Kirafe v State [2007] PGSC 29; SC893 (27 June 2007)

SC893

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA NO. 05 OF 2006

BETWEEN:

GERALD KIRAFE
Appellant

AND:

THE STATE
Respondent

Wewak: Mogish, Manuhu & Hartshorn, JJ.
2007: 26 & 27 June

DECISION

CRIMINAL LAW – Appeal – Manslaughter - Sentence – Sentencing guidelines.

Case cited.

Manu Kovi v The State (2005) SC789.

Counsel:

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

27 June, 2007

1. BY THE COURT: This is an appeal against sentence after the Appellant was convicted for manslaughter following a guilty plea and was sentenced by Kandakasi J on 21 December, 2005 in Vanimo to 13 years with hard labour.

2. The Appellant says that the sentence is too excessive considering that:

• he never intended to do grievous bodily harm to the deceased but to hit him as he swore at the Appellant,
• he hit the victim only once,
• he was a first offender who pleaded guilty, expressed remorse, is young and he has a family.
  

3. In relation to the first argument, intention to cause grievous bodily harm, although it is not an element in a charge of manslaughter, it is a factor that can be taken into account as a circumstance of aggravation. We note that although the trial Judge found that the Appellant wanted to cause grievous bodily harm, the sentence he imposed comes within the second category of Manu Kovi v The State (2005) SC 789, one of the factors of which is some deliberate intention to harm. In initially finding that there was an intention to cause grievous bodily harm, the trial Judge could have imposed a significantly higher sentence than he did. The first argument is, therefore, without merit.

4. In relation to the other arguments, it is necessary to draw the Appellant’s attention to the sentencing guidelines in the Supreme Court case of Manu Kovi v The State (supra). For manslaughter cases, the guidelines are reproduced below:

MANSLAUGHTER

CATEGORY 1 8 – 12 years

Plea. No weapon used. Victim emotional under stress and de facto provocation e.g. killings in domestic setting. Killing follows immediately after argument. Little or no preparation. Minimal force used. Victim with pre-existing diseases which caused or accelerated death e.g. enlarged spleen cases.

___________________________

CATEGORY 2 13 – 16 years

Trial or Plea. Using offensive weapon, such as knife on vulnerable parts of body. Vicious attack. Multiple injuries. Some deliberate intention to harm. Pre-planning.

___________________________

CATETORY 3 17 – 25 years

Trial or plea. Dangerous weapons used e.g. gun or axe. Vicious and planned attack. Deliberate intention to harm. Little or no regard for safety of human life. ___________________________

CATETORY 4 LIFE IMPRISONMENT

Trial or Plea. Some element of viciousness and brutality. Some pre-planning and premeditation. Killing of innocent, harmless person. Complete disregard for human life.

5. In this case, the attack on the deceased took place when the Appellant was under the influence of liquor. The Appellant got into a Vanimo Forest Products company vehicle at about 3:00 pm with other employees of the company. The vehicle was being driven by the deceased. As the vehicle arrived at Uwa Base Camp the Appellant called to the driver to stop to allow him to answer nature’s call. The driver could not stop immediately because it was unsafe to do so. When the driver eventually stopped, the Appellant engaged in an argument with the deceased. In the course of the argument, the Appellant threw a bottle of beer on the deceased’s forehead above the eyebrow. The deceased was rushed to the hospital and died two days later.

6. On the facts, this case falls in the second category where 13 to 16 years may be imposed. The Appellant, who was under the influence of liquor, used a bottle of beer with such force that according to the medical report, the deceased died from "brain death due to severe blow to his head with Intracranial Bleeding and raised intracranial pressure." There was use of a weapon, namely, a beer bottle, with force in a calculated manner upon the deceased. In the circumstances, the trial Judge correctly placed this case under the second category of manslaughter cases. Ultimately, it was within the trial Judges discretion to impose the sentence of 13 years, which is at the lower end of the range.

7. In the circumstances, we are satisfied that the trial Judge has not made an error in sentencing and we confirm the sentence and dismiss the appeal.

_____________________________
Public Prosecutor: Lawyer for the Respondent