State v Roy Wani (2011) N4328

• Jurisdiction: Papua New Guinea
• Judge: Ipang AJ
• Judgment Date: 17 June 2011
• Citation: (2011) N4328
• Docket Number: CR 473 OF 2011
• Court: National Court
• Year: 2011
• Judgement Number: N4328

Full Title: CR 473 OF 2011; State v Roy Wani (2011) N4328

National Court: Ipang AJ

Judgment Delivered: 17 June 2011

N4328

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 473 OF 2011

STATE

V

ROY WANI

Accused

Wewak: Ipang AJ

2011: 10, 17 June

CRIMINAL LAW – Sentencing – manslaughter – Criminal Code Act – s302 – plea of guilty – husband had argument with wife – picked up spade – threw spade at wife – head of the spade flew-off – struck innocent child on the head – the child died – no intention to do grievous bodily harm on the child – sentence of 9 years as head sentence – offender to serve 4 years, 9 months & 26 days IHL while 4 years suspended on conditions.

Cases Cited

Kesimo Apo v State [1988] PNGLR 182

Antap Yala v State SCR69 of 1996

State v Steven Kenny (1999) N1881

Jenny Wasu v State (2002) SC697

Anna Max Marangi v State (2002) SC702

Manu Kovi v The State (2005) SC789

State v Issac Ulul CR No. 203 of 2007

Counsel

Mr. F. Popeu, for the State

Mrs. A. Meten, for the Offender

DECISION ON SENTENCE

17 June, 2011

1. IPANG AJ: This is a decision on the sentence for the prisoner Roy Wani who pleaded guilty to one count of unlawful killing also known as manslaughter contrary to Section 302 of the Criminal Code Act, Chapter 262.

Indictment

2. On the 3 June, 2011 the State Prosecutor Mr. F. Popeu presented the following indictment against the offender:

(a) Roy Wani of Kunjigini, Wosera/Gawi in the East Sepik Province stands charged he on the 24th day of February, 2010 at Kunjigini in Papua New Guinea unlawfully killed one Osheila Wani.

3. The indictment was presented under section 302 of the Criminal Code Act, chapter 262. The section 302 of the Criminal Code Act states:

“A person who unlawfully kills another under such circumstances as not to constitute willful murder, murder or infanticide is guilty of manslaughter.

Penalty: Subject to section 19, imprisonment for Life.”

Brief facts

4. On the 24 February, 2010 at around 9.00pm, the prisoner had an argument with his wife. Both were inside their house arguing. The prisoner during the course of their argument picked up a spade and swung it at his wife. Unfortunately, the head of the spade flew off and struck the child Oshiela. The child was at that time, woken up from her sleep and was seated upright on the bed when the head of the spade struck her. The child died shortly after she was taken to the hospital.

5. The accused pleaded guilty to those facts. I entered a provisional plea of guilty and then after reading the District Court depositions which was formally tendered to Court by the State Prosecutor, I confirmed by the plea and entered a conviction against the accused. The defence counsel Mrs. A. Meten for the offender applies to the Court for a Pre-Sentence Report (PSR) to be done on the offender. I granted the application and adjourned the case to 9/6/11 for submissions on sentence.

Antecedent Report

6. The offender has nil prior convictions.

Allocutus

7. The offender was given an opportunity to express his views on the offence he has committed and the type of punishment or penalty that he thinks the Court should impose upon him. In return, the offender said;

“I am married and lived with my wife’s parents. I did all the work for my wife’s parents. I told my wife that we should go to my place but she refused. So we both had an argument and the incident happened. I brought the child to the hospital and she died on the way. We brought the child back home. I was locked up in the cell the next day. I am sorry for what I did. It was not my intention to do that. I ask for mercy.”

Defence Counsel’s Submission

8. Mrs. Meten submitted that the maximum penalty for manslaughter is life imprisonment. However, she said that this Court has a considerable discretion whether to impose the maximum penalty or not by virtue of section 19 of the Criminal Code Act. She said it is a general practice that the maximum penalty is usually reserved for the worst type of cases. The counsel submitted that the present case is not within the range of worst manslaughter cases. She therefore, referred to the more recent case of Manu Kovi v State (2005) SC789. This was a Supreme Court case presided by Injia DCJ, Lenalia J & Lay J. The Supreme Court in Manu Kovi reviewed sentencing guidelines for all manslaughter cases. Counsel submitted that the sentencing range the court may consider is between 13-16 years.

9. Defence counsel further submitted that in deciding an appropriate head sentence, this Court may impose more or less than the term of years as stated above. However, she said the Court can do this by weighing the mitigating factors against the aggravating factors.

10. Mrs. Meten cited the following cases in support of her submission. This is the case of State v Jenny Dei CR No. 407 of 2010 (N4260). In that case, the accused was found guilty of manslaughter, where the accused killed her husband by stabbing him in the neck during a domestic dispute. The Court presided by Cannings, J imposed a sentence of 9 years imprisonment. This sentence was imposed after the court found there were strong mitigating factors to warrant a sentence below the starting point.

11. Another case cited was the case of State v Issac Ulul CR No. 203 of 2007, a man pleaded guilty to manslaughter. He killed his brother by slashing him with a bush knife. There was a strong defactor provocation. The court imposed 10 years and suspended 4 years.

12. Defence counsel said that in this present case, the mitigating factors outweigh the aggravating factors. In that the offender pleaded guilty to the offence, he has co-operated with the police, his guilty plea, saved court’s time and State’s cost of putting up a trial. That he is a first offender. Counsel submitted that this Court considers a head sentence of 9 years but should use its discretion under section 19(f) of the Criminal Code Act to suspend the sentence.

Pre-Sentence Report (PSR)

13. Finally, the counsel submitted that the Court should also take in to account the recommendation by Probation officer through the pre-sentence report. The Pre-Sentence Report (PSR) says the following:

“The accused is a suitable candidate to supervise for probation given that he is a first time offender and has no prior conviction. He is a young man who can and has shown that he can contribute meaningfully to his community and family. The PSR also states he is not of high risk to his community or to anyone. The PSR recommends at p.7 a part custodial and non-custodial sentence.”

Submission by State

14. Mr. Popeu do agree with the submission by defence counsel that though the penalty under section 302 of the Criminal Code Act, chapter 262 is life imprisonment subject to section 19, the circumstances do not make this case the most serious warranting maximum penalty to be imposed.

15. The state prosecutor said the offender pleaded guilty and has shown remorse for what he did. His pleading has saved the Court’s time and State’s costs. He initially co-operated with the police by making early admission through the Record of Interview (ROI). The State also says that the offender will live with the stigma of having killed his very own child. On the converse, State has also stated that the offender has demonstrated his readiness to resort to violence as a solution to simple domestic problems, that a young life has been lost forever that can not be restored and the offence committed with use of an offensive weapon.

16. Mr. Popeu cited the case of Kesimo Apo v State [1988] PNGLR 182 in which His Honour Los, J (as he then was) stated, “as a rule, … a custodial sentence is a starting point for the fundamental reason that all human lives must be protected…” The state prosecutor made observation that the general sentencing trend for manslaughter cases have increased from 2 years to 9 years since the Kesimo Apo’s case. This has further increased to 12 years in Jack Tanga v State (1999) SC602.

17. In the case of Antap Yala v State SCR 69 of 1996, Mr. Popeu said this case held that sentence for each case should be determined upon its own peculiar set of facts also suggested that in an unintentional killing case which is uncontested, whatever the extenuating or mitigating factors may be, the application of vicious force,...