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State v Maiani [2021] PGNC 167; N8984 (25 June 2021)

N8984

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 755 OF 2020

THE STATE

v

OVIA MAIANI

Waigani: Salika CJ
2021: 20^th May & 25^th June

CRIMINAL LAW – Practice and Procedure-Charge of Manslaughter- What is the appropriate sentence? – S302 of Criminal Code Act.

Cases Cited:

Rex Lialu v The State (1990) PNGLR 487
Manu Kovi v The State (2005) SC 789

Counsel:

Mr A Kaipu, for the State.
Mr M B Sumbuk, for the Prisoner

SENTENCE

25^th June, 2021

1. SALIKA CJ: INTRODUCTION: The prisoner pleaded guilty to one count of manslaughter. The charge reads that Ovia Maiani of Ukaukana village, Kairuku District of Central Province on 18 May 2019 at Mava village, also in the Kairuku District, Central Province, unlawfully killed Ka’are Arano.
   
2. The facts to which the prisoner pleaded guilty to are that on 18 May 2019, the deceased and his friends had a few alcoholic drinks together at his village, Koupuana, before they caught a bus to Mava village Junction. They continued drinking there before walking to Mava village between 6pm and 7pm in the evening.
   
3. Around the same time, the prisoner was standing and drinking alcohol with Leo Kere inside Mava village. Not long after, A’O Ka’are who had been drinking with the deceased, Ka’are Arano earlier met them and they were drinking together. Whilst drinking, Ovia Maiani left them and went into the village and met Kere Ovana.
   

The Law

4. The maximum penalty for unlawful killing is life imprisonment but the Court has a discretion to impose a lesser term of imprisonment than the maximum prescribed.
   
5. Section 302 of the Criminal Code Act says that a person who unlawfully kills another not constituting wilful murder, murder or infanticide is guilty of manslaughter, and the penalty is life imprisonment, subject to s. 19 of the Criminal Code Act. Under s. 19, the Court has a wide discretion to impose a lesser penalty than the maximum prescribed.
   
6. In Rex Lialu v The State (1990) PNGLR 487, the Supreme Court held, among other things, that in sentencing an offender for manslaughter, the Court must pay careful regard to the circumstances of death and the way death was in fact caused. Those factors included:
   
   • The nature and frequency of the attacks or assault.
   • Whether the injury causing death was a direct result of falling on any object.
   • Whether the injury was caused by the accused or a weapon.
   • Whether there was a deliberate intention to cause the injury.
   • Whether there was provocation in the non legal sense.
   • Whether the deceased had a thin skull or an enlarged spleen.
     
7. The case precedent authority of Manu Kovi v The State (2005) SC 789 is another source of guide to help judges in determining an appropriate sentence. This case would fall into the second category in my respectful opinion which attracts a sentence of 13 to 16 years. The prisoner used a kitchen knife to stab the deceased.
   
8. The deceased was a married man who had gone to see a married woman from the village of Mava. The prisoner is related to the husband of the married woman. The deceased was accompanied by his friend Ure Onu. As the deceased and Ure Onu were walking past the house of Mea Kere, they were spotted by Ovia Maiani and Kere Ovana who were standing some distance away amongst some betel nut trees.
   
9. The prisoner then flashed a torch on the deceased and ran towards the deceased saying “it is you”. This person only, is it? He then used a tramontina bush knife to cut the deceased multiple times on his left hand, head and lower back. Ure Onu ran away when he saw his friend had been attacked with a bush knife by Ovia Maiani.
   
10. The deceased died as a result of the severe multiple injuries to his body, especially to his fractured skull which exposed his brain.
    
11. Therefore, the State says that when the accused, Ovia Maiani, cut the deceased on his back, head and left hand, he unlawfully killed the deceased. Thus, his actions contravened Section 302 of the Criminal Code.
    

Issue

12. The prisoner pleaded guilty to the charge. The only issue is the appropriate penalty to impose on him.
    

Personal Particulars

13. The prisoner is 27 years old, male, and is from Ukaukana village in Gabadi area of the Central Province. He is fourth born from a family of seven siblings and his parents are still living. He completed Grade 7 education at Avabadina Primary School in 2010 in his area and did not continue due to school fee problems. He was unemployed but is a subsistence farmer and sells vegetables and fruits at the markets to earn money. He maintains his family and his parents through his gardening and vegetable sales. He is in good health.
    
14. The deceased father was interviewed by the probation officer about the death of his son and his view was sought and he said his son’s life was taken away from him and cannot be replaced. He said his son left 6 children which he now had to raise for his son. He did not want any form of compensation but that the prisoner be made to serve time in custody.
    
15. The deceased’s fifteen year old son was also interviewed and his views sought. His views are similar to his grandfather’s views.
    

Circumstances of Offence

16. The probation officer’s report indicates that the deceased and the prisoner’s cousin brother’s wife were having extra marital affairs. The first incident was reported at the Doa Police Station in 2018. The deceased was given a warning not to continue to see the woman. On that night, the prisoner assaulted the deceased who said in pidgin, “mi paulim meri blong yupela na bai yu mekim wanem”. Those words spoken in pidgin can be provocative and in this case were provocative in the non legal sense. That prompted the prisoner to do what he did.
    
17. Whilst I do not condone what the prisoner did, life situations in a village or rural settings are different to town or urban settings. Respect to and for families are essential basic fundamental values and are revered more in villages and rural settings than in towns and urban settings and should be maintained.
    
18. In the case of the deceased, he appeared to have the tendency to cause problems with other families. He was warned but he kept doing what he was doing, that is have an affair with a married woman. He himself was a married man.
    

Mitigating Factors

19. The prisoner is a first time offender and he pleaded guilty to the charge.
    

Aggravating Factors

20. The prisoner used a bush knife to slash the deceased killing him. This type of killing is very prevalent in the country.
    

Extenuating Factors

21. The prisoner was provoked in the non legal sense to do what he did. The woman the deceased was having an affair with was his cousin’s wife and he felt hurt by the deceased’s actions. The deceased came looking for the woman and effectively came looking for trouble. The fact that he also came in the dark at night looking for the woman raised questions as to why he was there at that time of the day.
    

Sentence

22. As alluded to earlier while the prisoner’s actions might have been justified to some extents, he could have restrained himself not to kill him but to only injure him and disable and harm him, but he did not restrain himself and killed the victim. He became the accuser, the investigator, the prosecutor and the judge. He took the law into his own hands.
    
23. Going by the Manu Kovi (supra) guide, this case falls within the second category which would attract a sentence of between 13 to 16 years. Manslaughter cases are still very prevalent and becoming more and more daring. Considering all the circumstances of the case and the fact that the Manu Kovi (supra) case was decided some sixteen (16) years ago, sentences must inevitably be increased. A sentence of 13 years imprisonment in hard labour is imposed on the prisoner. Time spent in custody is deducted from the 13 years. He has been in custody since 19 October 2019, a period of 1 year and eight (8) months. The balance for the prisoner to serve is 11 years and four (4) months imprisonment.

________________________________________________________________
Public Solicitor: Lawyer for the Prisoner
Public Prosecutor: Lawyer for the State