The State v Gerald Kirafe (2005)

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi, J
• Judgment Date: 22 December 2005
• Citation: (2005)
• Docket Number: CR NO 1833 of 2005
• Court: National Court
• Year: 2005

Full Title: CR NO 1833 of 2005; The State v Gerald Kirafe (2005)

National Court: Kandakasi, J

Judgment Delivered: 22 December 2005

DECISION ON SENTENCE

CRIMINAL LAW - Sentence—Particular offence—Manslaughter - Drunkard passenger in moving motor vehicle causing nuisance and calling on driver to stop—Risky for driver to stop immediately—When stopped, prisoner argued with driver and throwing ice beer bottle with contents at driver from close range—Driver injured on his forehead above right eye brow—Victim’s condition worsening and admitted to hospital unconscious and in state of coma—Death due to brain damage—Guilty plea by first time offender—Alcohol abuse a factor in aggravation—Strong application of force to bottle or any other object renders the object a dangerous weapon - Prevalence of offence - Deterrent sentence called for—13 years custodial sentence imposed.

Cases cited:

Anna Max Marangi v The State (2002) SC702; Sakarowa Koe v The State (2004) SC739; Antap Yala v The State (1996) SCR 69 of 1996; Jack Tanga v The State [1999] PNGLR 216; John Kapil Tapi v The State (2000) SC635; The State v Dominic Mangirak (2003) N2368; The State v Jimmy Morgan (2001) N2171; The State v Charles Maniwa (2004) N2674; The State v Tau Karo (2004) N2600; The State v Lucas Yovura (2003) N2366; The State v Isidor Kaream (2004) N2610; The State v Henry Mapi (1998) N1936; Joseph Nimagi v The State (2004) SC741; The State v Steven Mul Mangi (No 2) (2005) N2993; Public Prosecutor v Don Hale (1998) SC564; The State v James Tei Wena (2000) N2304; Edmund Gima and Siune Arnold v The State (2003) SC730.

1. KANDAKASI J: You pleaded guilty to one charge of manslaughter or unlawful killing contrary to s302 of the Criminal Code. After having administered your allocutus and receiving submissions of counsels, I reserved a decision. Here is now the decision of the Court.

Relevant Facts

2. The facts on which you pleaded guilty to are straightforward. On 11th March 2005, around 3:00 pm, you got on a Vanimo Forest Product’s company motor vehicle, which was bound for Uwa base camp. In the vehicle were other Vanimo Forest Product employees with their families. At the time, you were drunk with alcohol. Whilst in the vehicle, you were a great nuisance to the other passengers and the driver of the vehicle. As the vehicle was about a kilometre away from the Uwa base camp, you banged on the cabin roof top of the vehicle, calling upon the driver, a Lesley Mok Yin Kain to stop for you to go and relief yourself.

3. The driver could not immediately oblige you because he was driving through a portion of the road that could not allow for a safe stopping. However, as soon as he was able to get a safer place to bring the vehicle to a stop he did stop. You then got down from the vehicle, stood about a meter away from the driver, and started arguing with him as to why he could not stop immediately when you called. The driver explained the road condition and the safety issues to you. You did not accept that and threw an ice beer bottle you had with you at the driver. The bottle landed on the driver’s forehead just above the right eyebrow. That caused the deceased to bleed. Another person took over driving the vehicle to the camp thinking the driver was alright and would survive the attack on him. Unfortunately, his condition did not improve requiring hospital admission and treatment at the Vanimo General Hospital. The Hospital admitted him in a state of unconsciousness and coma. His condition did not improve despite medical intervention. He died two days later. The medical doctor put the cause of death as “brain dead due to severe blow to his head with Intracranial Bleeding and raised intracranial pressure.”

Address on Sentence and Submissions

4. You informed the Court that you are first time offender and that you have not been in trouble with the law before. You also informed the Court that you are a villager and as such, you are not familiar with Court procedures. You also said sorry to the deceased relatives and friends for killing the deceased. At the end of your address, you asked the Court to exercise mercy toward you.

5. Your lawyer added that, you are about 22 years old. You come from the Mumulu Village here in the Sandaun Province. He further informed the Court that, you are married with a 10 month old baby. Education wise, you have been up to grade 4. Prior to the commission of the offence, you were employed as a crew of a bulldozer with Vanimo Forest Products Company.

6. In his submissions, your lawyer asked the Court to take into account your personal background, your guilty plea and that you are a first time offender in your mitigation. Your lawyer then drew my attention to s19 of the Code as well as the Supreme Court judgment in Anna Max Marangi v The State (2002) SC702 and asked the Court to start with a sentence of 3 years and asked that part of that be suspended.

7. On the other hand, the State’s lawyer submitted that an innocent life has been unnecessarily brought to an end prematurely. Your case involved an abuse of alcohol. The offence of unnecessary killings is very prevalent and is a crime of violence. Learned counsel for the State, then drew the Court’s attention to the recent Supreme Court judgment in Sakarowa Koe v The State (2004) SC739 and submitted that your case falls in the first category of Anna Max Marangi v The State (2002) SC702 [Opt Cit note 1] as varied by Sakarowa Kewa v. The State.[Opt Cit note 2] Therefore counsel for the State submitted that your sentence should be somewhere between 7 years and 12 years.

Offence and Sentencing Trend

8. Section 302 of the Criminal Code creates and prescribes the penalty of life imprisonment as its maximum penalty subject to s19 of the Code for the offence of manslaughter or unlawful killing. In Anna Max Marangi v The State (2002) SC702 [Opt Cit note 1] the Supreme Court reviewed nearly all of the previous cases on manslaughter particularly its earlier judgments in Antap Yala v The State (1996) SCR 69 of 1996; Jack Tanga v The State [1999] PNGLR 216 and John Kapil Tapi v The State (2000) SC635. As I observed in The State v Dominic Mangirak (2003) N2368, the Supreme Court spoke of three categories particularly in the context of domestic killings as follows:

“The first consists of cases in which force is used accidentally or in an uncalculated manner, such as a single blow, punches or kicks on any part of deceased’s body. This also includes cases in which death is caused by an acceleration of a pre-existing disease or condition leading to death. These kinds of killings attract sentences between three (3) years and seven (7) years.

The second are cases that involve repeated application of vicious force, with or without the use of an instrument or weapon, such as repeated kicks and punches applied to the head or chest with deliberate intention to wound or cause bodily harm. Deaths caused by a single or multiple knife stab wounds applied to the head, neck, chest or abdomen or on any other vulnerable part of the body, even if there is no other special aggravating factors, come under this category. This category attracts sentences between 8 and 12 years.

The third and final involve cases in which there is direct application of force in a calculated manner, on the body using a weapon such as a knife, bush knife or axe causing serious bodily injuries, such as piercing vital organs or severing vital parts of the body. Deaths caused by chopping the neck, legs and arms with an axe or bush knife are examples of this kind of killings. This includes death caused by single or multiple knife stab wounds on the head, face, neck, chest or the abdomen if accompanied by other special aggravating factors may also fall under this category. These kinds of killings attract sentences between 13 and 16 years.”

9. The Supreme Court considered killings in the third category as more serious whilst those in the first category less serious. Then obviously, the Court considered those in the second category as the median between the two.

10. The category into which a particular case may fall under, depends on the way in which force was applied, the nature of the assault, the manner in which the injuries were inflicted and the seriousness of injuries resulting in death. It also noted that killings, which come under the second and third categories, could constitute murder or even wilful murder if the necessary intentions either to cause grievous bodily harm or to kill are present. The Supreme Court also held that, imposing sentences between 3 and 6 years was too lenient and no longer appropriate nowadays.

11. Having said all of that, the Supreme Court in the case immediately before it which was a case of a wife killing her husband’s girlfriend by the use of a kitchen knife twice to stab the deceased who was pregnant and the foetus terminated, found it serious and falling in the second and or the third category. It...