State v Kiosai [2021] PGNC 359; N8961 (19 March 2021)

N8961

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 609 OF 2020

BETWEEN:
THE STATE

AND:
OPNI KIOSAI

Maprik: Rei, AJ
2021: 19^th March

PRACTICE AND PROCEDURE – CRIMINAL LAW – MANSLAUGHTER – What is the appropriate sentence - Section 302 of the Criminal Code Act. The Prisoner and the deceased had opposing clan land dispute issues to settle. Prisoner is sentenced to 12 years imprisonment with 10 yrs suspended - compensation payment K60,000 - Plea.

Case Cited
Manu Kovi -v- The State (2005) SC789
The State -v- Melchoir Gumbuli (2021) N8962
The State -v- Junior Paul Pina N5867" title="View LawCiteRecord" class="autolink_findcases">[2015] PGNC N5867

Counsel

Ms. T. Aihi, for the State
Mr. S. Parihau, for the Defendant

19^th March, 2021

DECISION

1. REI. AJ: The prisoner Opni Kiosai was indicted on 3^rd March 2021 on a charge of manslaughter who entered a provisional guilty plea.
   

2. He was charged under Section 302 of the Criminal Code Act.

3. I read the Committal Court file on the matter and confirmed the plea of guilty.

4. The brief facts of the case are that:

On the 18 of September 2019 between 3:00 pm and 4:00 pm the prisoner and the deceased were both at Saulik village in Maprik .

The prisoner and his clansman were involved in a land dispute with the deceased’s and his clansmen. This dispute resulted in a fight between the prisoner’s and deceased’s clansmen.

During the course of the dispute, the prisoner used a piece of timber and hit the deceased on the head.

The deceased sustained a scalp laceration measuring 5 cm in depth and 6 cm in length which required stitching.

The deceased suffered from his head injury and died on the 20 of September 2019.

5. The mitigating factors in favour of the prisoner are:

• he pleaded guilty to the charge
• co-operated well with the Police when he admitted the offence in his record of interview
• first time offender
• no minor convictions
• no intention to kill but to cause grievous bodily harm
• acted alone
• single blow to the head of the deceased
• showed remorse in his allocutus and
• made customary payment of K60,000 and three shell ring money.
  

6. The aggravating factors are:

• loss of life
• use of offensive weapon
• injury inflicted on vulnerable part of the body
• prevalence of the offence.
  

7. The prisoner is charged under Section 302 of the Criminal Code which provides that:

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

“Penalty: Subject to Section 19 imprisonment for life”

8. The law under Section 302 of the Criminal Code places a heavy penalty even for manslaughter where someone takes the life of another unlawfully by causing grievous bodily harm without the intention to kill.

9. The case of Manu Kovi -v- The state has the sentencing guidelines that can assist in determining the range of sentence in this matter.

10. In the recent case of The State -v- Melchoir Gumbuli, I followed the process set out in the matter of the State -v- Junior Paul Pina [ N5867" title="View LawCiteRecord" class="autolink_findcases">2015] PGNC N5867 (19^th February 2015) by Canning J. where he said, that in determining the appropriate penalty, it is best to ask what the starting point is, sentences previously imposed for similar offences, the head sentence, whether say pre-sentence period in custody is deducted and whether the whole of the sentence be suspended.

11. I adopt the same approach of Canning J. in The State -v- Junior Paul Pina (supra) and ask what range of sentence be imposed in this (manslaughter) case in which the prisoner pleaded guilty.

12. The sentencing guidelines decided by the Supreme Court in Manu Kovi -v- The State (2005) SC789 are of direct assistance which are set at in the table below:

No	Description	Details	Tariff
1	Plea – ordinary cases – mitigating factors – no aggravating factors.	No weapons used – little or no pre-planning – minimum force used – absence of strong intent do grievous bodily harm	12-15 years
2	Trial or plea – mitigating factors with aggravating factors.	No strong intent to do grievous bodily harm – weapons used – some pre-planning – some element of viciousness.	16-20 years
3	Trial or plea – special aggravating factors – mitigating factors reduced in weight or rendered insignificant by gravity of offence.	Pre-planned – vicious attack – strong desire to do grievous bodily harm – dangerous or offensive weapons used, eg. gun axe – other offences of violence committed.	20-30 years
4	Worst case – trial or plea – special aggravating factors – no extenuating circumstances – no mitigating factors, or mitigating factors rendered completely insignificant by gravity of offences	Premeditated attack – brutal killing, in cold blood – killing of innocent, harmless person – killing in the course of committing another serious offence – complete disregard of human life.	Life imprisonment

13. Mr. S. Parihau submitted that I consider imposing a sentence of 13 years while Ms. T. Aihi has proposed a sentence of 14 years.

14. Applying the sentencing guidelines in Manu Kovi -v- The State, this type of killing falls within criteria 1 because, according to the pre-sentence report of Ms. Dollie Hasu of the Office of Probation & Parole in Maprik, states in the Section (of the report) subtitled Circumstances of the Offence Committed that:

“The accused (stated that) there was a land dispute between two (2) groups of people in the village that led to heated arguments and eventually fight broke out. He said he was not part of those groups but was a bystander who saw them and tried to stop the fight. While in the process of stopping the fight he took a piece of timber and was intending to throw the timber on the deceased hand to make him loose the knife he was holding but it turned out that he threw it on the deceased’s head that later resulted in his death”.

15. In mitigation I have given this admission of the prisoner a closer attention.

16. The peculiar facts of this matter are that a family feud took place involving land and the prisoner took a piece of timber to hit the deceased around the area of hand to disable him from using a knife to cause grievous bodily harm.

17. In an attempt to avert the deceased from committing a crime, he accidentally struck the head of the deceased which caused death.

18. In my opinion this is an appropriate case in which I should consider imposing a wholly suspended sentence because of those peculiar factors and for reasons that the prisoner is willing to rehabilitate speedily and is to pursue his studies through the distant education scheme but for this unforeseen accident; an incident in which he did not intend to kill the deceased but to stop him from using a weapon in an offensive or dangerous manner – refer pre sentence report. Additionally, the prisoner paid K60,000.00 compensation together with K2,000.00 worth of traditional money.

19. But I consider that the life of someone has been taken whose family are certainly not in good terms with what happened and that their anger will be reignited should I impose a suspended sentence.

20. If the prisoner is released on parole, his life will be unsafe as his father John Kiosai clearly admits in the pre-sentence report, which may result in retaliation from the relatives.

21. The attitude expressed by John Kiosai the father may be speculative. But in our country they can sometimes become real.

22. In these circumstances it is my intention to impose a custodial sentence part of which should be suspended.

23. I therefore impose a head sentence of 12 years imprisonment from which the time spent while awaiting trial be deducted and the balance of the term be served as follows:

• 2 years imprisonment

• 10 years be suspended
• The term of being remanded in custody shall be deducted from the head sentence.
  

24. The prisoner shall therefore serve a sentence of 2 years.
_______________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Defendant