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State v Juvenile D [2008] PGNC 153; N3508 (20 October 2008)

N3508

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1597 OF 2006

THE STATE

V

JUVENILE "D"

Mendi: Makail, AJ
2008: 13 October
: 20 October

CRIMINAL LAW - Unlawful killing - Plea - Sentence - Criminal Code - Section 302 - Deceased adult male - Principles of - Mitigating and aggravating factors - Mitigating factors - Early guilty plea - First offender - Juvenile – De facto provocation - Deceased stealing food crops from garden of prisoners - Argument over stealing - No premeditation or pre planning - Aggravating factors - Blood relative of prisoner - Use of bush knife - Multiple blows during fight - Legs and hands of deceased - Prevalence of offence - Maximum penalty - Life imprisonment - Mitigating factors outweighs aggravating factors - Principal offender - Criminal Code - section 7 - Sentence of 6 years imposed - Less time spent in pre trial custody - No suspension of sentence - Sentence sufficiently reduced - Criminal Code - Section 19 - Jurisdiction of National Court in juvenile cases - Juvenile Act 1991 - Sections 1, 4 & 18.

LAWYERS - Role of lawyers - Duty to Court and to client - Need to provide Pre Sentence Report - Pre Sentence Report to assist Court to formulate appropriate sentence - Absence of Pre Sentence Report to the detriment of prisoner - Probation Act - Sections 13 & 25.

Cases Cited:
Anna Max Maringi -v- The State (2002) SC702
The State -v- Stanley Marai Uriye (2003) N2386
The State -v- Peter Kolol (2003) N2658
Simon Kama -v- The State (2004) SC740
Manu Kovi -v- The State (2005) SC789
The State -v- Bernard Hagei (2005) N2913
The State -v- Jessie Balu: CR No 907 of 2007 (Unnumbered & Unreported Judgment of 25 August 2008)

Counsel:
Mr J Kesan, for the State
Mr P Kumo, for the Prisoner

SENTENCE

20 October, 2008

1. MAKAIL AJ: On 13 October 2008, the prisoner and a co prisoner pleaded guilty to one count of unlawful killing of one Maria Ipiri under section 302 of the Criminal Code.

BRIEF FACTS

2. The brief facts put to the prisoner during arraignment are these; the prisoner is the son of the other prisoner, Yuanis Ipiri and comes from Soyapu village in Kagua of the Southern Highlands Province. The deceased is an uncle of the prisoner as this prisoner’s father is the brother of the deceased. Sometimes prior to 11 February 2006, the deceased had been stealing food crops and peanuts from the garden of the prisoner and his father. On 11 February 2006, at about 8 o’clock in the morning, the prisoner and his father went on a hunting trip. They were armed with bush knives, bows and arrows. On their way, they stopped at their garden to check on it only to find the deceased and his wife collecting food crops. The deceased was also armed with a bush knife.

3. The prisoner’s father started an argument with the deceased. Obviously he was upset and angry that the deceased saw it fit to go to their garden and steal their food crops. During the argument, his father grabbed the deceased and held him and the prisoner chopped the deceased on his legs and hands. The deceased sustained multiple wounds on his legs and hands. As a result he lost a lot of blood and died.

4. The State says that when the prisoners held and chopped the deceased, they intended to cause grievous bodily harm to the deceased but he died. It says that it holds the prisoners equally culpable by virtue of section 7 of the Criminal Code.

ALLOCUTUS

5. On his allocutus, the prisoner sincerely apologized to the Court and the family of the deceased. He also regrets that by their actions, the deceased died. He says that he did not plan to kill the deceased as he went with his father on a hunting trip that morning with their dogs when they stumbled into the deceased and the wife in their garden, collecting food crops.

6. He says that his father was upset and angry that the deceased saw it fit to come and steal from their garden and told the deceased that the garden was to feed his children. The garden was not for the deceased and his wife to come and steal. During the argument, the deceased punched his father and a fight broke out. He says that the deceased held his father’s throat and choked him so he came to his father’s aid and chopped the deceased on his legs. After that, they left the victim and returned to the village and later learnt that the deceased had died.

7. He says that the police arrested him and his father and he is now before the Court. He asks for leniency.

THE LAW

8. Section 302 of the Criminal Code makes it an indictable offence for a person to unlawfully kill another person and the maximum penalty is life imprisonment. It states as follows:

"302. Manslaughter.

A person who unlawfully kills another under such circumstances as not to constitute wilful murder, murder or infanticide is guilty of manslaughter.

Penalty: Subject to Section 19, imprisonment for life".

9. The Supreme Court in a number of its judgments has set the sentencing tariffs in manslaughter, murder and wilful murder cases. For example in the Supreme Court judgment of Anna Max Maringi -v- The State (2002) SC 702, it sets the sentencing tariff in manslaughter cases as follows:

"The current range of sentences for uncontested manslaughter cases in a domestic setting as set out in the above three cases and other cases range from four (4) years to sixteen (16) years imprisonment. There are 3 categories of sentences within this range.

The first category relates to cases which come in the lower end of this range. These cases involve application of force in an uncalculated manner, such as a single blow, punch or kick on any part of deceased’s body. For instance a single or multiple kick or punch causing rupture of the spleen. This kind of killings attracts sentences between three (3) years and seven (7) years. Cases where the deceased has pre-existing disease which accelerated or contributed to the death such as enlarged spleen are treated as less serious than the death of a normal person and they attract sentences in the lower end of this scale: see Public Prosecutor v. John Mela SCRA 17/01 unpublished Supreme Court Judgment dated 28 June 2001.

The second category relates to cases which fall in the middle part of this range. These cases 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. An example is Jack Tanga’s case. Death caused by a single or multiple knife stab wounds applied on the head, neck, chest or abdomen or on any other vulnerable part of the body, without any other special aggravating factors, also come under this category. Unintentional killings which come under this category attract sentences between 8 and 12 years.

The third category relates to cases which fall on the top end of the range. Those cases involve application of direct force in a calculated manner, on the body using a weapon such as a knife, bushknife or axe thereby inflicting serious bodily injuries, such as piercing vital organs or severing vital parts of the body. Death caused by chopping the neck, legs and arms with an axe or bushknife are examples of this kind of killing. 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. This kind of killing attracts sentences between 13 and 16 years. An example of this type of killing occurred in John Kapil Tapi. The case of Antap Yala could also come under this category although the sentence imposed in that case was 10 years.

As to which of these 3 categories a particular case falls into, depends principally on the viciousness of the assault, the manner in which the injuries were inflicted and the seriousness of those injuries which caused death.

It is worth noting that killings which come under the second and third categories may well constitute murder or event wilful murder if the necessary intentions to either cause grievous bodily harm or kill are present". (Emphasis is mine).

10. The judgment of the Manu Kovi -v- The State (2005) SC 789 is the latest of the Supreme Court touching on sentences in manslaughter cases. That judgment agreed with the judgment of Simon Kama -v- The State (2004) SC 740 that time has come for an increase in the penalties and recommended that sentences in manslaughter cases be increased. I summarize the increase in the tariff below:

MANSLAUGHTER

CATEGORY 1 - 8 - 12 years

Plea.

- No weapon used,

- Victim emotional under stress and de facto, 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 e.g. gun or axe,

- Aggravating,

- Killing of innocent,

- Vicious and planned,

- Deliberate intention to harm,

- Little or no regard for safety of human life.

CATETORY 4 - IMPRISONMENT

WORST CASE

- Trial or Plea.

- Some element of viciousness and brutality,

- Some pre-planning and pre-meditation,

- Killing of innocent, harmless person,

- Complete disregard for human life.

PRISONER’S CASE

11. Mr Kumo submits that the prisoner is a juvenile as he was aged 8 at the time of the commission of the offence and is now going towards his 11th birthday at the date of the trial. He should be given special consideration by the Court when considering a sentence for him. He submits that the police claim that the prisoner was aged 12 at the time of the commission of the offence and if we take that age, this will mean that he is 14 years at the date of trial.

12. I consider that the age of the prisoner is an important factor which must be determined first. As I said in the case of The State -v- Jessie Balu: CR No 907 of 2007 (Unnumbered & Unreported Judgment of 25 August 2008) at pages 7-10 of the judgment:

"The issue of your age is very important and must be settled first because it will decide how I should deal with your case. If I find that you are 10 years old, I must treat you as a juvenile and determine your sentence according to the National Court’s power under section 1 of the Juvenile Act 1991".

13. There, I referred to section 1 of the Juvenile Act 1991 which defines a "Court" to also include the National Court and gives jurisdiction to the National Court to deal with juvenile cases. That same provision also defines a juvenile as "a person aged not less than seven years and less than 18 years". I interpret this to mean that if you are between the ages of 7 and 18, by law, you are a juvenile".

14. I went on to say that:

"And so, in your case, there is no Birth Certificate to assist me to determine precisely your age. From the information I have thus far I am unable to precisely determine your age and also the State disputes your claim that you are 10 years old.

Your claim that you are 10 years old seems consistent with the Pre Sentence Report where the Probation Officer has reported that you are 15 years old and doing Grade 3 whilst on the other hand, your own answer in the Record of Interview with the police on 28 July 2006 you told them that you are 17 years old. You would by now be 19 years old.

Whilst there are two different age being proposed for you, I have had the benefit of closely observing your physical appearance during the hearing and I am satisfied that you do not look like a 10 year old boy. On the contrary, you look like you are around 19 years old. You are physically matured although you are short in height.

This, notwithstanding the absence of any evidence of the precise date of birth such as a Birth Certificate, I am entitled to determine you age based on your physical appearance pursuant to section 3(2)&(3)of the Juvenile Act 1991".

15. In the end, I held that the prisoner was not a juvenile and so I did not give him special consideration that would have applied to him if he was a juvenile under sections 4 and 18 of the Juvenile Act 1991. But in this case, the only dispute is whether he is 11 or 14 years but I do not consider it of significant difference because he is nonetheless a person under the age of 18 years. Besides, my own observation of him in Court shows that he would be around the age of 11 and 14 as he is not fully matured. Thus, I am satisfied that he is a juvenile and this Court has the jurisdiction to determine an appropriate sentence for him in accordance with sections 4 and 18 of the Juvenile Act 1991.

16. Section 4 states:

"4. Interests of Juvenile paramount.

In the proceedings and actions under this Act, the interests of a juvenile shall be the paramount consideration".

17. And section 18 states as follows:

"18. Exercise of jurisdiction by National Court.

(1) Where a juvenile is charged with homicide, rape or other offence punishable by death or imprisonment for life -

(a) the committal proceedings shall be dealt with by a Juvenile Court; and

(b) subject to Subsection (2), the trial shall be heard and determined by the National Court.

(2) For the purposes of Subsection (1)(b) -

(a) the provisions of this Act with respect to procedure shall have effect; and

(b) the National Court may exercise the sentencing powers conferred by this Act on a Juvenile Court".

18. Proceeding on the premise that the prisoner is a juvenile, I now consider an appropriate sentence for him. First, I note that the National Court has in a good number of manslaughter cases imposed the ultimate life imprisonment. And so I must remind the prisoner that there is nothing stopping me from imposing a life imprisonment on him.

19. But I need to consider the factors for and against the prisoner before I can say that life imprisonment is an appropriate sentence for the prisoner. First for the factors in his favour, I take into account that he is a juvenile. This is a very important factor which favours the prisoner to a considerable extent. He was attending school when he committed the offence. It was suggested that he was doing Gr 4. To my mind, his education has been disrupted as a result of the offence. And so I take that into account in my deliberation.

20. Secondly, he is from Soyapu village in Kagua of the Southern Highlands Province and the son of the co prisoner, Yuanis Ipiri. His mother is alive and he has 3 other siblings. He is a member of the Catholic faith. I take these matters into account as well.

21. I also take into account the prisoner’s early plea of guilty, expression of remorse, and apology to the Court and to the family of the deceased. I accept that the prisoner’s guilty plea is a sign of his acceptance of criminal responsibility. This also has saved the Court time and the need to go through a full trial to determine his guilt.

22. Further, I take into account that the prisoner has a clean criminal record. This is the first offence he has committed. I find this factor favours him. I accept that there is some element of de facto provocation, in that, what the prisoner did was because the deceased was caught stealing from their garden and his father got involved in a fight with the deceased. He came in to assist his father. This was because the deceased choked his father and so he came and chopped the deceased with a bush knife. I accept that the prisoner did what he did to prevent the deceased from attacking his father. I find this factor operating in favour of the prisoner.

23. Furthermore, I accept that there was no intention to kill the deceased as there was no pre planning by him and his father to kill the deceased. I find that they were on a hunting trip that day when they stumbled into the deceased and his wife in their garden stealing. When they caught the deceased, that was when his father argued with the deceased and a fight ensured where he came in to assist his father and chopped the deceased. And so, this factor operates in favour of the prisoner.

24. Finally, whatever sentence I am to impose on the prisoner, I will also deduct the time the prisoner spent in pre trial custody since 14 February 2006. This is a period of 2 years, 8 months and 2 days.

25. Against those mitigating factors, I take into account the factors that do not favour the prisoner as submitted by Mr Kesan of counsel for the State. First, I take into account that the prisoner used an offensive weapon during the commission of the offence, namely a bush knife. The prisoner was the one who actually swung the bush knife at the deceased and chopped him.

26. Secondly, notwithstanding that there is no Medical Report produced to show the extent and seriousness of the injuries, I can safely say that the deceased died from wounds he sustained from the bush knife when the prisoner cut him on his leg and hands. What is important for the Court to note is that this is another case of homicide where a bush knife was the medium. As this Court has said in so many past cases, the use of bush knives to commit this kind of offence is prevalent in this part of the country. And so I hold this factor against the prisoner.

27. Next, I take into account that the offence committed by the prisoner is prevalent in this country and more so in the Highlands region. This is not a good indication at all as no matter how many strict penalties this Court has dished out to offenders in the past, they have had minimal to no impact on lives of people. To my mind, people have no regard for fellow human beings; no sense of fear that taking another person’s life could mean going to jail; and no respect for the law of this country. For this reason, I find this a serious aggravating factor against the prisoner.

28. Finally, I find that the prisoner killed his own uncle, a close blood relative. He will live with that for the rest of his life. I am sure that this has caused him great pain and loss, but that is a matter for him to live with and deal with.

29. But I do not accept Mr Kesan’s submission that the prisoner’s case falls under the third category of manslaughter cases set out in the case of Anna Max Maringi (supra) which is 13 to 16 years imprisonment and if we apply the new sentencing tariff in the case of Manu Koivi (supra), it will be between 17 to 25 years imprisonment in a contested or uncontested case, where there are mitigating factors and aggravating factors.

30. And so, when I weigh the factors for and against the prisoner, I find that the factors in operating in favour of the prisoner outweigh those against him. In saying this, I also consider that to impose a lesser sentence is a matter at the Court’s discretion and that one fundamental fact must not be lost sight of and that is one person’s life has been prematurely lost because of the prisoner’s actions. The Court must protect human life because there is only one life for each of us to live in this world. I remind the prisoner and other would be offenders of the words of His Honour Lenalia J, in the case of The State -v- Bernard Hagei (2005) N2913 where he said:

"It is the duty of this Court to protect human life and uphold the Constitution to protect life and property. It is too late now to protect the life of Georgina Giobun, but what the Court will do is exercise its powers given it by the Constitution and the Criminal Code to punish the accused for the wrong he has committed. (See s.35 of the Constitution and s.299 (1) and (2) of the Criminal Code).

There are so many wanton killings happening in the country at will as though life is some form of commodity or replaceable items that can be borrowed or bought from the hardware shops in town. Killings in this country are becoming more daring without fear and there is no respect for the sanctity of life. Brutal, horrific and cold - blooded killings are becoming too frequent.

In the recent past, the National Court Judges have been trying to impose higher penalties for all forms of homicides but obviously imposition of very high penalties has not achieved the intended aims of containing the rate of manslaughter, murder and willful murder cases and the punitive aspect with the view for public deterrence and the intended effect on the likely would be offenders".

31. I find that this case falls into the second category of manslaughter cases as set out in the case of Manu Kovi (supra). This means that the case attracts a sentence of imprisonment term between 13 and 16 years. I will use a head sentence of 13 years and will increase or decrease it depending on the factors for or against the prisoner. Bearing in mind the duty of this Court to protect lives of people, the sentence I will be imposing on the prisoner will be less than 13 years because of the mitigating factors in favour of the prisoner. More importantly for me is that the prisoner is a juvenile and a first-time offender. He did not intent to kill the deceased but given the situation he was in that day, this is seeing his father being attacked by the deceased, he had to do what he did to assist his father.

32. In all the circumstances of this case, I consider that a sentence of 8 years imprisonment in hard labour is appropriate. I was prepared to follow the sentence method used by Her Honour Davani J, in the judgment of The State -v- Stanley Marai Uriye (2003) N2386 where in that case, the prisoner, a young offender of 13 years pleaded guilty of murder contrary to section 300 of the Criminal Code and was sentenced to 10 years imprisonment. There, the prisoner was amongst a group of youths who shot at a moving vehicle and the shot wounded a passenger at Kupiano in the Central Province. But after considering inter alia a Pre Sentence Report which strongly recommended a non custodial sentence, Her Honour was satisfied that it would be in the best interest of the prisoner to serve a partly suspended sentence and sent the prisoner to Badili Remand Centre in Port Moresby to serve 6 years and after completion of that term, to return to the Court for a final ruling on the remaining 4 years.

33. In the case before me, there is no Pre Sentence Report presented to enable me to satisfy myself that the prisoner is a suitable person to be given a wholly suspended sentence. This is disappointing. If such report is not provided to the Court, it shall be to the detriment of the prisoner and counsel is guilty in the discharge of his duty to first the Court and secondly to the prisoner. It is not the role of the Court to request for such a report all the time. It should be the role of counsel for both parties, especially counsel for the prisoner to ensure that such a report is provided in good time to the Court to assist the Court in its deliberation on an appropriate sentence for the prisoner, especially in these types of cases where the offender is a juvenile. See section 13 and 25 of the Probation Act.

34. As I have no such report before me, I am not prepared to wholly suspend the sentence like in the case of The State -v- Peter Kolol (2003) N2658, a case of accidental killing by a homemade pistol by the prisoner when pointing at the deceased without knowing that it was loaded with a bullet and pulled the trigger. His Honour after considering a Pre Sentence Report of the prisoner and noting that the prisoner was a young offender of about 18 years wholly suspended the sentence of 4 years imprisonment on condition. His Honour was of the view that the death of the deceased was purely an accident and the prisoner did not have the propensity to commit violent crimes nor did he appear to be a violent person.

35. In this case, what I will do is that I will partly suspend the sentence and place the prisoner on conditions including good behaviour. I am doing this because from my observations and for the reasons I have already set out above, I do not think the prisoner does not possess the propensity to commit offences nor does he appear to be a violent person. Further still, in my opinion, it would be a crushing blow to his future to sentence a young boy like him to serve a long prison sentence.

ORDER

36. In the end, the prisoner having being convicted on one count of manslaughter under section 302 of the Criminal Code, is sentenced to 8 years imprisonment of which 4 years will be suspended on the following conditions which I will set out shortly below and less 2 years, 8 months and 2 days for time spent in pre trial custody leaving a balance of 1 year, 3 months and 28 days to serve in prison in hard labour at Buihebi Corrective Institute.

37. After serving his prison sentence, he will be released on the following conditions as part of the suspended sentence:

1. The prisoner is to be placed on good behaviour bond during the period of the suspended sentence.

2. The prisoner is to immediately return to school to complete Grade 4 upon his release from prison.

3. The Probation Officer in Mendi shall supervise and prepare a Progressive Report to be submitted to the Court at the end of each year of the suspended sentence.

4. If the prisoner fails to comply with any of the above conditions, he shall be returned to prison to serve the balance of the suspended sentence from the date of default.

A warrant of commitment for the prisoner in those terms will be issued forthwith.

Sentence accordingly.

_________________________________

Acting Public Prosecutor: Lawyers for the State.
Public Solicitor: Lawyers for the Prisoner.