State v Wadae [2021] PGNC 510; N9322 (23 November 2021)

N9322

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 157 0F 2021

THE STATE

V

DESMOND WADAE
Prisoner

Daru: Sambua, AJ
2021: 12^th, 16^th & 23^rd November

CRIMINAL LAW – guilty plea – manslaughter –victim died of head injury- no prior convictions – appropriate penalty – 10 years custodial sentence considered appropriate.

Cases Cited:
Golu Golu v The State [1979] PNGLR 653
John Kalabus v The State [1988] PNGLR 193

Counsel

Miss H. Roalakona and Mr S. Kuku, for the State
Mr I. Pailaea, for the Prisoner

23^rd November, 2021

1. SAMBUA, AJ: The State presented an indictment against the prisoner, charging him with one (1) count of manslaughter contrary to Section 300 of the Criminal Code.
   
2. The indictment was presented on the 8^th of March 2021 before His Honour, the late Justice Tamate where the prisoner pleaded guilty to the charge of manslaughter contrary to section 300 of the Criminal Code however vacated after the prisoner raised the defence of Self Defence in allocutus and matter was adjourned.
   
3. The prisoner was re-arraigned on the same charge, and he again pleaded guilty to it. A provisional guilty plea was entered subject to reading of the committal depositions and after reading the committal deposition the court was satisfied that the evidence contained therein supported the charge and confirmed his guilty plea.
   
4. When allocatus was administered he said that:
   

“Firstly, I would like to apologise to this court for hearing my case, I also apologise to the deceased’s family, and I also apologise to my family. I am sorry for what I did. I have a young family to look after with a breast-feeding baby girl and two sons aged 6 and 8 years old. I want the court to give me a lesser penalty so I can come out and look after my children”.

Background of the case

5. At about 6:00pm on the afternoon of the 7^th day of June 2020, the prisoner and other village men returned from a hunting trip. He went to his house, had a bath and after eating his dinner, he went to sleep. He was however woken up by his baby daughter’s cry, and he picked her up and went out looking for her mother, his wife. He found her at her aunt’s house and an argument ensured that led to a fight. The fight was stopped by the wife’s relatives and the prisoner was told to return to his house. However, as he was leaving, he saw the deceased, Abraham Baxster. He then picked up a round heavy stick and hit Abraham Baxster on his head and mouth which resulted in losing his front tooth. After hitting the deceased with a stick, he ran away. The deceased was taken to Tapila Health Centre but died some time later due to the head injuries caused by the prisoner.
   

Personal Antecedents

6. The prisoner is about 30 years old from Wedereamu Village, South Fly District, Western Province. He is educated up to grade 10 at Daru Secondary School in 2012. He is married with three (3) children, a daughter aged about two (2) years old, and two (2) boys aged eight (8) and six (6) years old. He is a simple villager living a subsistence life and is a United Evangelistic church follower/member.
   

Appropriate Penalty

7. The crime of manslaughter under section 302 of the Criminal Code carries a maximum penalty of life imprisonment however subject to section 19 of the Criminal Code.
   
8. It is trite law that the maximum penalty is always reserved for the worst or the most serious type of offence: Golu Golu v The State [1979] PNGLR 653 and John Kalabus v The State [1988] PNGLR 193.
   

Submissions by Counsels

9. Mr Paelaea submitted on behalf of the prisoner that the crime of manslaughter under section 302 carries a maximum of life imprisonment however subject to section 19 of the Criminal Code. He further submitted that the maximum sentence is always reserved for the worst or the more serious case and referred to the cases of Goli Golu v The State [1979] PNGLR 653 and Avia Aihi v The State (No 3) [1982] PNGLR 92.
   
10. He submitted that the prisoner is a simple villager living a subsistence life in the village. He was educated up to Grade 10 at Daru Secondary School and he attends the United Church and had expressed remorse and regret in allocutus and urged the court to take that into consideration when sentencing the prisoner.
    
11. He also submitted that his case falls into the second category of the sentencing guidelines as stated in the much-celebrated case of Manu Kovi v The State [2005] SC789 (31 May 2005) which should attract a sentence between 13 to 16 years.
    
12. He also made mention of three (3) Daru cases which were dealt with by late Justice Tamate, who had imposed varying sentences depending on the circumstance of each case, however this court was not ably assisted by counsel by providing copies of written judgements for this court to rely on, hence will not make any reference thereof.
    
13. Mr Kuku on behalf of the State handed up a copy of his written submission on sentence and am grateful of it as it has assisted me arrive at a fair and just decision I am about to deliver on sentence.
    
14. Mr Kuku submitted that the crime of manslaughter under section 302 carries a maximum penalty of life imprisonment however subject to section 19 of the Criminal Code. He also submitted that the maximum penalty is reserved for the worst or more serious instance of the offence and referred to the case of Goli Golu v The State [1979] PNGLR 653.
    
15. He further submitted that each case must be considered and determined on its own peculiar facts and circumstances and referred to the case of Lawrence Simbe v the State [1994] PNGLR 38.
    
16. He also agreed with the defence that this case falls into category two (2) of Manu Kovi case (supra) which should attract a sentence of 13 to 16 years.
    
17. And for purpose of comparison of sentences he referred to three (3) cases in his submission. The first one is the case of State v Albert Kuduku [2010] N4018. It was a decision by Cannings, J. The prisoner killed his wife by hitting her three times on her back with an open hand in the course of a domestic agreement. He pleaded guilty to the charge of manslaughter and was sentenced to twelve (12) years in hard labour.
    
18. The second case he referred to is the case of State v Makis Lalai [2018] N7092 a decision by Miviri, AJ (as he then was). In that case the prisoner and the deceased were drinking alcohol together and a fight broke out between them. The prisoner grabbed a tree branch and hit the deceased on the head which resulted in his death. He pleaded guilty to the charge of manslaughter and was sentenced to 14 years in hard labour.
    
19. The third case he referred to is the case of State v Ilai Bate [2008] N3556, a decision by Her Honour, late Davani, J (as she then was). In that case, the prisoner was found guilty of manslaughter after a trial. He was chasing a person with an iron rod however he missed, and it hit the deceased on his head which resulted in his death. He was sentenced to 20 years in hard labour less the pre-trial custody period.
    
20. In conclusion he submitted that, in view of these cases, and the aggravating factors that outweigh the mitigating factors, there is need for both specific and general deterrence especially to likeminded offenders, the sentence should be between the range of 13 to 17 years.
    
21. The Medical Report attributed the cause of death of deceased to head injuries. There were two (2) cuts noted on the head of the deceased when he was examined at Tapila Health Centre.
    
22. This case could easily be a murder case however, I believe it was through plea bargaining that the prisoner was indicted with a lesser charge of manslaughter under section 302 of the Criminal Code.
    
23. Nevertheless, the prisoner has pleaded guilty to this serious charge of manslaughter under section 302 of the Criminal Code which attracts a maximum penalty of life imprisonment.
    
24. And no doubt it was a violent attack on the deceased. The deceased was there to stop the fight between the prisoner and his wife, who was related to him, unfortunately it led to his demise.
    
25. This case falls into category 2 of Manu Kovi case which would attract a sentence between 13 to 16 years imprisonment.
    
26. The sentencing guidelines in Manu Kovi is only a guideline intended to assist the exercise of judicial discretion in sentencing under Section 19 of the Criminal Code. It is not mandatory. The Courts has discretion to impose sentence other than the sentencing ranges in Manu Koivi case by operation of Section 19 of the Criminal Code.
    
27. In this case the prisoner had pleaded guilty to a serious charge of manslaughter under section 302 of the Criminal Code which carries a maximum penalty of life imprisonment. In my view it is not the kind that will attract the maximum but rather a determinate sentence.
    
28. In the case of Rex Lialu v The State [1990] PNGLR 487, the Supreme Court held that unlawful taking of another person’s life is a serious crime and offenders ought to be adequately punished for committing such horrendous crimes. The penalty in any given case depends on its peculiar facts.
    
29. The Supreme Court in the same case of Rex Lialu v The State (Supra), said that the proper approach to sentencing in manslaughter cases is to have regard to all aggregate effect of all relevant considerations and determine an appropriate penalty. The aggregate effect comes from several consideration which the Court must consider by carefully examining the circumstances of each case as to how the death was caused.
    
30. The court must consider factors such as the nature and frequency of the attack, whether the injuries were caused by direct hit or did the victim fall on to any object by heavy landing or whether the injuries caused by bare hand or by a weapon.
    
31. In this case the prisoner used a stick to hit the deceased on his head that resulted in his death. The Medical Report of Death of deceased revealed two (2) cuts on the deceased’s head, indicating that the deceased was hit twice on the head.
    
32. This was a domestic related killing, which started off as a husband wife dispute however resulting in the death of the wife’s relative who was attempting to stop their dispute but sadly, he was viciously attacked and killed by the prisoner in a cowardly manner.
    
33. I have taken all relevant considerations on sentence, especially his guilty plea, his statement in allocatus, he is a first-time offender and his expression of remorse and regret in allocatus and that he was sorry for what he had done.
    
34. I also take note that this is the second time for the prisoner to plead guilty to the same charge which demonstrated his genuine acceptance of responsibility for his mistake deserving of a discount in his sentencing. He previously pleaded guilty in March this year (2021) before His Honour late Tamate, J.
    
35. In view of all these considerations, I am more inclined to imposing a sentence outside the guidelines of sentencing in the Manu Kovi case as I have alluded to above that the guidelines of sentences in the Manu Kovi case is only a guideline intended to assist the exercise of judicial discretion in sentencing under Section 19 of the Criminal Code. It is not mandatory. The Courts has discretion to impose sentence other than the sentencing ranges stated in Manu Kovi case by operation of Section 19 of the Criminal Code.
    
36. After taking into considerations all these factors mentioned above, and the cases referred to above, I consider that the appropriate penalty in the circumstances of this case is a custodial sentence of 10 years.
    

Order

1. Prisoner is sentenced to 10 years IHL

2. Pre-trial custody period if any to be deducted.

3. Prisoner to serve the balance.

4. Since the CS facility in Daru has been closed by the Health Department on grounds that it is unfit for human occupation, I recommend that the prisoner be transferred to either Ningerum CS or Bomana CS in Port Moresby to serve his sentence there and once the CS facility in Daru is rehabilitated to accommodate human habitants, the prisoner is to be repatriated back to Daru to serve out or complete his prison term.

Sentenced accordingly
________________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Prisoner