State v Hevo [2022] PGNC 65; N9501 (2 March 2022)

N9501

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (JJ) 97 OF 2021

STATE

V

RONNIE HEVO

Waigani: Wawun-Kuvi, AJ
2021: 23^rd December
2022: 18^th & 27^th January, 2^nd March

CRIMINAL LAW–SENTENCE –Manslaughter, section 302 of the Criminal Code – Plea–Use of Knife-De facto provocation -Juvenile at the time of offence Sentence of 9 years

Cases Cited

Manu Kovi v The State (2005) SC 789
Public Prosecutor v Tardrew [1986] PNGLR 91
State v Marie Dominic [2021] N8972
State v Dawageia (2018) Unnumbered Judgment
State v Borewa [2018] N9246
State v Burida [2017] PGNC 136; N6794
State v Tutuba [2017] PGNC 174; N6792
State v FSD [2011] PGNC 164; N4456
State v Juvenile D [2008] PGNC 153; N3508
State v Kagai [1987] PNGLR 320

Reference

Criminal Code (Ch 262)

Counsel

Ms Lilly Jack, for the State
Mr Jeffery Kolowe, for the Defence

DECISION ON SENTENCE

2^nd March 2022

1. WAWUN-KUVI, AJ: Ronnie Hevo (offender) is an 18-year old male from Saroa Village, Rigo in the Central Province. He was a resident at Koki, Wanigela up until the time of his incarceration.
   
2. The offender was a student attending the Saint Francis Primary School in Koki, National Capital District. He was in Grade 7.
   
3. On 28 March 2021, the offender after spending the whole night consuming alcohol, decided to walk to the Koki market to get fish from his mother. After seeing his mother, he walked out and met the deceased.
   
4. The deceased asked the offender to repay K20.00 which he had loaned to the offender. The offender informed the deceased that he did not have any money. The deceased pulled the offender’s shirt and then proceeded to push him. A scuffle ensured.
   
5. The deceased then pushed the offender causing him to fall. The offender received a scratch on his right elbow. He got up and noticed that he was bleeding. He punched the deceased in the face. A second scuffle ensured. The offender who was drunk then ran out of breath. He pulled out a knife and stabbed the deceased on his chest.
   
6. Other people intervened and took the deceased to the hospital. The deceased died the next day.
   
7. I must now decide the appropriate penalty.
   

Purpose of Sentencing

8. I am reminded that sentencing has many purposes. They include but are not limited to punishment of the offender, rehabilitation, specific and general deterrence, communicating to that the offender’s conduct is not condoned and for the protection of the community.
   

The Charge

9. The offender pleaded guilty and was convicted on the charge of Manslaughter under section 302 of the Criminal Code.
   

Penalty

10. The maximum penalty is life imprisonment. The penalty is subject to section 19 of the Code.
    
11. I remind myself that the maximum penalty is reserved for the most serious case: Goli Golu v The State [1979] PNGLR 653. This is not such a case.
    

Sentencing guideline

12. In Manu Kovi v The State (2005) SC789 the Supreme Court provided guidelines in manslaughter convictions. The guidelines do not bind the Court in the exercise of its discretion.

No	Description	Details	Tariff
1	Plea – ordinary cases – mitigating factors – no aggravating factors.	No weapons used – offender emotionally under stress – 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.	8-12 years
2	Trial or plea – mitigating factors with aggravating factors.	Use of offensive weapon, eg knife, on vulnerable parts of body – vicious attack – multiple injuries – some deliberate intention to harm – some pre-planning.	13-16 years
3	Trial or plea – special aggravating factors – mitigating factors reduced in weight or rendered insignificant by gravity of offence.	Dangerous or offensive weapon used, eg gun, axe – vicious and planned attack – deliberate intention to harm – little or no regard for sanctity of human life.	17-25 years
4	Worst case – trial or plea – special aggravating factors – no extenuating circumstances – no mitigating factors, or mitigating factors rendered completely insignificant by gravity of offence.	Some element of viciousness and brutality – some pre-planning and pre-meditation – killing of harmless, innocent person – complete disregard for human life.	Life imprisonment

14. The factors in this case appear to place it within the higher end of category one (1) and the lower end of category two (2). However, as stated whilst the guidelines provide assistance to the Court, it is the peculiar circumstance of this case that will be the relevant consideration.
    

Submissions
Defence

15. The defence submit for a sentence range between 5-8 years imprisonment. And that the Court consider suspending 2 years of the sentence in light of the offender’s remorse.
    
16. In mitigation, it was submitted that the offender pleaded guilty, made early admissions to police, there was no pre-planning, there was provocation in the non-legal sense, the offender was a juvenile at the time he committed the offence, he has no prior convictions and he expressed remorse for his actions.
    
17. In aggravation, an offensive weapon was used namely a small knife, that the deceased was stabbed on a vulnerable part of his body and that the offence is prevalent.
    
18. The defence refer the Court to the following comparable cases:
    
19. State v Burida [2017]^[1], Liosi AJ (as he then was): The offender pleaded guilty to manslaughter. The offender was between the age of 16 and 17 at the time of the offence. The deceased and the offender were consuming alcohol with others in the village. An altercation occurred between the deceased and the offender. This resulted in the deceased cutting the offender on his left hand. Villagers then chased the group off. The offender hid for some time and then returned. He saw the deceased and approached him. In an attempt to stab the deceased on the hand, he lost his balance and stabbed the deceased on the neck. The deceased died because of a severed windpipe. The offender was sentenced to 10 years imprisonment. 2 years and 7 months were suspended.
    
20. State v Tutuba [2017]^[2], Liosi AJ (as he then was): The offender pleaded guilty to the manslaughter. He was 16 years old at the time of the offence and attending Grade 7. Both offender and the deceased were bathing at a creek. The deceased took out a mirror and was grooming himself. The offender pulled the mirror away. When the deceased attempted to take the mirror back, the mirror broke. The deceased was angry and cut the offender on the head with a knife. The offender then picked up his hunting spear and ran away. The deceased then ran after and him and ran into the spear. The offender was sentenced to 5 years imprisonment. 1 years was suspended.
    
21. State v FSD [2011]^[3], Cannings J: Two juveniles pleaded guilty to murder and manslaughter arising out of the same set of facts. One was 16 and the other 14. They planned to attack the victim who had insulted the other juvenile earlier on. The juvenile aged 14 years old who was responsible for the stabbing pleaded guilty to murder and was sentenced to 14 years. The 16 year who pleaded guilty to manslaughter was sentenced to 8 years imprisonment. No part of the sentence was suspended because the parents of the deceased did not want a suspension. The Court found that the factors that were in favor of the juveniles sufficiently reduce sentence.
    
22. State v Juvenile D [2008]^[4], Makail J: The offender and his father pleaded guilty to causing the death of the deceased. The offender and his father were returning home when they caught the deceased and his wife stealing from their garden. This was not the first of such incidence of stealing. An argument ensured and the offender’s father grabbed hold of the deceased and the offender cut him multiple times on his leg and hands. The deceased died as a result of loss of blood. The Court estimated that the offender was aged somewhere between 11 and 14 years at the time of the offence. He was sentenced to 8 years imprisonment. 4 years was suspended with conditions.
    
23. The case submitted by the defence contain similar circumstances, such as age and, that there were elements of defector provocation. In State v Burida [2017]^[5] the circumstances were quite similar with the difference that the offender in that case had an opportunity to reconsider his actions, but instead chose to attack the deceased. In the present case, the offender acted instantly during the fight with the deceased.
    

State

24. The State submits that the case falls within the upper range of category 1 and lower ranger of category 2. The State submits for a term of imprisonment between 8 and 13 years.
    
25. The State concedes factors in mitigation but argues in aggravation that, the loss of life, the offender was under the influence of liquor, the offender stabbed a vulnerable part of the body and the prevalence of the offence.
    
26. The State also relies on State v Tutuba [2017]^[6] and State v FSD [2011]^[7] referred to by the defence.
    

Comparable cases

27. Additionally, these are some of the more recent sentences for the charge of manslaughter. The cases referred to involve young offenders, pleas of guilty, and use of a knife. In these cases, the deceased had been the initial aggressors.
    
28. State v Marie Dominic [2021] N8972, Salika CJ; The offender pleaded guilty to manslaughter. The offender was attending a party when the deceased picked up two large stones and attempted to hit her. She was warned by others. She pulled out a knife and stabbed the deceased. She was sentenced to 13 years. The Court found that an extenuating circumstance was that the offender was minding her own business when she was attacked by the deceased.
    
29. State v Kevin Dawageia (2018) Unnumbered Judgement, Toliken J: The offender pleaded guilty to manslaughter. He was 20 years old at the time of the offence. He had consumed alcohol and was walking home with a friend. They met the deceased and another. There was a conversation between the deceased and the offender’s friend. The deceased for some unknown reason then had an argument with the deceased. A fight then ensured. There was an attempt the offender’s friend to stop the fight. The offender then stabbed the deceased with a knife. The offender was sentenced to 11 years imprisonment.
    
30. State v Peter Giblin Borewa [2018] N9246, Toliken J: The offender pleaded guilty to manslaughter. The deceased was a probationary constable. He drove pass and his vehicle was stoned. The offender who was standing on the side of the road was set upon by the deceased and his friends without first determining whether he was involved in the stoning throwing. The offender retreated into the premises of another police officer and picked up an iron pipe. He then went back outside and hit the deceased on the head. The deceased went into a coma and died a few days later. The offender was sentenced to 11 years.
    

Personal Particulars

31. The offender is 18 years old and comes from Saroa Village, Rigo, Central Province.
    
32. He is single and was attending the Saint Francis Primary School in Koki. He was in grade 7 at the time of the offence.
    
33. His parents are divorced, and he lives with his mother and stepfather at Wanigela, Koki, National Capital District. He has five sisters. They are all married and live with their respective spouses.
    
34. He is financially supported by his mother and stepfather.
    

Allocutus

35. The offender said in Allocutus:

“I am sorry to God above. Secondly, I am sorry to the Court. Thirdly to the victim’s family and to my family”.

36. Considering the early admissions to police with the early plea of guilty, I accept that the statement made in allocutus is a sign of genuine remorse.
    

Pre-sentence Report

37. The Probation Officer interviewed the offender, his mother, stepfather, the deceased uncle, and a woman in the community who wishes to remain anonymous.
    
38. The probation officer makes the following assessment:
    1. The offender committed the offence when he was juvenile.
    2. He is a first-time offender with no records but has a bad behavior in the community.
    3. And a threat to the community.
    4. A non-custodial sentence may further ignite a conflict amongst the community considering the threats from the deceased family.
       
39. There is very little that demonstrates that the offender had a history of bad behavior in his community. The Probation Officer interviewed two people who decided to give anonymous views. When it comes to a decision to incarcerate an individual for a considerable period, the Court must be guided by proper and substantiated facts.
    
40. There is also very little in the pre-sentence report that substantiates the views by the Probation Officer that the offender is a threat to his community. And there is nothing in the report that mentions any threats or conflicts if the offender is released on a non-custodial sentence.
    
41. I do accept that the family of the deceased, ask for a non-custodial sentence because of the death of their family member.
    

Mitigating Factors

42. I accept the factors in mitigations are that there was early cooperation with police, the early plea of guilty, the offender has no prior convictions and that he expressed genuine remorse.
    

Aggravating Factors

43. In aggravation, a life has been lost and cannot be replaced, a weapon was used, and the offence was prevalent.
    
44. Both counsels submitted that an aggravating feature was that the deceased was stabbed in a vulnerable part of his body. Neither counsel assisted the Court to explain why that was considered an aggravating feature. I am to assume that the submission may be that, because the deceased was stabbed on a vulnerable part of his body, that is indicative of a strong desire to cause grievous bodily harm or death.
    
45. However, the offender was charged with manslaughter and the facts as presented by the State do not demonstrate as such.
    

Consideration

46. This was an unfortunate event that should not have happened had both young men exercise restraint. The death was a result of a heated argument that could have been easily solved without violence.
    
47. The initial fight was over K20.00. The consequences of which are now far greater. Two families have now lost sons. The deceased family however have lost a son that can never been replaced.
    
48. Death in this case was cause by a kitchen knife. Knife related offences are prevalent in our country. What was intended to be used as a kitchen appliance has now been abused.
    
49. The offender has nonetheless taken responsibility of the offence and from as early as his arrest he made full admissions. He has apologized to the deceased and his family.
    
50. At the time of the offence, he was aged 17 and attending Grade 7. His education and future prospects have been affected by his incarceration. There is also an extenuating factor which is clear in the facts, is that, the offender was not the initial aggressor. He went looking for his mother for food. It was the deceased who stopped him and assaulted him. The deceased did not relent in his attack. Whilst I do not condone the actions of the offender, this case is an example of how people allow themselves to engage in unnecessary violence.
    
51. For the foregoing reasons, taking into account also the sentencing guidelines, the comparable cases, the mitigating and aggravating factors, the expression of remorse, relevant factor background that gave rise to the offence, the offender is sentenced to 9 years imprisonment.
    
52. The question now is whether, I should suspend any part of the sentence.
    
53. Suspension is not an act of leniency but is in the interest of the community and to promote rehabilitation and prevent recidivism: The State v Kagai [1987].^[8]
    
54. Suspension pursuant to section 19 (6) of the Criminal Code should only be exercised in three broad categories, (1) promotes personal deterrence, reformation or rehabilitation of the offender, (2) encourages the repayment or restitution of stolen money or goods and (3) imprisonment would cause excessive degree of suffering, for example, because of bad physical and mental health: Public Prosecutor v Tardrew [1986]^[9].
    
55. The offender in this case was 17 years old at the time of the offence. He was a juvenile. A lengthy prison sentence would not encourage rehabilitation.
    
56. I do not accept the State’s submission that the offender is a risk to his community. The conclusions by the Probation Officer were derived without any proper basis. This is a serious offence, and the likely consequence is imprisonment for a long period.
    
57. Nonetheless, a wholly suspended sentence would not be appropriate because a life has been lost and killings with the use of knives are prevalent in our society.
    
58. A partial sentence is appropriate in light of the circumstance. Two years and 1 month of the sentence is suspended and the offender shall be placed on a good behavior bond for one year without sureties and shall keep the peace and be of good behavior.
    

Orders

59. The Orders are as follows:
    1. You are sentenced to 9 years imprisonment.
    2. Two years and 1 month suspended, and the offender is placed on a good behavior bond for 1 year without surety.
    3. Time spent in custody of 11 months is deducted
    4. The offender shall serve the balance of 6 years at Bomana Correctional Institution.
    5. It is recommended that the Commissioner of CS offer some form of Fode Studies.

________________________________________________________________
Office of The Public Prosecutor: Lawyer for the State
Office of The Public Solicitor: Lawyer for the Offender

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^[1] PGNC 136; N6794
^[2] PGNC 174; N6792
^[3] PGNC 164; N4456
^[4] PGNC 153; N3508
^[5] supra
^[6] Refer to note 2
^[7] Refer to note 3
^[8] PNGLR 320 (12 October 1987).
^[9] PNGLR 91 (2 April 1986).