The Independent State of Papua New Guinea v Jamie Visser

• Jurisdiction: Papua New Guinea
• Judge: Thoke, AJ
• Judgment Date: 21 February 2022
• Neutral Citation: N10168
• Citation: N10168, 2022-02-21
• Counsel: Ms. Linda Maru, for the State,Mr. Paul Moses, for the Defendant
• Docket Number: CR NO 323 OF 2019
• Hearing Date: 18 February 2022,21 February 2022
• Court: National Court

N10168

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 323 OF 2019

The Independent State of Papua New Guinea

v.

Jamie Visser

Vanimo: Thoke, AJ

2022: 18^th & 21^st February

CRIMINAL LAW — Sentence — s.302 of the Criminal Code — Manslaughter — Prisoner was provoked and assaulted by deceased — Conviction upon Guilty Plea — Suspended Sentencing

On 9 September 2018, between 4.00 to 5.00 AM, the Accused, Jamie Visser unlawfully killed Pais Maka. The instrument by which the killing was occasioned was by a boom box.

Cases Cited:

Manu Kovi v The State (2005) SC789

Goli Golu v The State [1979] PNGLR 653

Lawrence Simbe v The State [1994] PNGLR 38

State v George (2021) PGNC 98; N8776

State v Jimmy Mogoi (2012) N4680

State v Elias Peter Wano Miva (2006) N3454

State v Billy Joel (2014) N5797

Kumbamong v The State (2008) SC 1017

State v Willie Cr. No. 269 of 2020

State v Malas Wamii Cr. No. 615 of 2019

State v Mambe (2014) N6527

State v Simon Moses (2017) N6617

State v Mano (2019) N8238

State v Vealolo (2019) N7802

State v Kairu (2022) N9826

State v Samuel Kalib CR. No. 318 of 2013

State v Namaliu [2020] PGNC 234; N8506

State v Tardew [1986] PNGLR 91

State v Frank Kagaii [1987] PNGLR 320

Counsel:

Ms. Linda Maru, for the State

Mr. Paul Moses, for the Defendant

Public Prosecutor: Lawyers for the State

Public Solicitor: Lawyers for the Defendant

DECISION ON SENTENCE

21^st February, 2022

1. Thoke AJ: On 9 September 2018 at about 3.00 AM, the Prisoner, Jaimie Vissor, was drinking alcohol with four (4) of his friends – Junior Gubon, Diana Wanum, Rosela Sio, and another [who was unnamed in the Record of Interview] – at the residence of one Simon M'ledu at West Tower, Vanimo, West Sepik Province.

2. Sometime after, the Prisoner and his party left the residence and were walking along the West Tower road. Somewhere near the Lutheran Church they met a police officer, Freddy Kakaukra, with whom they entered into conversation.

3. While the Prisoner and his party were engaging in conversation with Mr. Kakaukra, the Deceased approached the party and questioned the Prisoner about an incident which had occurred earlier in which the Prisoner had sworn or punched a friend of the Deceased.

4. An argument ensued which escalated when the Deceased punched the Prisoner on the left side of his face. Before the situation escalated any further, Mr. Kakaukra held off the two and quelled the situation.

5. An hour later, the Prisoner was walking along the road at West Tower on his way back home after dropping off his friends when he saw the Deceased on the road with Mr. Kakaukra and another, Jessie Kupe. The party of three were listening to music which was being played from a boom box belonging to the Deceased.

6. The Prisoner approached the party and turned off the boom box. He then stepped aside to urinate. While he was urinating, the Deceased called out the actions of the Prisoner and scolded the accused, within earshot of the Prisoner, with words similar to the following:

“Em no tef bilong yu. Yu wrong! Em tef belong me. Yu wrong!”

That is:

“This is not your turf. This is my turf. Your actions [in turning the boom box off] is wrong!”

[Expansion of translation mine.]

7. The Prisoner reacted by charging back and turning the boom box off again. The Deceased then repeated his earlier statement and scolded at him a second time.

8. The Prisoner lost his temper, picked up the boom box, and swung the boom box on the Deceased's face and head. The blow landed on the right eye brow of the Deceased causing a deep laceration just above the right eye brow. As the Prisoner was about to swing another blow with the boom box, Mr. Kupe intervened and fended off the Prisoner from the Deceased.

9. Mr. Kupe then attempted to grab the Prisoner upon which the Prisoner fled the scene fearing Mr. Kupe.

10. The Deceased was rushed to the Vanimo General Hospital (Hospital) for medical treatment where he was admitted. After a week of being at the Hospital the Deceased died from the injuries sustained from the attack by the Prisoner on 18 September 2018.

11. The Prisoner, Jamie Visser pleaded guilty to one (1) count of manslaughter under Section 302(1) of the Criminal Code Act (Code). The Prisoner was convicted accordingly.

LAW ON SENTENCING TARIFFS FOR CONVICTION OF MANSLAUGHTER

12. In Manu Kovi v The State (2005) SC789 the Supreme Court set out the following sentencing tariffs for convictions of manslaughter.

Description	Details	Tariff
1	Plea – ordinary cases – mitigating factors – no aggravating factors.	No weapons used – offender emotionally under stress – de 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.	8–12 years
2	Trial or plea – mitigating factors with aggravating factors.	Use of offensive weapon, eg knife, on vulnerable parts of body – vicious attack – multiple injuries – some deliberate intention to harm – some pre-planning.	13–16 years
3	Trial or plea – special aggravating factors – mitigating factors reduced in weight or rendered insignificant by gravity of offence.	Dangerous or offensive weapon used, eg gun, axe – vicious and planned attack – deliberate intention to harm – little or no regard for sanctity of human life.	17–25 years
4	Worst case – trial or plea – special aggravating factors – no extenuating circumstances – no mitigating factors, or mitigating factors rendered completely insignificant by gravity of offence.	Some element of viciousness and brutality – some pre-planning and pre-meditation – killing of harmless, innocent person – complete disregard for human life.	Life imprisonment

13. In Goli Golu v The State [1979] PNGLR 653 [and many other cases that have followed on its heels], it has been well fortified in our jurisdiction that the maximum penalty is only reserved for the worst case and that each case should be determined on its own particulars.

14. Despite sentencing tariffs and comparative precedents, Section 19 of the Code provides the Court with a broad discretion on sentence and every sentence should be determined according to its own facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38.

SUBMISSION BY THE STATE

15. The State in its submission set out the following aggravating and mitigating factors:

(i) Aggravating Factors

(a) a boom box was used to inflict the deadly wound

(b) the Deceased was unharmed and defenseless

(c) the Prisoner intended to cause grievous bodily harm

(d) the Prisoner's efforts to deliver other blows was stopped by Mr. Kupe

(e) the Prisoner was intoxicated

(ii) Mitigating Factors

(a) the Prisoner is a first time offender

(b) the Prisoner expressed remorse in Court to the family of the Deceased

(c) the Prisoner pleaded guilty early

(d) there was some element of de facto provocation

16. The State assisted the Court with the following cases involving De facto provocation for comparison:

(i) State v George (2021) PGNC 98; N8776

The Prisoner, a 42-year-old pleaded guilty to one (1) count of manslaughter under Section 302 of the Code. The Prisoner was a person of very little education who killed the Deceased an 83-year-old man with a bush knife. The killing was a result of a land dispute. The Prisoner inflicted serious multiple injuries on the Deceased's right hand and left arm. The Court imposed a sentence of 15 years in hard labor less pre-trial custody period of 1 year and 5 days. The Prisoner served the balance of 13 years 11 months 3 weeks 2 days in custody.

(ii) State v Jimmy Mogoi (2012) N4680

The Offender pleaded guilty to one count of manslaughter. The Deceased and his friends had earlier on assaulted the Defendant with an iron rod resulting in him sustaining superficial wounds to his body. The Defendant armed himself with a kitchen knife and went to a nearby market. A few hours later he saw the Deceased and his friends at the market and chased the Deceased. He stabbed the Deceased on the chest. The wound was a deep one and the Deceased died almost instantly from severe loss of blood. The Court found that there was a high degree of de facto provocation and the Court imposed a sentence of 13 years in hard labor.

(iii) State v Elias Peter Wano Miva (2006) N3454

The Offender pleaded guilty to one count of manslaughter after the Deceased died from a severe head injury that the Offender had inflicted upon him with a bush knife during a drinking party. The Accused was sentenced to 16 years in hard labor.

(iv) State v Billy Joel (2014) N5797

The Offender was a person who was trying to stop a fight between the Deceased and another man. It was during this time that the Offender accidentally stabbed the Deceased on the chest with a knife. He pleaded guilty to manslaughter. He expressed remorse and was a first-time offender. A sentence of 12 years in hard labor was imposed.

17. The State submitted that this case falls within Category 1 of the Manu Kovi guidelines and should attract a sentencing range of 8 – 12 years in hard labor.

18. Further, the State also added, apart from the aggravating factors above, that the Deceased was a teacher who added value to the lives of children in Vanimo and the Nation. Thus, the loss of his life negatively impacts on children and education in Vanimo and the Nation as a whole.

19. The State concluded by submitting that the appropriate sentence would be 10 years less the pre-trial custody period.

SUBMISSION BY THE DEFENCE

20. The Defense set out the personal particulars of the Prisoner as a male age 29 years, from Kiorata village, of the Sohe District in Oro Province, whose wife deserted him, while he was in custody. He is a member of the Christian Brethren Church, and is the only child born out of wedlock to Able Taima of Kiorata, Oro Province and Serah Visser from Jayapura, Indonesia. His biological mother deserted him at birth and left him in the care of his...