Acting Public Prosecutor v Airi [1981] PGSC 5; SC214 (24 November 1981)

Unreported Supreme Court Decisions

SC214

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]
S.C. APPEAL NO. 36 OF 1980
BETWEEN: ACTING PUBLIC PROSECUTOR
APPELLANT
AND: JOHN AIRI
RESPONDENT

Waigani

Andrew Miles Bredmeyer JJ
24 August 1981
24 November 1981

CRIMINAL LAW - sentence - appeal against sentence - manslaughter by criminal negligence - young offender - suspension of part of the sentence.

Cases Cited

Acting Public Prosecutor v. Konis Haha Unreported Supreme Court Judgment SC202 dated 2nd July 1981

D.P.P. v. Newbury; D.P.P. v. Jones 62 Cr. App. R. 291

R. v. Tsaragoan-Kagobo (1965-66_ P.& N.G.L.R. 122

The State v. Mathew Marut (1979) P.N.G.L.R. 181

Acting Public Prosecutor v. Clement Maki and Tom Kasen Unreported Supreme Court Judgment SC205 dated 7th August 1981

REASONS FOR DECISION

ANDREW MILES BREDMEYER JJ: On 20th November 1980 John Airi pleaded guilty to the crime of manslaughter before Narokobi A.J., and was sentenced to two years’ imprisonment with light labour. He was ordered to serve nine months of that term and the balance of fifteen months was to be suspended on the condition that he enter into a recognisance in the sum of K150.00 to be of good behaviour for a period of two years. At the time of sentence the respondent had spent three months in custody awaiting trial.

The facts of the case were that the respondent, who was aged fifteen years eleven months at the date of offence, threw a stone at a passing PMV which entered the cab from the passenger’s side and struck a five year old male child on the neck which lacerated the child’s jugular vein and caused his death. The respondent was drunk at the time having drunken eight or nine bottles of beer previously and was angry having been involved in an argument with some men - unconnected with the PMV and its occupants. He vented his anger by throwing the stone at the passing PMV. He said that the car was travelling at a high speed and he wanted to frighten the driver to slow down. He said he intended to hit the side of the vehicle only.

The learned trial judge was told that the accused had prior convictions in the Port Moresby Children’s Court: one for break, enter and stealing, one for stealing and one for playing cards. Details of these offences were not put before the trial judge but the respondent’s counsel, Mr Cory, has told us that the respondent was given a six months’ good behaviour bond for the break, enter and stealing, and a caution for the playing cards offence. Mr Cory had no instructions on the stealing offence. The learned trial judge was not informed of a two months’ sentence imposed for escaping, apparently while awaiting trial on the charge of manslaughter.

The Acting Public Prosecutor has appealed under s.23 of the Supreme Court Act 1975 against the sentence imposed. This Court does not have an unfettered discretion to alter the trial judge’s sentence but may do so if the trial judge erred in principle or if his sentence was manifestly inadequate (Acting Public Prosecutor v. Konis HahaSC214.html#_edn140" title="">[cxl]¹).

The offence of manslaughter carries with it a maximum punishment of life imprisonment (s.314). There are various categories of manslaughter, for example: where a person assaults another intending to cause him harm falling short of grievous bodily harm and the victim dies, manslaughter by criminal negligence, and murder reduced to manslaughter because of provocation. The range of penalties imposed varies with the category of the offence. Although the learned trial judge did not expressly say so, it seems clear from the evidence that he found the respondent guilty of manslaughter by criminal negligence.

We refer to some comparable sentences. In D.P.P. v. Newbury; D.P.P. v. JonesSC214.html#_edn141" title="">[cxli]², two boys aged fifteen and fourteen and a half were found guilty of manslaughter by pushing a pavement stone over a bridge and onto a train passing underneath. The stone fell onto the guard sitting next to the driver and killed him. Neither boy had any relevant priors. The trial judge imposed sentences of five years’ detention on each boy. On appeal the Court of Criminal Appeal reduced these sentences. Jones, the fifteen year old boy who had pushed the stone over, was sentenced to three years’ imprisonment and Newbury, his fourteen and a half year old accomplice, was sentenced to a period of borstal training. The sentence imposed on the respondent in the instant case was light compared to those English sentences. On the other hand, it was heavier than those given in two Papua New Guinea cases of manslaughter in a slightly different category. In R. v. Tsaragoan-KagoboSC214.html#_edn142" title="">[cxlii]³, the accused threw a stick at his wife intending to hurt her; instead it hit and killed their one month old child. Mann C.J. gave the prisoner a good behaviour bond to come up for sentence if called upon. In The State v. Mathew MarutSC214.html#_edn143" title="">[cxliii]⁴, the accused threw an empty coffee jar at his wife intending to hurt her; it missed her but hit and killed their five month old son. Greville Smith J. sentenced the prisoner, who had spent one month in custody and had paid some compensation to his wife’s family, to the rising of the court.

We consider that this kind of offence, manslaughter by the criminally negligent act of throwing a stone at a car, deserves a firm gaol sentence. In this case the respondent deserved a substantial discount for his youth, reduced somewhat by his prior offences, and a lesser discount for his plea of guilty. In this case he was given a sentence of two years’ imprisonment which we do not regard as inadequate. He was given an immediate gaol sentence of nine months which was effectively one year because of the period spent in custody awaiting trial. We regard that as light, particularly in view of the English sentences quoted, but not so light when termed with the suspension of part of that sentence as to be manifestly inadequate. We consider that the learned trial judge did not err in principle in suspending part of the sentence. That is a permissible device designed to foster the reformation of a young man (see Acting Public Prosecutor v. Clement Maki and Tom KasenSC214.html#_edn144" title="">[cxliv]⁵ per Miles J.)).

The power to suspend part of a sentence derives from the proviso to s.19(f) of the Criminal Code. Portion of the sentence may be suspended upon the offender entering into a recognisance. The terms of the recognisance may be acceptable to the offender or they may not. If the offender declines to enter into a recognisance, he is obliged to serve the whole of the term of the sentence. An examination of the court record indicates that the present respondent has not entered into the recognisance which should have been required by his Honour as a condition of the suspension of portion of the term of imprisonment. It is not clear whether the respondent was given the opportunity to enter into the recognisance or not. The warrant committing the respondent to prison did not fully set out the effect of his Honour’s order and the nine months’ portion of the term having expired, the Corrective Institution has understandably released the respondent but without him having entered into the recognisance

We order that the respondent appear before a judge of this Court and enter into the recognisance ordered by the trial judge within four weeks from the date hereof, failing which a warrant of commitment will issue imprisoning him for that part of the sentence which would otherwise have been suspended. Subject to that, the appeal is dismissed.

Solicitor for the Appellant: L. Gavara-Nanu, Public Prosecutor

Counsel: L. Gavara-Nanu

Solicitor for the Respondent: Stan Cory

Counsel: S. Cory

SC214.html#_ednref140" title="">[cxl]^{Unreported Supreme Court Judgment SC202 dated 2nd July 1981}

SC214.html#_ednref141" title="">[cxli] ^{62 Cr. App. R. 291}

SC214.html#_ednref142" title="">[cxlii]^{(1965-66) P.& N.G.L.R. 122}

SC214.html#_ednref143" title="">[cxliii]^{(1979) P.N.G.L.R. 181}

SC214.html#_ednref144" title="">[cxliv]^{Unreported Supreme Court Judgment SC205 dated 7th August 1981}