SC2690

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCREV NO. 38 OF 2022

BETWEEN
RICHARD JASON MAGIAU NAMALIU
Appellant

AND
THE STATE
Respondent

WAIGANI: PITPIT J, LINDSAY J, TUSAIS J
1 JUNE 2023; 28 JANUARY 2025

CRIMINAL LAW – Supreme Court – Application for review of sentence s.155(2)(b) Constitution – Convicted after trial of Manslaughter section 302 Criminal code- 15 years – No error shown – Total sentence not manifestly excessive – Application for review dismissed – Sentence affirmed.
Cases cited

Avia Aihi v The State (No.2) [1982] PNGLR 44
William Norris v The State [1979] PNGLR 605
Manu Kovi v State (2005) SC789
Anna Max Marangi v State (2002) SC702
State v Tardrew [1986] PNGLR 91
State v. Vincent Fong [2016] N6418  
State v Tiki (2013) N5219
State v Tumpi (2019) N7912
State v Leahy (2017) N6880
State v Moses (2017) N6617
State v Dai (2011) N5628
Rex Lialu v The State [1990] PNGLR 487
 Jack Tanga v The State [1999] SC602
Antap Yala v The State [1996] SC69
Simon Kama -v- The State (2004) SC740 
Counsel

Mr F Kirriwom for the appellant
Ms. H. Roalakona for the respondent

1.	BY THE COURT:  This is an application for review against sentence. The applicant was convicted on the 18th of March 2020 by the National Court sitting at Waigani on one count of manslaughter contrary to section 302 of the Criminal Code. He was sentenced to fifteen years on 17th September 2020 by Berrigan J. 

2.	The applicant earlier appealed against conviction, but that appeal was dismissed. Almost two years after his sentence, he decided to appeal against sentence, and he sought leave to review. Application for review of sentence was granted on the 16th of August 2022 by Cannings J.

LEGAL PRINCIPLES

3.	The law concerning a review against sentence pursuant to Section 155 (2) (b) of the Constitution is well settled in this jurisdiction: Avia Aihi v The State (No.2) [1982] PNGLR 44.  The applicant in a review of a sentence, is in the same position as a person appealing against the sentence.  The applicant must demonstrate that the primary Judge either made an identifiable error that has the effect of vitiating the sentence or that the Judge imposed a sentence that was obviously (not merely arguable) excessive, Ju Maimai v The State (2016) SC1504; Ben Wafia v The State (2006) SC851.

4.	The legal principles in an appeal against sentence are also well settled. The Supreme Court in William Norris v The State [1979] PNGLR 605 set them out as follows:
“ So the question in practice on a sentence appeal is usually this — has the appellant shown that an error occurred which has the effect of vitiating the trial judge’s discretion on sentencing? Such an error may be identifiable: thus, the trial judge may have made a mistake as to the facts; or acted on a wrong principle of law; or taken into account matters which he should not have taken into account; or failed to take into account matters which he should have taken into account; or clearly given not enough weight or too much weight to a matter he properly took into account. There will also be vitiating error if upon the proved facts and making the fullest allowance for the advantaged position of the trial judge, the sentence is obviously (and not merely arguably) excessive, although no identifiable error can be shown; for, if a sentence is out of reasonable proportion to the circumstances of the crime, even though no particular error can be identified, this Court will infer that some error must have occurred in the exercise of the sentencing discretion.”

5.	In an appeal against sentence, the onus is on the appellant to persuade the Court that a more lenient sentence is warranted. He must show some error on the part of the primary Judge in imposing that sentence. If no such error is shown, this Court is unlikely to interfere with the sentence, because a trial judge is usually in a much better position to access the proper sentence than is a court of appeal. 

6.	Sections 6 and 23 (4) of the Supreme Court Act provide that an appeal to the Supreme Court is a rehearing on the evidence given in the National Court and that the Supreme Court shall uphold an appeal if in its opinion some other sentence, whether more or less severe is warranted in law and have been passed, it shall quash the sentence and pass the other sentence for it, and in any other cases shall dismiss the appeal.

BACKGROUND

7.	At the time of the offense the applicant was in a relationship with Ruby Anne Laufa, now deceased. On the morning of 11 February 2017, the applicant drove to the deceased’s home located at 5th Street, Fort Banner, inside the gated residential area at the University of Papua New Guinea (UPNG). He had not slept the previous night, was tired and still under the influence of alcohol. He arrived at the deceased’s residence driving at sufficient speed to draw attention to the vehicle and throw up dust from the road.

8.	The applicant picked up the deceased from her home. She sat in the front offside seat. As he drove out from her home he started to punch her. The applicant hit her on the head at least three times. While punching her the applicant drove erratically, swerving from side to side. The car blinkers were switched on.

9.	The applicant drove on ignoring the pleas of the deceased who was signalling the guards to stop the vehicle. A guard tried to stop the applicant, but he drove over the hump and over the red cone that was blocking the exit lane at the entry of Fort Banner.

10.	The applicant struck the deceased again in the mouth before increasing the speed of the vehicle. As they were approaching the curve at the UPNG Rugby fields, the deceased jumped from the vehicle in fear for her life and safety. She suffered head injuries upon impact with the road. She was taken to the hospital but died the same day from her injuries.

GROUNDS FOR REVIEW

11.	The applicant raised four grounds of review:
a)	The Judge erred in the exercise of her sentencing discretion, when she held that the applicants conduct was premediated.
b)	The sentencing Judge erred in the exercise of her sentencing discretion when she took into consideration factors that she ought not to have and failed to take into account factors which she reasonably ought to have, such as mitigating and extenuating factors.
c)	The sentencing Judge erred in failing to give adequate consideration to recommendations that supported partial or whole suspension of the sentence, due to the peculiar circumstances of the case.
d)	The sentence of 15 years imprisonment in hard labour is excessive in light of the peculiar circumstances of the applicant’s case, where in which the applicants conduct indirectly led to the decease death. (sic)

12.	The main argument put forward by the applicant is that his crime is the least serious of all manslaughter cases. It was argued that this case did not fit any of the defined categories in the cases of Manu Kovi v State (2005) SC789 and Anna Max Marangi v State (2002) SC 702. Mr Kirriwom, lawyer for the applicant in this review and the defence lawyer during trial stage, stressed throughout his submissions that the deceased contributed to her own death by jumping out of the vehicle. This had been the defence case theory maintained during the trial, i.e.. that the deceased jumped out of the moving vehicle in order to commit suicide. The trial Judge found instead that the deceased had no choice but to jump out of the moving vehicle to save herself from the applicant’s vicious assaults on her. The applicant had assaulted her so badly that she feared for her safety. The victim had no other option except to take the risk and jump out of the moving vehicle in order to avoid further assaults on her.
 
13.	The applicant also argued that the sentence of 15 years was manifestly excessive in all the circumstances. 
ISSUES

14.	The first issue in this case is whether the trial Judge erred by taking into account immaterial considerations on sentence. Second issue is whether the trial Judge erred in not accepting the probation report. Third issue is whether the sentence of 15 years is manifestly excessive in all the circumstances.
PREMEDITATED CONDUCT

15.	The applicant argued that the sentencing Judge fell into error when she decided that the applicant’s conduct was premediated. The applicant took exception to this finding by the Judge … ‘whilst the death of the deceased was not planned, I am satisfied that there was an element of planning to the assault”: (p. 103 of the RB). It was therefore submitted that the Judge fell into error because there is no element of intention to cause death or grievous bodily harm in the offence of Manslaughter. Thus, the applicant argued that the Judge had sentenced the applicant for the offence of murder rather than manslaughter.

16.	There is no mention of the word ‘premeditation’ by the learned sentencing Judge when referring to the conduct of the applicant. There is no confusion about the meaning of the words her honour used. She did not say the applicant intended to cause death nor to cause grievous bodily harm. Instead, she said there was an intention to assault the deceased. Assault without lawful excuse in this particular case of manslaughter established the element of an “unlawful act” that leads to the death. 

17.	This was not a spur of the moment attack on the deceased. Instead, the evidence showed that the applicant planned or intended to assault the deceased. His actions demonstrated an intention to cause harm to the victim. So, he drove at speed in a gated residential area to the deceased’s home. His driving raised dust and angered a resident who went out to the road to protest to the driver.

18.	The plan to assault the deceased manifested itself when the applicant struck or punched her in the head as soon as he started driving out of her residence. He did not waste time. Nor did the victim say or do anything to provoke him on the day of the offence. This was a one-sided attack for reasons known only to the applicant. The trial Judge described his actions as follows…
“He continued to hit her as he drove off at speed, almost knocking down the person who had stood on the road to protest. As he continued to drive, he drove at speed thereby attracting the attention of bystanders. He was driving erratically, swerving from side to side with the car blinkers switched on. He punched the deceased two more times as he drove in this manner. At the time the deceased was signaling the security guard at the gate to stop the car, but the applicant drove over the speed hump and the red cone that was blocking the exit lane taking the cone with the vehicle as he drove off and failed to give way to an approaching vehicle as he did so. The applicant then elbowed the deceased in the mouth as they left the gate. He then drove on away from the deceased home at increasing speed until he slowed to take the sharp corner near the UPNG Rugby field. At that point the deceased jumped from the vehicle to escape further assault from the accused.”

19.	All of the actions taken by the applicant on that morning support the learned Judge’s finding of fact that the applicant did plan to assault the deceased. We do not find any error in the Judge’s reasoning and reference to this factor as one that aggravated the crime of manslaughter. It made this offence more serious than other cases referred to by the applicant’s lawyer.

EXTRANEOUS CONSIDERATIONS
	
20.	The second ground for review is that the Judge erred in the exercise of her sentencing discretion when she took into consideration factors that she ought not to have and failed to consider factors which she reasonably ought to have, such as mitigating and extenuating factors. The applicant argued that the Judge wrongly emphasized the deceased accomplishments, and this caused her to conclude that the aggravating factors outweighed the mitigating factors. 

21.	We have not sighted any statement by the Judge that the tragic death of such a fine young woman made the aggravating factors outweigh the mitigating factors. There is no error in the Judge commenting on the deceased’s background. These are factual matters and not in dispute that she was a young woman about to turn 25 years with a promising future as a newly graduated lawyer. That she had been crowned as Ms PNG beauty queen and went on to have the distinction of being runner up in the Ms South Pacific Beauty Queen contest. The Judge also referred to her excellent personal characteristics as reported by the Probation officer. 

22.	The Judge also made very thorough and comprehensive reference to the applicants’ own accomplishments which are many and highly complementary to the applicant. Whilst the Judge took only two paragraphs to outline the deceased’s accomplishments, she took over a page to set out the same for the applicant. The learned sentencing Judge did refer in detail to the applicant’s personal, family, religious, educational background and his business acumen. His charitable work and engagement of unemployed people to have jobs in his business ventures.

23.	This court is not persuaded that the trial Judge fell into error when she commented that the death of the deceased was tragic because of the loss of such an accomplished young woman. Judges often make reference to these factors when passing sentences. They are matters of fact and are usually stated to emphasise the wasteful taking away of life.

24.	We are also not persuaded that the sentencing Judge fell into error when she failed to take into account the mitigating factors and the applicants’ own contributions to society. The sentencing Judge in fact made very detailed and comprehensive reference to the applicants’ personal antecedents. Mitigating factors taken into account by the sentencing Judge include lack of prior conviction, previous good character, his contribution to society through employment of unemployed youth, his charitable works, his expression of remorse, that he took the deceased to the hospital etc. The Judge after having done so concluded that they were outweighed by the aggravating factors. Again, we find no error in that determination.

25.	The third factor in this ground is the sentencing Judge did not consider the extenuating factor that the deceased contributed to her own death by jumping out of a moving vehicle. Mr Kirriwom described it as the principle in the civil Law of Tort and the principle of contributory negligence or ‘Res Ipsa Loquitur’. The lawyer for the applicant stressed that the actions of the deceased amounted to contributory negligence and so criminal liability of the applicant was greatly reduced. An earlier supreme court had dismissed the applicant’s appeal against conviction. Applicant had raised this defence at his trial stating that he had not caused the deceased to jump out of the moving vehicle for her own reasons including possible motive to commit suicide. This issue has been put to rest and should not be rehashed here.

FAILURE TO IMPLEMENT RECOMMENDATIONS IN PROBATION REPORT

26.	The third ground is that the sentencing Judge erred in failing to consider recommendations that supported partial or whole suspension of the sentence, due to the peculiar circumstances of the case. Again, counsel repeated his submission that the sentencing Judge failed to consider the peculiar circumstances involving the deceased’s own wish to jump out of a moving vehicle. That it was therefore not the applicant’s fault, and he should not be penalized for that with a sentence of 15 years. We have sufficiently addressed this factor earlier and do not consider it necessary to restate it under this heading. There was no error made by the sentencing Judge.

27.	The sentencing Judge also referred to principles in law of suspending sentences found in the case authority of State v Tardrew [1986] PNGLR 91. The applicant continued to maintain his innocence when interviewed by the probation officer. He maintained that he was not responsible for the death of the deceased because she herself had jumped out of the vehicle and so it was not his fault. 

28.	The learned Judge therefore considered that although he expressed remorse in court during allocutus, he remained unrepentant and so a suspension of sentence would not assist him with personal deterrence and rehabilitation. Her honour said this (at page 135 line 67 of AB). 

“The offender expressed deep sorrow on the allocutus for the loss of the deceased. … Whilst the offender has at all times respected the court process, and to that extent its decision, he has not demonstrated regret for his actions. In his written statement to Probation Services the offender expressly states that he regards his conviction as ‘wrong’. He is entitled to do so but the effect of that is that he still refuses to accept responsibility for his conduct that morning, or its deadly consequences. Accordingly, Iam not satisfied that suspension would promote either his deterrence or rehabilitation.”

29.	We do not consider that the trial Judge fell into error by not accepting recommendations of the Probation Report. There is no law compelling a sentencing Judge to automatically apply whatever recommendation a probation report makes. In the case of  State v. Vincent Fong [2016] N6418  Anis J said:

“Pursuant to section 13(2) of the Probation Act, a pre-sentence report is only meant to assist the Court determine the most suitable method of dealing with a person convicted of an offence. It is not a public record or document like a normal court document (section 25(1) of the Probation Act). The information derived therein is not similar like real evidence. Evidence contained in a court deposition and tendered in Court by consent in a plea matter would normally be considered by the Court and be subject to separate rules or laws”.

30.	We therefore reject this ground of review and find that the learned Judge did not commit an error in sentencing discretion, sufficient to vitiate sentence.
MANIFESTLY EXCESSIVE

31.	 Is the 15-year sentence manifestly excessive? It was argued that the Judge wrongly catergorised this case as falling under the second category of Manu Kovi v State (2005) SC789. The applicant submitted that sentence of 5 to 8 years be substituted. The basis for that was again the contention that this manslaughter was the least serious of that offence because the facts did not fit into any known category. It was argued that this offence was not the worst of its kind and so it was suggested that this case fell under category one of the Kovi case.

32.	Counsel submitted that the trial Judge wrongly categorised this case as falling within the second category of Manu Kovi v State (supra) because no weapons were used in this case. 

33.	Several cases were relied on as authority for sentence to be reduced to one between 5 to 8 years. In State v Tiki (2013) N5219, the prisoner threw a brick at his wife but it missed and bounced off a wall before hitting the deceased on his head fracturing his skull. He was sentenced to 8 years after a trial.

34.	In State v Tumpi (2019) N7912 the offender pleaded guilty to two counts of dangerous driving causing death. She was sentenced to 6 years part suspended.

35.	In State v Leahy (2017) N6880 the offender pleaded guilty to shooting the victim with a shotgun. He mistook him to be an armed robber and had fired a warning shot which struck the deceased. He was sentenced to 12 years.

36.	State v Moses (2017) N6617. Prisoner swung a bilum with a baby inside while trying to put it to sleep. Baby hit head against a metal and died.  The offender pleaded guilty and was sentenced to 10 years.
37.	State v Dai (2011) N5628. Offender threw a firewood at his sister during an argument. The object landed on a 12-month-old baby sitting with her. He was sentenced to 3 years after pleading guilty.

38.	Mr Kirriwom again emphasized that this case was peculiar because it involved a person voluntarily jumping out of a moving vehicle. It was submitted that this case was a borderline case between Dangerous driving causing death and manslaughter. Thus, it was submitted that this case was the least serious of any manslaughter case due to the fact that the applicant did not contribute directly to her death.

39.	The current authority on sentence for homicide cases is Manu Kovi v State (supra). Precedent cases for manslaughter started with Rex Lialu v The State [1990] PNGLR 487 where the Supreme Court prescribed different categories of manslaughter killings. It also suggested sentencing guidelines for each category. The range of sentences suggested in that case were reviewed by the Supreme Court in the later cases of Jack Tanga v The State [1999] SC 602, Antap Yala v The State [1996] SCR 69, Anna Max Marangi v The State (2002) SC702. Simon Kama -v- The State (2004) SC740  recommended revised guidelines for homicide cases. 

40.	There has been a gradual increase of sentences throughout. The lowest recommended sentence in category one of Manu Kovi is 8 years. Sentence between 8 to 12 years is recommended for offenders who plead guilty in ordinary manslaughter cases with mitigating factors and no aggravating factors. This category does not apply to offenders who plead not guilty. Relevant features include, no weapons used, emotionally under stress, defacto provocation, killing in domestic setting, killing follows straight after argument, minimal force used, victim had pre-existing disease that caused or accelerated death e.g. enlarged spleen. 

41.	The applicant argued that his case did not fall into the second category because no weapons like guns or knives were used. However, the other factors listed under category two apply to this case. Those matters include viscous attack, multiple injuries, some deliberate intention to harm and some preplanning. The learned Judge when placing this case into the second category of Manu Kovi said this (p 134 line 57 AB):
“The degree of criminal negligence in this case is extremely high. The offence involved the deliberate and repeated use of violence, which was directed at the deceased’s head, and showed an intention to cause at least some harm. The offender used the moving vehicle to effectively trap the deceased whilst he assaulted her. There was some planning of the assault by the offender. The offence took place over a period of time, for some distance and whilst the vehicle was travelling at speed. The offender not only failed to stop the vehicle but deliberately refused to do so on at least three occasions. The offender was tired and under the influence of alcohol. The offence took place in a domestic setting. It resulted in the tragic loss of a young woman’s life, and the inevitable and enduring consequences of that loss for her family.”

42.	The learned sentencing Judge rightfully placed this offence in the second category of Manu Kovi. Sentence of 15 years falls within the range of 8 to 12 years. It is not excessive. 

43.	We are of the view that sentencing Judges should pass sentences that conform to guidelines suggested by leading Supreme court cases in order to achieve uniformity and parity of sentence to different offenders throughout the country. 

44.	Homicide cases involve the loss of a life. Any life, whether it be of a famous person or a simple one is a gift from God and is very previous.  Any killing should be classified as the most serious breach of criminal law and offenders should not expect any leniency from the court. We consider the submission that this case should attract sentence of 5 to 8 years to be unfounded. Low sentences like that reduces the intrinsic value of human life and makes human life cheap. Five to eight years falls below the lowest suggested sentence of 8 years in Manu Kovi. It would be lower than what some offenders in robbery and sexual offences receive. It would further aggrieve her relatives who will mourn her loss for the rest of their lives. We are not prepared to rub salt into their wounds by disturbing a sentence that is justified in all the circumstances.

45.	There was no error demonstrated in this case to vitiate sentence, 15 years in the circumstances is not excessive.

46.	We make the following orders
1)	The review of sentence is dismissed.
2)	The effective sentence of 15 years imprisonment is confirmed.
________________________________________________________________
Lawyer for the applicant: Public Solicitor
Lawyer for the respondent: Public Prosecutor