State v Wineimba [2022] PGNC 252; N9739 (16 June 2022)

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CRIMINAL LAW- Practice and Procedure – plea of guilty – manslaughter – starting point 10 years – deduction of period in custody awaiting trial – suspension of sentence based on Pre-Sentence Report.

1. REI AJ: The State presented an indictment on the 7^th of June 2022 against the accused in which he is charged that SAKRIA MANGI WINEIMBA of Hukutakua Village, Wosera/Gawi District, East Sepik Province in Papua New Guinea, on the 22^nd day of August 2020, unlawfully killed Lewai Lisipen contrary to Section 302 of the Criminal Code.

2. The facts are that the deceased is the brother of the accused who was holding onto a bush knife on the 22^nd of August 2020 while walking down the main road. When he saw the accused, the deceased swore at him and swung the bush knife at the accused. The accused retaliated by swinging a piece of sharp bamboo spear and struck the deceased at his abdomen and piercing it causing heavy bleeding resulting in his death.

3. The contents of the indictment and brief facts were read to the accused who was asked to enter a plea.

4. The accused entered a provisional guilty plea which was confirmed by Mr. Siki as being consistent with instructions. A provisional plea of guilty was entered.

5. Upon my perusal of the committal file, the plea of guilty was confirmed as the accused made confessional statements in answers to Q.9, Q.14 to Q.18.

8. The prisoner said sorry to the Court for taking its time and also said sorry to the relatives of the deceased and his own family for bringing shame resulting from his actions.

11. Mr. D. Siki asked that a PSR be prepared and filed which was filed on Wednesday 15^th June 2022.

“A person who unlawfully kills another person under such circumstances is not to constitute wilful murder, murder or infanticide is guilty of manslaughter,”

(1)(a) if the offender intended to do grievously bodily harm to the person killed or to some other person.”

15. The sentencing tariffs in murder cases has been set out in the decision of the Supreme Court in Manu Kovi -v- The State [2005] PGSC 34, SC789. (Waigani: Injia DCJ, Lenalia & Lay JJ: 2004: July 27^th October 27^th, 2005, May 31^st).

CATEGORY	WILFUL MURDER
CATEGORY 1	-15 – 20 years
Plea - Ordinary cases - Mitigating factors with no aggravating factors.	- No weapons used - Little or no pre-meditation or pre- planning - Minimum force used. - Absence of strong intent to kill.
CATEGORY 2	- 20 – 30 years
Trial or Plea - Mitigating factors with aggravating factors	- Pre-planned. Vicious attack. - Weapon used - Strong desire to kill
CATEGORY 3	- Life Imprisonment -
Trial or plea - Special Aggravating factors - Mitigating factors reduced in weight or rendered insignificant by gravity of offence.	- Brutal killing. Killing in cold blood - Killing of innocent, defenceless or harmless person. - Dangerous or offensive weapons used. - Killing accompanied by other serious offence. Victim young or old. - Pre-planned and pre-meditated. - Strong desire to kill.
CATEGORY 4	- DEATH -
WORST CASE – Trial or Plea - Special aggravating factors. - No extenuating circumstances. - No mitigating factors or mitigating factors rendered completely insignificant by gravity of offence.

17. The sentence to be imposed is always subject to Section 19 of the Criminal Code taking into consideration the facts and circumstances of the case Lawrence Gimble -v- The State [2008] PGSC 51, SC1017 and that the maximum penalty be reserved for the worst scenario case – Goli Golu -v- The State [1979] PNGLR 635.

18. This case falls within Category 1 and 2 of those guidelines in that the prisoner used a sharp bamboo spear to inflict wounds to the abdomen of the deceased which caused heavy bleeding resulting in death.

19. I, however, note that there is present in this case de facto provocation in that the deceased swore at the prisoner and chased him to the point where he was struck resulting in the fatal wounds.

20. Applying the guidelines in the Manu Kovi case, Mr. Kaipu submitted that a head sentence of 20 – 30 years is appropriate. Mr. Siki on the contrary submitted that a sentence of 10 years be imposed, and the time spent in custody awaiting of trial be deducted. Furthermore, in accordance with the recommendations of the Probation & Parole Officer contained in the PSR, the whole sentence be suspended, and the prisoner placed on probation because the deceased is his brother, he is youthful and needs to continue his education at Kosingian Primary School.

21. Mr. Kaipu disagrees that the whole of the sentence be suspended because of the prevalence of the crime in the country.

22. In considering an appropriate sentence in this matter I have given consideration to the mitigating factors which outweigh the aggravating factors.

23. I have also given consideration to the fact that the prisoner is the brother of the deceased, entered early plea saving time and costs to the State.

24. This case deals with the situation where the last born brother killed the second last born brother. The Supreme Court said in the case of Kesino Apo -v- The State [1988-89] PNGLR 182: presided by Kapi DCJ and Woods and Los JJ which involves the killing of relatives and held that the trial Judge should not hold this against the prisoner. His Honour Kapi DCJ said.

“In a sense, a killing of a relative is self-inflicting in that, a killer may lose a warrior, worker or contributor to bride price or even a helper. This may be regarded as a punitive aspect of the killing which he has brought upon himself. It should not be taken into account as a factor against him but in his favour. The trial judge was wrong in holding this against the appellant.”

“... a killing within the family will usually mean that the perpetrator will suffer shame and the other burdens for the rest of his life for the killing of a relative and therefore a long-term of imprisonment is not really necessary or appropriate as a punishment.”.

“... apart from undergoing the punishment imposed by the court, he [the prisoner] would be suffering for the rest of his life from self-imposed punishment. The self-imposed punishment is that he had lost a cousin brother whose assistance he would need in difficult times. While there is therefore a need for general deterrence, in terms of personal punishment, he would be suffering twice.”

25. Mr. Siki referred me to the cases of State -v- Eric [2017] PGNC 134; N6790 where His Honour Liosi J. imposed a sentence of 12 years, deducted 2 years 5 months as time remanded in custody and suspended 4 years 7 months. The prisoner to serve 5 years.

27. In The State -v- Kiosai [2021] N8961 which I decided my attention was not drawn to the reasons for judgement in the Supreme Court case of Kesino Apo -v- The State (Supra).

28. I, however, sentenced the prisoner, to 12 years imprisonment out of which 10 years was suspended with 2 years to serve on the basis that there was no strong intention to harm as he swung a piece of timber to hit the arm of the deceased to disable him from using a knife to harm others including the prisoner. The sum of K60,000 was paid as compensation.

29. That case also involved a family feud in which the prisoner struck his deceased relative and died.

30. In this case, the deceased swore at the prisoner who is his brother and swung a bush knife to hit the prisoner. In the wake of this, the prisoner swung a sharp bamboo spear and struck the deceased in the abdomen causing death.

31. Although the facts of this case are somewhat similar to facts in The State -v- Kiosai (Supra), I do not consider imposing the sentence imposed in that case because of the prevalence of the crime involving close relatives.

32. A sentence along the same terms as in the case of The State -v- Eric (Supra) is, in my view, appropriate.

33. I note the prisoner is a youthful offender who is 18 years of age and that the Court is to take heed of this by not imposing a crushing sentence – Passingan -v- Beaton [1971-72] PNGLR 206 per Raine J. at p.209, that he has pleaded guilty to the charge and expressed genuine remorse.

35. In consideration of all these factors a sentence of 10 years is imposed out of which the period of remand awaiting trial be deducted. And in the exercise of my discretion under Section 19 of the Criminal Code a further term of 4 years is suspended with conditions.

36. The prisoner is to serve a prison term of 7 years 2 months 28 days out of which 4 years is suspended. He is to serve a sentence of 4 years 1 month 28 days.

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Public Prosecutor: Lawyer for the State

National Court of Papua New Guinea

State v Wineimba [2022] PGNC 252; N9739 (16 June 2022)