Mangi v State [2006] PGSC 30; SC880 (30 June 2006)

SC880

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCR 43 OF 2005

BETWEEN:

STEVEN MUL MANGI
Appellant

AND

THE STATE
Respondent

Mt Hagen: Los, Manuhu & Gabi, JJ.
2006: 27 & 30 June

DECISION

CRIMINAL LAW – Appeal against sentence of 35 years – Murder –Sentencing guidelines – Appeal upheld – Sentence reduced to 16 years.

Cases cited:

Simon Kama v The State (2004) SC 740.
Manu Kovi v The State (2005) SC 789.

Counsel:

The Appellant in person.
S Kesno, for the Respondent.

30 June 2006.

1. BY THE COURT: This is the court’s decision on the appellant’s appeal against conviction and sentence of 35 years for murder.

2. The appellant and the deceased were drinking beer at a club. After that they went separately to the market and a scuffle ensued between the two of them. The fight was a typical drinking fight. It was stopped twice but the deceased continued to fight the appellant. Stones were also used in the fight. In the course of the third scuffle, the appellant held the deceased in a bear hug and they fell to the ground. It was discovered then that the deceased had been stabbed on the chest. The deceased died from that chest wound.

3. In relation to conviction, the court is of the view that while no eye witness saw the appellant stabbing the deceased, only the appellant and the deceased were fighting, and the appellant had the knife. The appellant denied stabbing the deceased but the deceased was stabbed on the chest. The location and nature of injury on the chest means that the appellant deliberately raised the knife and calculatedly stabbed the deceased on the chest.

4. The trial Judge could convict on direct evidence or on circumstantial evidence. In this case, the trial Judge convicted on circumstantial evidence that pointed to no one else but the appellant because no one else was fighting with the deceased.

5. Accordingly, we find no error in the trial Judge’s finding on verdict. The appellant’s conviction for murder is, therefore, confirmed.

6. In relation to sentence, the trial Judge relied upon the Supreme Court case of Simon Kama v The State (2004) SC 740 and imposed a sentence of 35 years. In that case, a sentence of 25 years was confirmed in a murder case where the deceased was killed from point blank range in the course of a premeditated robbery where three firearms were used to stop a vehicle on a road. This case is obviously less serious than the Simon Kama case.

7. The Simon Kama case has already been reviewed by a subsequent Supreme Court case of Manu Kovi v The State (2005) SC 789, which was decided 5 months before the appellant’s conviction and sentence. The trial Judge was probably unaware of the subsequent case but, in a way, the trial Judge was relying on a case that had already been reviewed.

8. According to the Manu Kovi case, in a murder case, where no weapon was used, where there was little or no pre-planning, where minimum force was used, where there was absence of strong intent to do GBH, a sentence of 12 to 15 years is recommended.

9. However, where there was no strong intention to do GBH but a weapon was used, there were some pre-planning, and where there were some element of pre-planning, a sentence between 16 and 20 years is recommended.

10. The next category is for serious murder cases. Where the murder was pre-planned, where the attack was vicious, where there was strong desire to do GBH, where dangerous weapons like guns or axes were used, and, where other offences of violence were committed, a sentence of 20 to 30 years is fixed.

11. This court is not bound by Manu Kovi v The State but we are unable to find any reason to depart from it. The court will follow the sentencing guidelines in the Manu Kovi case also for the sake of consistency.

12. When the appellant’s case is considered in the light of the guidelines and the facts in the Manu Kovi case, where 25 years was imposed for a much more serious murder, the sentence of 35 years in the appellant’s case is considered excessive. The trial Judge has, therefore, made an identifiable error on sentence.

13. In this case, a weapon, namely, a knife, was used, there was no pre-planning, a minimum force was used, and there was no strong intention to do GBH. The appellant and the deceased were happily drinking when the deceased attacked the appellant. Stones were used. The deceased fought the appellant three times. The appellant must have been angry when the deceased continually fought with him. The deceased was stabbed when the appellant grabbed him and they fell onto the ground.

14. In all the circumstances and consistent with the sentencing guidelines in the Manu Kovi case, a sentence of 16 years would be appropriate. The appellant’s sentence of 35 years is, therefore, quashed and set aside. It is substituted with a sentence of 16 years in hard labour.

15. The court records show that the appellant has served a total period of 1 year, 6 months, 2 weeks and 3 days. With the deduction, the appellant has 14 years, 5 months, 1 week and 4 days to serve in hard labour.

_________________________

Los, J.
Manuhu, J.
Gabi, J.