State v Aulo [2023] PGNC 273; N10430 (10 August 2023)

N10430

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 575 OF 2020
CR No.576 OF 2020
CR No. 577 OF 2020
CR No. 578 OF 2020

THE STATE

V

HENRY AULO, RUSSEL APUNDA, DANIEL RAMRAM, and KILLY APOWIEJ

Aitape: Miviri J
2023: 03^rd & 10^th August

CRIMINAL LAW – PRACTICE AND PROCEDURE – Manslaughter S302 CCA – Plea x2 – fight over Card Game – Deceased disputed Card Game – Armed with Bush knife Attacked one of Accused – Hand Cut Others reacted Against Deceased – Active Participant – Multiple Injuries – Unlawful Assault – Self Defence Inapplicable – Excessive Force – Death Resulting – Guilty x2 – 18 years IHL minus remand x2.

CRIMINAL LAW – PRACTICE AND PROCEDURE – Manslaughter S302 CCA – Not Guilty Plea x2 – fight over Card Game – Deceased disputed Card Game –Deceased with Bush knife Disarmed Assaulted – No Evidence Offered x2 – Not Guilty x2 – Acquitted &Discharged x 2 – Released from Custody Forthwith x2.

Facts

An argument over a card game erupted into a fight involving the deceased and the four accused who disarmed the deceased of the bush knife he was armed with assaulted and cut him with it killing him as a result.

Held
No Evidence Offered R. Apunda & Killy Apoweij
Acquitted & Discharged x2.
Guilty x 2 H. Aulo & D. Ramram.
Protection of Life.
Unlawful Game & Fighting.
18 years IHL x 2 remand deducted x2.

Cases Cited.
Tapes Kwapena v The State [1978] PNGLR 316
The State v Lilu [1988-89] PNGLR 449
The Kumbamong v State [2008] PGSC 51; SC1017
Simbe v The State [1994] PNGLR 38
Kovi v The State [2005] PGSC 34; SC789
The State v Yalibakut [2006] PGSC 27; SC890
Review Pursuant to Constitution Section 155(2) (b); Application by Herman Joseph Leahy [2006] PGSC 21; SC855
The State v Ngasele [2003] PGSC 2; SC731
Allan Peter Utieng v. The State Unreported judgment delivered in Wewak on 23/11/00) SCR 15 of 2000
State v Hurotove [2017] PGNC 114; N6754
Tapi v The State [2000] PGSC 2; SC635
State v Aitsi No 2 [2008] PGNC 21; N3296
Rex Lialu v The State [1990] PNGLR 487
State v Walus [2005] PGNC 147; N2802
State v Kimkilala [2017] PGNC 243; N6908
Marangi v The State [2002] PGSC 15; SC702

Counsel:
D. Mark, for the State
P. Moses, for Defendant

SENTENCE

10^th August 2023

1. MIVIRI J: This is the sentence of two men amongst four named above who fought over a card game resulting in the death of the deceased, Leonard Uttot who was also involved in that game. All were indicted with section 302 of the crime of Manslaughter pursuant to the Code. Which is in the following terms:
   

“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.”

2. Two, Russel Apunda and Killy Apoweij pleaded not guilty. Each had no evidence offered by the State drawing not guilty verdicts entered in respect of their cases. Both were consequently acquitted discharged and released from custody forthwith.
   
3. The remaining two, Henry Aulo and Daniel Ramram pleaded guilty confirmed by the material in the committal file that were tendered against both. Both have been convicted of the crime of Manslaughter pursuant to section 302. It is a breach of the law that has led to death in their hands. The breach of the law is the assaults that were perpetrated as described by the State in the arraignment. And these were that on the 07^th September 2019, around 5.30pm, the deceased Leonard Uttot with the Prisoner now, Daniel Ramram were gambling with cards at Yakoi Village, Aitape. A mistake occurred with the cards and all gamblers gave their cards back to the distributor distributing to redo that again. Daniel Ramram did not do that with the others. He did not give his cards back but declared that he had won so he collected the monies and started to walk away.
   
4. Leonard Uttot was not happy and called Daniel Ramram to return the monies. Daniel swore at him which made him not happy. He picked up a bush knife and walked to Daniel Ramram. But Daniel was already with his accomplices, Henry Aulo, Russel Apunda and Killy Apoweij. They fought with the deceased and he swung the bush knife at Henry Aulo cutting him on the hand. The four Accused fought the deceased felling him down and removing his bush knife. He got up and ran away, but they chased him. Killy and Russel punched him, and he fell to the ground. Daniel and Henry then used the bush knife and cut the deceased all over his body.
   
5. The State invoked section 7 (1) (a) (b) (c) and (d) of the Criminal Code against the Accused in the assault which led to the death of the deceased. Both prisoners who have pleaded guilty and convicted have roles that clearly fall and evidence within the ambit of this section. They are guilty as indicted and reading their depositions do not bear out any defence. Self Defence is in applicable because the force used is excessive and this is borne out by the witness’ statement. It is not what is observed in Tapea Kwapena v The State [1978] PNGLR 316. Because they disarmed him of the bush knife that he had. Then they persisted in assaulting and cutting him and leaving him for dead after securing him in a chase to a secluded area. That is clearly not self-defence in every sense of the law.
   
6. There are three witnesses immediately at the scene of the attack. The first is Ruth Leonard wife of the deceased. She is 19 years old from Paup village and was with her husband Leonard Uttot between 5.30pm and 5.48 on that day 07^th September 2019. Her evidence confirms that it was a card game involving all gambling. And that it was not evenly distributed so that each player was holding seven (7) playing cards. There was more than seven except for the prisoner Daniel Ramram who had seven cards. He also had the winning card seven heart a bomb card. So, he grabbed the money and made off. But the deceased insisted that he return the money because he had lost some money there. And the prisoner swore at him and continued swearing. Henry Aulo together with the others got up and damaged the light for paying and walked away. The deceased got a one-meter bush knife and the defendants fought with him. So, he chopped Henry Aulo on the forearm which prompted the defendants to fight him to the ground and disarmed him of the bush knife. The deceased then ran to the road where they pursued him punching him to the ground where both Henry Aulo and Daniel Ramram repeatedly cut him all over his body with the bush knife and he died. He was pleading for mercy, but they ignored and continued cutting him. He was bleeding very heavily, and she sought assistance to the hospital to no avail. When she returned, he had died. So, she reported to police.
   
7. This is the same evidence from the other witnesses named on the Indictment, Paul Raincy 32 years of Yakoi village, Koncy Daniel 23 years old of Yakoi, wife of Daniel Ramram, and Michael Maiyo 49 years old from Yakoi. Koncy Daniel states that all the youth were drinking homebrewed alcohol “Steam” during the card game.
   
8. Defence counsel made no application. But confirmed that the plea was consistent with instructions. He applied for a presentence report to be considered in the sentence due both. That application is now the subject of an order to the probation services to produce that report and to have it filed by Wednesday 09^th August 2023 and the address on sentence Thursday 10^th August 2023 at 9.30am for both prisoners. Both reports have now being filed upon which Addresses by both counsels have been made to determine an appropriate sentence in each case. Relevantly both the reports recommend non-custodial terms to be imposed with conditions for payment of compensation in the vicinity of K5000. Which is in addition to the earlier sum initiated and paid of K3400 by the Ward Councillor, elder brother of the prisoner Henry Aulo.
   
9. The prisoners both do not have any prior convictions known to the law. They are first-time offenders. It would appear they were seriously affected by the consumption of the homebrewed liquor “Steam” hence their behaviour. Which was voluntary and did not undermine that a human life was terminated prematurely.
   
10. Daniel Ramram is 25 years old originally from Yakoi, Aitape, West Sepik Province, married with a boy 6 years old. He has been educated to grade 6 at the Aitape Primary School. He is primarily a subsistence farmer but worked with his father as a supervisor with PAP Security. And K 3 400 “bel kol” was instigated and paid by Ward Councillor John Aulo who stepped in to organize. And both sides of the matter agree for further payment of compensation in the sum of K5000. The Ward Councillor is the elder brother of Henry Aulo one of the prisoners now awaiting sentence. It is a good sign for normalizing of the relationship even before sentence has been passed upon the prisoners. The compensation is not out of the pocket of the prisoners. So, they do not feel the pain of their actions. And it also remains that the life of a fellow human being cannot be discounted by the payment of money. Section 35 right to life of the Constitution was not amended so that now money takes precedence. This is not replacing a bumper bar of a vehicle that was involved in an accident. A human life has been lost forever to his relatives and his wife.
    
11. Henry Aulo is 32 years old also from Yakoi, Aitape, West Sepik Province, married with 3 children. He has education to grade 4 at the Aitape Primary School in 1995. He is a subsistence farmer but was briefly employed with PAP Security Services. That his elder brother the Councillor was instrumental in the organisation of the K 3400 that was paid as compensation to the deceased line. And that there are plans to seek their village landowner company to assist in the payment of additional compensation. There is really nothing out of the ordinary in both instances from either Manuel Paim or John Aulo that sets this offence and the circumstances of the prisoners extenuating so that the sentence due is affected. In any case this prisoner is once again not the person who will pay that money should an order be made to pay that money. He is seeking an innocent person who has nothing to do with his behaviour. He must answer for his criminal conduct and cannot pass it on to a third party. In this regard the ask to pay compensation is unreal without any substance. Therefore, it will not be considered as an alternative and an integral part of the sentence. And this is in respect of both prisoners.
    
12. Both Prisoners authored very serious injuries evidenced by the “Brief Death Investigation Report for Leonard Utot, Male 30 years old” made by Faith Yakam. That report is as follows; “Leonard Utot, male 30 years old from Aitape in Sandaun Province was found dead in the bushes near the family resident on the 07^th September 2019. Incident was reported to the Police who then acted upon and wanted a medical personal to view the body.
    
13. On examination, lifeless male adult covered in blood in a tiger boxer lying on a homemade bench under the house with multiple bush knife wound all over his body. No spontaneous breathing, peripheries were cold, no pulse felt and no active bleeding.
    
14. The Wounds were multiple and vary in lengths and depths; lengths ranging from approx. 5cm -20cm, depth ranging from 2cm-15cm. Few of the wounds on his upper and lower limbs were both involving the bones, including the one to his left lateral face (mandibular). Two of his right-hand digits, 3^rd and 4^th were chopped off at mid length.
    
15. Dead confirmed at :10;34am on the 07^th of September 8, 2019. Possible cause of death: May due to Haemorrhage shock.”
    
16. And this medical report is visually confirmed in the wounds on the body by six (6) gruesome photographs of the butchery performed on the body of Leonard Uttot by the Prisoners. It depicts open cut exposing almost the internal of the wrist and ulna in the first. The second depicts the gapping open cut on the left mandible bone. It extends from just below the left eye lateral to the nose extending backwards to the base of the skull at the back. It is as described by the medical report gapping exposing to the bone underlying. The third photograph is of the body lying supine with the legs opened but meeting at the heels touching each other. The body was left in the bushes as if discarded after enduring what it was meted out. It lays without honour and respect that it is a body of a human being, as Christians created in the image of GOD but discarded like a plastic that has fulfilled its covering task. It lies in the bush pictured by the undergrowth alongside it. It is apparent of the animosity of the prisoners against the prisoner. Really uncontrolled and in defiance of the rule of law.
    
17. The fourth photograph is the left mandible up close with the gapping open wound that also involves the left eye running over and lateral to it. The fifth photograph depicts the right hand with the third and fourth fingers cut off from the middle of the fingers. And the sixth photograph is of the right hand up close exposing the cut on the ulna bone running up the side of that hand almost circumference of it. It is indeed very extreme and savage treatment of another fellow human being. It certainly did not equate that he was armed but disarmed and then set upon in the sight of his wife pleading for mercy to deaf ears. He was carved up by hands that intended that he die. And this is the description that the wife has given. He was pleading for mercy and for them to stop. They paid no heed and went until he was no more. How cruel can it be to be killed infront of one’s wife in this manner. Mercy is both ways and not only to the living as is the case here.
    
18. In my view this is not the common facts of Manslaughter that this court sees as in Lilu, The State v [1988-89] PNGLR 449 where there was one punch with the deceased falling back wards cracking his skull on the pavement and dying as a result from internal head injuries emanating. Nor is it a case of a spleen death as in Lopai, The State v [1988-89] PNGLR 48. Or in similar view as portrayed by the unreported cases that counsel has sighted and relied on. I am not bound by National Court cases so that is the highest I accord them. But I do take into account Kumbamong v State [2008] PGSC 51; SC1017 (29 September 2008) because my discretion is not chained, but guaranteed explicitly by the Legislature. And Simbe v The State [1994] PNGLR 38 affirms that the facts and evidence before me will determine the appropriate sentence due. And I will sentence on that basis no more no less. In this regard I take heed of Kovi v The State [2005] PGSC 34; SC789 (31 May 2005), that parity accords that this is the second category drawing a starting point of 16 years to 20 years imprisonment.
    
19. The initial committal information laid the 24^th September 2019 made the 17^th February 2020 was of wilful murder, which has now been reduced by plea bargaining to manslaughter under section 302 of the Criminal Code. Here I am not tied down by an agreed statement of the facts that the Prisoners are pleading to. So, the sentence will take account of all in the file both for and against to arrive at a proportionate sentence: The State v Yalibakut [2006] PGSC 27; SC890 (27 April 2006). I am also fully appraised of the discretion of the Public Prosecutor which he has exercised on behalf of the people by the Constitution: Review Pursuant to Constitution Section 155(2) (b); Application by Herman Joseph Leahy [2006] PGSC 21; SC855 (15 December 2006); State v Ngasele [2003] PGSC 2; SC731 (3 October 2003). In the same way that fact does not take away the discretion that is bestowed by the Constitution on this court in any way or form.
    
20. And consideration of mitigating as well as aggravating features of the case must be given their proper weight to arrive at a just and proportionate sentence due. Here there was no threat to their lives after they had successfully disarmed him of his bush knife. But they persisted to chase him, apprehend him, and repeatedly cut him, until he was riddled with cuts to his body. This is evident from the witness Ruth Leonard, wife of the deceased. And the medical report prepared by Health Extension Officer (HEO) Faith Yakam set out above. Which are overwhelming compared to the personal circumstances of the prisoners set out above by their respective presentence reports. Fundamental is that the protection of the law is equal both to the prisoners as well as to the deceased. Because life is lived once and is basic and sacred by section 35 of the Constitution: Allan Peter Utieng v. The State Unreported judgment delivered in Wewak on 23/11/00) SCR 15 of 2000.
    
21. “The court has a duty to impose sentence that are not only punitive on the prisoners but must have a deterrent effect on not only the offenders but other likeminded Papua New Guineans who plan on taking the law into their own hands. I do not say this lightly because in this country there are so many wanton killings as if life is some form of a commodity or a replaceable item that can be borrowed or bought from a hardware shop in town. Moreover, killings in this country are becoming more daring, without fear and with no respect for the sanctity of life. Spending a lot of time in prison is not an inhibiting factor, it seems. Being separated from family and loved ones is not an inhibiting factor. The mere fact of taking a human life is not an inhibiting factor. Even the imposition of a death penalty for wilful murder seems not be an inhibiting factor. Our People need to be educated to a level that will instil some moral values in people’s lives. Living in a city with church influences has not helped to curtail these wanton killings,” per Sir Gibbs Salika Deputy Chief Justice. His honour imposed a head sentence of 22 years IHL on both Prisoners for Murder, State v Hurotove [2017] PGNC 114; N6754 (5 June 2017).
    
22. The prevalence of this offence including all other homicide offences has drawn the court in appropriate cases to give increased sentences: Tapi v The State [2000] PGSC 2; SC635 (30 March 2000) the supreme court maintained that it was the top end of manslaughter cases for 16 years to have been imposed on a husband who had cut up the wife causing massive bleeding from which she died. Where a weapon is used the sentence goes up, a piece of iron rod was used to hit the deceased over the head, and he died as a result which attracted 17 years imposed upon the prisoner: State v Aitsi No 2 [ 2008] PGNC 21; N3296 (28 March 2008). This is also reflected in the range that Kovi’s case (supra) makes out which echoes Rex Lialu v The State [1990] PNGLR 487.
    
23. A further fact that increases the sentence is the viciousness of the assault with very serious injuries leading to death as this court held in State v Walus [2005] PGNC 147; N2802 (25 February 2005) 18 years IHL was imposed upon the prisoner who pleaded guilty to assaulting the deceased who sustained a broken neck as well as a ruptured spleen from which she died. The assault was vicious drawing very serious injuries from which the deceased succumbed. The same is so here the assault with the knife is vicious as there is really no need to draw out the knife given that the deceased was already now disarmed, and it was the prisoner’s persistence that led to the injury and death. In the State v Kimkilala [2017] PGNC 243; N 6908 (14 September 2017) 15 years IHL was imposed where the prisoner had stabbed deceased in the back piercing the lung from which he died. He pleaded guilty. It is the same here; a use of a bush knife to the entire body of a man who was defenceless pleading for mercy in the presence of his wife.
    
24. “Manslaughter is a very serious matter or offence, and it carries a maximum penalty of life imprisonment. And the life imprisonment is because a life is gone and that person is never going to come back. "No matter whose fault it is, the person is dead, and it is tragic. I cannot ignore the fact that you were carrying a knife with you at the time and unfortunately this court sees time and time again women who are walking around everywhere, not just in the Highlands, in many places of the country who are carrying knives and so much harm comes out of it. You stabbed her twice and what makes this case even sadder than everything is that the deceased was seven months pregnant. And the State has asked me to take that into consideration as an aggravating circumstance. As I understand the foetus died and the whole incident is tragic. It is sad and it should never have happened. You have done something that you will have to live with for the rest of your life.... I cannot ignore the fact that not only did the lady die but the seven months foetus has died as well. Women must realize that they cannot express their anger with the use of a knife; it is just not acceptable under any circumstances. If they do so, they can expect to go to jail." Marangi v The State [2002] PGSC 15; SC702 (8 November 2002).
    
25. I consider in all the circumstances weighing the aggravating as well as the mitigating factors, including any extenuating circumstances of the case that a just and proportionate sentence in your respective cases would be 18 years IHL, and I impose that upon you. I order that the time since 07^th October 2019 in both your cases, totalling 3 years 10 months and 2 days be deducted from that head sentence. The total you both now serve is 14 years 1 month 28 days be served IHL. I make no orders deducting further time.
    
26. Eighteen (18) years IHL minus time in remand x2.
    

Sentenced accordingly.

Public Prosecutor : Lawyers for the State

Public Solicitor : Lawyers for the Defendants