there is use of an offensive weapon a bush knife here which use is to a venerable part of the body in that the left hand is amputated off from the elbow. Each part of the human body makes what a human being is. No part of a human being is more valuable than the other. All make up the human being. There is clear demonstration of viciousness in the attack, with deliberate intention to injure and to harm by the prisoner, and it would appear there was preplanning in view of the sharpness of the knife and its use in the manner inflicted upon the deceased. The submission by defence counsel that the prisoner had every right to defend his property is not a leeway to submerge the life of a human being over and above property. The facts circumstances do not excuse what the prisoner did to the deceased. Property will be replaced not ever a human life, State v Malala [2018] PGNC 357; N7445 (10 September 2018). Even for the same a betel nut will rejuvenate and bear a new but not a human being who has been killed as here.
   

Mitigation

9. The prisoner is 32 years old married with an eleven month old child originally from Umbi village Kabwum Morobe Province. He is uneducated and does not have any record of formal employment nor has he being in trouble with the law prior to this offence. He is a follower of the Lutheran Church. At the time of the offence he was living on the subject property as caretaker. He claims that compensation was paid of K3500. Presentence report verifies that this is “Bel Kol money” paid by Uluno and Garry Triwin in the sum of K2500 and the accused cousin brother Kita in the sum of K1000 making out that figure which has been given to the wife of the deceased. In the entire prisoner has paid no compensation to the deceased people or the wife. In the presentence report John Simbi Councillor of Barema Ward 8, East Nakanai Local Level Government has voiced that the prisoner threatened the next of kin to the block one Garry Triwin to get the block from him. Which is impossibility in law because he is merely a caretaker and not the owner?
   

Submission by Counsel

10. Defence Counsel has urged that the case be treated on its own given its facts and circumstances. It is a rare case of its kind and therefore is not bound by tariff and range set out in Manu Kovi’s case. State on the other hand has urged killings over dispute relating to land and property has always been prevalent and frequent. This is not the first nor is a rare case, it is applicable in line with tariff and range with Manu Kovi (supra). It has always been a good practise of the courts that have followed. And here given the facts and circumstances the case falls into the second category of manslaughter cases of 13 to 16 years range in that range and should be followed.
    

Issue

11. What then is an appropriate sentence given the facts here?
    
12. The maximum penalty is life imprisonment. That would not be the case here as it is not categorized as the worst case of its kind: Avia Aihi v The State (No 3) [1982] PNGLR 92 (5^th March 1982). But a determinate term of years is in order given the facts and circumstances. This is a case of cutting the deceased over his left elbow amputating it from which he is left to bleed to his death. It is over dispute over a block of land not of the prisoner who inflicts the injury. The application of Manu Kovi’s case would see it at category two with the discussion set out above it would be 13 to 16 years range for the prisoner.
    
13. There is nothing out of the ordinary that sets this case out from any other manslaughter cases for instance in State v Tony [2015] PGNC 154; N6054 (18 August 2015) 12 years IHL was imposed after prisoner stabbed deceased in the course of a fight over a bottle of rum. Here it is over land not in the name of the prisoner at all. That is at the lower end because of the facts peculiar to it.
    
14. In State v Philip Gibson Babaina [2018] PGNC 210; N7313 (20 June 2018) I imposed 18 years IHL and remarked that plea bargaining will not defeat the justice of the case because the ultimate authority is of the legislature and it will not be defeated to protect the sanctity of life. The husband stabbed the wife imbedding the knife in her back. She was still with their child. He took the child out gave the child to another family member and ran away. He pleaded guilty to manslaughter a change from the initial when he was charged with wilful murder. Here the prisoner was originally charged with murder but was reduced on plea bargaining to manslaughter. Justice must be done and seen to be done. Justice is not to the convenience of the parties and must not derail what is due given the facts and circumstances of a given case. In this regard a guilty plea loses its significance if aggravation outweighs as in State v William July Kimkilala [2017] PGNC 243; N6908 (14 September 2017). Even in the light of a guilty plea as here sentence must be proportionate to the gravity of the offence. A life was lost because of a dispute over land that did not belong to the prisoner/assailant. Had he not tied himself to that fact he would not have committed the offence. His obsession with that piece of land led him to commit the offence. He had no basis to dwell except that he was the caretaker not the owner or lease holder. It will not be compared as likened to the case of State v Mattau [2008] PGNC 269; N3865 (19 November 2008) 10 years IHL was imposed but wholly suspended because the prisoner was an active member of the BRA whose role was important in the maintenance of peace and reconciliation with particular emphasis on the Bougainville Constitution. That is not the situation here and so reliance on it as a basis to deviate the sentence from the ordinary will not be proper and proportionate.
    
15. It would not be the same as in 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 when 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.
    
16. In my view that would be considered a rare case and therefore drawing a penalty out of the ordinary. Here is a case of the prisoner possessed with the land so much so that he commits the killing of the deceased by amputating his left arm from the elbow causing massive bleeding that leads to the death of the deceased. It is not out of the ordinary it falls within category 2 of the manslaughter cases discussed above in Manu Kovi’s case, and would draw penalty in the range of 13 to 16 years imprisonment. It is aggravated by the fact that the prisoner has followed courses in law to settle the matter for instance serving preventative orders through Police and the Community and Councillors. He does not follow that road to the end to settle the matter. He takes the law into his own hands explaining that at the time that he cuts off the deceased hands he is trying to pick up his bag and run away. And he says he is covered in blood yet he has produced no medical report of that fact nor has he any witness to back him up. The witnesses in the file tendered do not speak of his injuries at all. His assertions are without verification and therefore will not be considered past that point. The two photographs of the arm of the deceased show a very clean cut depicting a very sharp knife that is delivered with such force that it cuts through skin and bone leaving it hanging by a thin strip of skin. That would not be a cut delivered in haste but a calculated well placed cut aimed and intended. The knife is also sharpened in preparation and given the long standing feud it is a very aggravated case of its kind. It is evidence that is before the court and cannot be ignored Justice is by the evidence not without, this is the evidence it will draw the sentence parallel to the crime not without.
    
17. In all the circumstances given all set out above it is just and proportionate to sentence the prisoner Asha Sims Soreiu for the crime of Manslaughter of Allan Gary committed on the 7^th day of July 2018 at Barema Section 20 Bialla to 17 years IHL, and I so impose that upon him.
    
18. The sentence of the court is therefore 17 years IHL. Time in custody is deducted forthwith. He will spend the balance in jail.
    

Sentenced accordingly.

__________________________________________________________________

Public Prosecutor: Lawyer for the State

Public Solicitor : Lawyer for the Prisoner