Ignatius Natu Pomaloh v The State (2006) SC834

• Jurisdiction: Papua New Guinea
• Judge: Jalina J, Mogish J, Cannings J
• Judgment Date: 27 April 2006
• Citation: (2006) SC834
• Docket Number: SCRA NO 47 OF 2002
• Court: Supreme Court
• Year: 2006
• Judgement Number: SC834

Full Title: SCRA NO 47 OF 2002; Ignatius Natu Pomaloh v The State (2006) SC834

Supreme Court: Jalina J, Mogish J, Cannings J

Judgment Delivered: 27 April 2006

SC834

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCRA NO 47 OF 2002

BETWEEN

IGNATIUS NATU POMALOH

Appellant

AND

THE STATE

Respondent

WEWAK : JALINA J, MOGISH J, CANNINGS J

24, 27 APRIL 2006

Criminal law – sentencing – unlawful killing – sentencing of co-offenders – whether account should be taken of the different degrees of involvement of co-offenders.

The appellant was one of two men convicted of the manslaughter of another man in the course of a domestic dispute. The appellant’s co-offender stabbed the deceased during the course of the dispute, causing the deceased’s death. The appellant did not stab the deceased. The appellant and his co-offender pleaded guilty and were each sentenced to 14 years imprisonment. The appellant appealed against the severity of his sentence.

Held:

(1) When sentencing co-offenders it is necessary to take account of their different degrees of involvement in the commission of the offence.

(2) Each offender must have their sentence determined by the particular individual circumstances; and this means that the trial judge must make an assessment of their degree of participation in the crime that was committed. The trial judge should specifically address this factor in the course of exercising the discretion as to sentence.

(3) If account is not taken of this factor – especially in cases where co-offenders clearly had differing degrees of involvement – it is likely that an error will be committed in the exercise of the sentencing discretion. The punishment must fit the crime.

(4) In the case of manslaughter, where co-offenders have fought with or attacked the deceased, and one or more of the co-offenders has not done anything to directly kill the deceased, it is necessary to take into account their respective degrees of involvement in order to arrive at a fair sentence.

(5) The trial judge erred by giving the co-offenders the same sentence when the evidence was clear that the appellant did not stab the deceased and did not directly kill him.

(6) The sentence of 14 years was quashed and replaced with a sentence of eight years.

Cases cited

The following cases are cited in the judgment:

Gimble and Others v The State [1988-89] PNGLR 271

Jim Kas v The State (1999) SC772

Lawrence Hindemba v The State (1998) SC593

Norris v The State [1979] PNGLR 605

State v Rex Lialu [1988-89] PNGLR 449

State v Tom Keroi Gurua, David Laiam Bawai and Joseph Nimagi (2002) N2312

The State v Anos Naime Maraga, Hariki Badi and Gaigo Arua (2002) N2433

The State v Ben Wafia, George Wena, Simon Konga and Leslie Puka (No 2) (2004) N2547

The State v Edward Toude and 3 Others (2001) N2299

The State v Eki Kondi, Mike John, Allan Nemo, Kelly Sop Kondi and Isaac Sip (No 2) (2004) N2543

The State v Garry Sasoropa, John Aremeiko and Mathew Melton (No 2) (2004) N2569

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

The State v Morobet Awui Koma & Peter Kevin [1987] PNGLR 262

The State v Wesley Nobudi, John Lulu Evoa and Franky Yalikiti Fravo (2002) N2510

William Dot Norman Parkop and James A Make v The State (1999) SC621

Winugini Urugitaru v The Queen [1974] PNGLR 283

APPEAL

This was an appeal against sentence for manslaughter and unlawful wounding.

I N Pomaloh, the appellant, in person

M Zurenuoc for the respondent

BY THE COURT: This is an appeal against the sentence passed by the National Court (Sevua J) on the appellant, Ignatius Natu Pomaloh, upon his conviction for manslaughter and unlawful wounding.

On 1 December 2001 there was an incident at Saltrack village near Lorengau, Manus Province in which two brothers were stabbed. One of them, Polum Pokep, survived. The other, Polomon Pokep, died. The police investigated the incident. The appellant and another man, Yokin Pokawin, were charged. They were committed for trial by the District Court on 12 April 2002.

On 10 May 2002 they were jointly indicted for the unlawful wounding of Polum Pokep and the unlawful killing (manslaughter) of Polomon Pokep. They pleaded guilty and Sevua J accepted their pleas and convicted them the same day. The allocutus was administered and submissions were received on 13 May 2002. Sevua J sentenced each of them to 14 years imprisonment on 16 May 2002.

On 25 June 2002 the appellant gave notice of his application for leave to appeal and his appeal against sentence. This was within the 40-day period permitted by Section 29(1) of the Supreme Court Act. We are satisfied that the appeal is properly before this court.

The appeal was heard at Wewak in April 2006. It has taken a long time to be heard. We are not sure of the reason for this but the respondent has not taken issue with any delay on the part of the appellant.

THE NATIONAL COURT PROCEEDINGS

It was put to the appellant and his co-accused at the start of the proceedings that between 11.00 am and 12 midday on the day in question they were at Saltrack consuming alcohol. After drinking, the appellant was walking to his house and on the way saw his aunty, Rebecca Pomaki, in her house. He claimed that Rebecca had cursed him and he assaulted her. Rebecca’s brother, Polum Pokep, came to her rescue and punched the appellant in the mouth, causing bleeding. The appellant went back and informed Yokin Pokawin what had happened. Yokin and the appellant went to Rebecca’s house and Yokin assaulted Rebecca. She was Yokin’s aunty as well as the appellant’s.

After that second assault on Rebecca, the appellant and Yokin went out and saw Polum Pokep and fought him. In the fight Yokin pulled out a knife from his waist and stabbed Polum in the back. It was a black-handled steel-bladed dagger, six inches in length. Polum was wounded but not fatally. Polum’s elder brother, the deceased Polomon Pokep, came to assist Polum. Yokin and the appellant fought with him too. In the course of that fight Yokin pulled out the same knife with which he had stabbed Polum and stabbed the deceased in the abdomen. The deceased was rushed to hospital and operated on but died a few hours later from a massive haemorrhage caused by the knife wound.

The State alleged that Yokin caused the deceased’s death by slashing him with the knife, causing internal bleeding. The State did not allege that the appellant stabbed the deceased but that he aided and abetted Yokin. The State invoked Section 7 of the Criminal Code to claim that he, together with Yokin, was guilty of manslaughter.

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.

(3) 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.

(4) 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—

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

(b) liable to the same punishment,

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

The State alleged that neither the appellant nor Yokin had any lawful justification or excuse for what they did.

They both pleaded guilty to those allegations. The trial judge accepted their pleas and convicted them of one count each of manslaughter under Section 300 of the Criminal Code (for the death of Polomon Pokep) and one count each of unlawful wounding under Section 322 of the Criminal Code (for the injury to Polum Pokep).

Neither offender had any prior conviction. In allocutus the appellant said sorry to his relatives and to his community. He would not have committed these offences if his aunty, Rebecca, had not cursed him. Yokin Pokawin said sorry for wounding Polum and sorry to Polomon’s family for causing this trouble.

Sentence

The trial judge began his judgment on sentence by describing the personal particulars of the two offenders. The appellant, Ignatius Pomaloh, was then (in May 2002) aged 22 years. He attended Ecom High School and completed grade 10. He did not secure a place in a tertiary institution so he returned to the village where he had been living with his family. He was unemployed when he committed the offence. The other offender, Yokin Pokawin, is the son of the then member for Manus Provincial and Governor of...