State v Yakali [2024] PGNC 60; N10711 (10 April 2024)

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CRIMINAL LAW – Particular offence – Manslaughter – Section 302 – Power of Court to reduce to a lesser charge under section 539 (2) of Criminal Code – Exercise of sentencing discretion under section 19 to impose a lesser sentence – Aggravating & Mitigating factors - Extenuating circumstances –

State v Terence Houinei (Unreported) CR 175 of 2021
State v Roho, N4483 of 24 August 2006
State v Karo, N2600 of 29 April 2004
State v Watakasi [2012] PGNC 266; N4597
State v Samuel Kalib; CR. No. 318 of 2013
State v Mema [2012] PGNC 21; N3602
State v Lossio John CR. No. 158 of 2012
State v Daniel Yabari PGNC N7306

1. NUMAPO J: This is a decision on sentence. The accused DARRYL YAKALI of Avatip village, Ambunti, East Sepik Province was initially charged with one count of murder pursuant to section 300 (1) (a) of the Criminal Code. However, the evidence at the trial did not support the elements of murder therefore, in the exercise of my powers under section 539 (2) of the Criminal Code, I found the accused guilty of a lesser charge of manslaughter under section 302 of the Criminal Code and convicted him accordingly.

2. The prisoner was a Police Constable attached to the Criminal Investigation Division (CID) at Kimbe Police Station. It was alleged that on Wednesday 01^st July 2020 between 09:00am and 10:00am at Kulungi Beach at the border of Kulungi village and Laleki Settlement in Kimbe, West New Britain Province, the prisoner allegedly shot the deceased namely, Linus Francis and another accomplice Gregory Gaulim on their legs. Both claimed to be students at Gigo Primary School however, there was no evidence suggesting that they were in fact, students. They denied committing the offence however, stated that they ran away because they were ‘scared of the police’.

3. The deceased was in the company of three other persons that held up a PMV truck near the Gigo Primary School and stole money from the driver of the truck. The Police arrived at the scene after receiving report of an armed robbery. The deceased and his accomplices ran away towards the Kulungi beach when the Police arrived. The prisoner gave chase and caught up with the deceased and his accomplice Gregory Gaulim. The other accomplices escaped in the opposite direction. To stop them from running away, the prisoner shot the deceased on his left leg and shot his accomplice on the right leg. Prisoner later loaded the two injured persons onto the police vehicle and took them to the hospital. Gregory Gaulim survived his injuries whilst deceased succumbed to his injuries and died from a loss of blood. According to the post mortem report, the deceased died of anoxia from hemorrhage as the result of the gunshot wound. There was a compound fracture of both the tibia and fibula bones that severed the major blood vessels to the leg causing severe bleeding.

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

5. However, section 19 of the Criminal Code gives the court a wider sentencing discretion to impose a lesser sentence including a non-custodial sentence, in place of the maximum penalty prescribed by law.

6. The offence of Manslaughter carries life imprisonment however, it is trite law that the maximum penalty is reserved for the worst type case. See Goli Golu v The State [1979] PNGLR 653 and Avia Aihi v The State (No 3) [1982] PNGLR 92.

7. The Supreme Court case of Manu Kovi v The State (2005) SC789 sets out the guidelines for Manslaughter as shown in the table below:

Category	Description	Details	Tariff
1	Plea - Ordinary cases – Mitigating factors with no Aggravating factors	No weapons used – Little or no pre-planning - Minimum force used – Absence of strong intent to do GBH	8 – 12 years
2	Trial or Plea – Mitigating factors with Aggravating factors	Use of offensive weapons used such as a knife etc.– vicious attack – multiple injuries-some pre-planning involved	13 – 16 years
3	Trial or Plea – special aggravating factors – mitigating factors reduced in weight or rendered insignificant by gravity of offence	Dangerous weapons used, eg. gun, axe etc. – vicious attack – multiple injuries - pre-planning – some deliberate intention to harm – little or no regard for human life.	7 – 25 years
4	Worst Case – Trial or Plea – special aggravating factors – no extenuating circumstances- no mitigating factors or mitigating factors rendered completely insignificant by the gravity of the offence	Pre-meditated attack- some of viciousness and brutality – some pre-planning – killing of innocent, harmless person – complete disregard for human life.	Life Imprisonment

8. I should point out here that the sentencing guidelines such as Manu Kovi merely provides as a guide and does not take away the sentencing discretion of the court. The court will decide on the appropriate penalty that fits the crime depending on the factual circumstances of a particular case. Section 19 of the Criminal Code gives the discretion to consider sentences lesser than those proposed in the sentencing tariffs (Kumbamong v The State [2008] PGSC 51; SC1017).

9. To assist the court, a number of case laws similar to the present case were cited by both the State and the Defence in their respective submissions on sentence. It shows the current trend on sentencing in manslaughter cases. I refer to some of them below:

10. Prisoner pleaded guilty to unlawfully killing a suspect whilst in hot pursuit. The killing was as a result of negligent conduct and use of high powered firearm. The deceased was shot at a close range at a vulnerable part pf his body. Prisoner was sentenced to 22 years IHL. 5 years was deducted on mitigating factors and that the offender was a first time offender. Killing was not pre-mediated.

11. A 28 year old man pleaded guilty to manslaughter for killing his mother by kicking her in the abdomen after he became angry over her actions in chasing his sister down a cliff during which his sister sustained injuries. The deceased died of a ruptured spleen and other internal injuries.

12. The court found that there was no intervening cause of death and that the offender solely responsible for the death and his was not a youthful offender. He was sentenced to 10 years imprisonment.

13. The offender was a security guard at a club. The deceased was drunk and walked in while refusing to pay a gate fee of K2.00 charged by the club. An argument broke out which led to a fight between the offender and the deceased. The deceased punched the prisoner on his left ear. The prisoner returned the punch and hit him on his face and the deceased fell. The prisoner then pulled him up by his shirt and threw out of the gate. This caused the deceased to land hard on the ground and raptured his enlarged spleen which led to his death.
The court found that the prisoner was sober and therefore knew what he was doing and that he could have decided not to harm the deceased. Prisoner was sentenced to 8 years imprisonment.

14. The prisoner was drinking with the deceased’s grandson when a fight broke out between them. The deceased intervened to stop the fight when the offender hit her on the head with a folded fist. She fell unconscious and died instantly.

15. The prisoner was charged with manslaughter for killing his maternal uncle. The circumstances giving rise to the case was that the prisoner was drunk and was in the company of other drunken youths. One of the drunken youths went and caused some damage to the deceased’s house. The prisoner went to stop the youth and a fight broke out between them. Whilst they were fighting the deceased returned from his garden and without finding out first who caused the damage to his house, assumed that the prisoner was the one who caused damage to his house so he hit him on his head with a piece of firewood. The prisoner fell unconscious and the deceased continued to hit him. The prisoner got up and ran away and the deceased chased after him. The prisoner picked up a stone and threw it at the deceased. The stone hit the deceased and he fell down and died a few minutes later. The medical report showed that he died of a ruptured spleen.

16. In sentencing the prisoner the court took into account that K5, 000 and 2 pigs was paid as compensation and sentenced the offender to 7 years less his pre-sentence custody.

17. The offender, a 24 year old female pleaded guilty to one count of manslaughter for hitting the deceased on his head with a piece of wood to prevent him from assaulting her. The deceased is the cousin of the prisoner who was upset that the prisoner’s mother and sisters were keeping a piglet which he has already sold to another person from another village. The deceased got drunk and went to the prisoner’s house and assaulted her mother and retrieved the piglet. He then returned and slapped the prisoner three times. The prisoner got a piece of firewood and hit him and he died. Compensation of K5, 000 and a pig valued at K600 was paid as compensation to the deceased’s relatives. She was sentenced to 6 years with 5 years suspended.

18. The prisoner was at the market with her husband waiting for a PMV to go to Lae. Whilst they were waiting her small sister who was newly married to the deceased ran to her as she was beaten by the deceased with a fan belt. The deceased followed her to where they were sitting and the prisoner told him not to hit her sister. The deceased without saying a word took out the fan belt from his pocket and hit the prisoner three times on her head. The prisoner retaliated by hitting him once on the side of his head with a piece of wood. The deceased died of a fractured skull as a result. The prisoner pleaded guilty and was sentenced to 6 years imprisonment.

19. The prisoner was intoxicated with homebrew and approached the deceased, swore and argued with him. The prisoner then punched the deceased on his chest and the deceased fell to the ground and started shivering and vomiting blood. He was rushed to the hospital and was pronounced dead. Deceased died from a heart attack brought on by the physical assault and also some pre-existing medical conditions he has. The prisoner pleaded guilty and was sentenced to 6 years imprisonment.

20. The seriousness of the offence is determined by its own peculiar facts being; the aggravating and mitigating factors and circumstances and the extenuating circumstances. See: Antap Yala v The State (1996) SCR 69 and Jack Tanga v The State (1999) SC602.

21. What I find in favour of the prisoner is that the killing was not pre-meditated. He had no intention to kill the deceased. He only tried to disabled them from escaping further or attacking him as dangerous weapons namely, a knife and a homemade shotgun were found in their possession. It was a case of who presses the trigger first hence, the prisoner had to act quickly to bring the situation under control.

22. In the present case, the following factors and circumstances are taken into account:

23. The attack was not pre-planned. It was a spur of the moment thing. Shooting occurred in a hot pursuit. Deceased and his accomplices were involved in a suspected armed robbery. They ran away when the police arrived at the crime scene and were chased. Deceased and his accomplices were armed with dangerous weapons namely, knives and a homemade shotgun and were a threat to others including the police.

24. I accept the Defence submission that the deceased and his accomplice failed to cooperate with the police and take orders to get into the police vehicle. Both ran away instead and were eventually arrested. Had they cooperated with the police, this would not have happened.
25. I further agree that the prisoner in the execution of his duty as a police officer, is required to make an arrest and in so doing, use whatever force that is necessary to effect an arrest. Prisoner was a lone policeman in a settlement area notoriously known for attacking police officers. Without the backup and manpower support from his colleagues, the prisoner was placed in a very risky situation. He had to act quickly to bring the situation under control. He did so by shooting the deceased and his accomplice on their legs to effectively stop them from escaping and secondly, to disarm them as both were armed with dangerous and offensive weapons.

26. Our policemen and women worked under very difficult circumstances and at times, in the face of extreme danger to keep the community safe. Their tireless efforts in keeping us safe must not go unrecognized.

27. I agree with the Defence that the peculiar and extenuating circumstances of this case does not warrant a long custodial sentence.

Orders Accordingly
__________________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Defence

National Court of Papua New Guinea

State v Yakali [2024] PGNC 60; N10711 (10 April 2024)