Diwa v State [2007] PGSC 30; SC892 (27 June 2007)

SC892

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA NO. 04 OF 2006

BETWEEN:

TIMOTHY DIWA
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 15 years with hard labour.

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

• he pleaded guilty,
• he expressed remorse,
• he injured the deceased when he actually aimed the weapon, a spade, at the person who punched him.
  

3. In relation to the third argument, it is immaterial that the Appellant missed the intended victim or target. The Appellant had the requisite intention to hit somebody and it does not matter that he missed and hit the wrong person. The crime is not made less serious because the Appellant missed the intended victim. In any event, the trial Judge found that the Appellant wanted to hit John Ainim but when he escaped he turned on the deceased. Consequently, the deceased was the Appellant’s intended victim, but as we have said, it makes no difference that the Appellant wanted to hit John Ainim and missed.

4. In relation to the first two 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 (2005) SC 789. 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.

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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.

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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.

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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 following a soccer match that was not played in the spirit of the game. Realising this, the village leaders pleaded in vain for the game to stop to avoid injury or damage to any person or property. Eventually, a player was felled when the soccer ball was kicked against his head and a fight broke out. The Village leaders tried to stop the fight but they did not succeed. The players took sides and the Appellant was punched. The Appellant ran to his house and returned with a spade. The Appellant aimed the spade at John Aimin to spear him but John escaped. The Appellant turned on the deceased and threw the spade at his right ankle resulting in a deep cut which almost severed his ankle. The deceased died from loss of blood later that day.

6. On the facts, this case falls in the second category where 13 to 16 years may be imposed. The Appellant used a spade in such a way that it became a dangerous weapon. The Appellant took the spade from his house, which demonstrates that he deliberately armed himself with the spade. The injury to the deceased nearly severed his ankle. The nature of the injury is indicative of the type of force used to throw the spade at the deceased. It is clear that there was a deliberate intention to harm somebody with the spade. In the circumstances, the trial Judge was correct in placing this case under the second category of manslaughter cases. Ultimately, it was within the trial Judges discretion to impose the sentence of 15 years.

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

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Public Prosecutor: Lawyer for the Respondent