State v Olik [2022] PGNC 145; N9562 (16 March 2022)

N9562

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 221 OF 2021

THE STATE

V

ENOCH SIMON OLIK

Baisu: Toliken, J
2021: 13^th August
2022: 16^th March

CRIMINAL LAW – Practice & Procedure – Sentence – Murder – Guilty plea – Prisoner escapes from custody while awaiting sentence – By escaping prisoner voluntarily surrendered or forfeited his right to be present at his sentencing – Sentenced in absentia.

SENTENCE – Mob attack – Prisoner main perpetrator – Mitigating and aggravating factors considered – Appropriate sentence – 15 years – Criminal Code Ch. 262, s 300(1)(a).

Cases Cited

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) SC 789
Rex Lialu v The State [1990] PNGLR 487
The State v Midicko (2021) N8943
The State v George (2021) N8776
The State v Put (2021) N9358
The State v Windi [2009] N298
The State v Komboli (2005) N2891

Counsel

D Pepson, for the Prisoner
T. Kagl, for the State

SENTENCE

16^th March, 2022

1. TOLIKEN J: Enoch Simon Olik (Prisoner) pleaded guilty to the

unlawful killing of Mark Welly on 31^st August 2020 at Tega, Hagen thereby contravening Section 302 of the Criminal Code Ch 262.

2. He was indicted and arraigned on 13^th August 2021 but escaped from custody

before the court could hear submissions on the sentence. By his escape he has
effectively and voluntarily surrendered or forfeited his right to be present at this sentencing. (The State v Komboli (2005) N2891; The State v Put (2021) N9358) He is therefore now sentenced in absentia or his absence.

3. The brief facts put to the prisoner on arraignment were that on 31^st August 2020, he was at the roadside at Tega Village along the Okuk Highway while intoxicated. Around 10:00a.m, in his drunken state, he disturbed the local community by collecting food items from vendors at the local market without paying for them.

4. One of the vendors, a Roselyn Welly, refused to give him her cucumber and the prisoner struck her on her face with a stone causing her to bleed. Roselyn went home and reported to her brothers, including Mark Welly, who went and confronted the prisoner and a stone throwing fight ensued. By then the prisoner’s tribesmen joined in to support him. During the fight Mark Welly was hit by a stone and fell. As he lay on the ground the prisoner and others rushed at him and kicked and assaulted him before bystanders stopped the fight. He was taken to the hospital and admitted. He, however, succumbed to his injuries and died 3 days later. The prisoner was arrested and charged with others. The State invoked Section 7 of the Code.

5. The offence of manslaughter carries a maximum penalty of life imprisonment.
Whether the prisoner gets the maximum penalty of life imprisonment will depend on whether his case can be considered a worst instance of offending, the circumstances under which the offence was committed and of cause considerations which are subjective to the prisoner himself. In other words, his sentence must be proportionate to his crime. (Goli Golu v The State [1983] PNGLR 653; Avia Aihi v The State (No.3) [1982] PNGLR 92; Lawrence Simbe v The State [1994] PNGLR 38)

6. So, is this a worst instance of manslaughter? I agree with Mr. Pepson of Counsel for the prisoner, that it is not. It should therefore attract a sentence below the maximum.

7. In Rex Lialu v The State [1990] PNGLR 487, the Supreme Court provided

some guidelines on what factors a sentencing court ought to consider when sentencing for manslaughter. It held the following: -

(i) The court must have careful regard to the circumstances of death and the way in which the death was caused.

(ii) The following matters may be relevant to the nature of the act causing death -

1. The nature and frequency of any attack or assault.
   
2. Whether the injury which caused the death arose directly from an attack or assault.
   

100. or was caused by, for example, falling on an object.
     

4. Whether the injury was caused by the person or a weapon.
   
5. Whether there was deliberate intention to harm.
   
6. Whether there was provocation in the non-legal sense.
   
7. Whether the deceased had a thin skull.
   
8. Whether the deceased had an enlarged spleen.
   

8. Then in Manu Kovi v The State [2005] SC 789, the Supreme Court expanded on these and provided what appears to be a more exhaustive list of circumstances (and tariffs) on a graduating scale by providing 4 categories of circumstances for homicide offences including manslaughter.

9. For manslaughter the court there suggested that those cases falling within category 1 include those where no weapon is used, the victim was emotional and there was de facto provocation such as in domestic settings, the killing follows immediately after an argument, there was force or no planning or preparation, minimal force was used, victim had a pre-existing condition. The suggested tariff is 8 – 12 years.

10. Category 2 cases are those that exhibit the following circumstances: -
Use of an offensive weapon, such as a knife on a vulnerable part of the body, vicious attack, inflictions of multiple injuries, some deliberate intentions to cause harm and pre-planning. A sentence between 13 – 16 years is suggested.

11. A sentence of 17 – 25 years is suggested for third category of the offence for which the following circumstances must be present – use of a dangerous weapon example, a gun or an axe, vicious and planned attack, deliberate intention to harm and like or no regard to the safety of human life.

12. The last category is of cause those worst instances of offending which will attract the maximum penalty of life imprisonment.

13. Now, what do we know about the prisoner? He was 26 years old at the time of his arrest, so he would now be around 27 years old or thereabout. He comes from Tega Village, Hagen Central, WHP. He is a member of the Assembly of God Church, single and has a Grade 10 level education. He was apprehended on 31^st May 2020 and was in custody until he escaped.

14. In his address to the court on sentence, the prisoner apologized for breaking the law. He apologized to the deceased relatives, to his community and to his own family. He pleaded for mercy and asked to be place on good behaviour bond so that he could care for his mother because his father has passed away. He said he had been in custody for a year and has changed his life. He promised not to re-offend if he were to be given a non-custodial sentence.

15. Mr. Pepson submitted on his behalf that the offence is not a worst instance of manslaughter, and as I said earlier, I agree that it is not. Counsel submitted that when considered against the considerations in Lialu -v- The State (Supra), the circumstances showed that there was no deliberate intention to cause death nor was there any premeditation on the part of the prisoner. On the contrary the deceased died after a stone throwing fight between two tribes and unfortunately the deceased was struck and had to be hospitalized but died 3 days later.

16. Counsel submitted that the circumstances of the case bring it within the upper end and the lower end of categories 1 and 2 of the Manu Kovi tariffs thus attracting a sentence between 12 and 13 years. However, given the peculiar circumstances of the prisoners offending, an appropriate sentence ought to be 8 – 12 years.

17. Counsel also invited the court to consider a suspended sentence, but when the court asked him if this was an appropriate submission given that the prisoner has escaped from lawful custody, counsel abandoned his submissions.

18. Ms. Kagl agreed with her friend but did not make any submission for the state.

19. I find the following mitigating factors: -

(a) The prisoner pleaded guilty to the charge.

(b) He co-operated with the police by making early admissions in his record of interview.

(c) He is a first-time offender.

(d) He was of prior good character.

(e) He was provoked in the non-legal sense when set upon by the deceased and his brothers, but this factor is rendered almost insignificant by the fact that the prisoner was the instigator of the whole incident and the involvement of his tribesmen.

20. Mr. Pepson submitted that the prisoner’s people had paid compensation which comprised of K150, 000.00, 100 pigs and 3 cows. This was, however, not independently verified, though some compensation or bel kol, as is the norm in this society, may have been paid.

21. Against the prisoner though are the following: -

(a) This was a mob attack in which the prisoner was the instigator.

(b) He was intoxicated.

(c) An offensive object, a stone was first used to hit or strike down the deceased before he was set upon by the mob including the prisoner.

• (d) This is a very prevalent offence.
  

(e) The prisoner has escaped from custody while awaiting sentence which is an upfront to the law and the court.

22. What then should be an appropriate sentence for the prisoner?
I do consider that the prisoner pleaded guilty early to the offence, co-operated with the police and is a first-time offender, and there was no preplanning.

23. He was, however, the instigator of the whole incident and again we see abuse of alcohol rear its ugly head and once again someone lost his life prematurely.

24. A lot of these senseless killings could be avoidable if people could simply not react violently to every and all sorts of provocation, however, trivial. Here the prisoner’s first victim had every right to report to her brothers. As expected, they reacted angrily and confronted the prisoner, which of course meant that his tribesmen had to come into his aid. Then all pandemonium broke loose, a stone throwing fight ensued during which the deceased was struck by a stone. When he fell to the ground, the accused, of course still intoxicated and psyched up, and his tribesmen set upon him raining kicks and blows on him as he lay helpless on the ground.

25. Applying the considerations in Rex Lialu v The State (supra) and Manu Kovi v The State (supra) to the circumstances of this case, I find that there was some deliberateness to cause harm on the deceased, judging from the ferocity and frequency of the blows to the deceased as he lay helpless on the ground. It was a vicious attack on a defenseless man.

26. The injuries from which the deceased died were inflicted firstly by a stone thrown by one of the prisoner’s tribesmen and then by the flurry of kicks and assaults on him by the prisoner and his mob. He died directly from that assault.

27. Should I accede to the initiation by Mr. Pepson to impose a sentence between 8 – 10 years, despite the presence of factors that should justify a higher sentence?

28. I do not think so. Violence is too pervasive in a lot of societies in this country and violent offences like the prisoner’s must be visited upon with appropriately stiff sentences for personal as well as general deterrence.

29. The prisoner must therefore get a sentence that fall between the upper and of category 1 and the lower or even the mid-range of category 2 of The Manu Kovi tariffs, 12 – 15 years.

30. The facts of this case are similar to those in the cases of The State v Midicko (2021) N8943 (per Numapo J) and The State -v- George (2021) N8776 (per Yagi J).

31. In Midicko (supra), the deceased stood in the middle of two opposing clans who were fighting over land, trying got stop the fight. Midicko chopped the deceased’s leg severing it. The leg was left hanging only by the skin. When the deceased fell to the ground an accomplice of Midicko hit him on the back of his neck with the blunt end of an axe. The deceased died shortly thereafter. On his guilty plea the prisoner was sentenced to 15 years.

32. In George (supra), the offender and the deceased – an old man of 83 years – had an argument over a piece of gardening land which the prisoner had cleared. The argument turned physical, and the offender cut the deceased with a bush knife on his right hand and left arm. The offender immediately fled the scene after injuring the deceased who died soon thereafter from severe loss of blood. The offender had no priors, pleaded guilty and was sentenced to 15 years less time on pretrial custody.

33. Another case which is not entirely on all fours with the instant, except that it also involved the use of a stone to hit and render the deceased defenseless or unable to adequately defend himself is The State v Windi (2009) N3872 (per Kandakasi J as he then was). There the deceased tried unsuccessfully to abduct the offender’s sister while their father was away. The offender was about 17 years old and did not know what to do. However, when his father returned home from work, the offender reported the incident and mediation was arranged. The deceased, however, did appear at the mediation, and so the prisoner went looking for him. He found him reading a newspaper at a friend’s boy house. The offender took a stone and hurled it at the deceased, hitting him on the right leg causing him to fall to the ground. As the deceased lay on the ground the offender hit him on the head once with an iron rod. He then left the scene. The deceased was taken to the hospital and admitted. He however, succumbed to his injuries 3 days later. On his guilty plea the offender was sentenced to 12 years.

34. Now, while the prisoner’s case might have some similarities with the cases cited above, there is one striking difference. Here the deceased was set upon by a mob and the offender who obviously was incensed and irate and whose state of mind was exacerbated by his state of intoxication.

35. Given the above, I am of the view that the prisoner must get a higher sentence than that suggested by Mr. Pepson.

36. An appropriate sentence in my view ought to be 15 years.

37. I therefore sentence the prisoner to 15 years imprisonment less the time he spent in custody.

Ordered according.
__________________________________________________________________
P Kaluwin, The Public Prosecutor: Lawyer for the State
L B Mamu, The Public Solicitor: Lawyer for the State