The State v Japhet Marshall Ano (2007) N3465

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi, J
• Judgment Date: 15 June 2007
• Citation: (2007) N3465
• Docket Number: CR NO. 396 of 2007
• Court: National Court
• Year: 2007
• Judgement Number: N3465

Full Title: CR NO. 396 of 2007; The State v Japhet Marshall Ano (2007) N3465

National Court: Kandakasi, J

Judgment Delivered: 15th June 2007

N3465

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 396 of 2007

THE STATE

-V-

JAPHET MARSHALL ANO

Daru: Kandakasi, J.

2007: 07th and 15th June

DECISION ON SENTENCE

CRIMINAL LAW – SENTENCING – Manslaughter – Fatal blow to the head with thick wood using both hands – Fracture of skull – Bleeding into the head – Provocation in the non legal sense raised but rejected –First time offender – Guilty plea – Sentencing guidelines per Manu Kovi v. The State (31/05/05) SC789 considered inappropriate especially when it effectively varies Parliaments intention – Courts duty is to interpret and apply the legislation enacted by Parliament – Court’s have no power to legislate in the guise of interpreting and applying the law – Only Supreme Court has power to correct apparent error – Until corrected National Court obliged to follow Supreme Court decision - Sentence of 17 years imposed

Cases cited:

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

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

The State v. Laura (No. 2) [1988-89] PNGLR 98.

Lawrance Simbe v The State [1994] PNGLR 38.

Anna Max Marangi v. The State (08/11/02) SC702.

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

The State v. Elias Peter Wano Miva (24 /10/05) N3454.

The State v. Rony Aike (24/10/05) N3455

Counsel:

D. Mark, for the State

P. Kapi, for the Prisoner

15th June, 2007

1. KANDAKASI J: You pleaded guilty to a charge of unlawfully killing or manslaughter under s. 302 of the Criminal Code. Through your lawyer, you asked for a sentence between 10 and 12 years. In making that submission, your lawyer relied on the Supreme Court decision in Manu Kovi v. The State,

xvii (31/05/05) SC 789.

xvii1 placing your case in the first category of manslaughter cases per that judgment. The Court pointed out that decision in that judgment runs contrary to the views expressed by the Supreme Court in Simon Kama v. The State.

xviii (01/04/04) SC740.

xviii2

Issues

2. This presents two issues for me to deal with. The first is which of these two Supreme Court decision or authorities are correct and appropriate for me to follow? Secondly, after having decided which of the Supreme Court decision is correct and appropriate, what is an appropriate sentence for you?

Whether the decision in Manu Kovi or Simon Kama is the Correction Decision and Guideline to go by?

3. The first of these two issues is a legal question which can be answered without reference to the relevant facts of your case. I turn to a consideration of that issue first.

4. There is no dispute that the duty and power of the Courts is to interpret and apply the law as is laid by Parliament, particularly where there is a relevant and applying Act of Parliament. Then given the well accepted principle of separation of powers between the three arms of government namely, the legislative, the executive and the judiciary, the Courts should be careful not to enter into the sphere of Parliament when considering the application of the provisions of an Act of Parliament.

5. In relation to the law on homicide cases, the Supreme Court in the Simon Kama case after carefully considering earlier Supreme and National Court judgments correctly expressed, in my view, the view that:

“…we are of the view that it is erroneous to classify murder cases except has is provided for by the Criminal Code as a starting point. The Criminal Code classifies different categories of murder in terms of wilful murder, murder and manslaughter, where intention of the offender at the time of committing the offence is a key distinguishing factor. A murder is wilful if there is an intention to kill while there is no such intention but an intention to cause grievous bodily harm in the case of murder and where there is neither of these elements [exist], it is manslaughter.”

6. The Court then noted also correctly, in my view, that, there was a prevalence of the offence of unlawful killings. In the Court’s view, that required a close examination of the sentencing approaches of the Courts and before that, the presentation of indictments. In so noting, the Court noted that, there were clear cases of serious wilful murder cases reduced to murder or manslaughter and murder cases reduced to manslaughter. That was affecting the way in which sentence was being approached. Accordingly, the Court suggested the Public Prosecutor to seriously consider and present indictments according to the dictates of the law and the particular facts in any given case, in the interest of protecting the community.

7. Then on the parts of the Courts, the Supreme Court suggested:

“…following the establishment of the guilt of an accused, either on a plea or after a trial, the Court approach sentence with a serious consideration of the maximum prescribed penalty first. Then allow the offender to make out a case for a lesser sentence. An offender could easily do that by pointing out to the factors in his mitigation with the appropriate evidence were evidence is required. Once the offender is able to do that, only than should the Court carefully consider the factors both for and against an imposition of the maximum penalty. At that stage, the categorization of the kind of offence under consideration could become relevant and useful.”

8. With these qualifications in mind, the Court was of the view that, the guidelines set by The State v. Laura (No. 2)

xix [1988-89] PNGLR 98.

xix3 and Lawrance Simbe v The State

xx [1994] PNGLR 38.

xx4 for murder cases are relevant with the following variations:

“(a) where there is a guilty plea with no factors in aggravation, a sentence of twelve (12) to sixteen (16) years;

(b) where there is a guilty plea with aggravating factors other than the use of firearms and the commission of another serious offence, a sentence between the range of seventeen (17) to thirty (30) years;

(c) where there is a guilty plea with aggravating factors and where there is a use of firearms and such other dangerous weapons in the course of committing or attempting to commit another serious offence, a sentence of thirty one (31) years to life imprisonment;

(d) on a plea of not guilty, with no other aggravating factors, a range of sentences from seventeen (17) to twenty one (21) years;

(e) on a plea of not guilty, with aggravating factors other than the use of firearms and in the course of committing or attempting to commit another offence, a range of sentences from twenty two (22) to forty (40) years;

(f) where there is a not guilty plea with aggravating factors where there is a use of firearms and or such other dangerous weapons and or in the course of committing or attempting to commit another offence, a sentence of forty one (41) years to life imprisonment.”

8. The Court did not intend these guidelines to be rigid but were only to serve as a guide. It did provide for lesser sentences to be imposed where good mitigating factors, such as the youthfulness of the offender or being persuaded by others to commit the offence, exists.

9. The decision in the Manu Kovi case came after the decision in the Simon Kama case. That decision carried on the categorization of manslaughter cases in the earlier case of Anna Max Marangi v. The State.

xxi (08/11/02) SC702.

xxi5 Whilst I have no problem with the first of the categories according to that judgment, I have serious difficulties with the second and third categories, which talk about a “deliberate intention to wound or cause bodily harm” in the second category and the “application of direct force in a calculated manner.”

10. There can be no argument that, where there is an intention to wound or cause bodily harm resulting in death, it is a case of murder and not manslaughter. Also, where direct force is applied in a calculated manner, it signifies or indicates an intention to cause grievous bodily harm or death and so a death occasioned by such an application of force would qualify for murder or wilful murder and not manslaughter. Indeed the Supreme Court itself acknowledged that in its own judgment where it said that a case falling under the second and third category “may well constitute murder or even wilful murder, if the necessary intentions to either cause grievous bodily harm or kill are present” respectively.

11. Prior to the decision in the Manu Kovi case, the Supreme Court in the case of Sakarowa Koe v. The State,

xxii (01/04/04) SC739.

xxii6 without considering the points mentioned above, merely endorsed and varied the categorization of manslaughter cases per the Anna Max Marangi case, and suggested specific tariffs for each category of manslaughter.

12. In the two decisions I handed down in Kerema on 24th October 2006 in The State v. Elias Peter Wano Miva

xxiii (CR 448 of 2005) (Unreported and Unnumbered judgment delivered on 24/10/05).

xxiii7 and The State v. Rony Aike,

xxiv (CR 244 of 2006) (Unreported and Unnumbered judgment delivered on 24/10/05).

xxiv8 I noted...