N2393

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE AT LAE]

CR. 271 & 272 of 2001

THE STATE

- vs -

GIAME MICHAEL &
SAPAS BANO (No. 2)

Lae: Manuhu, AJ.
2003: 23rd May

CRIMINAL LAW –Particular offence – Alternative verdict of Unlawful killing – Sentencing considerations – Sentencing guidelines in manslaughter cases.

Cases cited:
Anna Max Marangi v. State (2000) SC702.

Counsel:
Mr Gankach, for the State.
Mr Mwawesi, for the accused persons.

23rd May 2003.

JUDGMENT ON SENTENCE

MANUHU, AJ: Prisoners Giame Michael and Sapas Bano ("The prisoners") were convicted on 8th April on the alternative verdict of unlawful killing of Ayung Gamba on the 3rd July 1999. I then ordered that a Means Assessment Report ("MAR") be compiled to determine the suitability of compensation. I have been given the MAR in relation to both prisoners. The MAR has, however, concluded that the prisoners do not have the means to pay compensation. Accordingly, I must now sentence them.

It is necessary to set out the relevant facts. On Friday 23rd July 1999 at 3:00 pm, the prisoners and their accomplices were at the Busu River waiting a PMV to transport them to Lae for a scheduled soccer match. When the deceased and his family arrived, they had with them a sick person, namely, Gideon Tiba, who was being carried on a stretcher across the river. Upon reaching the other side of the river, the prisoners and their accomplices blocked their way and demanded the deceased and his family to settle an old dispute between the parties. The deceased and his relatives told the prisoners that they could not settle the dispute because they were carrying a sick person, and that the matter was already pending before the Village Court. 

Unsatisfied with the response, the prisoners and their accomplices attacked the deceased and his family with their hands, sticks and stones. The deceased could not defend himself as he was outnumbered. He was attacked on the head and abdomen. When he tried to run away, the prisoners and their accomplices went after him and continued to attack him with hands, sticks and stones. Eventually, the deceased person’s relatives shielded the deceased and averted further attacks. The fight stopped also because the deceased had fallen unconscious onto the ground. 

The deceased was then taken to his village. On the 24th of July 1999, the deceased was admitted to Angau General Hospital for treatment but he died three days later as a result of a head injury and, lacerations to and bleeding of his liver. These injuries were inflicted during the fight.

In sentencing, I take into account that both prisoners are ordinary villagers. Prisoner Michael is 23 years old and is married. He has planted for himself 168 vanilla plants that are yet to be harvested. He also has mustard plants which he harvests and sells from time to time. Prisoner Bano is 30 years old but is still single. He relies heavily on garden food for survival and cash.

Secondly, whilst the case proceeded as a trial, it was a genuine trial. The prisoners were tried for murder but were convicted on the alternative count of manslaughter. Both prisoners are first offenders. They also cooperated with the police. 

Thirdly, the prisoners have told the court that they were basically retaliating against the deceased who had been accused of assault upon a member of their line or tribe. That explains their fight but it does not excuse them, especially when the matter had been brought before the village court. The prisoners wanted and expected the first dispute to be resolved quickly but sometimes, giving time for the affected parties to cool off is effective and necessary. The prisoners and their accomplices should have been patient. Instead, they attacked the deceased when he was essentially alone and in the process of assisting a sick person. 

The prisoners took the matter into their own hands when they should not have. We are now in the new millennium. Papua New Guinea has been independent for nearly twenty eight years. We are educated enough to know the difference between right and wrong. The prisoners should have allowed the law to take its normal course. 

In that regard, Papua new Guineans should also learn to solve their own problems in a peaceful way. Law enforcement agencies, in a sense, are mere facilitators. Whenever a problem such as this arise, all village leaders should be involved in resolving their disputes if they value peace. They should not sit back, relax and wait for police or an outsider to solve their problem. It would make a lot of difference if we have more peacemakers in the country.

Furthermore, fights between different villages are prevalent in Morobe. I have been in Lae for nearly two months, and I have come across three unlawful killing cases as a result of one village attacking another. In the circumstances, I must impose a deterrent sentence to send a message to other villages that the practice of one village attacking another should stop.

Moreover, the sentence I must impose should reflect the importance and sanctity of life. Whilst the prisoners still live to see the next day, the deceased is gone, and gone forever. In Anna Max Marangi v. The State the Supreme Court expressed the importance of life, thus: 

"Life is the most precious gift from God who alone gives life and takes life. Any person who takes away someone else’s life, for whatever form or manner, and irrespective of what the extravagating or mitigating factors might be, they must adequately pay for it through the sentence that is imposed."

In the same case, the Supreme Court established three categories of manslaughter and their corresponding tariffs. The first category is the least serious one. Where death is caused by an application of force in an uncalculated manner, such as a single blow, punch or kick on any part of the deceased’s body a sentence of three to seven years is suggested. Spleen killing falls under this category. 

The second category is where death is caused by repeated application of vicious force, with or without the use of instruments or weapons, such as repeated kicks and punches applied to the head or chest with deliberate intention to wound or cause bodily harm. Killings under this category will attract a sentence between eight and twelve years. 

The third category is the most serious one. It involves an application of direct force in a calculated manner, on the body using a weapon such as a knife, bush knife, axe, thereby, inflicting serious bodily injuries such as piercing a vital organs. Chopping of a neck, a leg, an arm, are examples. This type of killing will attract sentence between thirteen and sixteen years. 

This case falls in the second category. This means that the appropriate sentence should fall between eight and twelve years. I remind myself again of the prisoners’ background. As simple villagers, I am of the impression that they are good members of the community and, there is a good chance that they will not re-offend whenever they are released from jail. I also remind myself that there is a need to deter other villagers from taking the law into their own hands and from attacking each other. We must begin to solve our disputes in a civilised manner. Last but not least, anyone who takes away another person’s life must adequately pay for it through the appropriate sentence. 

In all the circumstances, a sentence of ten years would be appropriate.

Sentenced accordingly.
______________________________________________________________
Lawyer for the State		:	Public Prosecutor.
Lawyer for the Accused	:	Public Solicitor.