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State v Dai [2011] PGNC 268; N5268 (30 March 2011)

N5268

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 96 of 2009

THE STATE

V

RABUNI MOGUI DAI

Lae: Batari, J
2010: 23, 24 September
2011 : 30 March

CRIMINAL LAW– Sentence – Manslaughter – Accused threw firewood at sister and struck (now deceased) infant on head – Manslaughter by negligence - Plea – Value of – Early plea – Belated plea – Sentencing principles applied - Sentence of 3 years appropriate.

Facts

The prisoner’s brother and elder sister harvested and sold his betel nut without his knowledge causing a family argument. The prisoner’s elder sister made some offensive remarks against the prisoner while she was sitting in the house. The prisoner hurled a piece of firewood at his sister which missed her but struck a 12 month old infant, sitting next to her, fracturing it’s skull, from which the baby died next day.

Held

1. The value of a guilty plea should be reflected in the final sentence, as a reward, and as an incentive to plead guilty, at [8];
2. The value to be given to a guilty plea must depend on a number of factors namely, but not exhaustive to:

1. seriousness of the offence;
2. circumstances of aggravation;

100. factors in mitigation;

4. young age or old age of offender;
5. how soon it is taken after committal.

at, [11];

3. Value may still be given to a late plea if the delay is caused by infrequent sittings of the National Court, lack of opportunity to seek legal advice, change of representation or the result of plea-bargaining, at [12 – 13];

4. A sentence of less than 7 years may be justified in exceptional circumstances where there are special mitigating factors, at [29];

5. Prisoner sentenced to 3 years imprisonment, less time spent in custody, the balance of 9 months suspended to be served on a 12 month good behaviour bond.

Cases Cited:
Papua New Guinea Cases

Acting Public Prosecutor v. John Airi SC 214,
Anna Max Marangi v The State ( SC 702.
Antap Yala v The State (SCR 69/96)
Jack Tanga v The State [1999] SC602
Manu Kovi v The State (2005) SC789
R. v. Tsarangaon Kagobo [1965-66] PNGLR 123
Rex Lialu v The State [1990] PNGLR 487
The State v Bluey Hanua (1997) N1625
The State v Win Thomas (un-numbered National Court Judgment) CR No. 837 of 1994
The State v. Mathew Marut [1979] PNGLR 1814

Overseas Cases Cited
R. v. Pickett (1986) 2 QR 441
R. v Phillips [1985] 7 CR App R (S) 235.

Counsel

J. Done, for the State
W. Dogura, for the Accused

SENTENCE

30 March, 2011

1. BATARI J: The prisoner is presented before the Court on an unlawful killing conviction. He threw a piece of wood at his sister and the missile struck an infant sitting nearby. The impact resulted in head injuries and death of the child. This is the decision on sentence.
   

BACKGROUND

2. This killing led from a family dispute over betel nut. On 11June, 2008 at Asini village, Salamaua, Morobe Province, the prisoner’s brother Mudaha Dei and elder sister Ela Dei harvested his betel nuts and sold them without his knowledge. Angered by his siblings act, the prisoner tried to chop down the betel nut tree but was stopped by others. His offending sister Ela scolded him, telling him off as a small boy “i nogat nem” (with no name). She was then sitting inside the house with the infant victim beside her. Incensed by his sister’s remarks, the prisoner hurled a piece of fire-wood at his sister. The missile struck the 12 month old baby on the head. The child died the next day.
   
3. A Post Mortem Report compiled by a Dr. Jack Marcus of Angau Memorial General Hospital attributed the cause of death to traumatic head injury being, fractured left frontal skull. The injury was due to an object (firewood) striking the infant on the forehead just above the left eye-brow.
   

Prisoner’s Background & Circumstances

4. The prisoner’s background is well detailed in the CBC Reports. I refer to them. He is aged 29 years, married with 2 children and lived a normal village life supporting his family from subsistence farming. The family also derived income from sale of betel nuts and possibly other garden produce. He has no prior conviction and was well liked in the community.
   
5. Ward Councillor Pontikus Tom speaking on behalf of the community, described the prisoner as a good married man whose conduct was unlike him. He asserted, that fellow-villagers viewed the child’s death as unintended most unfortunate and that they do not considered the prisoner a threat to the community. Tontikus suggested a lenient sentence with early release on conditions will be appropriate and that community leaders are willing to facilitate the offender’s customary redress of the infant’s death upon release.
   
6. The good background character of the prisoner also has support from his behaviour following the commission of the offence. He surrendered to the police and consistent with that, he made early admissions in the record of interview. His guilty plea in open court adds value to the consistency of his conduct. When the prisoner expressed remorse in his allocutus, I accepted his penitence to be genuine as it is consistent with his other stated attributes.
   

Guilty Plea –Essence of in Mitigation

7. Ms. Dogura, of counsel for the prisoner submitted that the plea of guilty ought to weigh heavily in the prisoner’s favour because of the savings of time and costs to the State in conducting a trial to prove his guilt. This incident happened in the full view of others at the scene and had he contested his innocence the Court and the State would have been put to unnecessary costs and time wastage and hence, he would not have been entitled to favourable treatment open to the court on a plea of guilty.
   
8. I agree that, upon conviction following a guilty plea, the offender is entitled to some discount on sentence. The value of that course should be reflected in the final sentence imposed so that it is appreciated as a reward and serves as an incentive in itself to plead guilty. Emphasising the plea factor on sentence will also allay the growing notion that, a reference to taking into account a plea of guilty is mere verbiage by the court.
   
9. The guilty plea must however be genuine and made at the earliest possible opportunity. In The State v Win Picinon Thomas (un-numbered National Court Judgment) CR No. 837 of 1994 Los J considered that:
   

"... an honest plea of guilty must be taken into account in an apparent fashion so that the prisoner must know that his guilty plea has been well appreciated and take into account by the Courts. This would also encourage other people who genuinely want to plead guilty must do so knowing that it will help them in their punishment."

10. The National Court in The State v Bluey Hanua (1997) N1625 expressed a similar view that, with the increasing complexity and costly criminal trials at public expenses, guilty persons when charged with offences be encouraged to enter honest pleas of guilty at the earliest possible time. (See R. v. Pickett (1986) 2 QR 441). The incentive must of course come from what is apparent on the final sentence of the Court.
    
11. The value to be given to a guilty plea must however depend on a number of factors namely, but not exhaustive to:
    
    1. seriousness of the offence;
    2. circumstances of aggravation;
    3. factors in mitigation;
    4. young age or old age of offender;
    5. how soon it is taken after committal.
       
12. The essence of an early plea is the opportunity the offender would have missed in having to serve the penalty early. A plea at the earliest opportunity also adds to consistency of the offender’s mitigating behaviour and penitence since the commission of the offence.
    
13. This is not to say that belated plea deserves little or no discount or value. A delayed plea may be due to variety of reasons including, infrequent sittings of the National Court, lack of opportunity access to legal service, change of lawyers or time constraint on the part of the court or as a result of plea bargaining.
    
14. Where a case is protracted in a calculated attempt to test the State’s case despite overwhelming evidence, the weight to be given to a belated plea in my view, diminishes. Similarly, a plea of guilty to serious crimes of unlawful killings and other crimes of violence committed in circumstances of aggravation will have little or no weight where special or exceptional factors like old age or very young age or ill health are absent.
    
15. In this case, the timing of the plea is not crucial. The offender has taken a reasonably early guilty plea. His plea is also supported by other factors I have set out. Hence the guilty plea factor deserves credit on sentence.
    

Provocation as a Mitigating Factor

16. The prisoner reacted angrily when told off by his sister in the presence of others. He was publicly humiliated. He threw the firewood at his sister intending to cause her bodily harm. I think a reasonable villager in his situation would react the same way. Hence, I accept that the prisoner was provoked in the non-legal sense.
    
17. The wood struck his intended victim and also the child whose presence would have been known to him and that he would have foreseen the likelihood of that occurrence. That prospect is also reasonably foreseeable by an ordinary person being aware of the presence of the child.
    
18. Even so, this case falls into the category of accidental killing for the purpose of sentencing. Together with the provocative nature of the prisoner’s action, there is support for his plea, his good background, his cooperation with the police and expression of remorse.
    

Principles applicable on Manslaughter Sentencing

19. Manslaughter killing carries a maximum of life imprisonment. That term is not mandatory by virtue of the sentencing discretionary power vested in the Courts under s.19 of the Code. Section 19 sets out different sentencing options the court can use in the particular circumstances of a case. The Court is also guided by settled sentencing principles, usually from precedent cases on similar type offence.
    
20. The Supreme Court in Rex Lialu v The State [1990] PNGLR 487 initially enunciated guidelines to be followed for different categories of manslaughter killings. The range of sentences prescribed in that case has been revisited by the Supreme Court in a number of cases since due to escalating homicide cases, sometimes committed in the most horrific and repulsive circumstances. See, Jack Tanga v The State [1999] SC602, Antap Yala v The State (SCR 69/96), Anna Max Marangi v The State SC 702.
    
21. It is also now well settled that, a sentencing range for manslaughter will normally be lower than the range for murder and wilful murder. Accepting that the maximum penalty for manslaughter is life imprisonment, there will be cases which will warrant imposition of higher penalty including life imprisonment. In Marangi v The State (supra) the Supreme Court proposed sentencing guidelines for three types of manslaughter killings as follows:
    

“The first consists of cases in which force is used accidentally or in any uncalculated manner, such as a single blow, punches or kicks on any part of the deceased body. This also includes cases in which death is caused 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 an 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 direct 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.”

22. In Manu Kovi v The State (2005) SC789 the Supreme Court used the four categories in Anna Max Marangi’s case as a guide to recommend that:
    

“1. In an uncontested case, with ordinary mitigating factors and no aggravating factors, a starting point of 7 years up to 12 years. A sentence below 7 years should be rarely imposed except in exceptional cases where there are special mitigating factors.

2. In a contested or uncontested case, with mitigating factors and aggravating factors, a starting point of 13 - 16 years.

3. In a contested or uncontested case, with special aggravating factors and mitigating factors whose weight is reduced or rendered insignificant by the gravity of the offence, 17 - 25 years.

4. In contested and uncontested case with special aggravating factors - Life imprisonment for the worst cases. The presence of mitigating factors is rendered insignificant by the gravity of the offence. These are cases which involve viciousness, some pre-planning, use of a weapon and complete disregard for human life”.

23. The case of Manu Kovi v The State does not necessarily do away with the sentencing guide in Anna Max Maragi v The State. The sentencing principles in that case remain good law though; the suggested range in Manu Kovi is the preferred approach to be adopted as it is more recent.
    
24. In all cases, the sentence the court will impose must be determined by the circumstances of death or the nature of the killing and the way in which death was actually caused in each case: R. v Phillips [1985] 7 CR App R (S) 235. For a brutal and deliberate killing, a higher term of imprisonment is justified and in the worst case, life imprisonment (or death penalty for wilful murder). A killing that did not result from deliberation, planning, cruelty, but had an element of incidental, accident, stupidity or negligence will attract a lower term of imprisonment.
    

Precedent Sentencing in Category of this Killing

25. This killing falls into the category of negligence killing. The prisoner threw the wood with the intention of causing bodily harm and pain to his sister. He did not intentionally strike the infant, nor did his will and intent extent to any injury, harm or risk to the infant or for that matter intended that his action should result in the death of the infant. The throwing of the stick was in fact in direct response to provocative action of his sister in telling him off in the presence of others. In my view, to humiliate a man in front of others is a demeaning act such as to deprive an ordinary villager of the prisoner’s area of self-control to retaliate as the prisoner did.
    
26. I refer to some comparable sentences that favoured the lower end of the sentencing scale for this type of killing. In R. v. Tsarangaon Kagobo [1965-66] PNGLR 123 the accused threw a stick at his wife intending to hurt her, instead the stick hit and killed their one month old child. Mann CJ, following a trial convicted the accused and placed him on a good behaviour bond to come up for sentence if called upon. That case had similar facts to this case.
    
27. In The State v. Mathew Marut [1979] PNGLR 1814 the accused threw an empty coffee jar at his wife intending to hurt her. The bottle missed her and hit their 5 month old son killing him. Greville Smith J, sentenced the prisoner to the rising of the Court after he had spent a month in custody and paid compensation to his wife’s family.
    
28. In Acting Public Prosecutor v. John Airi SC 214, the respondent threw a stone at a passing PMV and struck a 5 year old boy on the neck lacerating the boy’s jugular vein and caused his death. The 15 year old respondent pleaded guilty and was sentenced to 2 years imprisonment. On appeal, the Supreme Court found the respondent guilty of manslaughter by negligence. The Court dismissed the appeal and affirmed the two year sentence.
    
29. I consider that this kind of offence, manslaughter killing by the criminal negligent act of throwing a missile at another person deserves a firm gaol sentence. I consider also that other factors co-exist in mitigating the seriousness of the prisoner’s offence. This is his first offence. It falls into the first category of Marangi v The State (supra) where the range of 3 to 7 years is prescribed. In Manu Kovi v The State, the suggested sentence range is 7 to 12 years. I am also mindful that, a sentence below 7 years may be justified in exceptional cases where there are special mitigating factors.
    
30. There is no question that the prisoner must be punished with a term of imprisonment calculated to sufficiently serve both the deterrent and retributive aspects of sentencing. He has asked for suspended sentence or probation. I have considered that request and have reached the conclusion on the strength of the pre-sentence reports, that the prisoner is entitled to either of those sentencing options. In all the circumstances, a sentence of 3 years is appropriate.
    
31. The prisoner is sentenced to 3 years imprisonment with hard labour. The sentence is reduced by 2 years 3 months, being the time spent in custody. The balance of 9 months is suspended to be served on a 12 months good behaviour bond.
    

_______________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused