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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR. NO. 519 OF 2018
BETWEEN:
THE STATE
AND:
JOEL TIAMPO
Waigani: Ganaii, AJ
2021: 24th August; 08th, 22nd, September, 07th, 14th, 19th, 27th, 29th; October, 10th November
CRIMINAL LAW – SENTENCE – Manslaughter – Section 302 of the Criminal Code – Guilty Plea – One punch – Deceased fell backwards in drunken state - Hit head on bitumen – Died from internal head injury
CRIMINAL LAW – SENTENCE - Sentencing principles –Supreme Court’s categorization of Manslaughter cases – Aggravating
and Mitigating factors - Principles of Suspension – Medical Condition of vulnerable family member - De-Facto Provocation –
Deceased main Instigator - 6 years imposed – Time in custody deducted – Partial suspension – Orders for Probation
and Compensation
Cases Cited:
Papua New Guinea Cases
Aieni v Tahain [1978] PNGLR 37
Anna Max Maraingi v The State (2002) SC702
Avia Aihi v The State (No 3) [1982] PNGLR 92
Goli Golu v The State [1979] PNGLR 653
Lawrence Simbe v The State [1994] PNGLR 38
Manu Kovi v The State (2005) SC789
Public Prosecutor v Don Hale (1998) SC564
Public Prosecutor v Tardrew [1986] PNGLR 91
Lialu v The State [1990] PNGLR 487
State v Tony Auboti, Cr No 873 of 2015, Alotau: Toliken J, (06th July 2018)
State v Kopnga [2021] PGNC 294; N8985
State v Emmanuel Mano CR 804 of 2018, Lae: Kaumi J, 2019 11th July
& 18th December
State v Wambura [2017] PGNC 318; N6967
State v Wennis [2011] PGNC 216; N4661
Tom Longman Yaul v The State (2005) SC803
Ure Hane v The State [1984] PNGLR 105
Overseas Cases
Lam v Queen [2021] JVSCA 24 (31-32)
Nguyen v Queen [2010] VSCA 152
R v Doran [2008] VSCA 271 [15] [16]
R v Exba [2009] VSCA 205)
R v Philips [1985] 7 CR App R (S) 235, applied in State v Wambura [2017] PGNC 318; N6967
R v Rau [2011] VSC 370 [32]
Legislation
The Criminal Code Act, Chapter 262 of 1974
Counsel
Ms V. Ningakun, for the State
Mr Andrew Furigi, for the Offender
DECISION ON SENTENCE
10th November, 2021
1. GANAII AJ: This is the decision on sentence for Joel Tiampo who has been convicted after a guilty plea to one count of manslaughter under section 302 of the Criminal Code. The relevant facts are that the offender lived at the Port Moresby Inservice College. He left his house and walked out onto the road to purchase phone credits. It was at night between the hours of 8 and 9 pm. He saw the deceased who was drunk. The offender avoided him by crossing over to the other side of the road. The deceased followed him. The deceased approached the offender and held him on the collar of his shirt. The offender tried to free himself and they had a struggle. In the process, the offender punched the deceased once on the face. The deceased fell backwards, landing and hitting his head on the bitumen. He sustained internal injuries to the head, causing bleeding and blood clot in the brain, leading to his death.
Antecedents and Allocutus
2. The offender had no prior convictions. He was given an opportunity to say what matters the court should take into account when considering a punishment (Aieni v Tahain [1978] PGNC 13; [1978] PNGLR 37 (24 February 1978) applied). He said the following:
“First and foremost I say sorry from the bottom of my heart to this court for taking up the Court’s time. I am truly sorry to the family of the deceased. It was not my intention to take someone’s life. I regret. It was an accident that he fell and hit his head on the concrete. I am truly sorry.
When the incident happened, I was single. I am now married and have a family and a son who has a medical condition, club foot and a small brain which requires me to take him to the hospital for physiotherapy. I am asking the court to suspend my sentence.
Whilst I had been on bail, outside of custody, it was like being in prison because of the conditions of bail I have been complying with for the past four years.
Due to my small family, I ask the court to have mercy on me and to suspend my sentence, so that I can serve my sentence outside of prison and take care of my son. Both my wife and I are unemployed.
Thank you.”
Pre-Sentence Report
3. The offender is 24 years old and hails from Bahalu village, Nawae District, Morobe Province. He completed Year 12 at the Gordons Secondary School in 2017. He was accepted at and was going to attend the International Training Institution (ITI) to do his Diploma in HR Management in 2018 when he was arrested for the offence. After the commission of this offence, he got married and has a child. He resides with his wife and child at Tubusereia village, Central Province. The offender is unemployed and has good health record.
4. The PSR contains character references that show that the offender is highly regarded in his community where he lives and also among fellow members of his sporting community. He is a faithful and committed member and player of the Port Moresby Maclaren Football Club for six years to date. I take note that good character is a relevant consideration for showing the offender’s prospects for rehabilitation. I make reference to the case of R v Rau [2011] VSC 370 [32].
5. The Pre-Sentence Report also contained evidence of factors special to the offender. Firstly, his infant child, who is a year old was diagnosed with two medical conditions. The first medical condition is described as microcephalus which is a rare neurological condition where the infant's head is smaller than normal compared to other infants of the same age and sex. The second medical condition is bilateral foot CETV or club foot where the baby's foot is twisted out of shape or position requiring weekly reassessment and management. I will comment on the report on the offender’s parents’ letter later in this ruling.
Submissions by Defence Counsel
6. On the law, and in citing the appropriate case precedents (Anna Max Maraingi v The State (2002) SC 702; Rex Lialu v The State [1990] PNGLR 487 and Manu Kovi (2005) SC 789, Mr. Furigi of learned counsel for the offender submitted that a sentence of 7 years imprisonment as the starting point is appropriate. He further submitted that the Supreme Court had said that the court still has the discretion to impose a lesser penalty to what these guidelines say especially in cases where there are special mitigating factors.
7. Defence submits that apart from the normal mitigating factors, there also are special mitigating factors the court must consider.
He also submitted that this is a case suitable for consideration of full suspension of the head sentence.
Submissions by the State Prosecutor
8. State submitted among others that the offence is prevalent, and a life has been lost. For the sanctity of life, and deterrence aspect of punishment, a strong deterrent sentence of 10-12 years imprisonment is appropriate.
Mitigating Factors
9. There are the normal mitigating factors present in this case. Firstly, the plea of guilty has saved the court time and saved the state expenses to conduct a trial. It has also saved the deceased’s family the trauma of reliving the experience of losing a loved one. I give weight to this factor as the guilty plea indicates the offender’s willingness and readiness to accept responsibility for his actions even-though there is strong presence of provocation. The offender had expressed remorse which I accept to be genuine regret over his spur of the moment reaction resulting in the premature loss of life. Further, consideration is given to the fact that Joel Tiampo is a first-time offender which effectively means that he has always been a good law-abiding citizen and had never been in trouble with the law before. In the circumstance of the case, there was strong presence of de-facto provocation.
10. A further mitigating factor and one which demonstrates genuine remorse is the offender’s family’s payment of bel kol monies (monies paid to maintain peace with the deceased’s line) in the amount of K3, 000 which went towards meeting the cost for the deceased’s funeral and haus krai expenses. From this amount it is unclear as to how much the offender contributed so that the court can appreciate his contribution. Nevertheless, I give weight to the fact that monies were given by his family, and this shows genuine remorse and willingness to reconcile.
Factors reducing culpability
11. I accept that there was provocation in the non-legal sense triggering a spur of the moment reaction. The offender did not pre-plan the attack. When he saw trouble coming, in the first instance he tried to avoid the deceased, but the deceased followed him. These factors reduce the serious culpability of the offender’s conduct.
12. The other factor that reduces culpability of the prisoner’s conduct is that no weapons were used. This was a case where the first and only punch caused the deceased to fall and sustain the internal head injuries. The intoxication of the deceased no doubt contributed to the fall by affecting his strength, his ability to exercise self-control and balance to keep himself on his feet. Being intoxicated may have been a factor that hastened his death or that he may have had a thin skull. But all of this is not ascertained in the medical report. In any case, any benefit of the doubt is given to the offender (State v Wambura [2017] PGNC 318; N6967 (8 August 2017)). One thing that is clear though is that the one and only punch to the face did not cause the head injury but that it did cause the deceased to fall and hit his head on the bitumen which caused the fatal internal head injury. It must be born in mind also that the deceased brought this upon himself due to his drunk and disorderly behaviour.
Compensation and Guilty Plea
13. Following his family’s monetary contribution towards the funeral and haus krai expense, the offender pleaded guilty and made apologies in open court during the administration of allocutus. These demonstrated genuine remorse. Failure by the offender’s family to meet their own promise of paying more monies as compensation and or failure to meet any compensation demands or expectations by the decease’s family is not an aggravating factor so that sentence should be increased. The offender is not punished for that but for the offence he committed. Compensation and the guilty plea enhance the prospects for rehabilitation which when considered should reduce the need for considering a sentence aimed at specific deterrence and community protection. I also say that the compensation and guilty plea considerations should always be balanced against the gravity of the offence. R v Doran [2008] VSCA 271 [15] [16].
Aggravating factors
14. The law in sentencing requires that I must balance the mitigating factors against other matters in aggravation including the seriousness
of the offence. The aggravating factors are: the prevalence of the offence of manslaughter or unlawful killing of a youth by a youthful
offender on the street; a life has been lost and the deceased was a young man whose life has been cut short.
Circumstances of the Killing
15. It is commonly accepted that sentences imposed by the courts are determined by the circumstance of death, nature of the killing and the way in which death was actually caused in a case. (R v Philips [1985] 7 CR App R (S) 235, applied in State v Wambura, supra). That is why the SC had categorized homicide cases in Anna Max Maraingi and Manu Kovi cases. For a brutal and deliberate killing, a higher term of imprisonment somewhere around the maximum of life imprisonment or in the worst case, life imprisonment (or death penalty for wilful murder) is appropriate. A killing that did not result from calculation, deliberation, planning, cruelty, but have an element of incidental, accident, stupidity, or negligence will attract a lower term of imprisonment.
16. The prescribed sentence under section 302 of the CCA is life imprisonment. The maximum sentence for any offence is usually reserved for those crimes described as the worst of its kind. The Supreme Court in the cases Avia Aihi vs the State (No 3) [1982] PNGLR 92, Goli Golu v the State (1979) PNGLR 653 and Ure Hane v The State (1984) PNGLR 105 all restate this principle in law. The question I ask is, does this particular case fit into the category of worst type of manslaughter case? To determine this, I must weigh up all the considerations including the peculiar circumstances of the case and both the mitigating and aggravating factors.
17. Batari J made some useful remarks in the case of State v Wennis [2011] PGNC 216; N4661 (23 December 2011) and I adopt them. He said:
“Any form, type or category of unlawful killing is always the most serious breach of the criminal law. It is repugnant to the civil norm and abhorred by those who treasure the right to life in fellow human beings. And needless to say, any type of killing violates the sanctity of a God-given life. Hence, the ultimate punishment by death is prescribed by Parliament for wilful murder while the maximum penalty of life imprisonment is reserved for murder and manslaughter”.
18. In Manu Kovi v The State (supra), the Supreme Court suggested sentencing guidelines for the 4 types of manslaughter killings as follows:
"1. In an uncontested case, with ordinary mitigating factors and no aggravating factors, a starting point of 7 years up to 12 years.
A sentence below 7 years should be rarely imposed except in exceptional cases where there are special mitigating factors.
2. In a contested or uncontested case, with mitigating factors and aggravating factors, a starting point of 13 - 16 years.
3. In a contested or uncontested case, with special aggravating factors and mitigating factors whose weight is reduced or rendered
insignificant by the gravity of the offence, 17 - 25 years.
4. In contested and uncontested case with special aggravating factors - Life imprisonment for the worst cases. The presence of mitigating
factors is rendered insignificant by the gravity of the offence. These are cases which involve viciousness, some pre-planning, use
of a weapon and complete disregard for human life".
19. I have researched four relatively comparable cases which are applicable due to the similarity of charge (manslaughter) to the instant matter; the main facts; the guilty plea and being first-time offenders, to assist in arriving at the head sentence and the discretion to suspend them. The cases are:
pleaded guilty to one count of manslaughter. The facts were that they chased the deceased who stole form their garden. Whilst running away the deceased lost his footing and fell and rolled down the hill. In the course of rolling down he hit his head on rough surfaces and sustained head injuries. He died as a result. The court said the injuries sustained were not inflicted by the prisoners and that the deceased was the instigator. A sentence of four years was imposed and wholly suspended with conditions.
prisoner pleaded guilty to assaulting the deceased on the head with his fist. The offender was drunk. The deceased fell down and lapsed into unconsciousness suffering from a head injury. Where there was no evidence of injury due to fist blows or resulted from fall, benefit of doubt, was given to the deceased, resulting in the court finding that the killing was an accidental killing under de-facto provocation. A sentence of seven years imprisonment was imposed with no suspension as the PSR was not favorable towards suspension.
& 18th December 2019, the prisoner pleaded guilty to punching the deceased on the chest, causing him to fall onto the concrete floor, and sustaining head injuries to the back of his head. They were childhood friends, and this happened during a drinking session. Where the offence is prevalent, it is imperative that there must be a basis substantiated by evidence for any recommendation of suspension of a custodial term in a Pre-Sentence Report. Suspension of sentence can still be made despite lack of input from community. The peculiar circumstances dictated eight years imprisonment as appropriate, and sentence was partially suspended.
2018) – the prisoner pleaded guilty to punching the deceased once on the head after the deceased punched him. The deceased fell backward and hit his head on the concrete surface. He suffered a fractured skull resulting in bleeding in the brain and consequential death. The deceased was drunk and was the instigator. The mitigating factors and aggravating factors were considered. A sentence of seven years imprisonment was imposed. Case was appropriate for partial sentence of four years with conditions for Probation payment of K5, 000 compensation.
20. The above cases show that in similar circumstances, the courts have imposed between 4-8 years and partially suspended them where the PSR recommended. In the Wambura case, the PSR was not favourable towards suspension. In both the Wambura and Mano cases, the offenders were drunk. The facts in the Auboti case are almost similar to the facts here but the distinguishing factor is that Joel Tiampo’s has mitigating factors special to this case. The special mitigating factors is the offender’s infant child’s medical condition. The principle in the Kopnga and Auboti cases is fair and is applicable hence I adopt and apply them here, although, I do note that the facts in Kopnga is different to the present case where the offenders only chased the deceased and he missed his footing and fell. The applicable principle is that where the deceased was the main instigator contributing to his own demise, that is an extenuating circumstance in favour of the offender and may warrant mitigation of sentence.
21. In the present case, there is an added extenuating circumstance and that is that the offender did try to avoid trouble by walking away from the deceased in the first place. However, it was the deceased who followed him. For this added extenuating circumstance, the sentence in the present case should be lower than the sentence in the Auboti case so that due recognition is given to the offender for actually exercising good judgment in attempting to avoid trouble.
22. The prescribed guidelines from caselaw (Manu Kovi (supra) and Anna Max Maraingi (supra) reinforces and enhances the basic sentencing principle that the sentencing authority must have careful regard to the circumstances of death and the way in which death was actually caused. His Honour Kapi DCJ (as he then was) made this observation in a manslaughter killing case in Rex Lialu v The State [1990] PGSC 16; [1990] PNGLR 487 (30 November 1990), at 497:
“In considering the penalty for manslaughter cases, I adopt the words of Watkins LJ in R v Phillips (1985) 7 Cr App R (S) 235 at 237.
'The Court has to pay very careful regard to the circumstances of death, and especially to the way the death was actually caused,
in coming to a conclusion as to what punishment a defendant should receive for whatever it was he did towards bringing that about.'"
as stated in R v Phillips [1985] CR APP (RS) 235 at 237.”
23. The killing in this case resulted from a combination of a spur of the moment reaction where the killing was not intended but was accidental and contained elements of provocation in the non-legal sense. There was no weapon used. I consider that the seriousness of the offence is mitigated by those factors, including the plea of guilty, which is supported by a prior good record and the preceding and surrounding circumstances as explained above. The case falls in between the first and second categories of Marangi v The State (supra) where the sentence ranges from 3 to 7 years and 8 to 12 years as prescribed. In Manu Kovi v The State (supra), the suggested sentence range is in the lower end of the first category of 7 to 12 years. The Court is mindful that a sentence below 7 years may be justified in exceptional cases where there are special mitigating factors and extenuating circumstances.
Head Sentence
24. There is no question that the prisoner must serve a term of imprisonment calculated to sufficiently serve both the deterrent and retributive aspects of punishment and one that gives due consideration to the sanctity of life. I take into account the special mitigating factors of a strong case of de-facto provocation; the extenuating circumstance of the deceased being the instigator, and special mitigating factors of hardship to be faced by the offender’s infant child in consideration of and in the exercise of discretion to partially suspend from a head sentence.
25. In all the circumstances, and considering all that I have mentioned above, including a comparison on the relatively comparable cases, a sentence of 6 years imprisonment is appropriate. Joel Tiampo is hereby sentenced to 6 years imprisonment in hard labour. That term is reduced by pre-trial custody period which is eight months and one week. The prisoner is to serve a balance of 5 years, 3 months, and 3 weeks in prison.
26. Mr. Furigi has asked for a fully suspended sentence. I have considered that submission and find that a sentencing option for partial suspension is appropriate in the circumstance of the case. Partial and not whole suspension is appropriate for the reason that a life has been lost and the court must give due consideration to that.
Suspension
27. On suspension, apart from the normal mitigating factors, the hardship to a third party or where a vulnerable family member will face certain difficulties as a result of the offender’s imprisonment can be considered as special considerations. By the presence of such special mitigating factors, the court therefore can use its discretionary powers to mitigate on sentence. (See Lam v Queen [2021] JVSCA 24 (31-32). This arises especially when the third party or a family member is vulnerable and dependent on the offender. (Nguyen v Queen [2010] VSCA 152; Regina v Exba [2009] VSCA 205). The offender’s infant child is vulnerable having two existing medical conditions that requires the offender’s physical presence, emotional support, and financial support in ensuring that the child receives the necessary love, care, support and security and that he undergoes the weekly visits to a physiotherapist and other medical experts.
28. Whilst I accept that the parents of the offender are elderly and are still grieving over the death of one of their sons who passed away in 2013 due to illness, eight years has passed since and it would be for their own good to learn to live with the fact that loosing loved ones to sickness and death is a part and fact of life. Where the offender, has been charged with a serious offence, a homicide in this instance, his parents must face the hard reality that their son can be sent to prison. It is a natural consequence of being found guilty of a serious crime. This too is a reality that the offenders’ parents must learn to accept. I do not give any consideration to this as a special mitigating factor in consideration of mitigating sentence.
29. On compensation, I am mindful that the PSR does not say what the offender’s attitude towards reconciliation and compensation is. However, pursuant to section 5 (3) (b) of the Criminal Law Compensation Act, and the principle in the case of State v Penge [2002] PGNC 90; N2244, I will consider compensation to encourage reconciliation and rehabilitation and as a form of punishment outside of prison.
30. The power to suspend a sentence or part of it is also discretionary and must be exercised with utmost care and on a proper legal basis. It has long been recognised that suspension is not an act in leniency but a form of punishment that is to be served outside the prison system in the community interest to promote restitution or rehabilitation in appropriate cases. The Supreme Court held in The Public Prosecutor v Tardrew [1986] PNGLR 91, that a sentence may be suspended, among other things, if it will promote rehabilitating the offender, or restitution, and in Public Prosecutor v Don Hale (1998) SC 564, if suspension is supported by a Pre-sentence Report (PSR). The PSR favours the offender in this regard.
31. The offender’s case, particularly the special mitigating factors, strong de-facto provocation, the extenuating circumstance that the deceased was the instigator, and the offender did walk away from him to avoid trouble, all of these has met the requirements for partial suspension. Furthermore, the PSR is favourable to the offender by showing his prospects for rehabilitation due to his good character and payment of compensation. Although there is no indication that further compensation will be paid, the court can encourage compensation (refer to State v Penge, supra). Sending the offender to prison for a longer period of time will not serve its specific and general deterrent purpose as the circumstance of the case show an unfortunate death occurring from an unplanned and spur of the moment punch made under a de-facto provocation situation. The prisoner is not a person of previous bad character such that there must be lengthy and specific deterrent sentences imposed on him. I also note that taking into account the special circumstance where sending the offender to prison for a long time may result in him not being able to care for his child who has special needs, partial suspension is appropriate so that the offender is physically present in the life of his child to give the constant love, care and protection or the emotional and financial support.
32. Whilst having the opportunity to care for his child, see and watch him grow, serving a part of his prison term outside of prison with stringent probation conditions in my view is sufficient punishment for the offender in the circumstance. It is hoped that he will be reminded that life is a precious gift from God and the sanctity of it must be guarded at all times. It is also hoped that the stringent probation orders will act as a deterrent factor and will promote rehabilitation. Where conditions will be imposed on a partial suspension, the deterrence aspect of punishment is achieved which will then enhance rehabilitation. (The Public Prosecutor v Tardrew, supra).
33. The offender shows acceptance of the consequences of his actions. His faithful observance of the bail conditions demonstrates
his obedience to the rule of law and attests to his good character as a law-abiding citizen which he must continue to have despite
the record that he now has against his name.
34. Having met the requirements for a partial suspension, serving part of the sentence in prison is appropriate to reflect the
seriousness of the offence of manslaughter and in consideration of the loss of life. The court is mindful of likeminded youths in
the community who must be deterred by the kind of punishment the courts impose. The courts are mindful of the general denouncement
aspect of punishment against the actions of other like-minded youthful offenders.
35. The message to the offender and other like-minded persons, is simple. In a situation where you are challenged or provoked, it may be hard to walk away, but it does take a real man to do that and to actually walk away from violence whether it’s in the home, on the streets, in the community, at the school or in the workplace. This sentence is aimed at telling the offender, that between him and the deceased, he was sober, his thinking was not affected by alcohol, and it was expected that he would be in a far more better position to control his emotions and be more aware of his surroundings. He would have been able to calculate the risks involved in assaulting a drunken person. It was a risky and silly decision to punch a drunken man. I note that the depositions reveal that the deceased would have been so drunk that he was not able to help himself but was spewing.
36. We all know that whilst it is common in PNG society and the world over, especially on the streets, in our neighborhoods and in our villages, that a significant part of being a man is in showing masculinity and being tough. We must all be mindful that this mentality does put pressure on many of our young men and boys in our society. You don’t have to look far to find this. It is evident in the many cases that come to court. It is evident in the streets and in our neighbourhood. Like the offender, when young men and boys find themselves in a similar situation to this, I can only imagine that many will already feel the pressure of conforming to gender expectations, so that they must put up to the challenge or will be regarded as ‘girlie girlie’ or ino trupla man (not being man enough). The situation is true in cases of domestic violence where the husband thinks that he should beat up his wife to show his dominance or otherwise he will be ridiculed and called a meri-man or a man who is behaving like a woman.
37. But times have changed, and we now have laws in place to deal with violence even in the homes. Many a times, this pressure clouds the judgements of many men and boys, and they end up acting before they think resulting in grave consequences including loss of life.
38. This mentality must change. One can act in defence of life and property but only where it is extremely and reasonably necessary and lawful to do so. It does take a real man to walk away from provocative and challenging situations that may lend someone in deep trouble. Walking away from a drunken youth is a wise thing to do. One may never know the pre-existing conditions that someone has that may accelerate their death if they suffer injuries. Our system of investigating crimes and deaths are never done fully or completely so that the courts are properly assisted on factors that may contribute to causing and or accelerating deaths in homicide cases. For example, whether the deceased had a thin or thick skull, or whether there were other underlying conditions such as enlarged spleen, or whether alcohol in the system has hastened death. It is therefore always wise to avoid risky situations.
39. In passing, I say this also, if the Police were doing their jobs effectively, this offence could have been prevented. There is such an offence called being drunk and disorderly, or just being drunk in a public place under the Summary Offences Act. The element of this offence is that once someone takes their alcohol with them out of the gates of their homes and onto the public road, or into their private vehicles and onto a public road and continue to consume them, they are committing these serious summary offences. The intent of this law is to regulate simple behaviours and conduct in society, especially in our communities and neighbourhood in the hope that this will lead to a peaceful community to live in and furthermore, will prevent commission of the more serious and indictable offences. If these laws are properly and effectively policed, through foot beat patrols, confiscation of illegal items such as alcohol, drugs, knives, etc, such grave consequences and opportunities for committing more serious offences can be prevented.
40. For you Joel Tiampo, again I say, the message is simple. It was silly to punch a drunken man, and your action has caused a life. The court must therefore denounce this action to show that life indeed is precious, it is only once lived, and we all have a duty to preserve life wherever we go and in whatever we do. Adding to that, your freedom is precious too and it must be guarded at all cost rather than acting recklessly and ending up spending and wasting years in prison for something that could have been avoided. Having said this, a part prison term is appropriate and must reflect the seriousness of the offence and protect and promote the sanctity of life.
41. It is for the foregoing reasons that I will only partially suspend the head sentence and not suspend it in its entirety. Consequently, from the balance of 5 years, 3 months, and 3 weeks imprisonment, I will suspend 3 years, 3 months, and 3 weeks.
42. The prisoner will serve 2 years imprisonment in hard labour at Bomana CIS. Upon release from custody, the prisoner will be placed on GBB for a period of 3 years, 3 months and 3 weeks with the following conditions:
(a) the prisoner will keep the peace and be of good behaviour for the period of the suspended portion of his sentence, 3 years 3 months and 3 weeks;
(b) The prisoner shall reside at his known address, which is at Tubuserea Village, Hiri District, Central Province. If he wishes to change this address, he must give notice to the Probation Officer, Mrs. Grace Prenai or an appropriate officer from the Probations Office;
(c) The prisoner shall not commit any offence, including any summary offences whilst on GGB;
(d) The prisoner shall not consume alcohol or any intoxicating substance whilst on GBB;
(e) Upon release from custody and within one year from date of release, the prisoner shall pay Five Thousand Kina (K5, 000) as compensation to the family of the deceased;
(f) The prisoner shall perform 500 hours of unpaid community work in his community, under the supervision of Mrs. Grace Prenai, Probation Officer or an appropriate officer from the Probation Office;
(g) The prisoner shall report once every month to the Probation Officer, Mrs. Grace Prenai or an appropriate officer from the Probations Office whilst on GBB; and
(h) If the prisoner breaches any one or more of the above conditions, he shall be brought before the National Court to show cause why he should not be detained in custody to serve the balance of 3 years, 3 months, and 3 weeks in prison. (Refer to Tom Longman Yaul v The State (2005) SC 803).
43. The prisoner’s bail monies in the sum of One Thousand Kina (K1, 000) shall be refunded to the prisoner after the period of bond is completed.
Order
44. The following orders are made:
(a) the prisoner will keep the peace and be of good behaviour for the period of the suspended portion of his sentence, that is 3 years 3 months and 3 weeks;
(b) The prisoner shall reside at his known address, which is at Tubuserea Village, Hiri District, Central Province. If he wishes to change this address, he must give notice to the Probation Officer, Mrs. Grace Prenai or an appropriate officer from the Probations Office;
(c) The prisoner shall not commit any offence including any summary offences whilst on GBB;
(d) The prisoner shall not consume alcohol or any intoxicating substance whilst on GBB;
(e) Upon release from custody and within one year from date of release, the prisoner shall pay Five Thousand Kina (K5, 000) as compensation to the family of the deceased;
(f) The prisoner shall perform 500 hours of unpaid community work in his community, under the supervision of Mrs. Grace Prenai, Probation Officer or an appropriate officer from the Probation Office;
(g) The prisoner shall report once every month to the Probation Officer, Mrs. Grace Prenai or an appropriate officer from the Probation Office whilst on GBB; and
(h) If the prisoner breaches any one or more of the above conditions, he shall be brought before the National Court to show cause why he should not be detained in custody to serve the balance of 3 years, 3months, and 3 weeks in prison. (Tom Longman Yaul v The State (2005) SC 803 applied).
Orders accordingly.
________________________________________________________________
Public Prosecutors: Lawyers for the State
Furigi Lawyers: Lawyers for the Prisoner
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