The State v Elias Peter Wano Miva (2006) N3454

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi, J
• Judgment Date: 05 October 2006
• Docket Number: CR NO. 448 of 2005
• Citation: (2006) N3454
• Court: National Court
• Year: 2006
• Judgement Number: N3454

Full Title: CR NO. 448 of 2005; The State v Elias Peter Wano Miva (2006) N3454

National Court: Kandakasi, J

Judgment Delivered: 5 October 2006

N3454

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 448 of 2005

THE STATE

-V-

ELIAS PETER WANO MIVA

Kerema: Kandakasi, J.

2006: 5 and 2 October

DECISION ON SENTENCE

CRIMINAL LAW – SENTENCING – Manslaughter – Domestic argument between husband and wife – relatives taking sides – Prisoner pulling bush knife away from deceased and seriously cutting deceased on the head – Serious brain damage accelerating asthmatic attack – Death resulting there from – Alcohol involved - Guilty plea – First time offender – Expression of remorse without tangible evidence of - Sentence of 16 years imposed - Criminal Code Sections 302 and 19.

Cases cited:

Roger Jumbo and Aidan Awatan v. The State (26/03/97) SC516.

Public Prosecutor v. Tom Ake [1978] PNGLR 469.

The State v. Roger Kivini (29/04/04) N2576.

Manu Kovi v. The State (31/05/05) SC 789

Anna Max Marangi v. The State (08/11/02) SC 702

Antap Yala v. The State(Unreported judgment in, SCR 69/96 delivered on 31/05/96).

Jack Tanga v. The State(19/04/99) SC602

John Kapil Tapi v. The State(30/03/00) SC635

The State v. Dominic Mangirak (29/04/03) N2368

The State v Jimmy Morgan (17/12/01) N2171

The State v. Samuel Benimo (18/04/02) N2203

The State v. Hobert Erick (18/04/02) N2201

The State v. Saku Sogave (15/12/00) N2086

Sakarowa Koe v. The State (01/04/04) SC739

The State v Charles Maniwa and Joseph Utura Maniwa(22/06/04) N2674

The State v. Gerald Kirafe

The State v. Timothy Diwa

The State v. Hiliong Gunaing(25/02/05) N2803

The State v. Daniel Ronald Walus(25/02/05) N2802

Simon Kama v. The State (01/04/04) SC740

The State v. Ian Napoleon Setep (31/10/96) N1478

The State v. Yapes Paege & Relya Tanda [1994] PNGLR 65

The State v. Godfrey Edwin Ahupa, (20/05/98) N1789

The State v. Ben Simakot Simbu (No.2) (26/03/04) N2546

Joseph Nimagi, Gurua Kerui & David Bawai Laiam v. The State (01/04/04)

SC741

The State v. Thomas Waim [1995] PNGLR 187

Bokum Umba v. The State, (02/04/76) SC92

The State v. Richard Amuna Koupa [1987] PNGLR 208

The State v. Kevin Anis & Martin Ningigan,(07/04/03) N2360

The State v. Wesley Nobudi & Ors, (19/12/02) N2310

Paulus Manadatititip & Anor. v. The State, [1978] PNGLR 128

Rudy Yekat v. The State (22/11/01) SC665

Allan Peter Utieng v. The State (Unreported judgment delivered in Wewak on 23/11/00) SCR 15 of 2000

The State v. Lucas Yovura (29/04/03) N2366

Counsels:

Mr. D. Mark, for the State.

Mr. Lunga, for the Prisoner.

24 October 2006

1. KANDAKASI J: You pleaded guilty to a charge of manslaughter contrary to Section 302 of the Criminal Code, presented against you by the State on the 5th of this instant. After receiving submissions on your behalf from your lawyer as well as that of the State on the same day, the Court reserved its Court decision on sentence. This is now the decision of the Court.

The Facts

2. The relevant facts giving rise to the charge and your guilty plea are these. On 30 November 2004, you were at your bigger brother, Greg Miva’s parents’ in-law’s place where you had been residing with your brother and his wife. During the night of that day, your bigger brother, yourself and another person with your bigger brother’s brother in-law had a beer party in the living room of Greg’s in-law’s house. You had some music played at a high volume. Greg’s wife called for the music to be stopped more than once as one of her parents who was to go for a late night work duty was sleeping. On the last of her attempts to get the beer drinking party to turn the music off or lower its volume, an argument took place between Greg and his wife, initially in the house and eventually taken outside of the house. You took sides with your brother while Greg’s wife’s brother a Chris Karulaka Haiveta, now deceased, went in aid of his sister. A physical fight then broke out. A bush knife was involved in the fight. It is not clear who first started the use of the knife as the evidence is conflicting. Those on your side say it was the deceased while those against you and on the side of the deceased say it was you. Nevertheless it is clear that you took a bush knife and attacked the deceased by cutting him on his head. You claim that the deceased was trying to cut you with the bush knife, but you managed to take the bush knife away from him and used it to cut him.

3. Where there is a guilty plea to a charge as in your case and there is conflict in the evidence, the law requires me to accept the version of facts favourable to an accused.

xxxviii See for examples of authorities on point Roger Jumbo and Aidan Awatan v. The State (26/03/97) SC516, Public Prosecutor v. Tom Ake [1978] PNGLR 469 and The State v. Roger Kivini (29/04/04) N2576.

xxxviii1 Accordingly, I accept your version of the facts and note that, when you disarmed the deceased he was no longer posing any risk of injury or serious harm to you. You nevertheless, proceeded to attack him as you did.

4. Not long after you had cut the deceased, the fight stopped. That was after the deceased was taken to the hospital. You and your bigger brother sought safety from the police but no policeman was on duty. So you went to a nearby village and secured protection from a village court official there. With the assistance of the village court official, you went to the police station where you were arrested and locked up. On 4 March 2005, the District Court here committed you to stand trial in the National Court for the killing of the deceased. Almost a month later on 2 April 2005, you escaped from lawful custody and were at large. A bench warrant was thus issued by this Court on 13 April 2005 for your arrest. With the assistance of your parents, you were recaptured by the police on 25 December 2005. Since then, you have been in lawful custody awaiting your trial.

Allocutus and Submissions

5. In your address on sentence, you only said sorry for what you have done. Your lawyer added by informing the Court that you were aged 17 when you committed the offence and now you are 19 years old. You are single and have been up to grade six community school education level. You come from Lese Kavora, in the Malalaua District of this Province and have no prior conviction.

6. Before the Court proceeds to consider an appropriate sentence for you, your lawyer urged the Court to note and take into account your family background. He also urged the Court to take into account the fact that you pleaded guilty to a serious charge. That saved the State the time and money it could have out laid to secure your conviction through a trial. He further urged the Court to take into account the fact that you are a first time offender, meaning that you have not been in trouble with the law before. This is your first ever offence. Finally, your lawyer urged the Court to take into account that, there was provocation from the deceased in the non legal sense in that, he attacked you first.

7. At the same time, your lawyer correctly acknowledged that you committed a very serious offence, which carries a maximum penalty of life imprisonment. However, he urged the Court to note that, the Supreme and the National Courts have imposed sentences below that. He then referred the Court to the Supreme Court decision in Manu Kovi v. The State (31/05/05) SC 789, per Injia, DCJ., Lenalia & Lay JJ. That decision seeks to further categorize homicide cases from what Parliament has already provided for. Going by that decision, your lawyer submits that your case falls in the second category of manslaughter or unlawful killing cases. Accordingly, he submitted that you should be given a sentence of 14 years having regard to all of the factors operating for and against you.

8. Counsel for the State, Mr. Mark, whilst noting your personal background, your guilty plea and being a first time offender, submitted that this is a prevalent offence now and that a sentence beyond what your lawyer argued for should be imposed. He pointed out the fact that, the medical report shows that the cut you inflicted upon the deceased directly contributed to his death. A life has thus been lost prematurely and directly by your actions and as such you should be appropriately punished.

9. These submissions give rise to only one issue for this Court to determine and that is; what is an appropriate sentence in your case? This issue can only be appropriately decided by having regard to the sentence prescribed by Parliament, the sentencing guidelines and trends per the Supreme and National Court judgments and the particular circumstances in which you committed the offence from which comes, the factors in your aggravation as well as those in your mitigation. I will therefore first turn to a consideration of the offence and its sentencing guidelines, trends and tariffs.

The Offence and Sentencing Trend

10. Section 302 of the Criminal Code creates and prescribes the penalty of life...