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State v Wambun [2002] PGNC 37; N2311 (20 November 2002)

N2311

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. 1535 OF 2001

THE STATE
-vs-

TITUS WAMBUN

Lae: Jalina, J

2002: 18 and 20th November

CRIMINAL LAW – Unlawful killing – Sentence – Death from single shot gun wound – Prisoner charged with Wilful murder but convicted of unlawful killing following a trial – Substantial compensation paid – Prisoner convicted in 1993 of murdering his wife and sentenced to 7 years imprisonment –Need for deterrent sentence – Criminal Code s. 302.

Cases cited:

The State v Rex Lialu [1988-89] PNGLR 449

Antap Yala v The State Unreported SC Judgment dated 31 May 1996
Jack Tanga v The State (1999) SC 602 dated 19th April 1999
John Kapil Tapi v The State SC 635 dated 30th March 2000
The State -v- Hobert Erick (2002) N2201 dated 18 April 2002
The v Samuel Benimo, (2002) N2203 dated 18th April 2002
The State v Ipakaia Epa, (2002) N2202 dated 8th May 2002
Rex Lialu –v- The State [1990] PNGLR 487
Titus Wambun –v- The State (1995) SC 479 dated 16 March 1995

Ure Hane v The State [1984] PNGLR 105

Counsel:
P. Kaluwin with J. Nidue for the State
D. Sakumai for the Prisoner

20th November 2002

JALINA, J: This prisoner has been found guilty of unlawfully killing the deceased Peter Akusa accidentally with a shot gun here in Lae on 30th December 2000. The deceased died whilst being rushed to the Angau Memorial Hospital from the premises of Anian Dogola at 7th Street where he was shot.

The Medical or Post Mortem Report of Dr M. Sau shows that the deceased died from tension pneumothorax and haemothorax due to the bullet penetration of the left chest wall, pleura, left lung and diaphragm. Contributing cause of death was from loss of blood from pleural cavity and abdominal cavity.

The maximum penalty for unlawful killing is life imprisonment pursuant to s. 302 of the Criminal Code Act subject to the Court’s discretion to impose a lesser sentence under s. 19 of that Act. Whilst there is power in the Court to impose the maximum penalty of life imprisonment for this offence in appropriate cases, the practice has been to impose a term of years and such term has of course depended upon the facts and circumstances of each case particularly the manner in which the death of the deceased was brought about.

The sentences for manslaughter have varied between those where death was caused from rupture of the spleen through a single punch or kick in the abdominal area and those where death was caused by the use of a weapon such as a kitchen knife, grass knife, bush knife or an axe with no special aggravating or mitigating factors and where the offender pleaded guilty. Since the case presently before me involved the use of a weapon namely a pistol, I will refer to the kind of sentences the National Court has imposed and in some cases upheld by the Supreme Court where weapons were used. For instance, In Antap Yala -v- The State, Unreported Supreme Court Judgment dated 31 May 1996, the Supreme Court dismissed an appeal against a sentence of 10 years for manslaughter where the deceased’s head was chopped off by her husband with a bush knife. In John Kapil Tapi -v- The State (1999) SC635 and dated 30th March 2000, the Supreme Court dismissed an appeal against sentence of 16 years for man slaughter when the husband ambushed his wife and chopped her on her hand almost severing it and after she fell down he chopped her on her neck and she died from loss of blood. In The State -v- Hobert Erick (2002) N2201 in Popondetta on 18th April 2002 I sentenced the prisoner to 11 years imprisonment after he pleaded guilty to killing his wife by chopping her several times on both legs and she died from loss of blood. In The State -v- Samuel Benimo, (2002) N2203 also in Popondetta on 18th April 2002 I sentenced the prisoner to 12 years imprisonment after he pleaded guilty to unlawfully killing the deceased by stabbing her with a grass knife.

In The State v Ipakaia Epa, (2002) N2202 in Wabag on 8th May 2002, when sentencing a 60 years old man to 12 years imprisonment after he pleaded guilty to unlawfully killing his son with a kitchen knife, I said:

"I would consider unlawful killing through the use of a weapon to be more serious than unlawful killing, say through a kick or punch resulting in the rupture of the spleen. Unlawful killing through the use of a weapon such as a bush knife, grass knife, axe and so on to my mind indicates determination and total disregard for the risk of death or causing bodily injury to the victim and as such a higher sentence than that normally imposed for spleen death manslaughter would be warranted."

So both the National Court and the Supreme Court have continuously expressed their concern about the seriousness of the offence of manslaughter unintentional the death may have been, because of the loss of human life which cannot be restored and that any sentence imposed should reflect this. For instance in The State v Rex Lialu [1988-89] PNGLR 449 Amet J (as he then was) said at 452 which I with respect endorse even though I was one of the judges who over turned his sentence on appeal as I consider what His Honour has said in the National Court to be valid.

"I consider that our sentences for manslaughter must reflect the serious view which the legislature took over loss of human life in fixing the maximum sentence as life imprisonment. This is also a reflection of the community’s view against unwanton killings. I repeat my view that sentences for manslaughter must be relatively higher than sentences for rape and robbery to reflect the importance and sanctity of the life given by God which no man has the right to take or deprive prematurely. A life has been taken which cannot be restored, quite unlike rape and robbery."

In Antap Yala v The State an Unreported Supreme Court Judgment dated 31 May 1996, when dismissing an appeal against sentence of 10 years for manslaughter the Supreme said:

"The maximum penalty 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 range of sentences for this offence as it is all too 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 or 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. The National Court has been far too lenient in the past in relation to men who are belting their wives. And in some instances wives belting their husbands. So let us warn everyone right now that the sentences are going to go up."

In Jack Tanga v The State (1999) SC602 and dated 19 April 1999 in Lae, the Supreme Court in which I was a member when dismissing an appeal against a sentence of 12 years for manslaughter of the deceased (wife) by her husband who repeatedly assaulted her said:

"The offence of manslaughter is a serious offence. This is reflected by the maximum punishment which is life imprisonment. This reflects the value the society places on human life and its total condemnation of one person’s unlawful taking of another’s life under any circumstances."

In John Kapil Tapi v The State SC635 dated 30th March 2000 the Supreme Court dismissed an appeal against a sentence of 16 years as not being excessive. It was imposed by the trial judge upon the appellant who had ambushed his wife and chopped her in her hand almost severing it and after she fell down he chopped her neck. She died from loss of blood. The sentence of 16 years, appeared to be the highest sentence for manslaughter which the Supreme Court has seen fit not to disturb. It demonstrates the serious views the Courts are taking in relation to manslaughter.

In his statement on the allocatus the prisoner maintained his innocence claiming that he did not shoot the deceased. Apart from stating that he was a married man with 5 wives and 11 children most of whom are small except for 1 who is in grade 9, he said that he has been assisting in the rehabilitation of some of the worst criminal in this country such as Steven Warapen and others by giving them jobs and helping them to become good men. He went on to appeal to his relatives and the deceased’s relatives in both Wabag and Lae not to cause trouble. He also referred to compensation of K70,000.00 that has been paid on his behalf by Papindo Trading in Lae as well as two of his Company’s Toyota Landcruisers which were worth a total of K120,000.00 which have been given to the deceased relatives. His properties including the business premises of Pukoko Security and office equipment and other items on those premises were completely destroyed by police and that his company ceased operation from the time he was taken into custody some 22 months ago. His security firm has ceased operation under a memorandum of understanding which was signed by other people while he was in custody. On that basis he asked that he has been sufficiently punished and that a non-custodial sentence be imposed.

In his submission in mitigation of sentence Counsel for the prisoner Mr Sakumai has referred me to the sentencing principles in Rex Lialu v The State [1990] PNGLR 487. The Supreme Court in that case held inter alia that in sentencing for manslaughter the Court must have careful regard to the circumstances of death and the way in which death was actually caused. Other matters that may be relevant to the nature of the act causing death are also set out in that case. They include:

(i) the nature and frequency of any attack or assault;
(ii) whether the injury which caused the death arose directly or indirectly from an attack or assault or was caused by, for example, falling on an object;
(iii) whether the injury was caused by the person or by a weapon;
(iv) whether there was deliberate intention to harm;
(v) whether there was provocation in the non-legal sense;
(vi) whether the deceased had a thin skull; and
(vii) whether the deceased had an enlarged spleen;

In the present case, since the deceased died from a single shot from a gun, the factors referred to in item (vi) and (vii) do not apply whilst items (i) and (iii) had direct application. Death of the deceased having been caused from internal injuries he sustained from being shot with a gun, item (ii) would also have direct application to this case. However with regard to item (iv) which deals with the question of whether there was a deliberate intention to harm and item (v) which deals with the question of whether there was provocation in the non-legal sense, the truth will never be known until the day when the prisoner and those who were with him stand to give account before the judge of all judges, Jesus Christ. In this regard may I point out that I have had the benefit of reading the full text of the judgment of the Supreme Court in Titus Wambun –v- The State, SC479 dated 16 March 1995. In that case the present accused was charged with the wilful murder of his wife through infliction of serious multiple injuries. Her body was dumped at the Sea Park at Ela Beach in Port Moresby. The case was based on circumstantial evidence. He denied the charge and after a trial he was convicted of murder instead of wilful murder and sentenced to 7 years imprisonment. The similarity between that case and this case is that those who were with him in that case never assisted police (see Injia, J at p. 22 of the judgment) and what actually happened in that case is still a mystery. His appeal against conviction was dismissed by the Supreme Court.

The prisoner’s lawyer Mr Sakumai has submitted, relying on Ure Hane v The State [1984] PNGLR 105 that this particular manslaughter is not among the worst manslaughter cases and as such the maximum penalty of life imprisonment prescribed by s. 302 of the Criminal Code be not imposed upon this prisoner. He further submitted that whilst it was conceded that the prisoner had a prior conviction for murder and that he (the prisoner) should have exercised care with the use of the gun which was a dangerous weapon, considering the payment of a large amount of money in compensation and the destruction to the prisoner’s property including his business, a sentence of between 5 and 8 years be imposed.

Mr Kaluwin has submitted on the other hand that the offence of manslaughter was serious as can be seen from the maximum penalty of life imprisonment that Parliament has prescribed under s. 302 of the Criminal Code. He submitted that no person has a right to take another person’s life. The Court has to also consider the loss to the deceased’s family because whilst the prisoner’s family will have him still alive and will return to them after serving his term, it was a total loss to the deceased’s family. This case involved the use of a firearm which made it very serious and coupled with the prisoner’s prior conviction for murder which was conceded, a higher sentence was necessary bearing in mind that sentences for manslaughter have increased to more than 10 years. He went on to submit that the starting point therefore should be 10 years.

Mr Sakumai pointed out in reply that in those manslaughter cases there were arguments before the attack upon the victim whereas in this case there was no argument. This particular aspect of Mr Sakumai’s submissions cannot be accepted because as was apparent during trial, none of those present with the accused appeared to give evidence so the Court has not been able to determine whether there was any argument prior to the shooting.

In deciding the sentence I should impose I have taken into account the prisoner’s personal antecedents including his family background. I have also taken into account the K70,000.00 that was paid on behalf of the prisoner by Papindo Trading to the deceased’s relatives and the value of his two Landcruisers at K85,000.00 for purposes of the Criminal Law (Compensation) Act 1991. Even though the prisoner stated during his statement on the allocatus that those vehicles were given to the deceased’s relatives and were valued at K120,000.00, I have taken K85,000.00 to be the correct value in view of his affidavit which was filed in support of his bail application which is referred to in the decision of Kirriwom, J dated 22nd March 2001. The judgment was annexed to the affidavit of Mr Pondros Kaluwin and was filed herein on 19th November 2002. I enquired with both Counsel earlier this morning as to whether they had any submissions in relation to Mr Kaluwin’s affidavit but they indicated that they did not have any further submissions on it.

In deciding the ultimate sentence I should impose I am concerned as indicated in the cases I have referred to above, that a life has been lost prematurely through conduct that appears to me to be tantamount to gross carelessness by this prisoner through the use of one of the most dangerous weapons known to man namely a gun. There is no evidence that serious injuries were inflicted upon one of those drinking with the prisoner before he fired the shot so there was not need for a shot or shots to be fired at all with his pistol. I am also concerned that he has a prior conviction for a homicide offence namely murder which I have referred to earlier and for which he was sentenced to 7 years imprisonment. The earlier murder involved his late wife which according to the Supreme Court Judgment, was brutally murdered by the prisoner.

He appears to have committed this crime in Lae only a few months after he served his Parole period as indicated by Mr Kaluwin but he does not appear to have learnt any lesson from his incarceration for the murder of his wife in Port Moresby.

It therefore appears to me from the above that the prisoner is a violent person who does not value human life. So a deterrent sentence is necessary to ensure that he does not continue his violent behaviour.

Taking into account all the circumstances of this case including his personal antecedents and the payment of a large amount of compensation in cash and kind as well as destruction by Police of his personal properties, I consider a sentence of twenty (20) years imprisonment in hard labour to be appropriate which I so impose. If the deceased was shot in the course of his duties as a policeman I would have sentenced him to life imprisonment. Also if substantial compensation had not been paid to the relatives of the deceased and his personal properties destroyed by Police, I would have sentenced him life imprisonment. It should also be borne in mind that the prisoner did not plead guilty but was convicted following a trial so the sentence of 20 years is warranted in the circumstances.

I hope that the above sentence serves as a deterrent to those in possession of dangerous weapons such as guns and pistols not to become trigger happy. People should learn to exercise restraint when they are armed with such dangerous weapons and only use it when it is extremely necessary.

I deduct from the 20 years sentence the 1 year, 10 months, 2 weeks and 2 days he has spent in custody which leaves 18 years, 1 month, 1 week and 5 days which he has to serve in hard labour.
____________________________________________________________________
Lawyer for the State : Public Prosecutor
Lawyer for the Prisoner: Public Solicitor