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State v Abaua (No.2) [2012] PGNC 364; N4657 (27 April 2012)

N4657

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.NO 1368 OF 2010

STATE

V

THOMAS ABAUA
(No.2)
Accused

Waigani: Ipang AJ
2012: 26 & 27 April

CRIMINAL LAW-Sentence- Criminal Code s.300(1)(a) murder-prior to his death-deceased admitted to the hospital and was later discharged-gave his statement to the police investigators for the alleged attempted murder however died few days later.

CRIMINAL LAW-Criminal Code Act-s.269 Defence of Self Defence-force used by accused was excessive; unreasonable, unjustified and therefore unlawful. Killing of the deceased was therefore unlawful. A sentence of 11 years imposed with light labour.

Cases Cited

Manu Koivi v The State (2005) SC 789
State v Jenny Dei Cr. No. 407 of 2010 (4260)
Antap Yala v State SCR No. 69 of 1996
Kesimo Apo v State [1988] PNGLR 182
Simon Kama v State [2004] SC740
Anna Max Marangi v State [2002] SC702
Cosmas Kutau Kitawal & Christopher Kutai v State [2010] SC 927
State v Erica Thomas Cr. No. 283 of 2007 (6 May, 2009)
State v Dominic Mangirak [2003] N2368
Trese Kombamond SC 1017 of 2008
State v Losi Kalapus (2009) N3640
State v Carol Alfred (2009) N3602
Golu Goli v The State [1979] PNGLR 11

Counsel

Mrs.L. Kuvi, for the State
Ms. R.Endemango & Mr.A. Ninkama, for the Accused

27 April, 2012

1.IPANG AJ: The prisoner pleaded not guilty to one count of murder under s.300 (1) (a) of the Criminal Code Act. A trial was conducted and at the conclusion of the trial, the prisoner was found not guilty of murder but guilty to one count of Manslaughter under s. 302 of the Criminal Code Act and this is the decision on his sentence.

Brief facts

2. The brief facts of the case as I found are these; between the 10th and 11th of July, 2009 between the hours of 11.00pm and 1.00am at Nine mile settlement, the deceased went to the prisoner's house and confronted him about the insulting words that the accused used against his wife, who was the accused niece. The deceased had a commotion with the prisoner in which the deceased inflicted injury to the prisoner. The prisoner then armed himself with an iron pipe and hit the deceased on his head. The deceased collapsed and was rushed to the Port Moresby General Hospital. He was admitted, treated for his injuries and was later discharged.

3. On the 20th December, 2009, the deceased collapsed and was rushed to the Port Moresby General Hospital but he was pronounced dead upon arrival. The medical report states that the cause of the death is a brain infection as a result of brain abscess and fractured bone on his head.

The Antecedent

4. The antecedent report for the prisoner revealed that the prisoner has no prior conviction.

Allocutus

5. I want to thank and apologize to my lawyer for representing me. I am sorry for the deceased, who came and fought with me. He is my brother in-law. He later died. I worked with Police Department as a cook for 37 years. I have not caused this kind of trouble before. I have six children and 11 grand children to look after. No one will look after them if I go to jail. My wife died while I was in custody.

6. Due to this trouble, my two houses got burnt down. My two pigs and chickens were taken away. My cash money of K7000 was also taken or stolen. I am currently living in a workshop house. When I was released out on bail, I tried to pay compensation but Lucy refused.

7. The prisoner was found guilty of Manslaughter pursuant to s.302 of the Criminal Code Act after the trial. The s.302of the Criminal Code Act is worded in the following terms;

"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."

Legal Issues

8. The issue to be determined in this matter is;

What would be the appropriate starting head sentence?

Defence Submission

9. Defence counsel submitted that the prisoner is 56 years old now. He is from Fane village in the Woitape District of the Central Province. He is married and has 6 children and has 11 grand children. He is employed as a Cook with the Police Department at Bomana. His wife died when he was remanded at the Police Cell. He has obligation to look after his 6 children and 11 grand children. He has no prior conviction.

10. Mr. Ninkama of counsel for the prisoner submitted that the penalty under s.302 is subject to s.19 of the Criminal Code, Life imprisonment. So, he submitted that the maximum penalty is life imprisonment. However, he said it is a trite law that the maximum penalty is always reserve for worst types of cases (See Golu Goli v The State [1979] PNGLR 11). Mr. Ninkama said all the prisoner needs to do is to demonstrate to this court that his case warrants a lesser sentence. Counsel therefore submitted that the circumstances of his client's case or the present case does not fall under the worst type of category and therefore, this court has a sentencing discretion.

11. Counsel submitted that in order to decide on the appropriate sentence for the prisoner, I should direct myself to the case of Simon Kama v The State [2004] SC 740 which is another Supreme Court case sentencing guidelines for manslaughter cases a part from the case of Manu Koivi v State (2005) SC 789. Counsel said in Manu Koivi's case category 2 (13-16 years) would be appropriate however, he submitted that category 1 would be most appropriate. The category 1 under Manu Koivi case attract sentencing ranges from 8-12 years where there was no weapon used, killing in domestic settings, minimal force used, victim had pre-existing disense that caused or accelerated his death and where it is a plea case with more mitigating factors present and no aggravating factors. Counsel also referred to the case of Trese Kombamond SC 1017 of 2008 and said this court should follow the approach in applying the sentencing discretion.

12. The following were the mitigating factors, counsel said for the prisoner. He said there was a de-facto provocation in a non legal sense in that it was the deceased who set out to the prisoner's house, deceased was the initial aggressor, weapon was used in that the deceased was armed, prisoner was advanced in his age in that he is now 56 years old, he is a first time offender and is a member of Catholic Church. The following are the extenuating circumstances submitted for the prisoner. This was one of incident, deceased sustained one of injury, death was not instantaneous, the aggressor was the victim as he was drunk and went to the prisoner's house, prisoner initially was not armed with a weapon, there was no strong intention to cause harm or grevious bodily harm, though the action was lawful the force was excessive. The following were the aggravating factors as submitted by defence counsel. Death has occurred and the injury was fatal.

13. Counsel said comparing the mitigating and the extenuating factors together would see that they outweigh the aggravating factors. Therefore, counsel submitted that this court should consider a sentence range on the bottom scale of the manslaughter cases. In having said that, the counsel referred to the following cases; the case of State v Jenny Dei CR. N0. 407 of 2010 (N4260), in which the prisoner was found guilty of manslaughter. In that case, the prisoner killed her husband by stabbing him in the neck during a domestic dispute. Cannings J imposed a sentence of 9 years imprisonment. The sentence of 9 years was imposed after the court found that there were strong mitigating factors to warrant a sentence below the starting point.

14. In State v Losi Kalapus (2009) N3640, it was a plea case in a domestic setting where the court imposed a sentence of 10 years without suspending any part of it. In State v Carol Alfred (2009) N3602, it was again a plea matter on accidental stabbing in which the victim provoked the attack. A sentence under category 1 of Manu Koivi's case was imposed.

15. Counsel submitted that the appropriate case to follow is Jenny Dei's case where a sentence of 9 years was imposed. However, the counsel submitted that a sentence less than 9 years and within the range of 6 to 8 years be imposed. From this a part custodial and non custodial sentence should be imposed. The court should then minus a period of 1 year, 7 months, 1week and 4 days that the prisoner spent in custody.

State Submission

16. Mrs. Kuvi of counsel for the State presented a written submission. She basically took this court through the sentencing ranges under the Manu Koivi case and referred to number of comparable cases or verdicts. The first was the case of Anna Max Marangi v The State [2002] SC 702. The relevant facts to this case were that the appellant went to see her husband but instead saw the deceased whom she suspected to have affairs with her husband. The appellant upon seeing the deceased took out her kitchen knife and stabbed twice in the chest and left the house. The deceased who was then 7 months pregnant died upon arrival at the hospital. At the National Court, the appellant pleaded guilty and was sentenced. She appealed against the sentence of 9 years but the Supreme Court dismissed her appeal and confirmed the sentence of 9 years.

17. In Cosmas Kutau and Christopher Kutau v The State [2010] SC927 a sentence of 40 years imposed by the National Court was substitute with 14 years by the Supreme Court Bench comprising Jalina, Mogish and Cannings JJ. The Supreme Court acquitted Cosmas due lack of evidence and found Christopher guilty of manslaughter. In State v Dominic Mangirak [2003] N2368 it was a case in which prisoner was in his house and deceased with some of his relatives went to him to solve some differences. However, argument erupted and fight broke out. During the fight, the prisoner's father who was armed with a spear fought with the deceased elder brother, August. Deceased went to the aid of his elder brother and fought with one of prisoner's brother, Gering. The prisoner who was armed that time speared August on his left chest below his arm pit. The deceased and August ran away from the fighting scene back to their house. Before they could reach their house, the deceased collapsed and died due to loss of blood. The prisoner pleaded guilty and a sentence of 12 years was imposed.

18. In the case of State v Erica Thomas CR. N0. 283 of 2007 (6 May, 2009), the prisoner was charged for murder under s.300(1) (a) of the Criminal Code Act. She raised the defence of self defence during the trial however, the court that the force she used was excessive and found her guilty of manslaughter as a result of provocation. She was sentenced to 12 years imprisonment with light labour.

19. Mrs. Kuvi submitted that this court should follow the sentencing range given in Erica Thomas case and imposed a sentence between 10 to 16 years. While Mr. Ninkama had earlier submitted that sentence range between 6 to 8 years be considered with part custodial and non custodial sentence be imposed. That would be outside of sentencing in Manu Koivi case. As in regard to part custodial and non custodial sentence, counsel referred to without proper reference to the case of State v Lohia Ray in which Yagi, J imposed a sentence of 18 years and then suspended 7 years. However, the 7 years were suspended due to 3 years prisoner spent in custody and the other 4 years for waiting for the sentence whilst on bail.

What then would be the appropriate starting head sentence for the prisoner Thomas Abaua?

20. I have remind myself of the remarks made by His Honour Los, J (as he then was) in Kesimo Apo v The State [1988] PNGLR 182 and I quote; "as a rule...a custodial sentence is a starting point for fundamental reason that all human live must be protected." Few years down the line in Manu Koivi case the Supreme Court made these remarks:

"We begin with the basic principle that sanctity and value of human life is far more precious and valuable than anything else and no amount of remorse or compensation will restore life lost. The unlawful taking of another person's life is a serious and horrendous crime which must be adequately punished. The courts have re-iterated this basic and fundamental principle in many cases."

21. The general sentencing trend in manslaughter cases have increased over the years since the Kesimo Apo case (supra) from 2 years to 9 years and in Jack Tanga v The State (1999) SC 602 increased to 12 years. We see this in Manu Koivi case further increase and the subsequent decisions by National Courts following the sentencing guidelines in Manu Koivi case.

22. In Antap Yala v State SCR No. 69 of 1996 I am reminded that the sentence for each case must be determined upon its own peculiar set of facts. Also suggested in Antap Yala case that in an unintentional killing case which is uncontested, whatever the extenuating or mitigating factors may be, the application of vicious force, with or without use of a weapon causing serious bodily injury resulting in death, may attract sentence between 10 years and above. In some cases even life imprisonment.

23. Having considered the submission by parties, the mitigating, extenuating and the aggravating factors, the prisoner's antecedent, the allocutus and the circumstances leading towards the deceased death I am of the view that the appropriate sentence would be within the range of 10 to 13 years. I consider a custodial sentence of 11 years would be appropriate for you. I therefore sentence you to 11 years minus the pre-trial period spent in custody which is 1 year, 7 months, 1 week and 4 days. You will serve the balance of 9 years, 2 months, 3 weeks and 17 days with light labour at the Bomana Corrective Institution.
_________________________________________________________
Public Prosecutor: Lawyer for the State
Paraka Lawyers: Lawyer for the Prisoner