The State v Wamaong Robert (2010) N4065

• Jurisdiction: Papua New Guinea
• Judge: David, J
• Judgment Date: 08 June 2010
• Citation: (2010) N4065
• Docket Number: CR. NO. 57 OF 2010
• Court: National Court
• Year: 2010
• Judgement Number: N4065

Full Title: CR. NO. 57 OF 2010; The State v Wamaong Robert (2010) N4065

National Court: David, J

Judgment Delivered: 8 June 2010

N4065

PAPUA NEW GUINEA

IN THE NATIONAL COURT OF JUSTICE

CR. NO. 57 OF 2010

THE STATE

V

WAMAONG ROBERT

Prisoner

Mendi: David, J

2010: 4 & 8 June

CRIMINAL LAW – sentence – manslaughter – deceased a young man aged about twenty years – prisoner sole attacker - deceased prisoner’s brother in-law – deceased brother of prisoner’s husband - kitchen knife used – single blow to left side of back of neck – deep stab wound sustained - vicious attack – presence of some deliberate intention to harm the deceased – death due to acute blood loss from stab wound - prevalence of offence – guilty plea - prisoner an unsophisticated, illiterate and subsistence villager - first time offender – cooperation with police – no intention to kill deceased - expression of remorse – presence of provocation in a non-legal sense - argument arose after prisoner accusing deceased of stealing from her garden - no pre-planning - sentence of twelve years imposed – Criminal Code ss. 19 and 302.

Cases cited:

Public Prosecutor v. Vangu’u Ame [1983] PNGLR 424

Rex Lialu v. The State [1990] PNGLR 487

The State v. Margaret John (No 1) [1995] PNGLR 446

Antap Yala v. The State, SCR 69 of 1996, Unnumbered & Unreported Judgment delivered on 31 May 1996 (Amet CJ, Salika & Injia, JJ)

Ivoro Kaumin Lupu v. The State, SCRA No.2 of 1997, Unnumbered & Unreported Judgment delivered on 13 June 1997 (Kapi, DCJ, Los & Jalina, JJ)

Jack Tanga v. The State (1999) SC602

Anna Max Marangi v. The State (2002) SC702

Sakarowa Koe v. The State (2004) SC739

Manu Kovi v. The State (2005) SC789

The State v. Daniel Ronald Walus (2005) N2802

The State v. Alphonse Kaparo (2006) N3189

The State v Maria Tuu (2008) N3706

The State v. Philipa Kawage, CR 1386 of 2006, Unnumbered & Unreported Judgment delivered by Makail, J on 12 May 2008

Counsel:

Mr. Joe Waine, for the State

Mr. Peter Kumo, for the Prisoner

SENTENCE

8 June, 2010

1. DAVID, J: INTRODUCTION: The prisoner pleaded guilty to a charge of unlawful killing (also known as manslaughter) committed against the deceased, Jun John Usap on 12 June 2009 at Nipa in Southern Highlands Province contrary to s.302 of the Criminal Code. Upon arraignment, the prisoner pleaded guilty. I accepted the plea and convicted her of the charge after reading the depositions and having been satisfied that there was sufficient evidence to support the charge.

BRIEF FACTS

2. For purposes of arraignment, the following brief facts were put to the prisoner.

3. On the morning of 24 June 2009, the prisoner was at the Nipa Station market. Whilst there, she saw the deceased. The deceased is the brother of the prisoner’s husband. Prior to the incident, the prisoner had suspected the deceased of stealing from her garden on several occasions. She approached the deceased and swore at him telling him that he was a man and should not go around stealing. The deceased got angry and punched her. That instigated a fight between the prisoner and the deceased. In the course of the fight, the prisoner pulled out a kitchen knife from her skirt and swung it at the deceased. The knife cut the deceased on the left side of the back of his neck and he fell to the ground. The deceased was rushed to the hospital, but died on the way. What she did was unlawful.

MEDICAL REPORT

4. A post mortem medical examination of the deceased’s body was conducted by one Dr. Nolpi Tawang at the Mendi General Hospital on 29 June 2009. Dr. Tawang’s findings are recorded in his Post Mortem Report dated 29 June 2009. It discloses, amongst other things, that there was a deep penetrating wound to the left side of the neck measuring about 20-25 cm x 8-10 cm wide which lacerated the stenomastoid muscle and the left jugular vessels causing excessive bleeding and blood loss. The cause of death according to the medical report was from cardiopulmonary failure from acute severe blood loss (hypovolemic) secondary to a penetrating stab wound in the neck.

ANTECEDENTS

5. The prisoner has no prior convictions. This is her first time to commit an offence.

ALLOCATUS

6. The prisoner was very apologetic. She apologised to; the deceased and his relatives for causing his death; her family because they had to pay customary compensation for her action; the Court; and God. She was also sorry for breaking the law. She asked the Court to consider in her favour that she was a first time offender and pleaded for mercy and a lenient sentence.

PRE-TRIAL CUSTODY

7. The prisoner was arrested on 24 June 2009 and has been in custody since. According to my calculation, she would have been in custody for a period of eleven months and fifteen days as at the date of sentence.

THE LAW

8. The maximum penalty for the offence of unlawful killing or manslaughter is life imprisonment under s.302 of the Code subject to the Court’s discretion to impose a lesser sentence under the various options available to the Court under s.19 of the Code.

9. The basic principle was stated in Antap Yala v. The State (1996), SCR 69 of 1996, Unnumbered & Unreported Judgment delivered on 31 May 1996 (Amet CJ, Salika & Injia, JJ) and affirmed in Jack Tanga v. The State (1999) SC 602 where the Supreme Court said:-

“The maximum punishment for the offence of manslaughter is life imprisonment. Whilst sentences for manslaughter will normally be lower than sentences for murder and wilful murder, there are those cases which will justify the imposition of heavy punishment and even the maximum punishment….. The sentence in any given case will of course depend on its own peculiar facts. We are unable to prescribe any particular range of sentences for this offence as it is all too often difficult to fix any range of sentences with some degree of precision. However, we would suggest that in an unintentional killing case which is uncontested, whatever the extenuating and mitigating circumstances may be, the application of vicious force, with or without the use of a weapon, causing serious bodily injury resulting in death may attract sentences between 10 years and above and in some cases, even life imprisonment.”

10. In Rex Lialu v. The State (1990) PNGLR 487, the Supreme Court said that in sentencing for manslaughter, the court must have careful regard to the circumstances of death and the way in which it was caused. The Supreme Court then set out a list of factors which was not meant to be exhaustive that may be considered in determining the nature of the act causing death and these are:-

1. the nature and frequency of the attack or assault;

2. whether the injury which caused the death arose directly from an attack or assault or was caused, for example, falling on an object;

3. whether the injury was caused by the person or by a weapon;

4. whether there was deliberate intention to harm;

5. whether there was provocation in the non-legal sense;

6. whether the deceased had a thin skull; and

7. whether the deceased had an enlarged spleen.

11. In Manu Kovi v. The State (2005) SC 789, the Supreme Court, revisited the cases which set the tariff or range of sentences for the offences of wilful murder, murder and manslaughter because it considered that the tariff for those offences should be consistent. These included Anna Max Marangi v. The State (2002) SC702 and Sakarowa Koe v. The State (2004) SC739.

12. In Anna Max Marangi, the Supreme Court reviewed the sentencing guidelines for uncontested manslaughter cases in a domestic setting and suggested the following categories to be used:

1. Application of force in an uncalculated manner, of a single blow, punch or kick on any part of the deceased’s body: three to seven years imprisonment;

2. Repeated application of vicious force, with or without the use of an instrument or weapon, such as repeated kicks or punches applied to the head or chest with deliberate intention to wound or cause grievous bodily harm, or single or multiple knife stab wounds on any vulnerable part of the body, without other aggravating factors: eight to twelve years imprisonment;

3. Application of direct force in a calculated manner on the body using a weapon such as a knife, bush knife or axe: thirteen to sixteen years.

13. In Sakarowa Koe, the sentencing range for the three categories suggested in Anna Max Marangi was varied to cover all kinds of manslaughter cases with appropriate modifications and the tariff was increased, subject to the exercise of the Court’s discretion. These are; for the first category, seven to twelve years imprisonment; for the second category, thirteen to seventeen years imprisonment; and for the third category, eighteen years to life imprisonment.

14. While reaffirming the principles in Rex Lialu, the Supreme Court in Manu Kovi stated three special mitigating factors to be considered by the Court in addition to normal mitigating factors which could impact upon sentence. These are; the offender’s very young age or very old age; the offender’s poor health; and the payment of customary compensation.

15. Using the range of sentences noted in Anna Max Marangi as a guide, the Supreme Court in Manu Kovi then suggested the following tariff:

“1. In an uncontested case, with ordinary mitigating factors and no aggravating factors, a starting point of 7 years up to 12 years. A...