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State v Nurum [2024] PGNC 299; N10969 (20 August 2024)

N10969

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 280 OF 2024

THE STATE

V

ONDA NURUM

Waigani: Miviri J
2024: 09^th & 20^th August

CRIMINAL LAW – PRACTICE AND PROCEDURE – Manslaughter S302 CCA – Plea – Deceased hit With Wood on Head – Internal Bleeding – Attack Upon Unruly Rowdy Drunken – First Offender – Unlawful Action – Death Resulting – Prevalent Offence – strong deterrent sentence – 16 years IHL.

Facts
Accused hit the head of Deceased with a hard piece of wood causing internal injuries causing death.

Held
Guilty plea.
First time offender.
Protection of Life
Prevalent Offence
16 years IHL

Cases Cited:
Avia Aihi v The State (No 3) [1982] PNGLR 92
Kairi v The State [2006] PGSC 8; SC831
Tapea Kwapena v The State [1978] PNGLR 316
Kovi v The State [2005] PGSC 34; SC789
Lialu v The State [1990] PNGLR 487
Aquila v Independent State of Papua New Guinea [2020] PGSC 113; SC2023
Lawrence Simbe vs. The State [1994] PNGLR 38
Kumbamong v State [2008] PGSC 51; SC1017
State v Hurotove [2017] PGNC 114; N6754
Tapi v The State [2000] PGSC 2; SC635
State v Walus [2005] PGNC 147; N2802
Marangi v The State [2002] PGSC 15; SC702
State v Hagei [2005] PGNC 60; N2913
Tardrew, Public Prosecutor [1986] PNGLR 91
Acting Public Prosecutor v Mailai [1981] PGSC 7; [1981] PNGLR 258
Public Prosecutor v Hale [1998] PGSC 26; SC564
State v Kapoi [2021] PGNC 181; N9021
State v Kolokolo [2021] PGNC 74; N8849
State v Tony [2017] PGNC 125; N6774
State v Nicholson [2016] PGNC 247; N6442
State v Kande [2021] PGNC 251; N9104

Counsel:
Kuku & M. Tamate, for the State
F. Bomal, for the Defendant

SENTENCE

20^th August 2024

1. MIVIRI J: Onda Nurum of Tiki village, Dei District, Western Highlands Province appears to be sentenced for Manslaughter of Emmanuel Peter after pleading guilty to the Indictment pursuant to section 302 of the Code.
   
2. He committed the offence on the 13^th November 2022 between 7.00pm and 11.00pm at Acts 2.38 Church at Tete Settlement, Gerehu in the National Capital District. Emmanuel Peter was under the influence of alcohol and when he entered the church premises, he was rowdy. And he was asked to leave by the accused. And was slapped by the other individual, Steward Las. And he left the premises and waited outside for Steward Las. And when Steward Las came out, Emmanuel Peter approached him with a bush knife and swung it at him multiple times. Steward Las screamed out for help alerting the Accused, who ran towards him and hit him using a log on the head. As a result, the deceased fell to the ground and the accused fled. Deceased was rushed to the hospital to receive medical attention. He was taken into the operation theatre and later admitted to the Intensive care unit (ICU). However, on the 19^th November 2022 the deceased died. Accused surrendered to the Police. The accused had unlawfully killed the deceased he used the log to hit him on the head contravening section 302 of the Criminal Code.
   
3. The charge is pursuant to section 302 of the offence of Manslaughter which is 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.”

4. From the bible, the name of the Church here, acts 2.38 is baptismal by water to clean. The prisoner a lead member of that church does not by his conduct evidence that here. He does not give the other side of the cheek but resorts to violence in response. A true Christian does not behave in this way but in the way The LORD did when he was kissed and handed over by Judas Iscariot. It is a very serious conduct on the part of the Prisoner considering. At the premises of the church, it seems violence within and nearby has become common without respect for the fact that one is in a church area. Unless there is respect where the church is there will be no observation of the law. Commandment 6 is thou shall not kill. And Manslaughter section 302 has that imprinted upon it. It is not written lightly because it emphasizes section 35 the right to life under the Constitution. Which is a basic right in the Constitution. That is the reason why he could be sentenced to the maximum of life imprisonment for the offence. Which draws if his offence is of the worst case of its kind: Avia Aihi v The State (No 3) [1982] PNGLR 92 (5^th March 1982). It is one of the most serious offences of manslaughter but not the worst. Because it culminates from the actions of the deceased who is intoxicated by alcohol and does not heed what is uttered by those who are there including the prisoner. Indeed, a determinate term of years will be accorded his facts and circumstances. Which in my view is the balance proportionate after consideration of all mitigating, aggravating, and any extenuating circumstances.
   
5. Mitigating is the fact that the Prisoner has entered a guilty plea to the Indictment. A first offender he is aged 43 years old originally from Tiki village in the Dei Council area of the Western Highlands Province. A Security guard employed with Immigration and Citizen Authority; he did not exercise restraint as a security guard but resorted to violence. He did not act in self-defence of another within law similar as Kairi v The State [2006] PGSC 8; SC831 (28 April 2006). He demonstrates no justification either in fact or law for his actions against the deceased. It cannot be likened to the deceased as having any weapon that he was using in a menacing manner against the prisoner to justify the attack by the prisoner on the deceased. No evidence has come to light within the realm of Tapea Kwapena v The State [1978] PNGLR 316. Prisoner was acting in the course of self-preservation on the threat that was issued by the deceased. This is not what the facts here disclose to warrant what the prisoner did. His explanation in the record of interview does not disclose the life of Steward Las was seriously threatened between life or death from the attack by the deceased. There was nothing to do except what he did to save the life of Steward Las. The force is disproportionate and cannot be dished that prisoner was acting in law. It is therefore sound that the use of the wood, the blow delivered by the Prisoner was not lawful to the head of the deceased. That assault brought out the death of the deceased. The conviction is firm in law confirming the guilty plea.
   
6. He could have avoided the confrontation and the offence if he did not resort to the use of the wood. The deceased was drunk but there was no justification for the use of the wood in the manner that was used by the prisoner. He held it with both hands and delivered the blow to the head of the deceased. Which is strongly corroborated by the medical report dated the 07^th June 2023 by Doctor Joe Norrie, A. Brain swelling with intracranial Haemorrhage to due to blunt force trauma to the head. Here I am reminded of Kovi v The State [2005] PGSC 34; SC789 (31 May 2005) that I am sentencing on the basis that a dangerous weapon, a piece of wood was used upon the deceased who stood no chance of survival in the way because he was hit on the head brutally causing internal bleeding that led to his death. And in my view, it would warrant a sentence at the second category scale set out by the guide in Manu Kovi (supra), drawing 13 to 16 years imprisonment. There is a wood used as a weapon. It is not intended that the deceased should die from its use. It is not a simple punch to the head forcing the deceased to fall backwards and hit his head on the hard service causing his death drawing 10 years imprisonment: Lialu v The State [1990] PNGLR 487.
   
7. It is also supported by presentence report ordered now filed before me detailing that there is no fume between the parties. Compensation has been paid by the prisoner’s family here in Port Moresby in the sum of K 25, 000.00 in cash and a pig in 2023 immediately after the offence. In prisoner’s village Tiki Western Highlands Province, K 64, 000.00 was paid with 66 live pigs, 1 horse and 2 cows. It have brought peace between the parties. But it is bold that prison term is not avoided by the payment of large sums of money as is the case here. Not would it cut down some time because of that fact: Aquila v Independent State of Papua New Guinea [2020] PGSC 113; SC2023 (29 October 2020). Because by law, the Criminal Compensation Act is a maximum of K 5000 and not more. Here the payment exceeds that amount. And it does not mean that the prisoners will now have some of the time due in law for the crime reduced. The haves will pay their way out of jail, the have nots will go to Jail. There is no two sets of laws one for the former and the other for the latter. Therefore, the payment of compensation at the highest is levelling the relationship between the offending and grieved no more no less.
   
8. Prisoner is a first offender aged 46 years old married to Esther Onda Nurum between them have five children whose education have been affected that the source sought to pay fees has now stopped because prisoner their father is in jail. The wife is a cleaner employed with Eliseo Supermarket Gerehu and earns K250 to K300 which is not enough to sustain the family with out the prisoner. He was employed as a security guard by department of Immigration and Citizenship Authority since 2019. He is a first offender originally from Tiki Dei Council Western Highlands Province. Presentence report asks that a suspended term on probation orders be made in respect. The life of a fellow human being must be accorded respect by some time spent in custody. And coupled with all set out above the facts and circumstances posed individually: Lawrence Simbe vs. The State [1994] PNGLR 38, do not warrant and entail a non-custodial sentence against the prisoner. No one case is the same and will be subject only to the will of the legislature inscribed here of life imprisonment. To adhere to tariff and range will be legislating not the territory of the Courts: Kumbamong v State [2008] PGSC 51; SC1017 (29 September 2008).
   
9. The prevalence of the offence imposes upon the Court duty to impose sentences that will punish and have a deterrent effect on like or would be offenders: State v Hurotove [ 2017] PGNC 114; N6754 (5 June 2017). In manslaughter the Court has emphasized in Tapi v The State [2000] PGSC 2; SC635 (30 March 2000) maintaining that it was the top end of manslaughter cases for 16 years to have been imposed on a husband who had cut up the wife causing massive bleeding from which she died. This is a vicious blow with a piece of wood to the head leading to death would be likened to an extent to State v Walus [2005] PGNC 147; N2802 (25 February 2005) 18 years IHL was imposed upon the prisoner who pleaded guilty to assaulting the deceased who sustained a broken neck as well as a ruptured spleen from which she died. That would be tipping the scale in seriousness comparably here. It is relevant to underline that "Manslaughter is a very serious matter or offence and it carries a maximum penalty of life imprisonment. And the life imprisonment is because a life is gone, and that person is never going to come back. "No matter whose fault it is, the person is dead, and it is tragic.” Marangi v The State [2002] PGSC 15; SC702 (8 November 2002).
   
10. It remains prime that a Life of a human being is not cheap by section 35 the right to life. That is mandatory and a fundamental right with the use of the words that it cannot be deprived intentionally. There is nothing exceptional setting out sentence from the ordinary: State v Hagei [2005] PGNC 60; N2913 (21 September 2005). Here I bear in mind the observation made for suspension of sentence in Tardrew, Public Prosecutor [1986] PNGLR 91. There is nothing warranting a sentence other than appropriate by the facts circumstances here Acting Public Prosecutor v Mailai [1981] PNGLR 258. The presentence or probation report does not contain material that outweigh to impose a non-custodial term, Public Prosecutor v Hale [1998] PGSC 26; SC564 (27 August 1998). The blow to the head is with both hands and evidenced by the medical report no person would survive given. It is an offence committed in and within a church. It is no room for suspension given. I do take account the allocutus of the prisoner who has sincerely expressed remorse for his actions to GOD the laws of the Country, including family and relatives of the deceased. He took responsibility for his actions that took the life of the deceased. And of any consequences that came with it. In this regard any time in custody awaiting determination of this matter will be deducted from the time imposed for the offence.
    
11. It is relevant to consider like offences that have drawn sentences previous as in State v Kapoi [2021] PGNC 181; N9021 (13 August 2021) which in my view does not spell out in equal with the facts of the present because the neck of the deceased is cut. Who is unarmed and dies because of persistent and determined assault on the basis of an allegation of sorcery. That sentence will not be on par with the facts here. It would amount to the scene painted out in State v Kolokolo [2021] PGNC 74; N8849 (26 February 2021), because that is a deliberate attack with the knife stabbing him in the legs leading to his death. Where there is deliberate attack with an offensive weapon it must draw serious consequences in the sentence imposed. In this regard I am not bound by that decision here given my facts and circumstances. Nor would I be in the case State v Tony [2017] PGNC 125; N6774 (21 April 2017). As is the case there here being deliberate use of the knives to cut and inflict the injuries that lead to death. This is not a case of continuous physical violence over a period so that it will fall similar as in State v Nicholson [2016] PGNC 247; N6442 (25 July 2016). Nor would it equate State v Kande [2021] PGNC 251; N9104 (2 September 2021). Because she sets out in response to the deceased call with a knife in preparation for what the deceased was going to do to her. That in my view is a lot serious than the present.
    
12. Yes, he is a first offender who has pleaded guilty but now has taken amends in his prison life now evident by the material filed in support since incarceration in Bomana Corrective Institution from Corporal Greg Teine Acting Chaplain and Spiritual Director dated 20^th March 2024. And further by Inspector Nelly Gairi Acting Chaplain and Spiritual Coordinator dated 08^th August 2024. Coupled with his guilty plea it is recognizance of the gravity of what he has committed. He will serve his sentence and come back to life outside, but it does not leave out the fact that the deceased will not return ever, no amount of compensation will bring him back: Lialu (supra). The aggregate is he is sentenced to 16 years imprisonment in hard Labour forthwith. His time awaiting on remand will be deducted forthwith. He will serve the balance in jail.
    

Sentenced accordingly.

Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Defendant