The State v Tau Karo (2004) N2600

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 29 April 2004
• Citation: (2004) N2600
• Court: National Court
• Year: 2004
• Judgement Number: N2600

Full Title: The State v Tau Karo (2004) N2600

National Court: Kandakasi J

Judgment Delivered: 29 April 2004

1 CRIMINAL LAW—Sentence—Manslaughter—Guilty Plea—Deceased drunk and provoking attack in non legal sense—Deceased pushed and landing on hard surface causing already swollen spleen to rapture—First time offender—Sentencing guidelines considered—Sentence of 8 years imposed—s302 Criminal Code.

2 The State v Robin Donumb (2003) N2377, Rex Lialu v The State [1990] PNGLR 487, Anna Max Marangi v The State (08/11/02) SC702, Antap Yala v The State, (Unreported judgment 31/05/96), Jack Tanga v The State (1999) SC602, John Kapil Tapi v The State (2000) SC635, The State v Dominic Mangirak (Unreported judgment delivered 29/04/03) N2368, The State v Jimmy Morgan (unreported judgment delivered 17/12/01) N2171, The State v Sakarowa Kewa (Unreported judgment delivered on 01/04/04) SC739, The State v Fredinand Naka Penge (2002) N2244, Allan Peter Utieng v The State (2000) SCR15 of 2000 (Unreported and unnumbered judgment of the Supreme Court delivered in Wewak on 23 November 2000), The State v Kevin Anis (2003) N2360, The State v Jerry Mana (Unreported judgment delivered on 02/05/03) N2367, Public Prosecutor v Don Hale (1998) SC564, The State v Louise Paraka (Unreported judgment delivered on 24/01/02) N2317 referred to

Decision On Sentence

___________________________

N2600

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 260 of 2004

THE STATE

-V-

TAU KARO

POPONDETTA: KANDAKASI, J.

2004: 15th and 29th April

DECISION ON SENTENCE

CRIMINAL LAW - Sentence - Manslaughter - Guilty Plea - Deceased drunk and provoking attack in non legal sense – Deceased pushed and landing on hard surface causing already swollen spleen to rapture - First time offender – Sentencing guidelines considered – Sentence of 8 years imposed – s.302 Criminal Code.

Cases cited:

The State v. Robin Donumb (Unreported judgment delivered on 27/02/03) N2446.

Rex Lialu v. The State [1988-89] PNGLR 487.

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

Antap Yala v. The State, (Unreported judgment 31/05/96).

Jack Tanga v. The State (1999) SC602.

John Kapil Tapi v. The State (2000) SC635.

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

The State v Jimmy Morgan (unreported judgment delivered 17/12/01) N2171.

The State v. Sakarowa Kewa (Unreported judgment delivered on 01/04/04) SC739.

The State v Fredinand Naka Penge (Unreported judgment delivered 24/05/02) N2244.

Allan Peter Utieng v. The State (unreported judgment of the Supreme Court delivered in Wewak 23/11/00) in SCR 15 of 2000.

The State v. Kevin Anis and Martin Ningigan (Unreported judgment delivered on 07/04/03) N2360.

The State v. Jerry Mana (Unreported judgment delivered on 02/05/03) N2367.

Acting Public Prosecutor v. Don Hale (Unreported judgment delivered on 27/08/98) SC564.

The State v. Louise Paraka (Unreported judgment delivered on 24/01/02) N2317.

Counsel:

P. Kaluwin for the State

P. Kumo for the Accused

29th April, 2004

KANDAKASI, J: You pleaded guilty to one charge of manslaughter or unlawful killing contrary to s. 302 of the Criminal Code. The Court accepted your guilty plea on being satisfied that, the material in the deposition, admitted into evidence with your consent, supported the charge and your guilty plea.

The Facts

The relevant facts start with you being at the Napo Club performing your duty as a security guard, here in Popondetta on 10th October 2003. The time was between 4:00 and 5:00pm. At that time, the deceased Willie Wamp, then drunk, walked in and refused to pay his gate fee of K2.00 charged by the club. An argument then eventually a fight developed between you and him over his non-payment of his gate fee. He started the fight by punching you on your left ear. You returned that punch by hitting him around his face, momentarily blinding him and caused him to fall onto the ground. You then pulled him up on his shirt collar and threw him out of the gate. That caused him to land hard on a hard surface, causing his already moderately enlarged spleen to rapture, leading to his death.

During your address on sentence, you told this Court that, you did not mean to kill the deceased. You said sorry to the relatives of the deceased and asked for leniency. To this, your lawyer added your personal and family backgrounds.

You are from Makerupu village, Rigo, Central Province and aged 36, married with four children. This is the first time you have committed any offence. Professionally, you are an experienced electrician and have worked with Remington Pitney Bowes for sometime. Additionally, you are a reserve police constable and at the time of the offence, Napo Club employed you as a security guard and was performing your duties, in the course of which you committed the offence.

Submissions and Sentencing Trends and Tariffs

In relation to the kind of sentence you should receive, your lawyer urged the Court to take into account your personal and family backgrounds and that you pleaded guilty and co-operated well with the police and the other authorities up to this Court. This saved the State and the Court substantial time it could have taken if there was a denial. He also urged the Court to note that, this is a case of unintentional killing only as opposed to a case of wilful murder or intentional wounding leading to death. Further, he urged the Court to note that, you did not intend to commit any offence but the situation gave you no choice, except to act in the way you did even though this was not a case of legal provocation. Having regard to all of these, he submitted that a sentence of 6 years was appropriate with a substantial part of that suspended.

In support of his submissions, your lawyer referred the Court’s attention to the case of The State v. Robin Donumb (Unreported judgment delivered on 27/02/03) N2446. That was a case of unlawful killing with the use of a bush knife. The medical evidence noted the following as the injuries caused to the deceased:

(1) Left lateral epicondyle completely separated by a clean cut.

(2) Severed head of the left gastrocemics – both lateral and medial head.

(3) Severed popliteal artery and vein.

(4) Severed nerve common peroneal.

(5) Severed tendons of the biceps fessoris.

The Court imposed a sentence of 12 years. In arriving at that sentence, the Court took into account the prisoner’s lack of prior convictions, his expressions of remorse, his plea of guilty, provocation in the non-legal sense and payment of compensation.

The Supreme Court judgment in Rex Lialu v. The State [1988-89] PNGLR 487, set guidelines for sentencing in manslaughter cases at page 497. Subsequently, the Supreme Court in Anna Max Marangi v. The State (08/11/02) SC702, revisited those guidelines. In so doing, it had regard to its earlier judgments in Antap Yala v. The State, (Unreported judgment 31/05/96); Jack Tanga v. The State (1999) SC602; and John Kapil Tapi v. The State (2000) SC635.

The judgment in Anna Max Marangi’s case spoke of three main categories of manslaughter cases, particularly in the domestic setting. These categories as I noted in the case of The State v. Dominic Mangirak (Unreported judgment delivered 29/04/03) N2368 are 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 cause 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 direction application of force in a calculated manner, on the body using a weapon such as a knife, bush...