State v Molean [2023] PGNC 463; N10625 (9 June 2023)

N10625

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 654 OF 2023

THE STATE

V

EARL MOLEAN

Lorengau: Batari J
2023: 8^th & 9^th June

CRIMINAL LAW– Sentence – Manslaughter – Accused struck deceased with wood on head resulting in death – Plea - Mitigation – sentencing policy guides considered – Sentence of 9 years appropriate.

Cases Cited

John Kalabus v The State [1988] PNGLR 193
Kesino Apo v The State [1988] PNGLR 182
Lawrence Simbe v. The State [1994] PNGLR 38
Paul Mase & Anor v. The State [1991] PNGLR 88
Rex Lialu v The State [1990] PNGLR 487
Simon Kama v The State (2004) SC740
The State v Chan Alois and Augustine Tutut (2008) N3668
The State v Gabriel Kamlak (2017) N6963
The State v Jacob Cajetan (2016) N6383
The State v Lawrie Patrick & 3 Ors [1995] PNGLR 195
The State v Paul Kalu (2011) N5270

Counsel

Mr Pondros Kaluwin, for the State

Mr Kusunan Pokiton, for the Accused

DECISION ON SENTENCE

9^th June 2023

1. BATARI J: Earl Molean, yesterday the Court convicted you of the unlawful killing of one Anley Musio (the deceased) following your plea of guilty. Your conduct contravened s. 302 of the Criminal Code. You are back in Court again today to receive your sentence.
   
2. Your case arose this way. On the night of 5 November 2020, at Ward 7, Lorengau town, Manus Province, you were with others drinking when an altercation between you and the deceased resulted in a fight. You were still upset the next morning of 6 November 2020. So, you attacked the deceased with a piece of timber. Anley Musio died shortly after the attack.
   
3. The medical report compiled by Dr. Otto Numan of the Manus Provincial Hospital, excluded any visible external wounds or fractures but noted the head was boggy and swollen with excessive accumulation of fluid. Dr Numan concluded; the deceased died from severe head injury.
   
4. The maximum penalty prescribed for manslaughter is life imprisonment. This resonates the serious view Parliament has against unlawful killings and its intention to protect the community against offenders and others with the propensity towards violence.
   
5. The maximum penalty also represents the community abhorrence and repugnance against senseless killings out of personal vendettas and feuds that continue to escalate unabated despite government and mission influences permeating the length and breadth of this nation.
   
6. There is no question then, that those who offend must meet with the severest sentence as a personal punishment, and other likeminded persons with anti-social behavioural attitudes are warned.
   
7. Whatever sentence is imposed depends on the various factors the Court must consider in the exercise of its sentencing powers under s. 19 of the Code. The maximum penalty prescribed reflects the level of seriousness of the offence. So, it is the starting consideration in deciding the outcome of the sentence that would fit the crime: Simon Kama v The State (2004) SC740.
   
8. In essence, there are two compelling interests to balance in computing what might be the appropriate sentence warranted on the facts of the case. The first is the seriousness of the offence and the community interest to see that those who offend must be adequately punished. The second is the personal circumstances and interests of the offender. There is no exact formula or scientific precision in this weighing-up exercise.
   
9. One common feature of the sentencing policy that has evolved over the years in regard to unlawful killing is, that each case must be dealt with on its own facts, having careful regard to the circumstances of death and the way in which death was caused. In Rex Lialu v The State [1990] PNGLR 487, Kapi DCJ (as he then was) stated at 497:

"In considering the penalty for manslaughter cases, I adopt the words of Watkins LJ in R v Phillips (1985) 7 Cr App R (S) 235 at 237.

'The Court has to pay very careful regard to the circumstances of death, and especially to the way the death was actually caused, in coming to a conclusion as to what punishment a defendant should receive for whatever it was he did towards bringing that about.'"
See also, Lawrence Simbe v. The State [1994] PNGLR 38.

10. For a brutal and deliberate killing, a higher term of imprisonment somewhere around the maximum penalty or in the worst case, life imprisonment is appropriate. A killing that did not result from calculation, scheming, planning, cruelty, but have an element of incidental, accident, stupidity or negligence will attract a lower term of imprisonment.
    
11. Your case falls into the latter category. It is alcohol related. You and the deceased had been drinking with others the whole night. You were no doubt, heavily inebriated when you attacked the deceased.
    
12. Intoxication is not an excuse if the accused voluntarily got drunk to commit the offence. In that setting, intoxication may be taken as an aggravating factor: The State v Jacob Cajetan (2016) N6383. Conversely, alcohol may to some extent influence an extreme behaviour not otherwise expected of a person in his normal self as his self-control is affected. In that case, intoxication may lessen culpability.
    
13. However, on its own, intoxication may not be a significant mitigating factor as Kapi DCJ (as he then was) stated in Kesino Apo v The State [1988] PNGLR 182 at p183:
    

“It may have some bearing if considered together with other circumstances, such as provocation in fact for the purpose of sentence. In the end result, the influence of alcohol cannot be a significant factor in mitigation of sentence.”

14. In Paul Mase & Anor v. The State [1991] PNGLR 88 Kidu, CJ and Amet, J (then was) in a joint judgment made similar remarks that:
    

“If people drink liquor, get drunk and commit crime they must not expect leniency from the courts unless, of course, the intoxication is shown to have the effect of diminishing responsibility. Such was not the case here.”

15. In this case, I consider that the serious culpability of your conduct is reduced by your level of intoxication from drinking the whole night. This forms the reason for your violent act against the deceased. I accept, for the purpose of sentence, the fact of alcohol insidiously altered your self-control.
    
16. I also accept presence of provocation falling short of the legal defence. Your conduct was precipitated by disagreements resulting in a fight between you and the deceased. You were infuriated and continued to be incensed by the abusive and demeaning remarks the deceased had made against you. That lead you to attack on him. This does not excuse but it explains your conduct.
    
17. I bear in mind also, that the attack was not sustained such as to point to a strong intention to cause serious bodily harm. Besides, the only blow to head of the deceased with the piece of timber did not result in any external wound or fracture. Nevertheless, the trauma to the head caused severe head injury from which Anley Musio died.
    
18. This case falls into the category of accidental or negligent killing. It is balanced with use of a weapon namely, a piece of timber against an unarmed, drunken person. You attacked your nemesis without warning. The result of your callous and cowardly act, was the premature death of Anley Musio. If you had exercise common sense and restraint, he would be alive today.
    
19. You were aged 20 years and single at the time of the incident. You come from a fairly large family and are well educated, having completed Grade 10. This is your first time to be in conflict with the law. I note too that you had attempted to be resourceful by selling betel nut.
    
20. Consistent with your prior good background, you readily confessed your crime to the police, pleaded guilty in open court and expressed remorse.
    
21. I believe you are genuinely remorseful about the death of your friend because that is supported by all those personal conduct and attributes I have referred to. Remorse and contrition are usually matters to be weighed up on sentence in favour of an accused if they are manifested in a plea of guilty: The State v Lawrie Patrick & 3 Ors [1995] PNGLR 195.
    
22. In The State v Gabriel Kamlak (2017) N6963 the court stated that plea of guilty will usually be reflected in the outcome of the sentence on the basis of time and cost savings to the State. Conversely, in crimes of violence like wilful murder, murder, violent rape or violent armed robbery, a plea of guilty by itself will not warrant any credit. Existence of such factors like good background, restitution, old age, young age, etc., remorse and contrition may add to the plea factor and thus a cause for some discount on sentence: John Elipa Kalabus v The State [1988] PNGLR 195.
    
23. The weight to be given for a plea may also depend on how soon the plea is taken after commission of the offence or committal. An early plea has long been recognised as a relevant factor in mitigation. The rationale as I alluded to in The State v Paul Kalu (2011) N5270 is in the following passage:
    

“The significance of an early plea is the opportunity the prisoner would have missed in having to serve the penalty early. Besides, a plea at the earliest opportunity adds to consistency of the offender’s mitigating behaviour and penitence since the commission of the offence. It has been long recognised that a guilty plea may demonstrate and support remorse and contrition. See, Public Prosecutor v Tom Ake [1978] PNGLR, 469; Kalabus v The State [1988] PNGLR 193.”

24. In, The State v Chan Alois and Augustine Tutut (2008) N3668 his Honour Justice Lay suggested, the value of a plea of guilty should be clearly articulated by a sentencing policy so that the accused knows with certainty, the advantage of pleading guilty early. His Honour stated:
    

“I therefore consider that it is important, to encourage early pleas of guilty in appropriate cases, that is in cases where the accused is guilty, for the court to have a clearly enunciated policy so that the accused person can know with some certainty what the advantage is of an early plea. Except in cases of horrific personal violence, I propose to adopt the English practice of making a reduction of 25% to 33% from the appropriate head sentence where there is an early admission to police and a subsequent plea of guilty, without any intention of creating a binding strict mathematical formula.”

25. This is not to say a belated plea has no or little worth. For such varying reasons and circumstances as, infrequent sittings of the National Court, lack of opportunity for legal advice and counsel, change of representation or plea bargaining, a plea may be belatedly taken.
    
26. Your lawyer, Mr Pokiton also put forward your desire to pay compensation. Counsel, however, did not rely on any supporting evidence concerning the existence of custom and the cultural effect of compensation payment as a punishment. So, I am not inclined to consider orders for payment of compensation as part of your punishment.
    
27. Your case does not fall into the most serious type of manslaughter killing. I consider also that other factors co-exist to mitigate the seriousness of your offence and conduct. This is your first offence and you have pleaded guilty early. You must be punished with a term of imprisonment calculated to sufficiently serve both the deterrent and retributive aspects of sentencing.
    
28. In all the circumstances of this case, a sentence within the range of 8 to 12 years imprisonment as submitted by both counsel, will meet the justice of the case. A sentence within the lower range is in my view, appropriate.
    
29. You are sentenced to 9 years imprisonment with hard labour. The sentence is reduced by 8 months, being the time spent in custody. You will serve the balance of 8 years and 4 months IHL.
    

_______________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused