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State v Noah [2005] PGNC 123; N2833 (14 May 2005)

N2833

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1338 OF 2004

THE STATE

v

PETER NOAH

Kavieng: Batari J
2005 : 14 May

CRIMINAL LAW - Sentence - Manslaughter killing - Plea - Deceased cut on legs with bush knife in adulterous affair - Prisoner 19 years old - Factors in mitigation and aggravation – Consideration of.

CRIMINAL LAW - Sentence –Manslaughter - Provocation – Accused incensed by intimate insult of mother – Whether provocation – Consideration of as factor on sentence

CRIMINAL LAW - Sentence - Manslaughter killing - Sentencing guides - Where provocation may reduce charge to manslaughter killing – Weight to be given - Sentence of 10 years appropriate.

Cases Cited:
Rex Lialu v The State [1990] PNGLR 487
Jack Tanga v The State (1999) SC602
Antap Yala v The State (SCR 69/96)
Anna Max Marangi v The State SC702
R.v Phillips (1985) 7 Cr App R (S) 235 at 237.

Counsel:
K. Umpake, for State
A. Turi, for the Accused

SENTENCE

14 May 2005

BATARI J: Peter Noah, yesterday you pleaded guilty and were convicted following your arraignment on an indictment charging one count of manslaughter under s. 302 of the Criminal Code. The facts supporting your charge in summary are that, on 27th August, 2004 at Kontu village, New Ireland Province, you and the deceased Shirley Kamaragam were in your nearby gardens when you decided to pay her a visit her where she alone in her own garden. Your friendly meeting however turned violent after she insulted you and you retaliated by attacking her with a bush knife. She literally bled to death from injuries to the lower part of her both legs despite attempts by those who had come to the scene to save her.

Notwithstanding the absence of medical certificate of death, there is no doubt the deceased died as a result of loss of blood from her injuries. It was likely that you cut the deceased more than once, but I give you the benefit of doubt as the State does not dispute a single blow to both legs and that there is no other plausible explanation to discount your own version of facts.

You are aged about 19 years old with no formal education and single. Your mother depended on your subsistent gardening and that support will now be lost to her because you will be treated the same way as those convicted of unlawful killings.

It is submitted by your lawyer, inter alia, that your plea of guilty must weigh in your favour and I agree because it means the State is saved the time and expenses in conducting what may have been a difficult trial; there being no eye-witness to the incident and you were the only person with the deceased shortly before she died. Your lawyer has also urged that your cooperation with the police and your subsequent expression of remorse merited taking into account. I will return to that aspect later.

The deceased was a married woman and much older than you but you had befriended and were having adulterous affairs with her. Your mother disapproved of that improbable relationship and urged you to leave the village because of that. You heeded your mother’s concern but returned a short while later. On the day in question, you met the deceased in the garden and took the opportunity to renew your acquaintance.

However, she was either unprepared to oblige, or she was too upset over your mother’s interference with your affair and your sudden disappearance from the village that she became indifferent to your attempts to appease her. You tried to explain your absence from the village but she swore at you. Hence, you attacked her with a bush knife resulting in her death. When asked by police what the nature of the insult was, you had answered, "She said I will have sex with my mother."

The foregoing is taken from your story to the police and the version put to the Court by your lawyer. That story is not contested by State. I accept it as coming within reasonable bounds of probability and goes to clarify your conduct. It does not however, excuse your callous act.

The offensive retort by the deceased to your advances was provocation of the highest degree by any cultural and moral contemplation and acceptance. Your violent reaction resulting in the sudden demise of the deceased is therefore, understandable. And the result of State’s concession of the circumstances of the killing I think was the reduction of your charge from what could have been the more serious charge of murder.

But one must not feel that it is alright to choose violence at every verbal insult, how mortifying it might have been. True, it may take only an extraordinaire to walk away from such extreme humiliation but men and women alike with aggressive propensity or who are quick to counter with physical violence must realize by now that, deaths are common and frequent when weapons are used indiscriminately against their antagonists without the slightest regard for their wellbeing and life. They must know by now, the consequences of breaking the law after all these years of government and Christian influence is, punishment. Violence is an inexcusable answer when humility, decency and restraint can be given the chance to prevail by simply walking away from the adversary.

It must surely be well known to you that, physical violence is not the answer to your partner’s insult. True, the deceased had acted in an extreme way against you but that did not give you the right to attack her in the manner you did. You can use the informal legal process like the Village Court to mediate your grievance but it is clear that you had simply lost you self-control and acted on the spur of the moment in taking the law into your own hands, resulting in unnecessary loss of life. Consequently, you must now be punished.

Manslaughter killing carries the penal servitude of life imprisonment. Under s. 19 of the Criminal Code, a term of years may be imposed and the starting guideline has always been the case of Rex Lialu v The State [1990] PNGLR 487 when assessing how the imposition of a penalty for manslaughter must be approached. The range of sentences prescribed in that case has however been reviewed by the Supreme Court in several cases since in keeping with the widespread and the rising trend of such violent deaths in the circumstances of this case. See, Jack Tanga v The State (Unreported Supreme Court Judgment - 1999) SC602; Antap Yala v The State (Un-numbered Supreme Court Judgment) SCR 69/96; Anna Max Marangi v The State (Unreported Supreme Court Judgment) SC702,

It is also now well settled that, whilst sentences for manslaughter will normally be lower than sentences for murder and wilful murder, there are those cases which will call for the imposition of higher penalty up to the maximum prescribed. In Anna Max Marangi v The State (supra) the Supreme Court has suggested the following sentencing guidelines in discerning three categories of manslaughter categories:

"The first consists of cases in which force is used accidentally or in an uncalculated manner, such as a single blow, punches or kicks on any part of deceased’s body. This also includes cases in which death is cause by an acceleration of a pre-existing disease or condition leading to death. These kinds of killings attract sentences between three (3) years and seven (7) years.

The second are cases that involve repeated application of vicious force, with or without the use of an instrument or weapon, such as repeated kicks and punches applied to the head or chest with deliberate intention to wound or cause bodily harm. Deaths caused by a single or multiple knife stab wounds applied to the head, neck, chest or abdomen or on any other vulnerable part of the body, even if there is no other special aggravating factors, come under this category. This category attracts sentences between 8 and 12 years.

The third and final involve cases in which there is direction application of force in a calculated manner, on the body using a weapon such as a knife, bush knife or axe causing serious bodily injuries, such as piercing vital organs or severing vital parts of the body. Deaths caused by chopping the neck, legs and arms with an axe or bush knife are examples of this kind of killings. This includes death caused by single or multiple knife stab wounds on the head, face, neck, chest or the abdomen if accompanied by other special aggravating factors may also fall under this category. These kinds of killings attract sentences between 13 and 16 years."

This statement of principles in a nutshell means the court must have careful regard to the circumstances of death and the way in which death was actually caused. (See; R.v Phillips (1985) 7 Cr App R (S) 235 at 237).

In this case, you had attacked the victim instantaneously with a weapon following a verbal insult. You were provoked. Depending on the nature of the provocation, it may not be an overriding factor where a plea to manslaughter has possibly resulted from plea bargaining on the basis of that factor. The facts suggested the death in the case before me resulted from a degree of violence intrinsically likely to cause death or serious injury. So, a more serious charge of murder was open on the facts. State having preferred the charge of manslaughter, you are entitled to be considered in your favour, the fact of provocation but in my view, not as an overriding factor because a more serious charge clearly open on the facts, had been reduced as a result of the provocation factor. In my conclusion, the gravity of your conduct is mitigated to some extent by provocation but not as a substantial factor.

There are in my view, sufficient other factors that mitigate the seriousness of your conduct. Your admission to the police at the earliest opportunity and subsequent plea of guilty considered together, go to support your expression of remorse. You have prior good conduct and this is your first offence. The combined effect of these factors in support of the provocation factor are that, the crime, though serious is not the worst of its kind and is sufficiently mitigated. It falls into the second category of Marangi’s case where a sentence of 8 to 12 years may be appropriate.

Your case calls for a term of imprisonment to meet both the deterrent and retributive aspects of sentencing. It should tell you and make you feel at personal level, the consequences of causing the death of another is punishment by imprisonment and that, the sentence should also warn off others who might be likeminded.

I do not consider it appropriate to suspend any part of the sentence I am about to imposed. You are sentenced to 10 Years imprisonment with hard labour. There has been no mention of any time spent in custody and your lawyer could not confirm any when I enquired. Even if you may have spent sometime in custody, I will not deduct it in the exercise of my discretion where the period is minimal.

You are convicted and sentenced to 10 years imprisonment IHL.
_______________________________________________________________
Lawyer for the State : Public Prosecutor

Lawyer for the Accused : Public Solicitor