State v Midicko [2021] PGNC 195; N8943 (16 July 2021)

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CRIMINAL LAW – Particular offence – Manslaughter – s. 302 Criminal Code - Guilty Plea – Sentencing discretion to impose a lesser sentence s. 19 - Aggravating & Mitigating factors - Extenuating circumstances – Gravity of the offence.

Goli Golu v The State [1979] PNGLR 653
Avia Aihi v The State (No 3) [1982] PNGLR 92
Manu Kovi v The State (2005) SC789
State v Kapus & 2 others (2010) N4114
State v Windu (2009) N3827
State v Eneg (2016) N6318
State v George (2021) N8776
State v Roho (2006) N4483

1. NUMAPO J: This is a decision on sentence. The accuseds PIUS MIDICHO and PHILIP ANGEL both pleaded guilty to one count of Manslaughter pursuant to section 302 of the Criminal Code and were convicted accordingly.

2. The brief facts were that; on the 21^st of August 2020 there was a fight between two clans over a land dispute. The offenders are from Ayumete village (Inland Kandrian) whilst the deceased (Peter Lasi) is from Akur village (Kandrian Coastal).

3. The fight continued the next day, the 22^nd August 2020 at Akur village. The offenders and their clansmen came over to the deceased’s village and fought with them. The deceased stood in the middle and tried to stop the fight when Pius Midicho chopped the deceased’s right leg severing the leg leaving it hanging by the skin. The deceased fell to the ground and Philip Angel hit the back of the deceased’s neck with the blunt part of the axe he was carrying. The deceased died shortly after that.

4. The matter was reported to Police and the offenders were arrested and charged with one count of manslaughter pursuant to section 302 of the Criminal Code.

5. The offence of manslaughter carries the maximum penalty of life imprisonment under section 302 of the Criminal Code.

A person who unlawfully kills another under such circumstances as not to constitute wilful murder, murder or infanticide is guilty of manslaughter.

6. Section 19 of the Criminal Code gives the court a wider sentencing discretion to impose a lesser sentence in place of the maximum penalty prescribed by law including a non-custodial sentence where appropriate.

7. The offence of Manslaughter carries life imprisonment however, it is trite law that the maximum penalty is reserved for the worst type offence. See Goli Golu v The State [1979] PNGLR 653 and Avia Aihi v The State (No 3) [1982] PNGLR 92.

8. The most recent Supreme Court case of Manu Kovi v The State (2005) SC 789 sets out the guidelines for Manslaughter as shown in the table below:

Category	Description	Details	Tariff
1	Plea - Ordinary cases – Mitigating factors with no Aggravating factors	No weapons used – Little or no pre-planning - Minimum force used – Absence of strong intent to do GBH	8 – 12 years
2	Trial or Plea – Mitigating factors with Aggravating factors	Use of offensive weapons used such as a knife etc.– vicious attack – multiple injuries-some pre-planning involved	13 – 16 years
3	Trial or Plea – special aggravating factors – mitigating factors reduced in weight or rendered insignificant by gravity of offence	Dangerous weapons used, eg. gun, axe etc. – vicious attack – multiple injuries - pre-planning – some deliberate intention to harm – little or no regard for human life.	7 – 25 years
4	Worst Case – Trial or Plea – special aggravating factors – no extenuating circumstances- no mitigating factors or mitigating factors rendered completely insignificant by the gravity of the offence	Pre-meditated attack- some of viciousness and brutality – some pre-planning – killing of innocent, harmless person – complete disregard for human life.	Life Imprisonment

9. The facts of this case places it at the higher end of the sentencing scale on manslaughter. I say this because this was a mob attack and dangerous weapons were used it was deliberate and there was some pre-planning involved. Furthermore, it was an unprovoked killing with no apparent reason involving an innocent person who was only trying to stop a fight. This calls for a deterrent sentence with a punitive effect.

10. A number of comparable case laws were cited by Counsels to assist the Court in determining the appropriate sentence in this case. It shows the current trend on sentencing in manslaughter cases. I refer to some of them below:

11. The prisoners used an axe and also punched the deceased on his head. He later died from his injuries. The prisoners were sentenced to 13 years IHL less the pre-trial custody period.

12. The Court imposed a sentence of 14 years IHL on the prisoner for hitting the deceased with a stone on his leg and when the deceased fell down the prisoner used an iron bar to hit him who then died a few days later.

13. The prisoner used a bushknife to cut the deceased on his left leg that resulted in a death due to loss of blood. Prisoner was sentenced to 10 years IHL.

14. A fight erupted following a land dispute between two groups of people. The prisoner chopped the deceased on both his left and right arm and left the scene. The deceased died later due to loss of blood. He was sentenced to 15 years IHL less the pre-trial custody period.

15. A 28-year old man pleaded guilty to manslaughter for killing his mother by kicking her in the abdomen after he became angry over her actions in chasing his sister down a cliff during which his sister sustained injuries. The deceased died of a ruptured spleen and other internal injuries.

16. The court found that there was no intervening cause of death and that the offender solely responsible for the death and his was not a youthful offender. He was sentenced to 10 years imprisonment.

17. The seriousness of the offence is determined by its own peculiar facts being; the aggravating and mitigating factors and the extenuating circumstances. See: Antap Yala v The State (1996) SCR 69 and Jack Tanga v The State (1999) SC602.

18. In the present case, the following factors and circumstances are taken into account:

19. The sentencing trend reflected in the case laws above with similar aggravating factors and circumstances places this case under category 3 of the Manu Kovi guidelines hence, a sentence of between 7 – 25 years is appropriate. One aggravating factor that stands out is that this was a mob attack on an unsuspecting individual who was ill-prepared to defend himself. Furthermore, the deceased was only trying to stop the fight between two groups of people when he was killed. The killing was uncalled for and was a total disregard of a human life.

Orders Accordingly.
__________________________________________________________________
Public Prosecutor : Lawyer for the State
Public Solicitor : Lawyer for the Defence

National Court of Papua New Guinea

State v Midicko [2021] PGNC 195; N8943 (16 July 2021)