State v Mera [2021] PGNC 682; N10526 (18 September 2021)

N10526

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR (JJ) NO 30 OF 2021

THE STATE

-v-

EUGINE MERA

Bulolo: Kangwia J.

2021: 8^th September

CRIMINAL LAW - Manslaughter – youthful offender acting like adult - killing in defence of uncle – spontaneous attack by first- time offender – sentenced to 13 years with deductions.

Cases Cited:

State v Tutuba (2017) N6792
State v Burida (2017) N6794
State v Smith Borum (2011) N4292
Goli Golu v the State [1979] PNGLR 653
Antap Yala v the State (1996) Unrep. Supreme Court Judgment, in SCRA No. 69 of 1996 dated 31^st May 1996
State v Eddy Kava Laura (No 2) (1989) [1988-89] PNGLR 98; N693
Paulus Mandatitip & Anor v. The State [1978] PNGLR 128
Peter Naibiri & Kutoi Soti Apia v the State (1978) SC137
State v Charles Maniwa (2004) N2674
Sakaroa Koe v the State (2004) SC739

Counsel:
P. Matana, for the State
G. Peu, for the Accused

18^th September 2021

1. KANGWIA J: EUGINE MERA appears for sentencing. He was convicted on his guilty plea to one count of manslaughter under s 302 of the Criminal Code Act.

2. The facts on which he was arraigned were that the deceased who was drunk swore at another person. The other person with the aid of Channel Mera who was the prisoner’s uncle and others chased the deceased to his house. A commotion erupted where stones were thrown at each other.

3. The deceased’s mother came out to stop them. She was pushed to the ground by Channel Mera.

4. Upon seeing their mother fall the deceased and others retaliated and chased the attackers. In the process Channel Mera who was also drunk fell down. While he was lying on the ground the deceased tried to spear him. This prompted the prisoner to go into the aid of his uncle and eventually cut the deceased with a bush knife. The deceased died from the injury sustained.

5. According to the medical report the deceased died from hemopneumothorax due to a deep straight laceration and open penetrated wound on the right lower ribs.

6. The prisoner is believed to be going 17 years since he committed the offence when he was 15 years old.

7. On his allocutus he said; “ I say sorry to the Court for the wrong. I thought he would not die but hospitalised but died. I say sorry to the deceased family. We paid compensation. I was a student when arrested. I say sorry for spoiling another person’s life. I was not supposed to do that. I ask for mercy. “

8. On his behalf Ms Peu suggested a head sentence between 6 and 10 years as appropriate. The killing was not calculated, deliberate, planned, or cruel but has an element of accident, thus should attract a lower term of imprisonment. It was further submitted that a part suspended sentence will promote his personal deterrence, rehabilitation, and reformation of the prisoner. Incarceration may deter reformation by influence of hardened offenders.

9. On behalf of the State Ms Matana through a written submission submitted that since a life was lost through the acts of a juvenile, an immediate custodial sentence of 10 years with suspensions for purposes of rehabilitation and re-integration should be imposed. The aggravating factors were that a life was lost through a complete disregard for human life and safety, a dangerous weapon was used, and the offence was prevalent.

10. It was submitted that the sanctity of life should be preserved with a deterrent sentence. The following cases of manslaughter by juvenile offenders were cited as similar and relevant for sentencing in the present case.

11. The State v Tutuba (2017) N6792 where the offender on a guilty plea to manslaughter for spearing the deceased was sentenced to 5 years with deductions and suspensions.

12. In the State v Burida (2017) N6794 where the offender pleaded guilty to manslaughter for stabbing the deceased was sentenced to 10 years with deductions and suspensions.

13. In the State v Smith Borum (2011) N4292 where the offender on a guilty plea to manslaughter for stabbing the deceased in a revenge attack after a group fight was sentenced to 12 years with deductions and suspensions.

14. The offence of manslaughter under s 302 is in the following terms:

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.

15. The prescribed maximum penalty of life imprisonment for manslaughter is subject to the s19 discretion under the Criminal Code and the principle of law that the maximum prescribed penalty is reserved for the worst category of each offence.

16. In the case of Goli Golu v the State (1979) PNGLR 653 the Court held that the fundamental principle in sentencing is that “A man must be given the sentence appropriate to his crime and no more”. Following on from that it was further held that the maximum prescribed penalty should be reserved for the worst category of each offence.
17. The Supreme Court in the case of Antap Yala v the State (1996) Unrep. Supreme Court Judgment, in SCRA No. 69 of 1996 dated 31^st May 1996 while dismissing an appeal against sentence and confirming a sentence of 10 years where the prisoner slashed the neck of his wife said, “Whilst sentences for manslaughter will normally be lower than sentences for murder and wilful murder, there are those cases which will justify the imposition of heavy punishment and even the maximum punishment”.

18. In the case of the State v Eddy Kava Laura (No 2) (1989) N693 the Court in a murder case said; “Each case of murder must be decided on a case by case basis but always remembering that the sentence laid down by s 300 is life imprisonment and the term of years is by virtue of s 19”.

19. This determination is equally applicable to the present case.

20. In the present case the prisoner committed the offence as a youthful offender. The Courts have determined that youth is not a good mitigating factor in serious cases.

21. In Paulus Mandatitip & Anor v. The State [1978] PNGLR 128, the Supreme Court said that deterrent sentences are required where the offence is prevalence and youthful offenders should not receive special treatment unless there are exceptional circumstances which call for leniency.

22. In Peter Naibiri & Kutoi Soti Apia v the State (1978) SC137 the Supreme Court while considering the Mandititip case said:

“As was pointed out in Paulus Mandatitip & Anor v The State, this Court finds difficulty in these days in accepting pleas of youthfulness to serious crime, and this must be so particularly in regard to violent crime of the most serious categories.”

23. In the latter case, the two prisoners aged 17 and 19 years respectively were each sentenced to life imprisonment for the attempted murder of three policemen. Their appeal was dismissed. In addressing the issue of youthfulness, the Supreme Court observed that in Papua New Guinea society it is a fact that youths of 17 and 19 are frequently men accepting adult responsibility in society’s affairs. The Court further said that the two prisoners certainly did not behave like immature youths.

24. This statement of the law underpins the view that in respect of the issue of youthfulness, if youths are able to behave like men, they must accept the consequences like men, without pleading their youthfulness.

25. It is accepted that the prisoner was a young offender. However, another young person lost his life. The deceased was also 17 years when he lost his life. His family had suffered a great loss. No plea for leniency based on youthfulness, will ever bring him back to life.

26. The issue therefore is what in an appropriate sentence. The guidelines referred to earlier should form the basis of a sentence as there is no formula to be followed.

27. Sentences for manslaughter are generally varied owing to their own facts and circumstances. The following cases attest to it.

28. In the case of State v Charles Maniwa (2004) N2674 on a guilty plea to manslaughter for the killing of a catechist by stoning the chest area causing a ruptured spleen was sentenced to 19 years imprisonment.
29. In Sakaroa Koe v the State (2004) SC739 the Supreme Court in a manslaughter case, affirmed a sentence of 20 years as lenient and dismissed the appeal against sentence.

30. In favour of the prisoner are that he pleaded guilty early to a very serious offence. He has no prior convictions. The offence was not premeditated. His actions were spontaneous. He reacted in aid of his uncle who was facing imminent assault.

31. A planned attack would naturally attract a higher sentence. He cooperated with police and expressed some remorse.

32. The Pre-Sentence Report is also in his favour. It suggested that the prisoner was a suitable person for probation supervision.

33. The aggravating factors are that a death was caused. There was complete disregard for the sanctity of life. The deceased lost his life. The prisoner still has his. It borders on unfairness as humans.

34. A bush knife, an offensive weapon was used. The medical report is consistent with an application of tremendous force.

35. Severe injuries were inflicted. The plea in mitigation that death was not intended is not reflected by the extent of injury caused. The offence is prevalent. Serious offences that used to be within the domain of adults have now been taken over by juveniles. It therefore augurs well that sentences also follow suit. He should be sentenced as an adult for committing the crime like an adult.

36. It is anyone’s guess what type of society this country will have in the years to come with the trend of offences committed by the youth.

37. The facts and circumstance of this case makes it fall into the 02nd category of the Manu Kovi guidelines which suggested a sentence range of 13 to 16 years imprisonment.

38. Given the factors referred to a sentence under category two of the Manu Kovi guidelines is appropriate.

39. The prisoner is sentenced to 13 years imprisonment. The time spent in pretrial custody shall be deducted and he shall serve the balance at CIS Buimo.

______________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Defence