The State v Tony Dom (2012) N4767

• Jurisdiction: Papua New Guinea
• Judge: David J
• Judgment Date: 16 August 2012
• Citation: (2012) N4767
• Docket Number: CR NO.1150 of 2009
• Court: National Court
• Year: 2012
• Judgement Number: N4767

Full Title: CR NO.1150 of 2009; The State v Tony Dom (2012) N4767

National Court: David, J

Judgment Delivered: 16 August 2012

N4767

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO.1150 OF 2009

BETWEEN:

THE STATE

AND:

TONY DOM

Prisoner

Minj: David, J

2012: 14 & 16 August

CRIMINAL LAW - sentence - manslaughter – matter fixed for a three day trial at call-over at beginning of circuit – State put to expense of bringing witnesses from Baiyer District, Western Highlands Province to testify against the prisoner - conviction on plea of guilty – group fight - prisoner hit deceased once on head with a pole - forceful application of pole on deceased fatal - deceased died from severe head injury – some deliberate intention to harm the deceased present - life of a 47 year old man prematurely and unlawfully terminated - deceased did not have any pre-existing diseases which caused or accelerated death - prevalence of offence - deceased was prisoner’s brother in-law – de-facto provocation – killing immediately following argument - little or no preparation - first offender – substantial compensation and belkol paid – prisoner voluntarily surrendered to police after incident – co-operation with police – no weapon used – until committing the offence, the prisoner had a good background – expression of genuine remorse - ten years imprisonment in hard labour – Criminal Code, Sections 7, 19 and 302.

Cases cited:

Manu Kovi v The State (2005) SC 789

The State v Japhet Marshall Ano (2007) N3465

The State v Robert Potou (2008) N3316

Counsel:

Mary-Anne Zurenuoc, for the State

Philip L. Kapi, for the prisoner

SENTENCE

16 August, 2012

1. DAVID, J: On Tuesday, 14 August 2012, I convicted the prisoner, Tony Dom on a plea of guilty to a charge of unlawful killing, also known as manslaughter, committed against the deceased, Piu Waki on Sunday, 3 May 2009, at Banz in the Jiwaka Province contrary to Section 302 of the Criminal Code.

2. The primary issue for consideration and determination is, what is the appropriate sentence for the prisoner?

3. The prisoner appears before me for sentence from custody.

4. These were the short facts presented to the Court for the purposes of arraigning the prisoner. The prisoner was working as a security guard at a shop in the Madang Province. On Friday, 1 May 2009, he left Madang and arrived in Banz to see his wife and child. He had heard allegations whilst in Madang about his wife drinking and partying around with some men. Upon his arrival, the prisoner had an argument with his wife over these allegations. The arguments continued over the weekend. On the morning of Sunday, 3 May 2009, the prisoner and his wife went up to the Banz market where they saw the deceased. The deceased was the prisoner’s wife’s cousin. The prisoner called his brother in-law to meet with them about the allegations concerning his wife. A confrontation ensued between the prisoner and the deceased which then led to a fight. The deceased was assisted by about two to three of his relatives whilst the prisoner also called for assistance from his relatives. During the fight, the prisoner picked up a pole and hit the deceased on his head. The deceased fell to the ground and lapsed into unconsciousness. He was later rushed to the hospital, but was pronounced dead on arrival. Medical examination revealed that the deceased’s skull was fractured. The prisoner was a principal offender within the meaning of Section 7 of the Code. This was an unlawful killing that neither demonstrates an intention to kill the deceased or an intention to do grievous bodily harm upon the deceased on the part of the prisoner.

5. A post-mortem examination of the body of the deceased was conducted by Dr. Michael Dokup, Director Medical Services at the Mt. Hagen General Hospital on Monday, 11 May 2009. The medical report comprising the affidavit of Dr. Michael Dokup sworn on 13 May 2009, the Post-Mortem Report prepared by Dr. Michael Dokup dated 12 May 2009 and the Medical Certificate of Death issued by Dr. Michael Dokup on 13 May 2009 reveals that death was instant and the cause of death was severe head injury with bleeding in the posterior cranial fossa and depressed fracture measuring 2 x 3 cm at the base of the skull.

6. The prisoner is aged about 40 years now. He would have been aged about 37 years at the time of committing the offence. The deceased who was from Baiyer District in the Western Highlands Province was aged about 47 years when he died. The prisoner is from Malbanga village, Banz, North Waghi District in the Jiwaka Province. Until the incident, he was residing and working as a security guard with Penguo Trading at Bogia in the Madang Province. He is married to the deceased’s cousin and they have a daughter from the marriage. The prisoner’s wife and daughter remained in Banz. At the time of the incident, their daughter was attending primary school doing Grade 3. His father is deceased and is survived by his mother. Apart from himself, he has 3 other siblings, all females. He is the third born in the family. He is a baptized member of the Roman Catholic Church. He has completed Grade 6 formal education. He voluntarily surrendered to the police at Banz after the incident on 3 May 2009. He has been in custody since that time and that works out to be about 3 years, 3 months and 13 days.

7. The prisoner has no prior convictions.

8. On his allocutus, the prisoner recounted the events leading up to the fight on Sunday, 3 May 2009 at Banz initially between himself and his brother in-law, the deceased which developed into a group fight with both men assisted by others. The fight was over his wife drinking around with men which he had never heard of in his 18 years of marriage to his wife and the deceased played a part in his wife’s inappropriate conduct. He admitted causing the death of the deceased by hitting him with a pole, but he did not mean to kill him. He regretted what happened and said sorry. He requested the Court to take into account in his favour that he was a first offender and that he and his relatives have already paid to the deceased’s relatives compensation and belkol comprising K30,000.00 cash and 30 pigs and asked for mercy.

9. In mitigation, it was submitted by the prisoner through his counsel, Mr. Kapi that; first, he is a first offender; second, he co-operated with the police; third, he voluntarily surrendered to the police after the incident; fourth, he pleaded guilty; fifth, there was present de–facto provocation because the fight and the subsequent killing of the deceased arose as a result of him believing that his wife was drinking around with men in his absence and the deceased had a part in his wife’s inappropriate conduct; sixth, he paid substantial compensation and belkol to the relatives of the deceased; and seventh, no weapon was used.

10. Mr. Kapi submitted that a sentence be considered within the range of 8 to 12 years as recommended by the Supreme Court for cases falling under category 1 of the guidelines in Manu Kovi v The State (2005) SC 789. A head sentence between 9 to 10 years was appropriate in the circumstances of this case counsel said.

11. Ms. Zurenuoc for the State submitted that this case was fixed for a 3 day trial at the call-over at the beginning of the circuit last week and the State was put to the expense of bringing its witnesses all the way from the Baiyer District in the Western Highlands Province to testify against the prisoner at the trial only to find that he has decided at the last minute to plead guilty. That should be held against the prisoner counsel said. Other than that, Ms. Zurenuoc did not contest the prisoner’s submissions.

12. Section 302 of the Criminal Code creates the offence of unlawful killing or manslaughter and prescribes the penalty for the offence. The maximum penalty is life imprisonment subject to the Court’s discretion to impose a lesser determinative term under the various options available to the Court under Section 19 of the Code.

13. The sentencing guidelines for manslaughter convictions whether they are entered on a plea or after a trial are set out in Manu Kovi. They are reproduced below.

CATEGORY 1: 8 – 12 years

Plea: Ordinary cases. Mitigating factors with no aggravating factors. No weapons used. Victim emotional under stress and de-facto provocation e.g. killings in domestic setting. Killing follows immediately after argument. Little or no preparation. Minimal force used. Victim with pre-existing diseases which caused or accelerated death e.g. enlarged spleen cases.

CATEGORY 2: 13 – 16 years

Trial or Plea: Mitigating factors with aggravating factors. Using offensive weapon, such as knife on vulnerable parts of body. Vicious attack. Multiple injuries. Some deliberate intention to harm. Pre-planning.

CATEGORY 3: 17 – 25 years

Trial or plea: Special aggravating factors. Mitigating factors reduced in weight or rendered insignificant by gravity of offence. Dangerous weapons used e.g. gun or axe. Vicious and planned attack. Deliberate intention to harm. Little or no regard for safety of human life.

CATEGORY 4: LIFE IMPRISONMENT

Trial or Plea (Worst case): ...