N9328

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1018 OF 2021

THE STATE

V

JEFFREY PEAU

Kimbe:  Numapo J
2021:	25th August & 25th November

CRIMINAL LAW – Sentencing – Murder – Guilty Plea – Sentencing Tariffs – Sentencing Discretion – Aggravating & Mitigating factors – Sections 300 & 19 of Criminal Code

Held:

(i)	Factual circumstances of the case does not place it under a category of worst type offence to attract a maximum penalty prescribed by law.

(ii)	Sentencing tariffs only provide as a guide it does not take away the unfettered sentencing discretion of the court.

(iii)	A sentence imposed by the court must reflect the purpose of sentencing such as deterrence, rehabilitation, restitution and retribution.

(iv)	Non-custodial sentence is rarely given in homicide cases. 

(v)	Compensation is not a significant mitigating factor to warrant a suspended sentence in a homicide case.

(vi)	Prevalence of the offence.

(vii)	Prisoner sentenced to 6 years imprisonment.

Cases Cited:

(i)	Goli Golu v The State [1979] PNGLR 653
(ii)	Avia Aihi v The State (No.3) [1982] PNGLR 92
(iii)	Manu Kovi v The State (2005) SC789
(iv)	Ume v The State (2006) SC836
(v)	State v Roho, N4483 of 24 August 2006
(vi)	State v Karo, N2600 of 29 April 2004 
(vii)	State v Watakasi [2012] PGNC 266; N4597
(viii)	The State v Samuel Kalib; CR. No. 318 of 2013
(ix)	State v Mema [2012] PGNC 21; N3602 
(x)	State v Lossio John CR. No. 158 of 2012
(xi)	State v Daniel Yabari PGNC N7306

Counsel:

J. Pare, for the State
B. Takua, for the Defence

SENTENCE

25th November, 2021

1.      NUMAPO J: This is a sentence on manslaughter. The prisoner Jeffrey Peau pleaded guilty to one count of Manslaughter pursuant to section 302 of the Criminal Code Act and was convicted accordingly.

A.	BRIEF FACTS

2.     The facts to which the prisoner pleaded guilty to were that; on the 31st January 2021 at Hoskins, West New Britain Province, the accused hit the deceased with a stone on the head. It was an accident and unintentional. Deceased was taken to Malalia Health Centre and later to Kimbe General Hospital where he succumbed to his injuries and died three days later. The incident took place as a result of alcohol consumption and the prisoner was intoxicated at the time he committed the offence. 

B.	THE LAW

3.   Section 302 Manslaughter:

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. 

C.	APPROPRIATE SENTENCE

4.      The maximum penalty provided under section 302 of the Criminal Code is life imprisonment. The court however, has a wider sentencing discretion to consider a lesser sentence pursuant to section 19 of the Criminal Code. 

5.     Mr Pare for the State submitted that the present case does not fall within the category of worst type offence and should not attract the maximum penalty of life imprisonment.  It is trite law that maximum penalty is reserved for worst cases: (Goli Golu v The State [1979] PNGLR 653 & Avia Aihi v The State (No.3) [1982] PNGLR 92. Counsel submitted however, that a longer term of imprisonment should be imposed given the prevalence of the offence. Counsel submitted for a term of 13 – 16 years imprisonment.

6.     Counsel asked the court to be guided by the sentencing tariffs set out in the case of Manu Kovi v The State (2005) SC789. In this case, the Supreme Court set out the sentencing tariffs for Manslaughter as follows:

Category	               Description	                   Details 	             Tariff	
      1	Plea - Ordinary cases – Mitigating factors with no Aggravating factors	No weapons used – Little or no pre-planning - Minimum force used – Absence of strong intent to do GBH	    8 – 12 years	
      2	Trial or Plea – Mitigating factors with Aggravating factors	Use of offensive weapons used such as a knife etc.– vicious attack – multiple injuries-some pre-planning involved	   13 – 16 years	
     3	Trial or Plea – special aggravating factors – mitigating factors reduced in weight or rendered insignificant by gravity of offence	Dangerous weapons used, eg. gun, axe etc. – vicious attack – multiple injuries - pre-planning – some deliberate intention to harm – little or no regard for human life.	    7 – 25 years	
     4  	Worst Case – Trial or Plea – special aggravating factors – no extenuating circumstances- no mitigating factors or mitigating factors rendered completely insignificant by the gravity of the offence	Pre-meditated attack- some of viciousness and brutality – some pre-planning – killing of innocent, harmless person – complete disregard for human life.	Life Imprisonment	
 
7.     Mr Takua for the defence submitted that the attack came about as a result of alcohol consumption. The attack was not pre-planned and there was no intention on the part of the prisoner to cause grievous bodily harm (GBH). Furthermore, he had no apparent reason to have attacked the deceased. Prisoner was under the influence of alcohol at the time and didn’t mean to harm the deceased and it was purely an accident. He was arguing with his elder brother at the time and was collecting stones to hit his brother when he accidentally hit the deceased with it. 

8.     Counsel submitted that a sentence of between 6 years to 10 years would be appropriate in this case.

D.	AGGRAVATING AND MITIGATING FACTORS

9.     Each case must be considered on its own merits and in order to place the present case under the appropriate category of the sentencing guidelines the court must take into account the relevant factors such as the aggravating and mitigating factors, extenuating circumstances, gravity of the offence and any other factors or  circumstances peculiar to the case. The prevalence of the offence is also a consideration.

10.     In the case of Ume v The State (2006) SC 836 the Supreme Court described the aggravating factors, extenuating circumstances and mitigating factors as follows:

“The consideration of aggravating factors is of course not new. They include pre-planning, degree of pre-meditation, weapons (if any) used, multiplicity of attack or injuries inflicted, any inhuman acts such as torture or cutting up the body performed after the killing, and so on.
 
As to extenuating circumstances, the concept is also not new. They relate to the circumstances of the commission of the offence itself; factors which reduce the seriousness of the crime. They are relevant factors for purpose of sentencing in all criminal offences. Examples of extenuating circumstances includes de-facto provocation, duress or coercion, the degree of and extent of the offender’s participation, the offender’s medical condition such as psychopathic personality, offender’s lack of sophistication or traditional customs, practices and beliefs which influence the offender to act in the way he did.
  
As for mitigating factors, relevant factors to be considered include the offender’s youth, good personal and family background, personal antecedents such as good character, education, employment and Christian background; first time offender, guilty plea; early confession to police; remorse; co-operation with police; poor health and restitution or compensation.”  

11.     I now turn to the aggravating and mitigating factors of the present case.

(a)	Aggravating Factors

•	This was an unprovoked assault
•	Use of dangerous object in the attack namely, a stone
•	Loss of life
•	Prevalence of the offence.

(b)	Mitigating Factors

•	The prisoner pleaded guilty early
•	Cooperated well with the police 
•	First time offender
•	Expressed remorse.

12.    A number of case laws similar in circumstances to the present case were also cited by both the State and Defence to assist the court with its deliberations. I list some of them here below:

(i)	State v Roho, N4483 of 24 August 2006 (Cannings J)

13.     A 28 year old man pleaded guilty to manslaughter for killing his mother by kicking her in the abdomen after he became angry over her actions in chasing his sister down a cliff during which his sister sustained injuries. The deceased died of a ruptured spleen and other internal injuries. 

14.    The court found that there was no intervening cause of death and that the offender was solely responsible for the death and his was not a youthful offender. He was sentenced to 10 years imprisonment.

(xii)	State v Karo, N2600 of 29 April 2004 (Kandakasi J)

15.     The offender was a security guard at a club. The deceased was drunk and walked in while refusing to pay a gate fee of K2.00 charged by the club. An argument broke out which led to a fight between the offender and the deceased. The deceased punched the prisoner on his left ear. The prisoner returned the punch and hit him on his face and the deceased fell. The prisoner then pulled him up by his shirt and threw out of the gate. That caused the deceased to land hard on the ground and raptured his enlarged spleen which led to his death. 
The court found that the prisoner was sober and therefore knew what he was doing and that he could have decided not to harm the deceased. It then sentenced him to 8 years imprisonment. 

(xiii)	State v Watakasi [2012] PGNC 266; N4597

16.    The prisoner was drinking with the deceased’s grandson when a fight broke out between them. The deceased intervened to stop the fight when the offender hit her on the head with a folded fist. She fell unconscious and died instantly. 

The offender was sentenced to 8 years for manslaughter.

(xiv)	The State v Samuel Kalib; CR. No. 318 of 2013 ( Gabi J)

17.     The prisoner was charged with manslaughter for killing his maternal uncle. The circumstances giving rise to the case was that the prisoner was drunk and was in the company of other drunken youths. One of the drunken youths went and caused some damage to the deceased’s house. The prisoner went to stop the youth and a fight broke out between them. Whilst they were fighting the deceased returned from his garden and without finding out first who caused the damage to his house, he assumed that the prisoner was the one who caused damage to his house so he hit him on his head with a piece of firewood. The prisoner fell unconscious and the deceased continued to hit him. The prisoner got up and ran away and the deceased chased after him. The prisoner picked up a stone and threw it at the deceased. The stone hit the deceased and he fell down and died a few minutes later. The medical report showed that he died of a ruptured spleen.

18.     In sentencing the prisoner, the court took into account that K5, 000 and 2 pigs was paid as compensation and sentenced the offender to 7 years less his pre-sentence custody period.

(xv)	State v Mema [2012] PGNC 21; N3602 ( Kirriwom J)

19.     The offender, a 24 year old female pleaded guilty to one count of manslaughter for hitting the deceased on his head with a piece of wood to prevent him from assaulting her. The deceased is the cousin of the prisoner who was upset that the prisoner’s mother and sisters were keeping a piglet which he has already sold to another person from another village. The deceased got drunk and went to the prisoner’s house and assaulted her mother and retrieved the piglet. He then returned and slapped the prisoner three times. The prisoner got a piece of firewood and hit him and he died. Compensation of K5, 000 and a pig valued at K600 was paid as compensation to the deceased’s relatives. She was sentenced to 6 years with 5 years suspended.

(xvi)	State v Lossio John CR. No. 158 of 2012 (Murray J)

20.      The prisoner was at the market with her husband waiting for a PMV to go to Lae. Whilst they were waiting her small sister who was newly married to the deceased ran to her as she was beaten by the deceased with a fan belt. The deceased followed her to where they were sitting and the prisoner told him not to hit her sister. The deceased without saying a word took out the fan belt from his pocket and hit the prisoner three times on her head. The prisoner retaliated by hitting him once on the side of his head with a piece of wood. The deceased died of a fractured skull as a result. The prisoner pleaded guilty and was sentenced to 6 years imprisonment. 

(xvii)	 State v Daniel Yabari PGNC N7306 (Numapo AJ)

21.     The prisoner was intoxicated with homebrew and approached the deceased, swore and argued with him. The prisoner then punched the deceased on his chest and the deceased fell to the ground and started shivering and vomiting blood. He was rushed to the hospital and was pronounced dead. Deceased died from a heart attack brought on by the physical assault and also some pre-existing medical conditions he has. The prisoner pleaded guilty and was sentenced to 6 years imprisonment. 

E.	PRE-SENTENCE REPORT & ALLOCUTUS

22.     Prisoner is a young man 20 years old and not married. He left school at grade 10. He resides at Karapi village with his parents and his other siblings. He is unemployed and relies on his parents for support. Deceased is his cousin and he never meant to harm him and this was an accident. Compensation of K879.00 cash and one live pig worth K800 and some food items were paid to the deceased’s relatives. In his allocutus the Prisoner expressed remorse and is very sorry for what he did. He has apologized to the family of the deceased. He had not intended to cause the death of the deceased and it was an accident. Prisoner asked the court to give him probation so that he can continue with his education. His family is willing to pay further compensation if ordered by the court.

23.     The Probation Officer assessed the offender to be a suitable candidate for probation under supervision with strict conditions. He is young and has the potential to rehabilitate himself and become a good citizen. 

F.	PRESENT CASE

24.     I have considered the submissions from counsels and also the pre-sentence report and considered that this case does not fall under the category of worst type offence. The factual circumstances of the case indicated that this was an accident with unintended consequences. Prisoner did not mean to hit the deceased with the stone nor did he intended to cause him any harm. Prisoner had expressed genuine remorse and is very sorry for what he did. I also note that the prisoner is related to the deceased as his cousin and some compensation has already been paid to the family of the deceased. The prisoner is aged 20 and a youthful offender and therefore, should be given every opportunity to reform himself and become a good law-abiding citizen. Incarcerating a youthful offender should only happen if the gravity of the offence so demands and there is no other options available other than imprisonment. In the present case, I consider a term of between 6 – 12 years imprisonment as appropriate in this case. The current sentencing trend from the case laws cited so far is between 6 – 10 years for manslaughter under similar circumstances.  

G.	SENTENCE

(i)	I sentence the prisoner to Six (6) years IHL.  

(ii)	I deduct Nine (9) months for the pre-trial custody period pursuant to section 3 (a) of the Criminal Justice (Sentences) Act 1986.

(iii)	Prisoner is to serve the balance of Five (5) years and three (3) months IHL.

(iv)	Pursuant to sections 2 and 5 of the Criminal Law (Compensation) Act 1991, I further order that the prisoner pay a compensation of K3000 and one live pig worth not less than K1000 and two Tuhali Shells to the relatives of the deceased within 3 months of this Order to be supervised by the Probation Office and the Police.

(v)	In the event compensation is paid, a term of Three (3) years will be deducted from the total remaining term of imprisonment.

(vi)	Prisoner will serve the remaining balance term of Two (2) years and three (3) months IHL.

(vii)	No suspended sentence.

Orders Accordingly.

Public Prosecutor:	Lawyers for the State
Public Solicitor:  	Lawyers for the Applicant