The State v Mark Kanupio, Balwin Kining, Peter Pasikio, Steven Lipilas and Paul Nowor (2005) N2800

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 25 February 2005
• Court: National Court
• Citation: (2005) N2800
• Docket Number: CR Nos 238, 239, 240, 241 & 242 of 2003
• Year: 2005
• Judgement Number: N2800

Full Title: CR Nos 238, 239, 240, 241 & 242 of 2003; The State v Mark Kanupio, Balwin Kining, Peter Pasikio, Steven Lipilas and Paul Nowor (2005) N2800

National Court: Cannings J

Judgment Delivered: 25 February 2005

N2800

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NOS 238, 239, 240,

241 & 242 OF 2003

THE STATE

V

MARK KANUPIO, BALWIN KINING, PETER PASIKIO,

STEVEN LIPILAS AND PAUL NOWOR

KIMBE : CANNINGS J

17, 25 FEBRUARY 2005

SENTENCE

Criminal law – indictable offence – Criminal Code, Division V.2 (homicide etc) – Section 302 (manslaughter) – sentence – sentencing guidelines –– five men attacked one man – local-level government election-related dispute – two of the co-accused stabbed the deceased – deceased died as a result of stab wound inflicted by one of the co-accused – starting point for head sentence – identification of relevant considerations – different role played by different co-accused – application of relevant considerations – whether appropriate to suspend whole or part of sentence – need for properly documented pre-sentence report – sentences for each co-accused.

Cases cited

Anna Max Marangi v The State (2002) SC702

Antap Yala v The State (1996) unreported SCR 69/96

Jack Tanga v The State (1999) SC602

John Kapil Tapi v The State (2000) SC635

Public Prosecutor v Tom Ake [1978] PNGLR 469

R v Gabai Vagi and Others [1973] PNGLR 30

Rex Lialu v The State [1990] PNGLR 487

SCR No 1 of 1984, Re Minimum Penalties Legislation [1984] PNGLR 314

Secretary for Law v Kaibug Jimbun and Another [1976] PNGLR 288

The State v Jason Dongoma (2000) N2038

The State v John Gurave Guba (2000) N2020

The State v Peter John Plesman and Others (1997) N1657

The State v Peter Yawoma (2001) N2032

The State v Sabarana Yakal [1988-89] PNGLR 129

F Popeu for the State

O Oiveka for the accused

CANNINGS J:

INTRODUCTION

This is a decision on the sentence for five men (the co-accused) who pleaded guilty to the offence of unlawful killing, also known as manslaughter.

BACKGROUND

The incident giving rise to the charge took place at Widat village in the Kandrian district of West New Britain on the afternoon of 8 July 2002. It was alleged that the five co-accused attacked a man, Marcus Wasa, and in the process he was stabbed and died shortly afterwards.

The incident happened in the aftermath of the election for the Kandrian Local-level Government. Lobbying was going on for the president’s position.

The five co-accused had spent the day with other young men from their villages, Avanglo and Mulupun, at Aiumete village. They erected a gate for a forthcoming fundraising dance for the Asle Health Centre. When they finished that project they headed home. On the way home, they were told by other people that a group of men from another village, Pasismanua, led by a newly elected member, Robert Kusap, had gone to the nearby Widat village to get the co-accuseds’ local ward member, Lucas Maiang, and take him to the Pasismanua faction. The Pasismanua group were the co-accuseds’ political rivals. The co-accused became angered. They thought the Pasismanua group had gone to Widat to get their man. So they armed themselves with spears, sticks and stones and headed to Widat to forestall what they regarded as a political hijack.

When they got to Widat, they attacked the deceased, who had transported the Pasismanua group there in his Toyota Landcruiser. All except one of the Pasismanua group fled. The deceased was caught and struck by the co-accused with sticks and stones. As the deceased ran around his vehicle, he was cornered. He was stabbed twice. Once by the second co-accused, Balwin Kining, who stabbed him in the back with a 25-centimetre cassowary bone (clearly fashioned as a sharp instrument). The second time by the first co-accused, Mark Kanupio, who stabbed him, also in the back, with what appears to have been a single, swift, deep, lethal cut with a 32-centimetre knife. That second cut severed his spinal chord. He was rushed to Kandrian Health Centre by a group of bystanders but died on the way.

The above is the summary of facts put to the court by the prosecutor, Mr Popeu. That is what the co-accused pleaded to. However when I read the District Court depositions I discovered some significant things were not brought out in the prosecutor’s summary. They relate to the co-accuseds’ suspicion that the deceased had a gun and was going to shoot them and the different degrees of involvement in the incident that each co-accused claims to have had. I will return to these things later.

In August 2002, within a month or so of the incident, the co-accused were interviewed, arrested and charged with wilful murder. They co-operated with the police and made confessional statements.

They were put in police custody. On 27 August and 10 September 2002 they were brought before the District Court at Kimbe and further remanded. On 2 October 2002 they were again brought before the District Court. On that occasion they were committed to stand trial in the National Court and further remanded. On 11 October 2002 they applied for bail before Lenalia J in the National Court. It was granted. They have since complied with the bail conditions and appeared before the National Court when their case has been mentioned.

On 17 February 2005 they appeared before the National Court and faced the following indictment:

Mark Kanupio, Balwin Kining, Steven Lipilas and Paul Nowor, all of Mulupun, and Peter Pasikio, of Avanglo, all of Kandrian in West New Britain Province, stand charged that they … on the 8th day of July 2002 at Kandrian … unlawfully killed one Marcus Wasa.

The indictment was presented under Section 302 of the Criminal Code. The co-accused pleaded guilty. I entered provisional pleas of guilty and then, after reading the District Court depositions, confirmed the pleas and convicted each of the accused. They are now referred to as prisoners.

Mr Popeu tendered an antecedents report, which indicates whether the prisoners had prior convictions. I administered the allocutus to each of them, ie each prisoner was, in turn, given the chance to tell the court anything relevant to the penalty to be imposed. Each told his story. Submissions were made, first, by the defence counsel, Mr Oiveka. These are outlined below. When he made his submissions Mr Oiveka filed an affidavit by a person who states that compensation has been paid by the prisoners to the deceased’s relatives. I will address the significance of that issue below. Mr Popeu then made his submissions and I adjourned to consider sentence.

RELEVANT LAW

The crime of manslaughter

Section 302 of the Criminal Code states:

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.

Joint and several liability

Mr Popeu indicated that the State was also relying on Sections 7 and 8 of the Criminal Code. These provisions of the Code make the members of a group of people criminally liable even though they were not the main perpetrator.

Section 7 (principal offenders) states:

(1) When an offence is committed, each of the following persons shall be deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it:—

(a) every person who actually does the act or makes the omission that constitutes the offence; and

(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence; and

(c) every person who aids another person in committing the offence; and

(d) any person who counsels or procures any other person to commit the offence.

(2) In Subsection (1)(d), the person may be charged with—

(a) committing the offence; or

(b) counselling or procuring its commission.

(a) A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence.

(b) Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, it would have constituted an offence on his part, is—

(c) guilty of an offence of the same kind; and

(d) liable to the same punishment,

(e) as if he had done the act or made the omission, and may be charged with himself doing the act or making the omission.

Section 8 (offences committed in prosecution of common purpose) states:

Where—

(a) two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another; and

(a) in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of the purpose,

each of them shall be deemed to have committed the offence.

Maximum penalty

I was satisfied that the elements the offence of manslaughter were adequately set out in the indictment, that each prisoner was aware of their significance and that the summary of the facts pleaded to by each prisoner supported those elements.

Each prisoner is therefore liable to a penalty of imprisonment for life.

Discretion

That is the maximum penalty. The court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the ...