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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[ IN THE NATIONAL COURT OF JUSTICE]
CR NO. 1002 OF 2019
THE STATE
V
PHILIP KIPAU
Kavieng: Yagi J
2021: 18th February & 02nd March
CRIMINAL LAW – Sentence – Manslaughter – Criminal Code Act, s. 302 - Guilty Plea – a middle-aged villager with little education – first time offender – sorcery related killing – vicious attack – serious head injury – intention to cause bodily harm – sentence of 14 years imprisonment imposed less the pre-sentence custody period.
Cases Cited:
Manu Kovi v The State (2005) SC789
The State v Benjamin Beni Tampaka – CR No. 445 of 2017, unreported judgment dated 09 December 2017 by Kangwia J
The State v Francis Giru (1997) N1661
The State v Peter Noah (2005) N2833
The State v Billy Joel (2014) N5797
The State v Jimmy Mogoi (2012) N4680
The State v Tale Anton – CR No. 392 of 2019, an unreported and unpublished decision by Kangwia J at Namatanai dated 9 May 2019
The State v Joshua George – CR No. 1122 of 2020, unreported judgment of Yagi J delivered in Kavieng dated 18 February 2021
The State v Alphonse Kaparo (2007) N3189
The State v Daniel Ronald Walus (2005) N2802
The State v Lawrence Giobun (2009) N3728
The State v Tony Dom (2012) N4767
The State v Victor Loa Dikana (2018) N8009
Counsel:
Ms M. Tamate, for the State
Mr A. Tunuma, for the Prisoner
SENTENCE
02nd March, 2021
1. YAGI J: The prisoner was convicted after he pleaded guilty to one count of manslaughter on 18 February 2021. Manslaughter is a homicide offence under s. 302 of the Criminal Code Act. The Court heard submissions on the same day and reserved its decision on sentence to today. His plea is in relation to the killing of a man named Kohun Naihi (deceased) at a village on Anir Island, Namatanai District, New Ireland Province on 27 June 2018.
Relevant Facts
2. The facts that formed the basis of the guilty plea and conviction are as follows. The deceased was telling stories with a number of his relatives near the beach between 10.00 and 11.00 o’clock in the night when the prisoner approached them. As the prisoner approached the deceased’s group the prisoner was shouting. When the deceased heard the prisoner’s voice, he grabbed a piece of bamboo and swung it at the prisoner. The prisoner held onto the bamboo and a struggle ensured between the deceased and the prisoner. In the process the deceased fell onto the ground and his head landed on the roots of a tree causing the deceased’s head to bleed heavily on the left side. The deceased was carried into the sea and his injury was washed, brought to his house and placed on a canvas. Thick blood and white fluid were flowing out from the wound to the head and the deceased died as a result of the head injury.
Allocutus
3. In his address to the Court on sentence the prisoner stated that this is his first time to be involved in trouble and hence his first time to appear in the National Court. He further said he had abandoned his family since his detention in custody following the trouble in 2018. He has 5 children in school and does not know the current whereabouts of his children. He therefore pleaded for mercy and for a sentence to good behaviour bond.
Submission by the defence
4. Counsel for the defence submits that this is not a worst manslaughter case. The prisoner pleaded guilty, is a first-time offender, he cooperated with the Police and there was de facto provocation involved warranting a sentence between 6 – 12 years.
Submission by the State
5. On behalf of the State, although counsel concede that this case is outside of the worst type, submits this is a killing within the family where the prisoner took the law into his own hands in inflicting serious injury to a vital part of the body and therefore falls within category 1 and 2 under the Manu Kovi v The State (2005) SC789 sentencing guideline, and hence attract a sentence between 12 – 16 years.
Considerations and Sentence
6. I begin my deliberation with a review of the decisions on sentence which were referred to in submissions by the defence and the State. First, the cases cited by the defence counsel.
7. In The State v Benjamin Beni Tampaka – CR No. 445 of 2017, unreported judgment dated 09 December 2017 by Kangwia J, I note the case involved a teacher badly assaulting a school pupil with a cane stick resulting in death. A sentence of 5 years was imposed. I must say I have not read the decision so am unable to comment further.
8. In The State v Francis Giru (1997) N1661, a young teenager aged 18 years whilst being pre-occupied with music was disturbed without any apparent reason by an intoxicated and aggressive male adult relative using offensive and insulting words. The relative swung a piece of stick at the offender. The offender avoided the swing and grabbed the stick and used the same stick on the relative. The stick struck the relative on the head causing extensive fracture of the skull compounded by extradural haematoma which led to death of the relative. The teenager pleaded guilty to one count of manslaughter and he was a first-time offender. The Court also took into account the relationship between the teenager and the deceased – the deceased was an uncle to the teenager. The Court imposed a sentence of 4 years imprisonment. I note this case was decided prior to the Supreme Court decision in the Manu Kovi case.
9. In The State v Peter Noah (2005) N2833 a young teenager, aged 19 years, approached the deceased, a married woman, in her garden and sought to have sexual intercourse with her. The deceased refused and uttered insulting, provocative and derogatory remarks at the teenager. Apparently, the teenager and the deceased had been involved in intimate sexual relationship, however, prior to the incident, there was a short period where the teenager was forced by his mother to cease the relationship with the deceased. The teenager was provoked by the insulting words and he reacted by cutting the deceased with a bush knife at the lower part of both legs. It appears the deceased died from excessive loss of blood despite efforts made to save her. The Court found that the facts of the case fell within the second category of the Anna Max Marangi guideline which attracted a sentence range between 8 – 12 years. In sentencing the teenager, the Court also took into account, among others, the guilty plea, it was the teenagers first offence, the nature and extent of the provocative words used and ultimately imposed a sentence of 10 years imprisonment in hard labour. It should be noted that this case was also decided some months prior to the decision in the Manu Kovi case.
10. In The State v Billy Joel (2014) N5797 a man intervened to stop a fight between the deceased and another when he accidentally stabbed the deceased on the chest with a knife. He pleaded guilty to one count of manslaughter, expressed remorse and was a first-time offender. The other mitigating factors were that the offender made early admissions and cooperated with the Police. The main aggravating factor was the use of an offensive weapon, the knife. The Court in applying the guideline in Manu Kovi found that it was a category 2 killing. A sentence of 12 years imprisonment was imposed.
11. In The State v Jimmy Mogoi (2012) N4680 the prisoner was assaulted with an iron rod by the deceased and his friends which resulted in him sustaining superficial wounds on the body. The prisoner armed himself with a kitchen knife and went to a nearby market. A few hours later he saw the deceased and his friends at the market area. He chased the deceased and stabbed the deceased on the chest with the knife inflicting a deep wound. The deceased died almost instantly from severe loss of blood. He pleaded guilty to one count of manslaughter under s. 302 of the Criminal Code. The other mitigating factors present in that case were that he pleaded guilty very early, there was a high degree of de facto provocation, only one or two stab wounds, prisoner surrendered himself to the Police straight after the incident, he cooperated with the Police and made early admissions and K4,000.00 was paid as compensation, The aggravating factors that operated against the prisoner, apart from the offensive weapon, were that the prisoner took the law into his own hands and he had a prior conviction for attempted murder. The Court found that it was a category 2 type killing under the Manu Kovi guideline. A sentence of 13 years imprisonment was imposed.
12. In The State v Tale Anton – CR No. 392 of 2019, an unreported and unpublished decision by Kangwia J at Namatanai dated 9 May 2019, it was a case of an elder brother causing the death of the younger brother. A copy of the written decision was previously furnished by the defence counsel. The facts in that case are these. The deceased took the prisoner’s 14-year-old daughter away for a few days and had sexual relations with her. Subsequently, the prisoner met the deceased along a road and a fight developed following an argument over the incestuous relationship. During the fight the deceased was armed with a piece of stick and the prisoner was armed with a bush knife. The prisoner cut the deceased on left leg almost amputating the leg. The deceased died from severe loss of blood despite attention provided by medical officers at the Rural Hospital facility. The Court found that although the killing occurred in a domestic setting, it was not a worst case. However, the offence was prevalent and warranted an immediate custodial sentence. A sentence of 12 years imprisonment was therefore imposed.
13. In The State v Joshua George – CR No. 1122 of 2020, unreported judgment of this Court delivered in Kavieng recently on 18 February 2021, this Court imposed a sentence of 15 years on a man who used a bush knife to cut a very old man on the right arm and left leg inflicting very serious multiple bush knife wounds which led to death. The attack arose out of a dispute over traditional land rights and he took the law into his own hands. He pleaded guilty to one count of manslaughter and he was a first-time offender.
14. As for the cases on behalf of the State there were 5 submitted by counsel. The first is The State v Alphonse Kaparo (2007) N3189. In that case the headnotes state that two men pleaded guilty to unlawfully killing their brother-in-law by punching and kicking him. They were angry with him as he was married to one of their sisters but was having an affair with another of their sisters. They used no weapons, but it was a vicious assault. The first offender was drunk and instigated the assault on the deceased and kicked him. The other offender assisted the first offender but did not kick the deceased. The mitigating factors include both pleading guilty and cooperated with the Police. They expressed remorse, paid compensation and reconciliation was established. Both are first-time offenders, and the deceased was the cause of the problem. Both offenders were sentenced to 12 years imprisonment and 2 years was suspended on conditions.
15. In The State v Daniel Ronald Walus (2005) N2802 it was killing in a domestic setting. The deceased was a close relative to the offender’s wife. The facts are that the offender’s wife had an altercation with the deceased over harvesting of cocoa beans. The offender’s wife assaulted the deceased and the deceased retaliated by swearing at the offender’s wife who reported the matter to the offender. The offender then went to the deceased’s house. The deceased was sitting on the steps of her house. The offender went up and punched the deceased on the side of her face causing the deceased to fall to the ground. The offender then punched her on each side of her stomach. He kicked her in the ribs, while she was on the ground. The deceased urinated, passed faeces and vomited. She died shortly afterwards. The medical report showed that she died from a broken neck and ruptured spleen. The offender pleaded guilty to unlawful killing under s. 302 of the Criminal Code Act and was a first-time offender. A sentence of 18 years imprisonment in hard labour was imposed by the Court.
16. In The State v Lawrence Giobun (2009) N3728, a middle-aged man aged 45 years whilst under the influence of liquor went to the deceased’s house. The deceased was an old man. The offender went and argued with the deceased’s in-law over alleged debts in relation to the building of a permanent house. The deceased intervened during the argument in support of his in-law. The offender then punched the deceased once in the face, causing him to fall over. The deceased bled heavily from the nose and was taken to the hospital where he died 5 days later from the injury inflicted by the offender. The offender pleaded guilty to unlawful killing. The factors taken into account in mitigation were that the offender was a sole attacker, death caused by a single blow, no weapon used, it was an ‘indirect’ killing as death did not occur until five days later, some element of de facto provocation was present, the offender cooperated with police, some compensation was paid, he expressed some remorse, he was a first-time offender, there was good pre-sentence report and the chiefs and community do not support a heavy sentence. A sentence of 10 years imprisonment was imposed, and 6 years was suspended with conditions.
17. In The State v Tony Dom (2012) N4767 the offender was away from his wife and learnt of his wife engaging in drinking and partying with other men. He returned to his wife and had an argument with his wife over the allegations. The arguments went on for a few days. The offender and his wife then went up to the market where they saw the deceased. The deceased was a cousin brother to the offender’s wife. They met with him and discussions ensued about the allegations concerning the wife. A confrontation erupted between the offender and the deceased which then led to a fight. Both sides of the conflict were assisted by their respective relatives. During the fight, the offender picked up a pole and hit the deceased on his head. The deceased fell to the ground and lapsed into unconsciousness. He was later rushed to the hospital but was pronounced dead on arrival. Medical examination revealed that the deceased’s skull was fractured. The medical evidence further showed that death was instant and the cause of death was severe head injury with bleeding from the depressed skull. The Court found that it was unlawful killing and the offender acted without an intention to kill nor an intention to do grievous bodily harm. The offender pleaded guilty to unlawful killing under s. 302 of the Criminal Code Act. The plea was entered on the eleventh hour, that is, on the date actually fixed for trial. The mitigating factors favourable to the offender include cooperation with the Police, surrendering himself to the Police immediately after committing the offence, he was a first-time offender, no weapon used, there was de facto provocation, substantial compensation and ‘belkol’ money was paid. The aggravating features include excessive force was used, some deliberate intention to harm, deceased did not have any pre-existing condition which caused or accelerated death and death resulted in a group attack. The Court found that it was a category 1 killing under the Manu Kovi sentencing guideline. A sentence of 10 years imprisonment in hard labour was imposed by the Court.
18. In the case of The State v Victor Loa Dikana (2018) N8009 a young self-employed man aged 27 years whilst intoxicated with homebrewed alcohol approached the deceased at his house and swore
at the deceased. He accused the deceased of practising sorcery on his relatives. The deceased went outside of his house and confronted
the offender resulting in two men exchanging punches. The deceased punched the offender and he fell to the ground. The offender picked
up an iron rod used as a pot stand and hit the deceased twice on the left side of the head causing the deceased to fall to the ground.
The deceased became unconscious and was rushed to the hospital where the wounds were stitched, and he was discharged. The following
morning the deceased lost consciousness and he was rushed back to the hospital, however, he was pronounced dead on arrival. The mitigating
factors were that he pleaded guilty, he cooperated with the Police by admitting the offence at the outset and he was a first-time
offender. The offender was sentenced to 15 years imprisonment in hard labour.
19. In my view, there is no good reason to depart from the established sentencing guideline promulgated by the Supreme Court in the
Manu Kovi case. Indeed, the defence counsel has not submitted otherwise. I accept the submission by the State that this case falls somewhere
at the top of category 1 and category 2 of unlawful killing cases as per the Manu Kovi guideline.
20. In this case it was a killing in a domestic setting. The offender is the uncle of the deceased. There is evidence that the deceased had accused the offender of practising sorcery which led to a feud within the family unit. The offender became angry and went searching for the deceased. In that regard there appears to be some element of defacto provocation. The killing occurred immediately following an argument. No offensive weapon was used although it appears the attack was vicious given the nature and extent of the injuries. Such injury in my view is consistent with a greater degree of force used. Moreover, the injury was caused to a vital and vulnerable part of the body being the head.
21. I also take into account the factors that operate in favour of the offender in mitigation which are as follows –
22. The aggravating factors in the case are as follows –
23. The offender is aged 53 years and comes from Naliu village, Anir Island, Tanir LLG area, Namatanai District. He is married with
5 children. He is educated to grade 6 level. He is the first born in a family of 3 siblings. He has no employment history and has
been a villager all his life. He affiliates his Christian faith with the Catholic Church. He has been incarcerated since 23 August
2018.
24. Having reviewed the cases referred to, I find that the sentences range from 4 – 18 years. The sentence of 4 years was a
decision made prior to the Manu Kovi guideline and therefore, with respect, not a good guide. The cases that followed and applied the Manu Kovi guideline start from 10 – 18 years. Most of the cases cited by the defence involve use of dangerous or offensive weapons where
sentences hang around 10 – 13 years. Those which did not involve dangerous weapons the sentences were much lower. Most of the
cases cited by the State do not involve use of a dangerous or offensive weapon, however, the sentences appear to be higher. The highest
is 18 years in the case of Daniel Ronald Walus.
25. The differing sentencing range and pattern only demonstrate the fundamental principle that each case must be decided on its own peculiar set of facts and circumstances and sentencing is an exercise of discretion.
26. Having regard to all the matters discussed and in the exercise of the Court’s discretion, the sentence imposed by the Court is 14 years imprisonment in hard labour. The period of incarceration pending sentencing shall be deducted. This I calculate to be 2 years, 6 months, 1 week and 1 day. The balance of the remaining term is 11 years, 5 months, 2 weeks, and 6 days will be served at Kavieng Correctional Institution. A warrant will be issued forthwith.
Sentenced accordingly.
__________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner
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