N8776

PAPUA NEW GUINEA
[ IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1122 OF 2020

THE STATE
V
JOSHUA GEORGE
Kavieng: Yagi J
2021: 11th & 18th February

CRIMINAL LAW – Sentence – Manslaughter – Criminal Code Act, s. 302 - Guilty Plea – a middle-aged villager with little education – first time offender - dispute over land – killing of an elderly man - use of an offensive weapon – serious multiple injuries caused – intention to cause grievous bodily harm – taking the law into own hands – sentence of 15 years imprisonment imposed less the pre-sentence custody period.

Cases Cited:

Anna Max Marangi v The State (2002) SC702
Manu Kovi v The State (2005) SC789
The State v Peter Noah (2005) N2833
The State v Billy Joel (2014) N5797
The State v Jimmy Mogoi (2012) N4680
The State v Tale Anton – CR No. 392 of 2019, (unreported, Kangwia J, Namatanai dated 9 May 2019)
State v Elias Peter Wano Miva (2006) N3454
State v Marwe Dedi Aiwa (2017) N6948
Acting Public Prosecutor v Uname Awane [1980] PNGLR 510

Counsel:

Ms M. Tamate, for the State
Mr A. Tunuma, for the Prisoner
SENTENCE
18th February, 2021

1.   YAGI J:   This is a sentence on a man (the prisoner) who pleaded guilty to unlawfully killing an old man named Mark Atasoa (deceased) on 08th March 2020 at Lomakunau-uru village, Mussau Island in the Kavieng District of the New Ireland Province. 

2.	The killing of the deceased is an offence under s. 302 of the Criminal Code Act to which the prisoner was convicted.

3.		The penalty for this offence is imprisonment for life. However, the penalty is subject to s. 19 of the Code which vested in the sentencing Court a discretion to impose alternative sentences or penalties in circumstances which the Court may deem just and appropriate.

4.		The prisoner is aged 41 years. He comes from the village where the killing took place, that is, Lomakunau-uru village on Mussau Island. He is an unmarried father of 3 children whose ages are unknown. He comes from a large family of 10 siblings and he is the last born in the family. His education level is grade 5. He has never been engaged in any formal employment and has lived as a villager. His mother is the only surviving parent who presently resides in the village. He affiliates his Christian faith with the SDA Church.

5.		The relevant facts for the present purpose are that the offender and the deceased are from the same village. The deceased is a very old man. According to the medical certificate of death the age of the deceased is estimated at 83 years.

6.		In the early hours of the morning between 5.00 and 6.00 o’clock on the day of the incident, the deceased went out of his house after hearing his name being called. His wife pleaded with him not to leave the house, however, he paid no regard to her pleas. He armed himself with a bush knife when he left his house.

7.		A short while later the deceased engaged in an argument with the prisoner over a piece of land which the prisoner cleared to make a garden. Apparently, it appears, the deceased disputed the actions of the prisoner in making the garden on the land and hung “gorgor” plants on the land, a traditional symbol or method of issuing a stop or stay order. 

8.		The argument developed into a physical confrontation, resulting in the prisoner cutting the deceased with a bush knife on the right hand and the left arm. After inflicting the injuries on the deceased the prisoner fled from the scene. The deceased died not long thereafter from severe loss of blood from the wounds inflicted on his body.

Allocutus

9.		The prisoner addressed the Court with a short statement. He said words to the effect “The thing happened only because of argument over land. I did it. That’s all.”

Defence Submission

10,		The defence counsel filed a written submission and spoke through it. Counsel submits the following 3 mitigating factors in favour of the prisoner:

•	Guilty plea
•	First time offender
•	De facto provocation 

11.		It was further submitted the aggravation features are:

•	Use of an offensive weapon
•	Prevalence of the offence
•	Unnecessary loss of life

12.		Counsel cited 4 cases on sentences imposed by the Courts for comparative purposes. I will consider them shortly.

13.		It is submitted by the defence counsel that the facts of this case does not warrant the imposition of the maximum prescribed penalty and moreover the Court should exercise its discretion in imposing a sentence between 6 – 12 years.

State Submission

14.		On behalf of the State, Ms Tamate advanced the following submissions.

15.		The mitigating factors as submitted by the defence are conceded by the State. As for the aggravating factors counsel submits the following factors are present:

•	An offensive weapon was used to inflict two serious bush knife wounds 
•	The victim was an elderly man
•	Loss of life
•	The attack on the victim was unjustified
•	The crime is prevalent in the community

16.		Ms Tamate concedes that the facts of this case do not attract the maximum penalty, however, urged the Court to observe the guidelines espoused by the Supreme Court in Anna Max Marangi v The State (2002) SC702 where 3 categories of manslaughter were discussed. Counsel submits in this case the third category should be applied. In addition, counsel submits the Supreme Court decision in Manu Kovi v The State (2005) SC789 is also relevant.

17.		The Court was also referred to 3 cases by the State which I will also shortly consider.

18.		Finally, Ms Tamate submits for a sentence ranging from 15 – 20 years to be considered in this case.

Considerations and Sentence

19.		This is an unlawful killing case and the penalty prescribed by law (s. 302 of the Criminal Code Act) is, as I alluded to earlier, imprisonment for life. This is the maximum penalty under the law. At the same time the law vest in the Court the discretion to impose alternative penalties provided under s. 19 of the Criminal Code Act. It includes a sentence of a determinate term of years in imprisonment,

20.		Therefore, the next question is what should be the starting point in deciding on an appropriate sentence in this case?

21.		I accept the submission by the State that the Supreme Court decisions in both Anna Max Marangi and Manu Kovi are relevant, if not, binding guidelines to be followed by the National Court in deciding an appropriate penalty in homicide offences.

22.		The Anna Max Marangi case was an earlier decision which was superseded by Manu Kovi to the extent that that decision was considered and taken into account when the sentencing guideline was promulgated by the Supreme Court in Manu Kovi.

23.		Anna Max Marangi was dealing specifically with the crime of manslaughter in a domestic setting and the Court identified 3 broad categories of the crime in the following way:
“The first consists of cases in which force is used accidentally or in any uncalculated manner, such as a single blow, punches or kicks on any part of the deceased body.  This also includes cases in which death is caused by an acceleration of a pre-existing disease or condition leading to death.  These kinds of killings attract sentences between three (3) years and seven (7) years.
The second are cases that involve repeated application of vicious force, with or without the use of an instrument or weapon, such as repeated kicks and punches applied to the head or chest with deliberate intention to wound or cause bodily harm.  Deaths caused by a single or multiple knife stab wounds applied to the head, neck, chest or abdomen or an any other vulnerable part of the body, even if there is no other special aggravating factors, come under this category.  This category attracts sentences between 8 and 12 years.
The third and final involve cases in which there is direct application of force in a calculated manner, on the body using a weapon such as a knife, bush knife or axe causing serious bodily injuries, such as piercing vital organs or severing vital parts of the body.  Deaths caused by chopping the neck, legs and arms with an axe or bush knife are examples of this kind of killings.  This includes death caused by single or multiple knife stab wounds on the head, face, neck, chest or the abdomen if accompanied by other special aggravating factors may also fall under this category.  These kinds of killings attract sentences between 13 and 16 years.”

24.		In Manu Kovi the Supreme Court considered all types of homicide cases including manslaughter and placed them into various categories. As regards manslaughter cases the following guideline was issued -

	No	Description				Details				Tariff

	1	Plea – ordinary cases –		No weapons used – offender	8-12 years
		mitigating factors – no		emotionally under stress –	
		aggravating factors.		de facto provocation – killing 
in domestic setting – killing 
follows straight after argument 
– minimal force used – victim 
had pre-existing disease that 
caused or accelerated death, 
eg enlarged spleen cases.	

	2	Trial or plea – mitigating		Use of offensive weapon, 		13-16 yrs
with aggravating factors.		eg knife, factors on vulnerable 
parts of body – vicious attack – 
multiple injuries –	some 
deliberate intention to harm –	
							some pre-planning.	

	3	Trial or plea – special		Dangerous or offensive 		17-25 yrs
aggravating factors –		weapon used, eg gun, axe – 
mitigating factors reduced in	vicious and planned attack –	
		weight or rendered			deliberate intention to harm – 
		insignificant by gravity of	little or no regard for sanctity 
offence. 				of human life.	

	4	Worst case – trial or plea –	Some element of viciousness	Life
		special aggravating factors –	and brutality – some pre-		Imp
no extenuating circumstances	planning and pre-meditation – 
		– no mitigating factors, or	killing of harmless, innocent 
		mitigating factors rendered	person – complete disregard 
completely insignificant by 	for human life.	 
		gravity of offence.		

25.		It is apparent that Manu Kovi is a more recent decision than Anna Max Marangi. Therefore, the guideline in Manu Kovi should apply while at the same time regard should be taken of the sentiments expressed in Anna Max Marangi.

26.		I turn now to consider the cases which had been referred to by the defence and the prosecution. Firstly, the defence cases.

27.		In The State v Peter Noah (2005) N2833 a young teenager, aged 19 years, approached the deceased a married woman in her garden and sought to have sexual intercourse with her. The deceased refused and uttered insulting, provocative and derogatory remarks at the teenager. Apparently, the teenager and the deceased had been involved in intimate sexual relationship, however, prior to the incident, there was a short period where the teenage was forced by his mother to cease the relationship with the deceased. The teenager was provoked by the insulting words and he reacted by cutting the deceased with a bush knife at the lower part of both legs. It appears the deceased died from excessive loss of blood despite efforts made to save her. The Court found that the facts of the case fell within the second category of the Anna Max Marangi guideline which attracted a sentence range between 8 – 12 years. In sentencing the teenager, the Court also took into account, among others, the guilty plea, it was the teenagers first offence, the nature and extent of the provocative words used and ultimately imposed a sentence of 10 years imprisonment in hard labour. It should be noted, however, that this case was decided some months prior to the decision in the Manu Kovi case.

28.		In The State v Billy Joel (2014) N5797 a man intervened to stop a fight between the deceased and another when he accidentally stabbed the deceased on the chest with a knife. He pleaded guilty to one count of manslaughter, expressed remorse and was a first-time offender. The other mitigating factors were that the offender made early admissions and cooperated with the Police. The main aggravating factor was the use of an offensive weapon, the knife. The Court in applying the guideline in Manu Kovi found that it was a category 2 killing. A sentence of 12 years imprisonment was imposed.

29.		In The State v Jimmy Mogoi (2012) N4680 the prisoner was assaulted with an iron rod by the deceased and his friends which resulted in him sustaining superficial wounds on the body. The prisoner armed himself with a kitchen knife and went to a nearby market. A few hours later he saw the deceased and his friends at the market area. He chased the deceased and stabbed the deceased on the chest with the knife inflicting a deep wound. The deceased died almost instantly from severe loss of blood. He pleaded guilty to one count of manslaughter under s. 302 of the Criminal Code. The other mitigating factors present in that case were that he pleaded guilty very early, there was a high degree of de facto provocation, only one or two stab wounds, prisoner surrendered himself to the Police straight after the incident, he cooperated with the Police and made early admissions and K4,000.00 was paid as compensation, The aggravating factors that operated against the prisoner, apart from the offensive weapon, were that the prisoner took the law into his own hands and he had a prior conviction for attempted murder. The Court found that it was a category 2 type killing under the Manu Kovi guideline. A sentence of 13 years imprisonment was imposed.

30.		In The State v Tale Anton – CR No. 392 of 2019, an unreported and unpublished decision by Kangwia J at Namatanai dated 9 May 2019, it was a case of an elder brother causing the death of the younger brother. A copy of the written decision was furnished by the defence counsel. The facts in that case are these. The deceased took the prisoner’s 14-year-old daughter away for a few days and had sexual relations with her. Subsequently, the prisoner met the deceased along a road and a fight developed following an argument over the incestuous relationship. During the fight the deceased was armed with a piece of stick and the prisoner was armed with a bush knife. The prisoner cut the deceased on left leg almost amputating the leg. The deceased died from severe loss of blood despite attention provided by medical officers at the Rural Hospital facility. The Court found that although the killing occurred in a domestic setting, it was not a worst case. However, the offence was prevalent and warranted an immediate custodial sentence. A sentence of 12 years imprisonment was therefore imposed.

31.		I now turn to the prosecution cases, the first of which is the Peter Noah case which I have already discussed.

32.		In State v Elias Peter Wano Miva (2006) N3454 a sentence of 16 years imprisonment in hard labour was imposed on a young man who pleaded guilty to using a bush knife to cut a man on the head causing severe head injury leading to death following a drinking party. The brief facts in that case are that the prisoner and others including his elder brother were drinking alcohol at his elder brother’s house. During the drinking session there was loud music used. The brother’s wife objected to loud music on several occasions leading to an argument between the elder brother and his wife. The families took side in the argument where the offender sided with his elder brother. The deceased sided with the brother’s wife. He was a brother to the wife. During the argument which developed into a physical confrontation the offender removed a bush knife from the deceased and used it to cut the deceased on the head. After reviewing a string of decisions in the context of sentencing trends and tariffs by both the National and Supreme Courts including Anna Max Marangi and Manu Kovi the Court imposed the sentence. In sentencing the Court noted the aggravating factors to include prevalence of the crime and hence the need for a strong and deterrent sentence, the lack of cooperation with the Police including his escape from custody, the use of a bush knife being a dangerous weapon, insincere or non-genuine expression of remorse, public perception of the offence within the locality. It should be noted also that the Court in passing the sentence remarked that had it not for the guidelines set by the Supreme Court in Anna Max Marangi and Manu Kovi, a much higher sentence was warranted.

33.		In State v Marwe Dedi Aiwa (2017) N6948 the prisoner aged 20 years whilst under the influence of home brew or steam confronted a motorcyclist in relation to an accident that earlier happened. The prisoner pulled a bush knife from the motorcycle and attempted to use it on the motorcyclist when the busk knife struck the deceased on the neck severing the arteries and veins causing excessive bleeding leading to death. The deceased was a village elder and also Village Court Magistrate who intervened to disarm the prisoner with a view to stopping him using the knife when it accidently came into contact with his neck. The prisoner is a first-time offender. He pleaded guilty to unlawful killing under s. 302 of the Criminal Code. The Court found, inter alia, that the prisoner was the instigator and aggressor, the attack was vicious, there was deliberate intention to harm and the killing involved the use of a dangerous weapon. The mitigating factors taken into account in favour of the prisoner included the guilty plea, he surrendered to the Police after committing the crime, he is a first-time offender and there was expression of remorse supported by payment of K15,000.00 as compensation, In sentencing the Court echoed the principle of sanctity of a human life, the prevalence of cruel, violent, deliberate, wilful, unjustifiable and senseless killings and the effect of the killing. In that case, the killing sparked a tribal conflict resulting in further loss of lives and destruction to properties. Moreover, the Court stated that the sentencing tariffs under the Manu Kovi guideline was outdated and do not appear to have a deterrent effect. Although the Court accepted that the killing fell under category 2 of the sentencing guideline in Manu Kovi, the sentiments expressed by the National Court in The State v. Douglas Mareva (2012) N4805 and the Supreme Court in Kwalimu Goina (1982) SC 230 with regards to public condemnation of violent crimes resulting in death and the need for stern deterrent sentences had a strong influence on the outcome of the sentence. In the end, the Court imposed a sentence of 20 years imprisonment with hard labour.
 
34.		In my view the present case falls under category No 2 of Manu Kovi guideline, which puts the starting point at somewhere between 14 and 15 years. I say this because an offensive weapon was used, the attack was vicious, multiple serious injuries were caused and there was deliberate intention to harm. There is no evidence of planning involved.

35.		I have considered the factors in mitigation and aggravation that are present in the case. Many of which have been submitted by both counsels. I consider the following factors to operate against the prisoner in aggravation:

•	An offensive weapon was used
•	The deceased was an elderly and vulnerable man
•	The prisoner took the law into his own hands
•	No expression of remorse
•	No compensation paid nor reconciliation process implemented

36.		On the other hand, the notable factors in mitigation that are favourable to the prisoner are:

•	He pleaded guilty, thus saving time and resources
•	He cooperated with the Police by making admissions
•	He is a first-time offender
•	There is some de facto provocation involved

37.		There is no doubt that a life has been lost prematurely as a result of the prisoner’s unwarranted and unjustified actions. The Courts have been consistently emphasising the principle of sanctity and value of a human life in that taking away an innocent life is a very serious matter and persons found guilty of committing such offences deserved to be severely punished. In that regard I agree with the submission by the State with respect to the sentencing range.

38.		The deceased was a very old man and was vulnerable. The dispute was over right to customary land. Such disputes should be brought before the appropriate village authorities and the Local Land Court. The prisoner displayed arrogance in terms of disrespect for the local authority and systems and processes established by law. He took the law into his own hands. The rule of law must prevail in all manner of disputes. The use of violence to settle disputes is reprehensible and must not be tolerated nor condoned.

39.		It is clear to me that this case cannot be regarded as a worst type of case under the category 2 guideline. The mitigation factors outweigh the matters of aggravation. Nonetheless, I find no special extenuating circumstances present in this case.
.
40.	Killing of another person in whatever circumstances is indeed a very serious crime and this must be adequately reflected in the sentence as a form of personal as well as general deterrence to would be offenders. 

41.	The prisoner is much younger than the deceased. He is physically stronger and powerful than the deceased. There is no need for him to use the bush knife against the deceased. The least he could have done to release his frustration and anger was to use physical force, albeit unlawfully, rather than an offensive weapon against the deceased. 

42.	In considering the sentence, I also bear in mind the relevant sentencing principles such as each case must be considered on its own facts; the purpose of deterrence, separation and rehabilitation in sentencing discussed by the Supreme Court in Acting Public Prosecutor v Uname Aumane [1980] PNGLR 510; and that the Court’s sentencing power is discretionary. There is no scientific or mathematical formulae involved in determining a sentence.

43.	Having regard to all these matters before me, I sentence the offender to 15 years imprisonment in hard labour to be served at Kavieng Correctional Institution. Pursuant to s. 3(2) of the Criminal Justice (Sentences) Act 1986 I deduct a period of 1 year and 5 days as the pre-sentence custody period leaving a balance of 13 years 11 months 3 weeks and 2 days to be served. A warrant of commitment will be issued forthwith.

Sentenced accordingly.
__________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner