SC2324
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REVIEW NO 72 OF 2019

BETWEEN
ALLAN MANGAEA, PETER SAUREN, DESMOND BENSTEAD AND ALLAN TAGALA
Applicants

AND
THE STATE
Respondent

Kimbe: Makail, Anis & Numapo JJ
2022: 23rd & 24th November

SUPREME COURT – Review of sentence – Severity of sentence – 20 years term of imprisonment – Manslaughter – Mitigating and aggravating factors – Group attack – Assault of deceased – Repeated assaults – Deceased died from injuries sustained from repeated assaults – Guilty plea – First-time offenders – Remorseful – Constitution – Section 155(2)(b) – Criminal Code – Sections 19 & 302 

Cases Cited:

Manu Kovi v. The State (2005) SC789 
William Norris v. The State [1979] PNGLR 605

Counsel:

Ms. F. Kulala, for Applicants
Mr. P. Kaluwin, for Respondent

JUDGMENT
24th November, 2022

1.	BY THE COURT: This is an application for review pursuant to Section 155(2)(b) of the Constitution of a sentence of 20 years term of imprisonment for manslaughter under Section 302 of the Criminal Code. Leave was granted on 17th February 2022.

Brief Facts

2.	The applicants pleaded guilty and were convicted of manslaughter on the following facts, on the night of 31st August 2015 they were among a group pf people who gathered at Karapi village to mourn the death of one Mangaia Philip.  Around 4 o’clock in the morning of the next day, 1st September 2015 two stones were thrown onto the grave of the deceased.  The applicants claimed that because of their belief in sorcery they were at the grave site and, spotted the person who threw the stones and gave chase.  This person was the deceased Gume Ismael Labiti.  

3.	The deceased ran into a house and the appellants called to him to come out but he jumped out of the window and fled.  They gave chase again and this time, they caught him.  They assaulted him with their hands and legs and weapons.  They brought him to where the people had gathered and further assaulted him.  He died because of the injuries sustained from the assaults.

Grounds of Review

4.	The applicants relied on the following grounds of review:

1.	The learned trial judge erred when he failed to take into account the mitigating circumstances that the applicants pleaded guilty, were all first-time offenders and they expressed remorse during allocutus. 

2.	The learned trial judge fell into error when he failed to take into account each applicants sentences based on their own peculiar circumstances.

3.	The sentence of 20 years is manifestly excessive and harsh considering the circumstances of the case.

Maximum Penalty for Manslaughter

5.	The Court notes that the offence of manslaughter carries a maximum penalty of life imprisonment.  However, Section 19 of the Criminal Code confers on a judge discretion to impose a lesser penalty.  

Mitigating Factors

6.	According to learned counsel for the applicants, if the learned trial judge had given consideration to the applicants’ guilty pleas, being first-time offenders and expression of remorse including payment of compensation of K2,000.00 to the deceased’s family members and each of their personal circumstances, they militated against the seriousness of the offence and would place their case in the less serious category of manslaughter case.  

7.	Learned counsel further contended that the learned trial judge held that the applicants case fell into category 3 in the case of Manu Kovi v. The State (2005) SC789 which was a term of imprisonment between 17 to 25 years and imposed 20 years less time spent in custody.  This sentence is manifestly excessive and harsh because the learned trial judge gave no consideration to the mitigating factors.  

8.	An appropriate sentence would be between 13 to 16 years in category 2 of the Manu Kovi case (supra). Learned counsel asked for 20 years to be substituted with a term of 15 years imprisonment.

9.	The Court notes the mitigating factors outlined by learned counsel for the applicants, these being the applicants’ guilty pleas, being first-time offenders and expression of remorse including payment of compensation of K2,000.00 to the deceased’s family members.  

10.	The Court further notes that the learned trial judge extensively addressed each of the mitigating factors in his judgment.  Thus, the contention that the learned trial judge gave no consideration to these mitigation factors is incorrect and without merit.  No error has been established.

11.	As to payment of compensation, it was conceded by learned counsel during oral submissions that the compensation sum did not reach the family members of the deceased.  This concession is consistent with the finding by the learned trial judge and shows that no error has been established by the applicant in the learned trial judge’s finding when he disregarded the payment of compensation in his consideration of an appropriate sentence.  

12.	In relation to personal circumstances of each applicant, the Court also notes that the learned trial judge extensively addressed each of them in his judgment.  Thus, the Court is of the view that the applicants’ contention that the learned trial judge gave no consideration to each of their personal circumstances is incorrect and without merit.  No error has been established.

13.	Finally, in oral submissions learned counsel further contended that one significant mitigating factor which the learned trial judge acknowledged and canvassed in his judgment is the applicants’ efforts to mediate and settle a dispute in relation to deaths of three members of their family prior to the attack on the deceased.  It was alleged that they died from sorcery.  

Aggravating Factors

14.	Against these mitigating factors and each applicant’s personal circumstances, the learned judge also had to ascertain if there were aggravating factors.  Respectfully, the Court notes that the learned trial judge identified them and extensively covered them in his judgment.  First, although it was a guilty plea case, it was a group attack on the deceased.  The applicants assaulted the deceased after they apprehended him.  There is some suggestion that weapons were also used apart from use of hands and legs to punch and kick the deceased. They repeatedly assaulted the deceased over some period of time.  It was a vicious attack as they pursued the deceased until they apprehended him and assaulted him.  As the learned trial judge found, this demonstrated a deliberate intention to harm the deceased. 
 
15.	Furthermore, as the learned trial judge held, the applicants’ reliance on sorcery as the reason to assault the deceased is unfounded and must be rejected. Finally, while manslaughter is at the lower end of the spectrum of homicide offences, a group attack on a sole victim after being pursued and repeatedly assaulted must call for a higher sentence in order to have a deterrent effect on the general public. 

16.	The Court agrees with the learned counsel for the respondent that the learned trial judge considered the mitigating factors mentioned by the applicants including their efforts to mediate and settle the dispute in relation to the earlier deaths of their family members but given the presence of the aggravating factors, they are outweighed by the aggravating factors. Consequently, the Court further agrees with the learned trial judge that such a case would attract a sentence between the range of 17 to 25 years term of imprisonment under category 3 of the Manu Kovi case (supra). 

Conclusion	

17.	This Court will intervene and set aside a sentence imposed by a trial Court where “……..there is an identifiable error which has the effect of vitiating the trial Judge’s discretion on sentence”: see William Norris v. The State [1979] PNGLR 605.

18.	In this case, the applicants have failed to establish any identifiable errors which have the effect of vitiating the learned trial judge’s discretion in sentencing them to an imprisonment term of 20 years.  Neither is it manifestly excessive or harsh.  The application for review is dismissed, and the sentence of 20 years term of imprisonment is affirmed.

Order	

19.	The orders are:

1.	The application for review against sentence is dismissed.

2.	The sentence of 20 years term of imprisonment is affirmed.
________________________________________________________________
Public Solicitor:	Lawyers for Applicants
Public Prosecutor:	Lawyers for Respondent