The State v Andrew Manga

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 28 October 2017
• Citation: (2017) N6998
• Court: National Court
• Year: 2017
• Judgement Number: N6998

Full : CR No 637 of 2012; The State v Andrew Manga (2017) N6998

National Court: Cannings J

Judgment Delivered: 28 October 2017

N6998

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 637 OF 2012

THE STATE

V

ANDREW MANGA

Cannings J: Madang

2017: 31 July,

27, 28 October

CRIMINAL LAW – sentencing – Criminal Code, Section 299 (wilful murder) – conviction after trial – offender stabbed victim during altercation in a clubhouse – offender under the influence of alcohol – drunken fight – victim unarmed.

This is a judgment on sentence for wilful murder. The offender was convicted after trial of stabbing and killing a man in a drunken brawl at a clubhouse. The victim was unarmed and being held by one of the offender’s friends at the critical time. The offender stabbed him three times and he died soon after the attack. This is the judgment on sentence.

Held:

(1) The starting point for sentencing for this sort of wilful murder (trial, mitigating factors with aggravating factors, killing of defenceless person, no planning, spontaneous incident, offensive weapon used) is 20 to 30 years imprisonment.

(2) Mitigating factors: no prior convictions; spontaneous incident; no planning involved; substantial compensation paid to relatives of deceased; good community record; genuine remorse; high degree of co-operation with the Police, the Correctional Service and the Court; willingness to pay further compensation and reconcile with deceased’s relatives.

(3) Aggravating factors: use of lethal weapon; brutal killing; multiple stab wounds; killing of defenceless person.

(4) The mitigating factors warrant a sentence around the centre of the starting point range. The head sentence was 24 years imprisonment. Twelve years was suspended subject to conditions including payment of further compensation.

Cases cited:

The following cases are cited in the judgment:

Manu Kovi v The State (2005) SC789

Steven Ume, Charles Kaona & Greg Kavoa v The State (2006) SC836

The State v Andrew Beng, Andrew Manga & Hebron Tui Ekil (2017) N6881

The State v Chris Baurek CR 146/2009, 26.05.10

The State v Isak Wapsi (2009) N3695

The State v Joel Otariv (2011) N4409

The State v Lotivi Mal, Moses Mal, Emmanuel Ong & Kathrine Mal (2012) N4591

The State v Luther Francis Melo (2016) N6267

The State v Mark Bongede (2012) N4683

The State v Mathew Lewaripa (2015) N6151

The State v Mathew Misek (2012) N4561

The State v Moses Dadu & Sylvester Dadu (2017) N6881

The State v Moses Nasres (2008) N3302

The State v Seth Ujan Talil (2010) N4159

The State v Tun Mai Isaac (2014) N5864

SENTENCE

This was a judgment on sentence for wilful murder.

Counsel :

F K Popeu, for the State

J Morog, for the Offender

28th October, 2017

1. CANNINGS J: This is the decision on sentence for Andrew Manga who was convicted after trial of one count of wilful murder under Section 299(1) of the Criminal Code. Two other accused faced trial on the same charge, but they were acquitted.

2. Andrew Manga committed the offence at Assas in the Ramu Valley in the early hours of Sunday 23 October 2011, at a licensed clubhouse. Assas is a small built-up area on the Bruce Jephcott Highway between Walium station and Ramu town in Usino-Bundi District. It is 50 kilometres along the highway from Ramu, in the direction of Madang town.

3. On the other side of the highway, is a service station, workshop and residence owned by a Western Highlands man, an uncle to the offender.

4. On the afternoon of Saturday 22 October there was a birthday party for a young boy. No alcohol was consumed at the party. The offender and his two co-accused were at the party. After the party finished, the three of them walked across to the clubhouse and started drinking alcohol and socialising. They are from the Ramonga area of Dei District, Western Highlands Province. The offender was a University of PNG student, living at Port Moresby, who was on holiday at Assas (he had been there for a week) at the time of the incident. When the three accused arrived at the club, there was already a drinking session in progress involving men from Enga, most of whom lived close by. There were two distinct drinking groups, those from Enga (“the Engans”, who were first at the club) and those from Western Highlands (the “Hagens”) who arrived later.

5. The club owner agreed to leave the club open beyond the normal closing time of 8.00 pm and the two groups of men were socialising harmoniously. Music was playing and some people were dancing. At about 10.00 pm an Engan man accidently bumped into a Hagen man. This led to a fight between the Engan men and the Hagen men.

6. The deceased Jeffrey Tee is from Kandep District, Enga Province. He was aged about 30. He was not at the drinking party but he arrived when the fight started. In the course of the fight the offender deliberately stabbed him three times, intending to kill him. He was placed in a vehicle, and driven in the direction of Ramu in an attempt to get him urgent medical treatment. He died on the way, at Menia Bridge. The cause of death was hypovolaemic shock (sudden loss of circulating blood) caused by a deep laceration to the liver. Further details of the circumstances of the offence are in the judgment on verdict, The State v Andrew Beng, Andrew Manga &Hebron Tui Ekil (2017) N6881.

ANTECEDENTS

The offender has no prior conviction.

ALLOCUTUS

7. The offender was given the opportunity to address the court. He said:

I apologise for what I have done. I apologise from my heart to the relatives of Jeffrey Tee. I say sorry to my own family members and tribesmen. I ask for their forgiveness and mercy. I apologise to the Court and to God for what I have done. It was not planned. It was not meant to happen. I ask for the mercy of the court and forgiveness. I had no intention at all of taking anyone’s life. It just happened and I am very, very sorry.

I have lost my education and property and my marriage and my resources. I just got married last year. This is my first time ever to face court. Thank you to the lawyers. I respect the decision of the court. I understand that no one is above the law.

PRE-SENTENCE REPORT

8. The Madang branch of the Community Based Corrections office prepared a pre-sentence report for Andrew Manga. He is now aged 29 years. He is the second born in a family of three children. He is the only male. His parents are alive and in the village. He has a grade 12 education. He was at the time of the offence in the third year of a Bachelor of Business degree at the University of Papua New Guinea. His family is strongly supportive of him. His health is sound. The sum of K12,000.00 bel kol was paid to the deceased’s relatives a few days after the incident and contributed to preservation of peace. He has a good community record, and had been looked upon as an up and coming leader, particularly as he was being university-educated.

SUBMISSIONS BY DEFENCE COUNSEL

9. Mr Morog submitted that there are substantial mitigating factors: there was no planning involved in the offence, it was a spontaneous incident, the offender has no prior convictions and has cooperated with the Court and made a genuine plea for mercy, he has expressed remorse, and substantial compensation has been paid already, which has assisted in keeping the peace. This means that the case falls within the first category (the least serious category) of cases recognised by the Supreme Court in Manu Kovi v The State (2005) SC789, and make the appropriate sentence no more than 15 to 20 years imprisonment.

SUBMISSIONS BY THE STATE

10. Mr Popeu did not agree that this is a category 1 case according to the Kovi guidelines. It is at least category 2 case as the matter went to trial and there was not only one stab wound, warranting a sentence of 20 to 30 years imprisonment.

DECISION MAKING PROCESS

11. 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 sentences have been imposed for similar offences?

· step 4: what should the head sentence be?

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

· step 6: should any part of the sentence be suspended?

STEP 1: WHAT IS THE MAXIMUM PENALTY?

12. The maximum penalty for wilful murder under Section 299 of the Criminal Code is death. The court has a discretion whether to impose the maximum by virtue of Section 19(1)(aa) of the Criminal Code, which states:

In the construction of this Code, it is to be taken that, except when it is otherwise expressly provided … a person liable to death may be sentenced to imprisonment for life or for any shorter term.

STEP 2: WHAT IS A PROPER STARTING POINT?

13. I will apply the sentencing guidelines for wilful murder given by the Supreme Court in the two leading cases: Manu Kovi v The State (2005) SC789 and Steven Ume, Charles Kaona & Greg Kavoa v The State (2006) SC836.

The Kovi guidelines

14. In Kovi the Supreme Court suggested that wilful murder convictions could be...