The State v Juvenile “D”(2008) N3508

• Jurisdiction: Papua New Guinea
• Judge: Makail, AJ
• Judgment Date: 20 October 2008
• Citation: (2008) N3508
• Docket Number: CR NO 1597 OF 2006
• Court: National Court
• Year: 2008
• Judgement Number: N3508

Full Title: CR NO 1597 OF 2006; The State v Juvenile “D”(2008) N3508

National Court: Makail, AJ

Judgment Delivered: 20 October 2008

N3508

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1597 OF 2006

THE STATE

v

JUVENILE “D”

Mendi: Makail, AJ

2008: 13 October

: 20 October

CRIMINAL LAW - Unlawful killing - Plea - Sentence - Criminal Code - Section 302 - Deceased adult male - Principles of - Mitigating and aggravating factors - Mitigating factors - Early guilty plea - First offender - Juvenile – De facto provocation - Deceased stealing food crops from garden of prisoners - Argument over stealing - No premeditation or pre planning - Aggravating factors - Blood relative of prisoner - Use of bush knife - Multiple blows during fight - Legs and hands of deceased - Prevalence of offence - Maximum penalty - Life imprisonment - Mitigating factors outweighs aggravating factors - Principal offender - Criminal Code - section 7 - Sentence of 6 years imposed - Less time spent in pre trial custody - No suspension of sentence - Sentence sufficiently reduced - Criminal Code - Section 19 - Jurisdiction of National Court in juvenile cases - Juvenile Act 1991 - Sections 1, 4 & 18.

LAWYERS - Role of lawyers - Duty to Court and to client - Need to provide Pre Sentence Report - Pre Sentence Report to assist Court to formulate appropriate sentence - Absence of Pre Sentence Report to the detriment of prisoner - Probation Act - Sections 13 & 25.

Cases Cited:

Anna Max Maringi -v- The State (2002) SC 702

The State -v- Stanley Marai Uriye (2003) N2386

The State -v- Peter Kolol (2003) N2658

Simon Kama -v- The State (2004) SC 740

Manu Kovi -v- The State (2005) SC 789

The State -v- Bernard Hagei (2005) N2913

The State -v- Jessie Balu: CR No 907 of 2007 (Unnumbered & Unreported Judgment of 25 August 2008)

Counsel:

Mr J Kesan, for the State

Mr P Kumo, for the Prisoner

SENTENCE

20 October, 2008

1. MAKAIL AJ: On 13 October 2008, the prisoner and a co prisoner pleaded guilty to one count of unlawful killing of one Maria Ipiri under section 302 of the Criminal Code.

BRIEF FACTS

2. The brief facts put to the prisoner during arraignment are these; the prisoner is the son of the other prisoner, Yuanis Ipiri and comes from Soyapu village in Kagua of the Southern Highlands Province. The deceased is an uncle of the prisoner as this prisoner’s father is the brother of the deceased. Sometimes prior to 11 February 2006, the deceased had been stealing food crops and peanuts from the garden of the prisoner and his father. On 11 February 2006, at about 8 o’clock in the morning, the prisoner and his father went on a hunting trip. They were armed with bush knives, bows and arrows. On their way, they stopped at their garden to check on it only to find the deceased and his wife collecting food crops. The deceased was also armed with a bush knife.

3. The prisoner’s father started an argument with the deceased. Obviously he was upset and angry that the deceased saw it fit to go to their garden and steal their food crops. During the argument, his father grabbed the deceased and held him and the prisoner chopped the deceased on his legs and hands. The deceased sustained multiple wounds on his legs and hands. As a result he lost a lot of blood and died.

4. The State says that when the prisoners held and chopped the deceased, they intended to cause grievous bodily harm to the deceased but he died. It says that it holds the prisoners equally culpable by virtue of section 7 of the Criminal Code.

ALLOCUTUS

5. On his allocutus, the prisoner sincerely apologized to the Court and the family of the deceased. He also regrets that by their actions, the deceased died. He says that he did not plan to kill the deceased as he went with his father on a hunting trip that morning with their dogs when they stumbled into the deceased and the wife in their garden, collecting food crops.

6. He says that his father was upset and angry that the deceased saw it fit to come and steal from their garden and told the deceased that the garden was to feed his children. The garden was not for the deceased and his wife to come and steal. During the argument, the deceased punched his father and a fight broke out. He says that the deceased held his father’s throat and choked him so he came to his father’s aid and chopped the deceased on his legs. After that, they left the victim and returned to the village and later learnt that the deceased had died.

7. He says that the police arrested him and his father and he is now before the Court. He asks for leniency.

THE LAW

8. Section 302 of the Criminal Code makes it an indictable offence for a person to unlawfully kill another person and the maximum penalty is life imprisonment. It states as follows:

“302. Manslaughter.

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”.

9. The Supreme Court in a number of its judgments has set the sentencing tariffs in manslaughter, murder and wilful murder cases. For example in the Supreme Court judgment of Anna Max Maringi -v- The State (2002) SC 702, it sets the sentencing tariff in manslaughter cases as follows:

“The current range of sentences for uncontested manslaughter cases in a domestic setting as set out in the above three cases and other cases range from four (4) years to sixteen (16) years imprisonment. There are 3 categories of sentences within this range.

The first category relates to cases which come in the lower end of this range. These cases involve application of force in an uncalculated manner, such as a single blow, punch or kick on any part of deceased’s body. For instance a single or multiple kick or punch causing rupture of the spleen. This kind of killings attracts sentences between three (3) years and seven (7) years. Cases where the deceased has pre-existing disease which accelerated or contributed to the death such as enlarged spleen are treated as less serious than the death of a normal person and they attract sentences in the lower end of this scale: see Public Prosecutor v. John Mela SCRA 17/01 unpublished Supreme Court Judgment dated 28 June 2001.

The second category relates to cases which fall in the middle part of this range. These cases involve repeated application of vicious force, with or without the use of an instrument or weapon, such as repeated kicks and punches applied to the head or chest with deliberate intention to wound or cause bodily harm. An example is Jack Tanga’s case. Death caused by a single or multiple knife stab wounds applied on the head, neck, chest or abdomen or on any other vulnerable part of the body, without any other special aggravating factors, also come under this category. Unintentional killings which come under this category attract sentences between 8 and 12 years.

The third category relates to cases which fall on the top end of the range. Those cases involve application of direct force in a calculated manner, on the body using a weapon such as a knife, bushknife or axe thereby inflicting serious bodily injuries, such as piercing vital organs or severing vital parts of the body. Death caused by chopping the neck, legs and arms with an axe or bushknife are examples of this kind of killing. Death caused by single or multiple (knife) stab wounds on the head, face, neck, chest or the abdomen if accompanied by other special aggravating factors may also fall under this category. This kind of killing attracts sentences between 13 and 16 years. An example of this type of killing occurred in John Kapil Tapi. The case of Antap Yala could also come under this category although the sentence imposed in that case was 10 years.

As to which of these 3 categories a particular case falls into, depends principally on the viciousness of the assault, the manner in which the injuries were inflicted and the seriousness of those injuries which caused death.

It is worth noting that killings which come under the second and third categories may well constitute murder or event wilful murder if the necessary intentions to either cause grievous bodily harm or kill are present”. (Emphasis is mine).

10. The judgment of the Manu Kovi -v- The State (2005) SC 789 is the latest of the Supreme Court touching on sentences in manslaughter cases. That judgment agreed with the judgment of Simon Kama -v- The State (2004) SC 740 that time has come for an increase in the penalties and recommended that sentences in manslaughter cases be increased. I summarize the increase in the tariff below:

MANSLAUGHTER

CATEGORY 1 - 8 - 12 years

Plea. - No weapon used,

- Victim emotional under stress and defacto, e.g. killings in domestic

Setting,

- Killing follows immediately after argument,

- Little or no preparation,

- Minimal force used,

- Victim with pre-existing diseases which caused or accelerated death e.g. enlarged spleen cases.

CATEGORY 2 - 13 - 16 years

Trial

or Plea. - Using offensive weapon, such as knife on vulnerable parts of

body,

- Vicious attack,

- Multiple injuries,

- Some deliberate intention to harm,

- Pre-planning.

CATETORY 3 - 17 - 25 years

Trial

or plea - Dangerous weapons e.g. gun or axe,

- Aggravating,

- Killing of innocent,

- Vicious and planned,

-...