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State v Karu [2024] PGNC 38; N10674 (6 March 2024)

N10674

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
CR NO 1413 OF 2021

THE STATE

V

YEIPA KARU

Waigani: Miviri J
2024 : 20^th February, 05^th & 6^th March

CRIMINAL LAW – Plea –Manslaughter- S302 CCA – Accused Stabbed Deceased with Rambo knife – Left Chest – Heart Injury – Mistook Deceased for Attackers upon Him – Intent to Scare Off – Instant Death – Repeated Blows – Calculated Attack – Prevalent Offence – sanctity of life – strong punitive sentence.

Facts

Prisoner stabbed the deceased with a knife in the heart killing him.

Held

1. Plea.
2. Mistook Deceased for Attacker.
3. Repeated swinging of Knife.
4. Protection and sanctity of life
5. 18 years IHL less time in custody deducted.
   

Cases Cited.
Lilu, The State v [1988-89] PNGLR 449
Yalibakut v The State [2006] PGSC 27; SC890
SCRA 29 of 2007 Thress v Kumbamong v. The State (2008) SC1017
Avia Aihi v The State (N0.3) [1982] PNGLR 92
State v Aulo [2023] PGNC 273; N10430
Manu Kovi v the State [2005] PGSC 789
State v Aosa [2017] PGNC 244; N6907
State v Roho [2006] PGNC 72; N4483
State v Karo [2004] PGNC 171; N2600
Marangi v The State [2002] PGSC 15; SC702
Tanga v State [1999] PGSC 4; SC602
Lawrence Simbe v The State [1994] PNGLR 38
State v Miva [2006] PGNC 103; N3454

Counsel:
L. Pare & J. Batil, for the State

T. Yapao, for Defendant

SENTENCE

6^th March 2024

1. MIVIRI J: This is the sentence of Yaipa Karu of Avindia Village, who pleaded guilty to stabbing the deceased Felix Yope on the left chest piercing the heart killing him.

2. Between 5pm and 6pm on the 30^th January 2021 at 6-mile, Port Moresby, Felix Yope was with a little friend Solo Karu. They were with a friend Wayman from Simbu, friend of Felix Yope, who offered to buy a carton of beer for him. So, they walked down to the bus stop where the canteen shop is. There they saw the accused Yeipa Karu coming down from the bus with a SP Bottle in his hand, and walking into the canteen whilst they were outside counting the money. A fight broke out inside the canteen involving the Accused and some unknown boys within. Felix Yope saw this and ran into the canteen and took Yeipa Karu out, because they are from the same District. But he turned around and punched Felix Yope on the mouth and took out a Rambo Knife which he swung at him, but the deceased held back the knife. The second time the Accused swung the knife straight penetrating the top left chest of the deceased. He removed it and ran away realizing that he had stabbed the deceased who fell onto the concrete at the bus stop. Solo Karu ran down to the Kopiago Settlement and alerted everyone there. Who all ran up to rescue the deceased rushing him to the Port Moresby General Hospital. But he died due to the stab wound. The accused went into hiding until the next day when he was seen and apprehended by the Police.
   
3. He was initially charged with wilful murder pursuant to section 299 but was reduced to Manslaughter on plea bargaining. That he unlawfully killed the deceased contravening section 302, which is in the following terms:
   
   • (1) A person who unlawfully kills another under such circumstance as not to constitute wilful murder, murder, or infanticide is guilty of manslaughter.
     

Penalty: Subject to Section 19, imprisonment for life.

4. This is not the common facts of Manslaughter that this court sees as in Lilu, The State v [1988-89] PNGLR 449 where there was one punch with the deceased falling back wards cracking his skull on the pavement and dying as a result from internal head injuries. This is a stabbing with a sharp knife fatally on the chest within which are the heart and lungs vitals of the human body. Deceased was merely trying to help the prisoner from assaults that were targeted at him. Prisoner was undeterred that the person he swung the knife at was the deceased a wantok. He did not take heed that the person he swung the knife to stab first time as a relative. That did not deter he swung again and inflicted the fatal wound from which he bled to his death.
   
5. He was only 25 years old at the time of his death. He had a long life ahead that was prematurely terminated by the prisoner. He did not prompt the prisoner to attack him. He was not in a threatening situation against the prisoner. He was merely trying to help the prisoner. It was therefore not warranted to attack him with that knife. Depicted in the photograph taken by Police photographer and crime scene officer Kemos Kongga, photograph number 13, is a sharp pointed hunting knife with jagged edges described as a Rambo knife, presumably likened to the movie of the same name, and knife used therein. And the photographs also depict a very gruesome gapping wound to the left chest wall oozing blood. Medical report depicts a penetrating deep stab wound fracturing the 3^rd rib over the chondrosternal area and into the left mid ventricular region of the heart...” That is why he was dead on arrival as he was fatally stabbed in the heart. He could not have survived in that manner. And that is depicted by the description made by the medical report, “Stab wound that is more consistent with a heavy sharp weapon forcefully launched into the left chest thus is consistent with the stated Police Case History.”
   
6. These in my view are facts that must be measured to arrive at a proportionate sentence fitting the offence. It should not be the case that the facts pleaded guilty should demarcate and eradicate. The discretion of the Court is not chained by the parties to the cause. All facts circumstance relevant must be considered to arrive at the sentence befitting the criminal behaviour. The force with which the weapon was lunged at the deceased is clear by the description independently of the medical officer. It is a relevant consideration as to how the deceased met his demise in determining sentence. A single punch must be weighed differently with a stabbing that not only enters the chest wall, but in the course the rib is fractured as set out above. This sentence will reflect the veracity of the attack, seriously very relevant factor to the determination of an appropriate sentence fitting the crime. And I do so here in determining the sentence of the prisoner.
   
7. And the immediate scene is a public bus stop frequented by publicans. Photographs 5, 6, 7 show this out very clearly. No men should be attacked in a public area in this manner. To so attack in this manner is manifestly equivalent to the ever-prevalent behaviour rampant to seriously defy the rule of law. The safety and security of all members of the public must be guaranteed by fear of the law. It seems there is no fear and observance of the rule of law. Bold is the fact that the law has become lame and disabled with no armour to ensure it rules. Violent crimes have no place in society. And the Court is bestowed by the legislature to ensure there is adherence respect for the rule of law. Therefore, criminal behaviour must be weeded out of its roots. Yes, the prisoner has pleaded guilty, and he will be sentenced on the basis of the facts that he has pleaded guilty to: Yalibakut v The State [2006] PGSC 27; SC890 (27 April 2006). Here incumbent in these is what is set out above relevant in the sentence against the prisoner.
   
8. In his favour is the fact that he is a first offender aged 33 years old originally from Awinda, Lake Kopiago, Hela Province. He resides at Saraga, Kopiago Block Six mile in Port Moresby. And is of the Pentecostal Church, not married but with six children. Both his parents are deceased. He has been on remand since 1^st February 2021 approximately 3 years 1 month which will be deducted from the head sentence imposed. He has no history of education or but was employed as a security guard with SOS security firm. He maintains his upkeep by the sale of store goods earning about K 200 to K 250.00 per day. At the time of the offence, he was affected by the consumption of alcohol. Prior to the offence he was resident at 6 mile with his brother. He is the second born in a family of five other siblings. And maintained a good law-abiding life before the offence. He reacted in the manner he did as he was robbed within the store and attacked and did what he did to get out of that attack. He mistakenly thought that the deceased was one of the attackers. And did what he did.
   
9. The mother of the deceased interviewed in the presentence report tendered into Court setting out the details above, highlighted that, she was very angry at the behaviour of the prisoner. He was not an enemy and the K 16,000.00 that was paid was to restore peace and normalcy and not what was demanded of K 70, 000.00 to K 100, 000.00. Her reactions are normal given. In any case the prisoner has no means to pay any compensation. What has been paid did not emanate from his pocket. He is the author of the crime but has not felt the pain of putting that money together. He must bear responsibility for his criminal behaviour. It is not the law that other persons not responsible for the behaviour are made to meet the blood as here. That is confirmed by the Means assessment report also filed of the same date 05^th March 2024. There is nothing within to sway any other sentence other than a strong custodial term. Because no amount of money will bring that life back. It is sacred and sanctified and must be accorded its place in the Constitution, section 35 Right to life. It follows that tariff and range will enforce consistency, but individual facts and circumstance will not be ignored to dispense justice in a particular case as is here: SCRA 29 of 2007 Thress v Kumbamong v. The State (2008) SC1017.
   
10. The maximum penalty prescribed by section 302 is life imprisonment. Given its facts and circumstances a determinate term of years is appropriate, it did not add up to be the worst case of its kind, so that the maximum penalty was warranted: Avia Aihi v The State (N0.3) [1982] PNGLR 92. But a life was unnecessarily taken. And in my view would be likened to State v Aulo [2023] PGNC 273; N10430 (10 August 2023). Eighteen (18) years was imposed because the deceased was chased by the group and brutally cut up with the bush knife causing his death. Here it is not a group attack, but the stabbing is deliberate and calculated, and repeated. It is also a plea of guilty which is in favour of the prisoner. It is reflective of the fact that he took responsibility for his actions. He realized the wrong that he had committed upon the deceased. Which is hand in hand with his behaviour current in jail depicted out by the character reference of the Jail Chaplain tendered. I take that into account in this sentence upon him.
    
11. But it remains that the knife or any knife in the domestic setting has now become a lethal weapon used with viciousness unnecessarily stuffing out life. The potential of this weapon present in every home and place of abode, in the person of the prisoner will be addressed with a sentence that will deter and punish. This is not to say that the prisoner be made an example for all others. He will be sentenced based on his own facts’ circumstances set out here to which he entered his guilty plea to manslaughter.
    
12. He may have done what he did on the mistaken premise that He reacted to deter the attack upon him. He mistakenly concluded that deceased was one of the attackers. But the stabbing is to the chest penetrating the heart causing instant death. It is repeated leading to fatally stabbing a vital organ sustaining life and must be consistent with Manu Kovi v the State [2005] PGSC 789 (31. May 2005), falling into the second category of manslaughter cases of 13 to 16 years in that, there was use of an offensive weapon a knife to the heart of the deceased. And it is a guilty plea as opposed to a trial. It would follow the sentiments in State v Aosa [2017] PGNC 244; N6907 (21 September 2017). But would not go low This is not likened to the spleen deaths as in State v Roho [2006] PGNC 72; N4483 (24 August 2006), a single blow to the mother ruptured her spleen over a domestic matter. He was sentenced to 10 years after a favourable presentence and means assessment report. A Security guard who threw out a non-paying drunken whose spleen was ruptured as a result got 8 years for rupture of the spleen a conviction of manslaughter, State v Karo [2004] PGNC 171; N2600 (29 April 2004).
    
13. Use of weapons as in Marangi v The State [2002] PGSC 15; SC702 (8 November 2002) appellant stabbed the deceased who she suspected was having an affair leading to her pregnancy with her husband. She found her in the house where the husband would normally stay when he returned from where he worked at Tabubil. She challenged the 9 years imposed for manslaughter in the Supreme Court. Which was dismissed and the 9 years confirmed. Comparatively that is more serious than the present facts and circumstances. Twelve years IHL was imposed in Tanga v State [1999] PGSC 4; SC602 (19 April 1999) in Lae, where the appellant was drunk. An argument over a relative ensued he chasing his wife and pursuing her down a river, where he repeatedly assaulted her to unconsciousness. When she regained consciousness, he persisted in the assaulted until she was motionless. She died from a ruptured spleen with other injuries accompanying. The appeal was dismissed, and the 12 years imposed by the National Court was confirmed.
    
14. I consider that the prevalence of the offence coupled with all set out must be addressed in the sentence. The gravity of the offence depicted by its own facts and circumstances will draw the appropriate sentence: Lawrence Simbe v The State [1994] PNGLR 38. That was a murder case, but the principle is relevant also to Manslaughter or any other case for the same, fundamentally it shows out the reality of section 35 of the Constitution the right to life in everyday life here a mother is deprived the life of the son. It is comforting to note that the range of and tariff guided by Manu Kovi (supra) is sound as it has made good law, for instance State v Miva [2006] PGNC 103; N3454 (24 October 2006). The prisoner was sentenced to 16 years for manslaughter. It was a case where it was a domestic argument between husband and wife and relatives taking sides. Prisoner had pulled the bush knife off the deceased and cut him on his head killing him. A first-time offender who had pleaded guilty remorse with tangible evidence thereof.
    
15. In Marangi (supra) the prisoner appealed to the supreme court against 9 years imposed by the National Court for Manslaughter contending it was excessive she had pleaded guilty. The court dismissed the appeal and confirmed the sentence that was imposed. It reasoned that, “We endorse His Honour’s emphasis on the use of a knife as a lethal weapon to kill another person as unacceptable under any circumstances. To our knowledge, there are increasing instances of manslaughter and murder killings coming before the Courts in which a knife is used to settle domestic differences, with fatal consequences. The use of readily available kitchen knife to settle one’s domestic grievances is prevalent in this country. It is becoming a silent lethal weapon, far more dangerous than other potentially dangerous weapons like axes, bush knives or even guns. The reason for this is because the knife is readily available, it can be easily concealed, and used on unsuspecting unarmed victims who are usually taken by surprise, and used in a calculating and precise manner, that the human body is easily penetrated, and vital organs are damaged or even severed. It seems to us that more lives are being lost in this country today from the use of the knife than with any other weapon. Therefore, a strong punitive and deterrent sentence is required.” In my view this is a very relevant consideration that I adopt in the sentence to be passed upon the prisoner. He used that weapon easily in his possession to the demise of a 25-year-old. Drunkenness is not an excuse, he is not incapacitated in his sight.
    
16. He has a good character reference from the Chaplain at Bomana Corrective Institution Corporal Greg Teine. I take due account of that which is evident by his guilty plea to the charge. The aggregate is that a fair and just sentence proportionate to his facts and circumstances is 18 years IHL less 3 years 1 month which will be deducted from the head sentence. He will serve the balance in jail.
    
17. The prisoner is sentenced to the balance remaining of 14 years 11 months IHL in prison.
    

Orders accordingly.
________________________________________________________________
Public Prosecutor : Lawyer for the State
Public Solicitors : Lawyer for the Defendant