State v Mogoi [2012] PGNC 78; N4680 (17 May 2012)

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CRIMINAL LAW – sentencing – manslaughter, Criminal Code, Section 302 –guilty plea – offender chased and stabbed a man who had earlier the same day, in company of others, assaulted him – sentence of 13 years.

The offender pleaded guilty to the manslaughter of another young man who he killed by stabbing him with a kitchen knife, at a market, where earlier the same day the deceased had in the company of others assaulted and wounded him with an iron rod. This is the judgment on sentence.

Manu Kovi v The State (2005) SC789
Saperus Yalibakut v The State (2006) SC890
The State v Isaac Ulul CR No 203 of 2007, 16.10.07
The State v Kila Peter (2006) N3018
The State v Regina Jako (2010) N4110
The State v Rex Damun (2011) N4295
The State v Vincent Matana Laore and 3 Others CR No 915 of 2005, 24.04.08
Thress Kumbamong v The State (2008) SC1017

1. CANNINGS J: This is a decision on sentence for a young man, Jimmy Mogoi, who has pleaded guilty to unlawfully killing another young man, George Mack, by stabbing him. The incident happened at Mildas Market, Yomba, Madang town at 1.00 pm on 11 June 2011. The offender was angry with the deceased as earlier the same day at the market the deceased and three of his friends had assaulted him with an iron rod, inflicting superficial wounds on various parts of his body. A few hours later the deceased and his friends returned to the market. The offender was there armed with a kitchen knife. He spotted the deceased, chased him and when the deceased slipped and fell, caught up to him and stabbed him in the chest, only once or twice but the wounds were deep and the deceased died almost instantly from loss of blood. The offender is now being sentenced for one count of manslaughter under Section 302 of the Criminal Code.

2. The offender has a prior conviction: he was convicted of attempted murder in 2001 and sentenced to eight years imprisonment.

I apologise to the deceased and his family for what I did. I apologise to God and to the Court for what happened.

4. As the offender has pleaded guilty he will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State (2006) SC890). In that regard, I will take into account that he was provoked, in the non-legal sense, to chase the deceased by what the deceased and his friends had done to him earlier in the day; and that the offender surrendered to the police straight after stabbing the deceased and that he made early admissions to and fully cooperated with the police.

5. Jimmy Mogoi is from Pihir village in the Bogia District of Madang Province. He is 30 years old and single. His parents died about 12 years ago and soon after that he moved to Wagol in Madang town to live with relatives. He is the 6th born in a family of seven children. His relationship with his siblings is strong. He has no formal education. He has had some intermittent casual work with Madang Urban Local-level Government. His health is basically sound but he is concerned about the poor diet he has endured while on remand at Beon Jail. He feels that it was the deceased who caused his own downfall. Despite that the community at Wagol and his relatives had rallied around him and raised K4,000.00 cash which was given to the deceased's relatives as bel kol. A compensation demand of K10,000.00 was made so there is still K6,000.00 to be paid. He is considered suitable for probation.

6. Mr Joseph contended that the striking feature of this case is the strong element of de facto provocation. The deceased was responsible for the chain of events that led to his death by joining with his friends earlier in the day in assaulting the offender. If the guidelines given by the Supreme Court in the case of Manu Kovi v The State (2005) SC789 (Injia DCJ, Lenalia J, Lay J) are to be applied this would, because of the use of the knife, be a category 2 case and the starting point would be in the range of 13 to 16 years. However, the court should also take account of the more recent Supreme Court decision in Thress Kumbamong v The State (2008) SC1017, in which the Supreme Court (Salika J, Kandakasi J, Yagi J) cautioned against too strict adherence to sentencing guidelines as each case must be determined on its merits, having regard to the circumstances of the offence and the personal characteristics of the offender. The mitigating factors here are particularly strong and the court should have no hesitation in sentencing below the 13 to 16 year range suggested in Kovi. Mr Joseph referred to several of my decisions where the cases were dealt with as category 2 under the Kovi guidelines but the sentences were less than 13 years: The State v Kila Peter (2006) N3018: 12 years; The State v Isaac Ulul CR No 203 of 2007, 16.10.07: 10 years and The State v Regina Jako (2010) N4110: 12 years. He submitted that the sentence should be no more than ten years, because of the strength of the mitigating factors.

7. Mr Tamate agreed that the case fell within the second category of the Manu Kovi guidelines as the offender had inflicted death by a lethal weapon and stabbed the deceased viciously. Though it was conceivable that there will be category 2 cases that will attract a sentence below the starting point range of 13 to 16 years, this was not such a case because of the prior conviction for the very serious offence of attempted murder.

8. vTo determine the appropriate penalty I will adopt the following decision making process:

9. The maximum penalty for manslaughter under Section 302 of the Criminal Code is life imprisonment. The National Court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code.

10. In Manu Kovi v The State (2005) SC789 the Supreme Court suggested that manslaughter convictions could be put in four categories of increasing seriousness, as shown in table 1.

TABLE 1: SENTENCING GUIDELINES FOR MANSLAUGHTER DERIVED FROM THE SUPREME COURT'S DECISION IN MANU KOVI'S CASE

No	Description	Details	Tariff
1	Plea – ordinary cases – mitigating factors – no aggravating factors.	No weapons used – offender emotionally under stress – de facto provocation – killing in domestic setting – killing follows straight after argument – minimal force used – victim had pre-existing disease that caused or accelerated death, eg enlarged spleen cases.	8-12 years
2	Trial or plea – mitigating factors with aggravating factors.	Use of offensive weapon, eg knife, on vulnerable parts of body – vicious attack – multiple injuries – some deliberate intention to harm – some pre-planning.	13-16 years
3	Trial or plea – special aggravating factors – mitigating factors reduced in weight or rendered insignificant by gravity of offence.	Dangerous or offensive weapon used, eg gun, axe – vicious and planned attack – deliberate intention to harm – little or no regard for sanctity of human life.	17-25 years
4	Worst case – trial or plea – special aggravating factors – no extenuating circumstances – no mitigating factors, or mitigating factors rendered completely insignificant by gravity of offence.	Some element of viciousness and brutality – some pre-planning and pre-meditation – killing of harmless, innocent person – complete disregard for human life.	Life imprisonment

11. I agree with both counsel that the manner in which death was inflicted – stabbing with a kitchen knife – prevent the case falling within the least serious category. There are both mitigating and aggravating factors and death was caused by an offensive weapon, so it falls within category No 2.

12. I have no difficulty with Mr Joseph's submission that the sentence might be below the suggested range in Kovi. It might also be above it. As Mr Joseph pointed out I have in a number of cases sentenced outside the range suggested in Kovi. This does not offend against the guidelines given in Kovi. The Supreme Court in Kumbamong seemed to say that guidelines such as those in Kovi restrict the sentencing judge's discretion, but that is not how I view it. Sentencing guidelines are just that: guidelines, general indications of starting points, guideposts for a sentencing judge. They are not to be slavishly applied without regard to the peculiar circumstances of the case. I invite learned counsel to show me a case in which I have been a slave to the guidelines. I do not think I have ever assumed that role. In any event I do not intend to do so here. The starting point is therefore 13 to 16 years. What the end point is depends on a comparison of this case with other cases, a weighing of the mitigating and aggravating features of the case and the peculiar circumstances of this case.

13. There are several aspects of this case that make it similar to a recent Madang case I dealt with, The State v Rex Damun (2011) N4295. The offender was told by his wife that the deceased had attempted to rape her, so the offender armed himself with a bushknife and went after the deceased, found him and confronted him. The deceased argued with the offender and tried to fight him, but the offender cut him severely several times with the bushknife, inflicting multiple wounds from which he died. The offender pleaded guilty to manslaughter. There were a number of mitigating factors: a high degree of de facto provocation, the victim was armed, the offender surrendered to the police, he cooperated with police, compensation was paid, he pleaded guilty, he expressed some remorse, he was a first-time offender, he was a young offender, with a good community record. Aggravating factors were the use of a lethal weapon and that the offender took the law into his own hands. The case was dealt with as category 2 under the Kovi guidelines but because of the strong mitigating factors, especially the high degree of de facto provocation, a sentence below the starting point range was imposed: ten years imprisonment was imposed.

14. I refer to the list of sentencing considerations set out in The State v Vincent Matana Laore and 3 Others CR No 915 of 2005, 24.04.08, and note the similarities between the present case and that of Rex Damun.

17. In weighing all these factors I place great weight on the substantial provocation and the guilty plea and the fact that the offender co-operated with the police. I reject the defence counsel's submission that a sentence as lower than ten years is warranted. That sort of sentence should be reserved for a case where an offender has inflicted a single sharp blow with a part of the body, such as a fist. I agree with the prosecutor's submission that the prior conviction for a very serious crime counts heavily against the offender. I consider that a sentence higher than that in Damun is warranted, but because of the mitigating factors it should remain at the bottom of the starting point range. I impose a head sentence of 13 years imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

18. Yes. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the head sentence, the whole of the pre-sentence period in custody, which is 11 months, one week, three days.

19. The pre-sentence report is not entirely unfavourable, but it is clear that the compensation requests of the deceased's relatives have not been fully met. And it can only be presumed, in the absence of evidence to the contrary, that the deceased's relatives would not be in favour of a suspended sentence. Another factor that convinces me that even a partial suspension is not appropriate is the prior conviction for attempted murder. None of the sentence will be suspended.

20. Jimmy Mogoi, having been convicted of one count of manslaughter under Section 302 of the Criminal Code, is sentenced as follows:

Length of sentence imposed	13 years
Pre-sentence period to be deducted	11 months, 1 week, 3 days
Resultant length of sentence to be served	12 years, 2 weeks, 4 days
Amount of sentence suspended	Nil
Time to be served in custody	12 years, 2 weeks, 4 days
Place of custody	Beon Correctional Institution

_________________________
Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyers for the Offender

National Court of Papua New Guinea

State v Mogoi [2012] PGNC 78; N4680 (17 May 2012)