The State v Jimmy Morgan (2001) N2171

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 17 December 2001
• Citation: (2001) N2171
• Court: National Court
• Year: 2001
• Judgement Number: N2171

Full Title: The State v Jimmy Morgan (2001) N2171

National Court: Kandakasi J

Judgment Delivered: 17 December 2001

N2171

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1184 of 2001

THE STATE

-V-

JIMMY MORGAN

WEWAK: KANDAKASI, J.

2001: 13th and 17th December

CRIMINAL LAW — Sentence — Manslaughter — Two serious blows to the deceased resulting in rapture of spleen and lung — Drunkards disturbing sleeping community — Disturbance woke up deceased from his sleep — Prisoner has habit of getting drunk and disturbing the peace — Guilty plea — No prior convictions — Sentence of 12 years in hard labour imposed — Criminal Code ss. 302 & 19.

Cases cited:

The State v. Jonathan Apamba Wangu (CR 544 of 2001)

The State v. Oddillya Hurayua (CR 1710 of 2001)

Rex Lialu v. The State [1990] PNGLR 487

Jack Tanga v. The State SC602

John Elipa Kalabus v. The State [1988] PNGLR 193.

Ala Peter Utieng v. The State (unreported and unnumbered judgement of the Supreme Court delivered in Wewak on the 23rd of November 2000) SCRA 15 of 2000

Counsel

M. Ruarri for the State

G. Korei for the Accused

DECISION ON SENTENCE

17the December, 2001

KANDAKASI J: On Thursday the 13 of this month, you pleaded guilty to one count of unlawful killing of one Francis Kainor, at Namba 2 Basis here in Wewak on the 19th of May 2001, contrary to section 302 of the Criminal Code.

The relevant facts are not much in dispute. At about 4:00pm, on the 19th of May 2001, you went down to the beach and joined other boys there. At the beach, you and your friends drank some strong alcoholic drink, you describe as "OP hot drink", three in total, according to your record of interview. Thereafter you went to a black market and bought one more of the same alcoholic drink and drank it. That was about 7:30 p.m. Then at about 9:00pm, you decided to go and buy some smoke.

According to your record of interview, you went to the deceased's house and asked to buy some smoke from his wife. But there was no response so you say you went to the next door neighbour of the deceased, an old man called Kopi and knocked on his door and knocked several times for him to open his door and sell you smoke. He did not do that so you decided to leave. You then left the old man Kopi's house when you saw the deceased standing next to his house. So you say you said good night to him. He responded with a swear, accusing you of getting drunk and every time and behave like the way you were behaving at that time. He then charged at you with a bush knife in his hands first. He swung the bush knife at you and you avoid it. At that stage, you say you pretended to hit him with a piece of wood. The deceased then charged toward you with the bush knife. This time, you thought he was going to get you so you struck him with the piece of wood you had. You then ran away from the scene. Later you found that the deceased was seriously injured and eventually died some hours later. You decided not to raise a defence based on your claims even though I raised with you and your counsel. Instead you chose to raise this only in your mitigation.

Other material on file, which I am entitled to take into account show that you are used to getting drunk and disturbing the peace. On this occasion, you and your friends hit an empty drum and banged on Mr. Kopi's house several times. You were obviously disturbing and waking up a sleeping community as you always do each time you get drunk. The material on file also shows that, you and your friends asked to buy some smoke from the deceased. You and your friends did not succeed in getting a favourable response. As result, you and your friends got very angry and attacked the deceased. You hit the deceased with a piece of wood twice. The wood is described as a 4x2, which is obviously a heavy object. The first of your hits was on the deceased's stomach area, which cause the deceased to struggle for breath. Whilst he was in that condition, you hit him again on his chest area. Thereafter, you and your friends left the scene.

The deceased' neighbours managed to take him to the hospital. However, he was dead at the scene hours after the assault on him before getting to the hospital. There was nothing the hospital could do to save the deceased. The hospital subsequently conducted a post mortum. This revealed that the deceased suffered serious injuries to his spleen resulting in rapture and injuries to his left lung causing serious internal bleeding about two liters, from which and the deceased eventually died. There is no evidence or suggestion of the deceased having a swollen spleen. So I assume that he had a normal spleen.

The Law

The offence of unlawful killing and its penalty is prescribed by section 302 of the Criminal Code. It prescribes a maximum penalty of life imprisonment. The offence is therefore, a very serious one, regardless of how it is committed. The section in relevant parts prescribes the offence and the penalty in these terms:

"302. Manslaughter.

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

Penalty: Subject to Section 19, imprisonment for life."

As I said last week here in Wewak in The State v. Jonathan Apamba Wangu (CR 544 of 2001) and The State v. Oddillya Hurayua (CR 1710 of 2001), it is trite law that the maximum penalty for any offence must be reserved for the worse type of the offence under consideration. There is not much contention that your case does not fall under the worse type of unlawful killing. Nevertheless, it is a serious offence to kill someone unlawfully. That is why, the maximum penalty prescribed is life imprisonment.

The Supreme Court in Rex Lialu v. The State [1990] PNGLR 487, set out the relevant guidelines for sentence in this type of cases. It held that the following factors must be taken into account before sentencing:

"(i) the nature and frequency of the attack or assault on the deceased.

(ii) did the injury which caused death arise directly from the assault or was the injury caused by an object when the deceased subsequently fell?

(iii) was death caused by a fist or weapon?

(iv) did the offender deliberately set out to hurt anyone?

(v) was there any provocation in the non-legal sense?

(vi) did the deceased have a thin skull?

(vii) did the deceased have an enlarged spleen?"

In the case before it, the Supreme Court found that the appellant and the deceased were both drunk. The decease said something that was suggestive to the appellant's wife. So the appellant punched the deceased once on the head and the deceased fell backwards on the bitumen surface and eventually died from landing hard on the bitumen surface. The appellant was sentenced to 4 and half years by the National Court but the Supreme Court increase that to 6 and half years.

Subsequent Supreme Court decisions have...