The State v Melchior Kapus, Essau Kapus & Derick Kapus (2010) N4114

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 18 March 2010
• Court: National Court
• Citation: (2010) N4114
• Docket Number: CR NO 291 OF 2007
• Year: 2010
• Judgement Number: N4114

Full Title: CR NO 291 OF 2007; The State v Melchior Kapus, Essau Kapus & Derick Kapus (2010) N4114

National Court: Cannings J

Judgment Delivered: 18 March 2010

N4114

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 291 OF 2007

THE STATE

V

MELCHIOR KAPUS, ESSAU KAPUS & DERICK KAPUS

Madang: Cannings J

2010: 17 February, 9, 18 March

SENTENCES

CRIMINAL LAW – sentencing – manslaughter, Criminal Code, Section 302 – sentence after trial – victim, a 52-year-old man – altercation in settlement – young offenders.

Three young men were convicted after a trial of the manslaughter of their 52-year-old male relative. Two of the offenders inflicted fatal wounds to the deceased’s head by using a tommyhawk and by punching him in the head. The other offender whipped the deceased with a rubber hose. This is the judgment on sentence.

Held:

(1) The starting point for sentencing for this sort of killing, a vicious attack involving an offensive weapon, is 13 to 16 years imprisonment.

(2) The two offenders who directly killed the deceased were juveniles at the time, while the offender who indirectly killed him (thereby having a lesser degree of involvement) was an adult. These mitigating factors were of equal weight and as the offenders are brothers, with the same backgrounds, it was appropriate to give them the same sentence.

(3) A sentence of 13 years imprisonment each was imposed. The pre-sentence periods in custody were deducted and three years of each sentence was suspended.

Cases cited

The following cases are cited in the judgment:

Ignatius Pomaloh v The State (2006) SC834

Manu Kovi v The State (2005) SC789

The State v Mark Kanupio & 4 Others (2005) N2800

The State v Melchior Kapus & 7 Others, CR No 291 of 2007, 16.02.10

The State v Vincent Matana Laore and 3 Others CR No 915 of 2005, 24.04.08

SENTENCE

This was a judgment on sentence for manslaughter, after trial.

Counsel

A Kupmain, for the State

A Meten, for the offenders

18 March, 2010

1. CANNINGS J: This is a decision on sentence for three young men, who are brothers, convicted after trial of the manslaughter of their 52-year-old relative, John Sindat. They killed him in an altercation at the place they all lived, Biliau Maus Rot settlement, on the outskirts of Madang town on the evening of Friday 15 September 2006.

2. Not long before that, there had been an altercation involving Mr Sindat’s son. Mr Sindat came to find out who had fought with this son, and this led to the altercation with the offenders. Essau Kapus and Derick Kapus inflicted fatal wounds to Mr Sindat’s head by using a tommyhawk and punching him in the head. They directly caused his death. Melchior Kapus whipped the deceased with a hydraulic hose on the side of his body. Though the wounds he inflicted were not fatal they contributed to the overpowering of the deceased, which had begun when Melchior pulled his shirt over his head, making him vulnerable to a lethal attack. Melchior Kapus indirectly killed the deceased.

3. The offenders and five others were charged with murder and pleaded not guilty. There was insufficient evidence against the other five and they were acquitted. It was found that in view of the nature of the wounds and the spontaneousness of the incident there was no conscious intention by the offenders to do grievous bodily harm. Hence they were not guilty of murder. However their killing of the deceased was unlawful and they were convicted of manslaughter. Further details of the circumstances in which the offence was committed are set out in the written judgment on verdict (The State v Melchior Kapus & 7 Others, CR No 291 of 2007, 16.02.10).

ANTECEDENTS

4. None of the offenders has any prior convictions.

ALLOCUTUS

5. Each offender was given the opportunity to say what matters the Court should take into account when deciding on punishment:

Melchior Kapus: I apologise to the Court and the family of the victim. I am going to Madang Teachers College, and I am in my final year. I ask for mercy so that I can complete my schooling and help my family.

Essau Kapus: I apologise to God and to the Court and the victim and his family for what has happened. I am worried about my schooling and my life. I ask to be put on probation.

Derick Kapus: I apologise to the Court and the family of the victim. Our father has already died and we are looking after our mother. I am due to do my grade 10 this year. I ask for mercy and probation so I can continue my schooling.

PRE-SENTENCE REPORT

6. I received a pre-sentence report from the Community Corrections and Rehabilitation Service. All the offenders come from Sotmeri village in the Wosera-Gawi area of East Sepik Province but they have lived for most or all of their lives at Biliau Maus Rot. Melchior is 24 years old, married with three children. Essau, aged 20, and Derick, aged 18, are single. At the time of the offence they were aged 21, 17 and 15. Melchior is the oldest in the family of five. Their father died in 2003. They have been raised by their mother, Nancy Kapus, and been living with her prior to their imprisonment.

7. Melchior last year completed the first of a two-year teacher training course at Madang Teachers College. Essau is attempting enrolment in an external course with Unitech, Lae. Derick has done grade 9 at Tusbab Secondary School. None have any serious health problems. They all have a sporting background. They are members of the Seventh-Day Adventist Church, attend church regularly and are involved in church activities. They are financially dependent on their mother who earns informal-sector income and has a chicken project at the settlement.

8. They have attempted reconciliation and offered compensation to the deceased’s relatives but these overtures have been rejected. The author of the pre-sentence report attempted to interview the deceased’s widow but she did not want to talk. One of the deceased’s relatives, John Apa Tumakuru, a State witness at the trial, was interviewed and conveyed the clear impression that the deceased’s family do not want to see the offenders given non-custodial sentences.

9. They all have a good record in the community apart from this offence. They are not considered a threat to the community and are recommended for probation.

SUBMISSIONS BY DEFENCE COUNSEL

10. Mrs Meten submitted that the case fell within the second category of the guidelines given by the Supreme Court in the case of Manu Kovi v The State (2005) SC789 and therefore the starting point should be in the range of 13 to 16 years. She submitted, however, that the sentences should be lower than that – as low as eight years – and not more than 14 years, because of the strength of the mitigating factors. It was a group fight and the attack on the deceased could not be regarded as vicious. They are first-time offenders and they co-operated with the police, they have expressed remorse and they are willing to pay compensation. The death of the deceased was not planned, it was a spontaneous incident.

SUBMISSIONS BY THE STATE

11. Mr Kupmain, for the State, agreed that the case fell within the second category of the Manu Kovi guidelines but submitted that there was no case for sentencing at a lower range within that category (13 to 16 years). It was a group fight and the court should impose sentences that will provide a deterrent to this sort of crime. He conceded, however, that because of the favourable pre-sentence report, a partial suspension of the sentence would be appropriate.

DECISION MAKING PROCESS

12. To determine the appropriate penalty I will adopt the following decision making process:

· step 1: what is the maximum penalty?

· step 2: what is a proper starting point?

· step 3: what other sentences have been imposed for similar offences?

· step 4: what should the head sentence be?

· step 5: should the pre-sentence periods in custody be deducted?

· step 6: should all or part of the sentences be suspended?

STEP 1: WHAT IS THE MAXIMUM PENALTY?

13. The maximum penalty for manslaughter under Section 302 of the Criminal Code is life imprisonment. The National Court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code.

STEP 2: WHAT IS A PROPER STARTING POINT?

14. In Manu Kovi v The State (2005) SC789 the Supreme Court suggested that manslaughter convictions could be put in four categories of increasing seriousness, as shown in table 1.

TABLE 1: SENTENCING GUIDELINES FOR MANSLAUGHTER DERIVED FROM THE SUPREME COURT’S DECISION IN MANU KOVI’S CASE

No Description Details Tariff

1 Plea – ordinary cases – No weapons used – offender 8-12 years
mitigating factors – no emotionally under stress – de
aggravating factors. facto provocation – killing in
domestic setting – killing
follows straight after argument
– minimal force used – victim
had pre-existing disease that
caused or accelerated death, eg
enlarged spleen cases.

2 Trial or plea – mitigating Use of offensive weapon, eg 13-16 years
factors with aggravating knife, on vulnerable parts of
factors. body – vicious attack –
multiple injuries – some
deliberate intention to harm –
some pre-planning.

3 Trial or plea – special Dangerous or offensive 17-25 years
aggravating factors – weapon used, eg gun, axe –
mitigating factors vicious and planned attack –
reduced in weight or...