The State v Charles Walieng (2009) N3885
| Jurisdiction | Papua New Guinea |
| Judge | Kandakasi, J |
| Judgment Date | 26 June 2009 |
| Citation | (2009) N3885 |
| Docket Number | CR NO. 1341 of 2008 |
| Court | National Court |
| Year | 2009 |
| Judgement Number | N3885 |
Full Title: CR NO. 1341 of 2008; The State v Charles Walieng (2009) N3885
National Court: Kandakasi, J
Judgment Delivered: 26 June 2009
N3885
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO. 1341 of 2008
THE STATE
-V-
CHARLES WALIENG
Kimbe: Kandakasi, J.
2009: 3rd and 26th June
CRIMINAL LAW – Sentence – Manslaughter – Killing in domestic setting – Kicks and punches until deceased fell to ground – Death resulting from suffocation – de facto provocation - Guilty plea - First time offender – Prevalence of offence – Deterrent sentence called for – Sentence of 14 years imposed – Section 300 (1) of Criminal Code.
CRIMINAL LAW – PRACTICE & PROCEDURE – Sentencing guidelines and sentencing ranges – Unnecessary restriction on sentencing discretion – Trial judge has wide discretion – Discretion ought not to be unnecessarily fettered – Purpose of sentencing and facts of each case appropriate guide – Passed sentences also useful guide.
Cases Cited:
Manu Kovi v. The State (2005) SC789
Simon Kama v. The State(2004) SC740
The State v. Lawrence Matau (2007)
James Pangnan & Patrick Ponat v. The State SCRA 39 & 54 OF 2004
Sakarowa Koe v. The State (01/04/04) SC739
Anna Max Marangi v. The State (08/11/02) SC702
The State v. Robert Potou (2008) N3316
The State v. Elias Peter Wano Miva (2006) CR No. 448 of 2005
Thress Kumbamong v. The State (2008) SCRA 39 of 2007
Joe Giamur v. The State (2006) SC884
Counsel:
F. Popeu, for the State.
D. Akeya, for the Accused.
26th June, 2009
1. KANDAKASI J.: The Court found you guilty on a charge of manslaughter contrary to s. 302 of the Criminal Code. That was on your plea of guilty to the charge. Then through your lawyer, you asked for a sentence of 8 years. On the other hand, the State through its lawyer, argued for a sentence between 12 and 20 years. In support of their respective submissions, both counsel referred to and relied on the decision of the Supreme Court in Manu Kovi v. The State
1.
Relevant Issue
2. The issue for the Court to determine therefore is what is an appropriate sentence for you? A sub-issue to that is, whether the decision in Manu Kovi is the relevant and appropriate Supreme Court decision to go by in your case in determining the main issue?
Relevant Facts
3. As the many decisions of both the National and Supreme Courts have said repeatedly, your sentence must reflect the particular circumstances or the facts of your case. Put another way, the law requires the Court to impose a sentence that befits the crime. It is thus necessary to take into account the relevant facts.
4. So what are the relevant facts and circumstances in which you committed the offence? Some time between 10:00 and 11:00am on 04th August 2008, you were in your house at Faflo logging camp with your children. At that time, you heard your daughter who was with your then wife Priscilla, crying. That made you to go out of the house and find out that, her mother hit her. So you confronted your wife and the two of you ended up fighting each other. After that, you turned and were trying to go away when the deceased picked up a stone and hit you with it. That caused you to turn back and start kicking and punching her until she fell to the ground. Sometime soon thereafter, a boat took the deceased to the nearby health centre. Medical staff at the health centre pronounced the deceased dead on arrival. A medical report says the deceased died of suffocation.
Submissions
5. As noted, your learned counsel Mr. Akeya and learned counsel for the State, Mr. Popeu referred me to the Supreme Court decision in the Manu Kovi case to help determine an appropriate sentence for you. Mr. Popeu also referred the Court to two decisions of the National Court where the National Court imposed respective sentences of 12 and 13 years in cases of spleen deaths.
Consideration
6. As I have said in a number of cases already, I have difficulty following the decision in Manu Kovi, especially when it in effect further categorized homicide cases. As the Supreme Court I was a part of said in Simon Kama v. The State
2, Parliament had already categorized the different categories of homicide cases. The decision in Manu Kovi had no regard to what the Supreme Court said on that point in the Simon Kama case, before proceeding with its categorization. Additionally, Manu Kovi has effectively in my humble view, amended the provisions of Sections 299, 300 and 302 of the Criminal Code. This in my respectful view, is the case when the decision further categorizes murder and manslaughter cases, by suggesting categories where there exists preplanning and there is an intention to kill or do grievous bodily harm which are essential elements in willful murder and murder cases respectively.
7. Section 302 of the Criminal Code, being the provision under which you were charged, creates the offence of unlawful killing and prescribes its penalty of life imprisonment. But this is subject to the Court’s wide sentencing discretion under s. 19 also of the Criminal Code. In the exercise of that discretion, the Courts have imposed varying sentences.
8. As I have noted else where,
See for example The State v. Lawrence Matau (2007) N ???
3 notwithstanding offenders being caught and dealt with accordingly to law, there are still too many killings. Given the prevalence of the offence, the Supreme Court has revisited some of its age old sentencing guidelines and have come up with new sentencing guidelines with increased ranges of sentences for offenders. The Supreme Court decision in James Pangnan & Patrick Ponat v. The StateSCRA 39 & 54 OF 2004, delivered on 30th August 2006 at Kokopo, per Sevua, Kandakasi & Manuhu.
9. Prior to the decision in the Manu Kovi case, there were only three categories of manslaughter cases identified, with their suggested range of sentences. The then latest decision of the Supreme Court was its decision in Sakarowa Koe v. The State.
(01/04/04) SC739, per Sevua, Kandakasi &Lenalia JJ.
5 There, the court reviewed the categorization of unlawful killing cases and varied the Supreme Court’s earlier decision in Anna Max Marangi v. The State(08/11/02) SC702, per Jalina, Injia & Sawong J.
10. In The State v. Robert Potou
7, I reviewed the sentencing trend in manslaughter cases and concluded that, the decisions of the Supreme and National Courts show an increase in the kind of sentences imposed in manslaughter cases. I then observed that, the decision of the Supreme Court in the Manu Kovi case endorsed this trend and suggested four categories of manslaughter and recommended an increased range of sentences.
11. I then noted that, the first category is at the lower end of the scale for simple cases of manslaughter which does not involve any weapons, brutality or viciousness, pre-meditation and or planning and the offender pleads guilty. That should attract sentences between 8 to 12 years. The second category is for cases which involve an offensive weapon, some planning, viciousness or brutality and an intention to do harm. This category attracts sentences between 13 to 16 years, whether or not the offender pleads guilty. The third category is for cases which involve offensive weapons such as guns and axes, some planning, viciousness or brutality and an intention to do harm. This attracts sentences between 17 to 25 years, whether or not the offender pleads guilty. The fourth and final category is cases in which all of the aggravating elements missing under the first category and the other categories exist. This attracts life imprisonment, whether or not the offender pleads guilty.
12. At the same time, I expressed the view that, there was a serious flaw in the decision in the Manu Kovi case, in relation to the Courts further categorization of manslaughter cases, particularly in relation to the third and fourth categories. I gave some reasons for that view in a number of cases for example my decision in The State v. Elias Peter Wano Miva.
(2006) CR No. 448 of 2005.
8 In those cases, I made the points I have earlier made in this judgment.
13. I now note that, there are two further reasons for my holding the view that Manu Kovi cannot be right. The first is this, the further...
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