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State v Michael [2010] PGNC 238; N4911 (15 November 2010)

N4911

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1336 OF 2009

THE STATE

V

MOSES MICHAEL

Bialla: Kawi J
2010: 20th July, 15th November

CRIMINAL LAW –Practice and Procedure – homicide – manslaughter sentencing guidelines set by Supreme Court in Manu Kovi's case - Prisoner was drunk at time of assault – Drunkenness an aggravating factor – Assault on deceased was not provoked – Prisoner had no prior convictions – no preplanning on the part of Prisoner – Attack by Prisoner on deceased cannot be described as an attack of a savage and a ferocious nature - case of Prisoner not belonging to the worst category of homicide cases – case falling into the first category of homicide cases.

Facts

Moses Michael of Poem Village, Yangoru, East Sepik Province pleaded guilty to one count of manslaughter brought under Section 302 of the Criminal Code. He admitted killing another person whom he assaulted on his abdomen using a piece of timber. The victim of the assault complained of experiencing severe bodily pain that same day and was rushed to the Bialla Health Center where he died. Medical Evidence showed that he had died from a ruptured spleen caused as a result of being hit with a timber.

Held:

(1) The starting point of sentence for this kind of homicide (manslaughter) cases is 8 – 12 years imprisonment.

(2) Courts should not suspend sentences in homicide cases except on very good and exceptional mitigating circumstances. Courts should however deduct the time spent in custody.

(3) Here a sentence of 12 years is appropriate. The period spent in custody is deducted.

Cases cited:

The State v Michael Langan Sapri, Unreported and unnumbered judgement of Cannings J dated 19th August 2009.
Manu Kovi v The State [2005] SC789.

Counsel:

Mr. F. Popeu and D. Kuvi, for the State
Mr. R. Awalua & P.W. Paraka, for the accused

15th November, 2010

1. KAWI J: Moses Michael of Poem Village, Yangoru, East Sepik Province pleaded guilty to one count of manslaughter pursuant to Section 302 of the Criminal Code.

2. The State alleged that on Saturday 2nd May 2009, at the Lutheran Church grounds here in Bialla at around 5:00 pm the accused who had been drinking beer took a bicycle and rode up to the nearby trade store to buy his cigarettes. While riding his bicycle, the accused ran into a pile of rubbish and fell down. The pile of rubbish was located near the gate of the house of the deceased.

3. After he fell, he got angry and began to swear around using vulgar language. He then walked into the premises of the deceased. He picked up a piece of timber and he assaulted the nephew of the deceased who was chopping firewood.

4. The deceased upon seeing his nephew being assaulted, approached the accused and tried to assault him. The accused however, turned on the deceased and struck him on his side using a piece of timber. The accused then left and the deceased was rushed to the Bialla Health Centre after he complained of severe bodily pains.

5. Two days later, the deceased died as a result of the injuries he sustained from the beating he received. The deceased died as a result of a spleen rupture which was ruptured when the accused struck him with a piece of wood.

6. The State further alleges that there was no justification or lawful excuse for the accused to assault the deceased in the way he did using a piece of wood.

7. On arraignment when the allegations and the charge were put to the accused he admitted the charge and so I entered the provisional plea of guilty, subject to me reading the court depositions.

Court Depositions

8. The Court depositions were then tendered, with the prosecutor referring the Court to Questions 11, 12, 17 and 20 as containing the necessary admissions.

9. I was also referred to the Medical Report of the deceased which confirmed the death as a result of the rupture of the spleen from the blow and also a confessional statement made by the accused. After reading all these accounts, I was quite satisfied and consequently confirmed and entered a full plea of guilty.

Conviction

10. I then proceeded on to convict the accused of manslaughter under Section 302 of the Criminal Code. The accused is now a prisoner of the State by virtue of his conviction of the manslaughter charge.

Antecedent Report

11. The State Prosecutor did not allege any prior convictions.

Your Sentence

12. The Supreme Court has set up some sentencing guidelines for homicide cases which I will refer to later for guidance.

13. But at this stage, I propose to take into account matters operating in your favour and those operating against you. Both counsels have addressed me on this in their respectful submissions. You have addressed me on some of this in your allocutus and I will take into account matters you raised in your allocutus. I also take into account the fact that you have a young family, your guilty plea and you saved the court a lot of time and expense in conducting a trial in this case. I also find that this was not a vicious attack perpetrated by some pre-planning on your part. Neither is there evidence showing a strong intention on your part to do grievous bodily harm to the deceased.

14. Against you I find that there was not even a provoked assault. You simply hit the deceased with a piece of wood and he died from that timber assault which ruptured his spleen. Another factor weighing against you is that you were quite drunk when you executed the assault upon the deceased, resulting in his death. This was simply a cowardly and an unprovoked attack by a reckless drunkard.

15. Another factor weighing against you is that unlawful killing such as the one you committed are now prevalent in our communities and the small town of Bialla is not immune from such unlawful killings. Although courts have imposed heavy penalties for such offences, the killings continue to be on the increase in our country. People are not even deterred by the kind of penalties imposed by the courts. Here you enlisted the aid of a missile, a timber to assault the deceased. This timber assault ruptured his spleen from whence he died. This is another factor operating against you.

16. The penalty for unlawful killing is life imprisonment subject of course to Section 19. It is trite law in our Jurisdiction that the maximum penalty is reserved for the cases categorized as belonging to the worst category of offences. There is nothing in your case which warrants the court to categorize your case as belonging to the worst category or to categorize you as a worst offender.

17. Following the guidelines set by the Supreme Court in the case of Manu Kovi v The State [2005] SC789, I find that your case falls in the first category which attracts a imprisonment term range of 8-12 years.

18. In submissions, learned counsel for the prosecution, Mr Popeu referred me to a number of National Court judgements decided here in Kimbe in which the court imposed higher sentences, mostly around 15 years and above in manslaughter cases. This is higher than the starting point for manslaughter cases which according to Manu Kovi is 8 to 12 years. I have considered those sentences, but I find no special aggravating factor that would warrant the court imposing a higher sentence than the starting point range of sentences for manslaughter cases.

19. One National Court decision which is helpful to me in this regard is the National Court decision in the case of The State v Michael Langan Sapri Unreported and unnumbered judgement of Cannings J dated 19th August 2009. This was a killing in a domestic setting. In that case a man pleaded guilty to killing his wife. He killed his wife by kicking her in the abdomen in the course of a domestic dispute over a betelnut.

20. Cannings J held that the starting point sentences for this sort of manslaughter cases which did not involve use of an offensive weapon is 8 to 12 years. His Honor imposed a prison sentence of 12 years. Furthermore his Honour refused to suspend part or all of the sentences.

21. In my view suspension of sentences and placing prisoners on probation is not an appropriate course of action to take and should not be considered in homicide cases where the killing involves a premature termination of precious human life. If there is to be some consideration for reduction of sentences then that should only be restricted to deducting the time spent in custody which is appropriate in this case.

The accused here must nonetheless be punished for unlawfully taking away the precious life of another person, when he was simply not the author of that life. His state of drunkenness encouraged him to unlawfully terminate the life of an innocent person prematurely with the aid of an offensive missile. Binding myself on the authorities of Manu Kovi and Michael Langan Sapri, I will impose a term of 12 years imprisonment upon you. You will serve your term of imprisonment at the Lakiemata prison here in Kimbe. The period spent in custody will of course be deducted.

_____________________________________________________________
Public Prosecutor: Lawyer for the State
Paraka Lawyers: Lawyer for the Prisoner