The State v Steven Mul Mangi (No 2) (2005) N2993

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 20 October 2005
• Citation: (2005) N2993
• Docket Number: Cr No 180 of 2001
• Court: National Court
• Year: 2005
• Judgement Number: N2993

Full Title: Cr No 180 of 2001; The State v Steven Mul Mangi (No 2) (2005) N2993

National Court: Kandakasi J

Judgment Delivered: 20 October 2005

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 180 of 2001

THE STATE

-V-

STEVEN MUL MANGI (No. 2)

WABAG: KANDAKASI, J.

2005: 11th and 20th October

DECISION ON SENTENCE

CRIMINAL LAW- Sentence – Murder – drunken brawl – Prisoner arming himself and using a kitchen knife to inflict fatal injury to deceased – Deceased dying from injury sustained – Use of knife and involvement of alcohol considered serious aggravating factors – Conviction after trial – First time offender - Sentence of 35 years imposed.

Cases cited:

Simon Kama v. The State (01/04/04) SC740.

The State v. Vincent Simbago (unreported and unnumbered judgment delivered on 25 September 2005 in Wewak).

The State v. Laura (No. 2) [1988-89] PNGLR 98.

The State v. Raphael Kimba Aki (No.2),N2082

Joseph Nimagi, Tom Gurua Kerui and David Bawai Laiam v. The State (01/04/04) SC741.

Kepa Wanege v. The State (01/04/04) SC742.

The State v. Charlie Langu (No 2) (26/08/04) N2652.

The State v. Tony Pandau Hahuahori (No 2) (21/02/02) N2186.

The State v. Lucas Yovura (29/04/03) N2366.

Counsels:

Mr. M. Ruari for the State.

Mr. D. Kari for the Accused.

20th October 2005

KANDAKASI J: Last week, this Court found you guilty on one count of murder contrary to Section 300 of the Criminal Code. After having heard you and your lawyer as well as the State’s lawyer on the kind of sentence you should receive, the Court adjourned to today for a decision on your sentence. This is now the decision of the Court on your sentence.

The Relevant Facts

The relevant facts are set out in the decision on verdict delivered on 11th October 2005. For the purposes of your sentencing however, I note that the facts are these. On the day of the alleged offence between 11:00pm and 12:00 midnight, you and Buka Leme were drinking at the Dae Won Hotel with the deceased. From there, you proceeded to the Sakalis market. A fight between you and the deceased took place. People that were there stopped your fight temporarily but started again. This repeated three times. On the third time, you and the deceased ended up in a bear hug position wherein you stabbed the deceased with a kitchen knife with which you armed yourself with. This caused the deceased to fall to the ground dragging you down as he fell. The deceased bled heavily from the wound. Some people rushed the deceased to the hospital. Unfortunately, that was a little too late. The doctor pronounced the deceased dead on arrival.

Address on Sentence

When the Court gave you the opportunity to do so, you addressed the Court on sentence before both your lawyer and that of the State made their respective submissions. In your address on sentence, you said you did not plan to kill the deceased and that the deceased died of his own actions. You also said you surrendered to police after the incident. Further, you said you paid compensation without specifying how much. You then spoke about being a first time offender, your family and being on bail and complying with bail conditions faithfully.

Your lawyer added by pointing out that you are 25 years old and that your village is within the precincts of the Wabag Township. He also pointed out that you are the Second born in a family of four children. You are educated up to grade 10. Further, your lawyer pointed out that, you were married at the time of the offence and your arrest. Your wife left you after your arrest and incarceration. Upon release on bail, you remarried and your new wife is now pregnant. Your lawyer then urged the Court to note your personal and family backgrounds, you being a first time offender and that you cooperated with the police before arriving at a decision on your sentence.

As to the kind of sentence you should receive, your lawyer drew the Court’s attention to the Supreme Court decision in Simon Kama v. The State (01/04/04) SC740. That decision, of which I was a part, provides guidelines for sentencing in murder cases. Your lawyer submitted that your case falls under category (e) per that case.

The State’s submission highlighted the fact that your conviction came after a trial, that you used a dangerous weapon to bring about the death of the deceased and that the deceased was not armed to warrant you arming yourself with a dangerous weapon and attacking the deceased. He also highlighted the fact that the offence of murder is a prevalent offence and that; your sentence should be toward the upper end of the range recommended in Simon Kama’s case.

The Offence and Sentencing Trend

Section 300 (1) (a) of the Criminal Code prescribes the offence of murder and its penalty in these terms as far as they are relevant:

“(1) Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder:-

(a) if the offender intended to do grievous bodily harm to the person killed or to some other person; or….

…

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

Recently in the case of The State v. Vincent Simbago (unreported and unnumbered judgment delivered on 25 September 2005 in Wewak), I reviewed the relevant sentencing guidelines and trend. In so doing, I noted that the Court in The State v. Laura (No. 2)

1 [1988-89] PNGLR 98.

1 set out the following as the appropriate guidelines for sentencing in murder cases:

1. On a plea of guilty where there are no special aggravating factors, a sentence of six years;

2. Sentences of less than six years may be imposed only where there are special mitigating factors such as youthfulness or very advanced age of the accused; and

3. On a plea of not guilty, a range of sentences from eight to twelve years or more in a case where aggravating factors are evidenced.

I then had regard to what I said in The State v. Raphael Kimba Aki (No.2),

2 (Unreported Judgment) N2082.

2 after reviewing the sentencing trend and guidelines up to the date of that judgment in murder cases. There, I observed that:

“Clearly, the guidelines set in the Laura No. 2 case, has to be reviewed in the light of the sentencing trends in manslaughter cases as well as the increase in murder cases since those guidelines were set. The guidelines were given on the 3rd of April 1989. That was more than 11 years ago and may now be out dated especially in the number of years to be imposed for each of the categories. Going by the sentences currently being imposed in manslaughter cases, the starting period for murder cases should now be increased to 10 years or more. Thus, the guidelines in the Laura No. 2 case should be varied in the following way:

1. On a plea of guilty where there are no special aggravating factors, a sentence of ten years;

2. Sentences of less than ten years may be imposed only where there are special mitigating factors such as youthfulness or very advanced age of the accused;

3. On a plea of not guilty, a range of sentences from twelve years to fourteen years and more in a case where aggravating factors are evidenced would be appropriate.”

I also noted that, the Supreme Court in its recent judgment in Simon Kama’s case, endorsed my above observations and guidelines and established new sentencing guidelines for murder cases. The Supreme Court did that in terms of the following at page 22:

“On the court’s part, we suggest that following the establishment of the guilt of an accused, either on a plea or after a trial, the Court approach sentence with a serious consideration of the maximum prescribed penalty first. Then allow the offender to make out a case for a lesser sentence. An offender could easily do that by pointing out to the factors in his mitigation with the appropriate evidence where evidence is required. Once the offender is able to do that only then should the Court carefully consider the factors both for and against an imposition of the maximum penalty. At that stage, the categorization of the kind of offence under consideration could become relevant and useful. With these qualifications in mind we are of the view that the guidelines set by State v Laura (No 2) and Simbe v The State for murder cases are relevant with the following variations based on the sentences imposed to date and the prevalence of the offence:

(a) Where there is a guilty plea with no factors in aggravation, a sentence of twelve (12) to sixteen (16) years;

(b) Where there is a guilty plea with aggravating factors other than the use of firearms and the commission of another serious...