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State v Kanupio [2005] PGNC 159; N2800 (25 February 2005)

N2800

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NOS 238, 239, 240,
241 & 242 OF 2003

THE STATE

V

MARK KANUPIO, BALWIN KINING, PETER PASIKIO,
STEVEN LIPILAS AND PAUL NOWOR

KIMBE: CANNINGS J
17, 25 FEBRUARY 2005

SENTENCE

CRIMINAL LAW – indictable offence – Criminal Code, Division V.2 (homicide etc) – Section 302 (manslaughter) – sentence – sentencing guidelines –– five men attacked one man – local-level government election-related dispute – two of the co-accused stabbed the deceased – deceased died as a result of stab wound inflicted by one of the co-accused – starting point for head sentence – identification of relevant considerations – different role played by different co-accused – application of relevant considerations – whether appropriate to suspend whole or part of sentence – need for properly documented pre-sentence report – sentences for each co-accused.

Cases cited:
Anna Max Marangi v The State (2002) SC702
Antap Yala v The State (1996) unreported SCR 69/96
Jack Tanga v The State (1999) SC602
John Kapil Tapi v The State (2000) SC635
Public Prosecutor v Tom Ake [1978] PNGLR 469
R v Gabai Vagi and Others [1973] PNGLR 30
Rex Lialu v The State [1990] PNGLR 487
SCR No 1 of 1984, Re Minimum Penalties Legislation [1984] PNGLR 314
Secretary for Law v Kaibug Jimbun and Another [1976] PNGLR 288
The State v Jason Dongoma (2000) N2038
The State v John Gurave Guba (2000) N2020
The State v Peter John Plesman and Others (1997) N1657
The State v Peter Yawoma (2001) N2032
The State v Sabarana Yakal [1988-89] PNGLR 129

Counsel:
F Popeu for the State
O Oiveka for the accused

CANNINGS J:

INTRODUCTION

This is a decision on the sentence for five men (the co-accused) who pleaded guilty to the offence of unlawful killing, also known as manslaughter.

BACKGROUND

The incident giving rise to the charge took place at Widat village in the Kandrian district of West New Britain on the afternoon of 8 July 2002. It was alleged that the five co-accused attacked a man, Marcus Wasa, and in the process he was stabbed and died shortly afterwards.

The incident happened in the aftermath of the election for the Kandrian Local-level Government. Lobbying was going on for the president’s position.

The five co-accused had spent the day with other young men from their villages, Avanglo and Mulupun, at Aiumete village. They erected a gate for a forthcoming fundraising dance for the Asle Health Centre. When they finished that project they headed home. On the way home, they were told by other people that a group of men from another village, Pasismanua, led by a newly elected member, Robert Kusap, had gone to the nearby Widat village to get the co-accuseds’ local ward member, Lucas Maiang, and take him to the Pasismanua faction. The Pasismanua group were the co-accuseds’ political rivals. The co-accused became angered. They thought the Pasismanua group had gone to Widat to get their man. So they armed themselves with spears, sticks and stones and headed to Widat to forestall what they regarded as a political hijack.

When they got to Widat, they attacked the deceased, who had transported the Pasismanua group there in his Toyota Landcruiser. All except one of the Pasismanua group fled. The deceased was caught and struck by the co-accused with sticks and stones. As the deceased ran around his vehicle, he was cornered. He was stabbed twice. Once by the second co-accused, Balwin Kining, who stabbed him in the back with a 25-centimetre cassowary bone (clearly fashioned as a sharp instrument). The second time by the first co-accused, Mark Kanupio, who stabbed him, also in the back, with what appears to have been a single, swift, deep, lethal cut with a 32-centimetre knife. That second cut severed his spinal chord. He was rushed to Kandrian Health Centre by a group of bystanders but died on the way.

The above is the summary of facts put to the court by the prosecutor, Mr Popeu. That is what the co-accused pleaded to. However when I read the District Court depositions I discovered some significant things were not brought out in the prosecutor’s summary. They relate to the co-accuseds’ suspicion that the deceased had a gun and was going to shoot them and the different degrees of involvement in the incident that each co-accused claims to have had. I will return to these things later.

In August 2002, within a month or so of the incident, the co-accused were interviewed, arrested and charged with wilful murder. They co-operated with the police and made confessional statements.

They were put in police custody. On 27 August and 10 September 2002 they were brought before the District Court at Kimbe and further remanded. On 2 October 2002 they were again brought before the District Court. On that occasion they were committed to stand trial in the National Court and further remanded. On 11 October 2002 they applied for bail before Lenalia J in the National Court. It was granted. They have since complied with the bail conditions and appeared before the National Court when their case has been mentioned.

On 17 February 2005 they appeared before the National Court and faced the following indictment:

Mark Kanupio, Balwin Kining, Steven Lipilas and Paul Nowor, all of Mulupun, and Peter Pasikio, of Avanglo, all of Kandrian in West New Britain Province, stand charged that they ... on the 8th day of July 2002 at Kandrian ... unlawfully killed one Marcus Wasa.

The indictment was presented under Section 302 of the Criminal Code. The co-accused pleaded guilty. I entered provisional pleas of guilty and then, after reading the District Court depositions, confirmed the pleas and convicted each of the accused. They are now referred to as prisoners.

Mr Popeu tendered an antecedents report, which indicates whether the prisoners had prior convictions. I administered the allocutus to each of them, ie each prisoner was, in turn, given the chance to tell the court anything relevant to the penalty to be imposed. Each told his story. Submissions were made, first, by the defence counsel, Mr Oiveka. These are outlined below. When he made his submissions Mr Oiveka filed an affidavit by a person who states that compensation has been paid by the prisoners to the deceased’s relatives. I will address the significance of that issue below. Mr Popeu then made his submissions and I adjourned to consider sentence.

RELEVANT LAW

The crime of manslaughter

Section 302 of the Criminal Code states:

A person who unlawfully kills another under such circumstances as not to constitute wilful murder, murder or infanticide is guilty of manslaughter.

Penalty: Subject to Section 19, imprisonment for life.

Joint and several liability

Mr Popeu indicated that the State was also relying on Sections 7 and 8 of the Criminal Code. These provisions of the Code make the members of a group of people criminally liable even though they were not the main perpetrator.

Section 7 (principal offenders) states:

(1) When an offence is committed, each of the following persons shall be deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it:—

• (a) every person who actually does the act or makes the omission that constitutes the offence; and
• (b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence; and
• (c) every person who aids another person in committing the offence; and
• (d) any person who counsels or procures any other person to commit the offence.
  

(2) In Subsection (1)(d), the person may be charged with—

• (a) committing the offence; or
• (b) counselling or procuring its commission.
  
• (c) A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence.
• (d) Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, it would have constituted an offence on his part, is—
• (e) guilty of an offence of the same kind; and
• (f) liable to the same punishment,
• (g) as if he had done the act or made the omission, and may be charged with himself doing the act or making the omission.
  

Section 8 (offences committed in prosecution of common purpose) states:

Where—

(a) two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another; and

(b) in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of the purpose,

each of them shall be deemed to have committed the offence.

Maximum penalty

I was satisfied that the elements the offence of manslaughter were adequately set out in the indictment, that each prisoner was aware of their significance and that the summary of the facts pleaded to by each prisoner supported those elements.

Each prisoner is therefore liable to a penalty of imprisonment for life.

Discretion

That is the maximum penalty. The court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code. For example:

• a shorter term of imprisonment may be imposed (Section 19(1)(a)); or
  
• a fine up to K2,000.00 may be imposed instead of or in addition to a term of imprisonment and the prisoner can be imprisoned until the fine is paid (Sections 19(1)(b), 19(1)(c)); or
  
• the prisoner may be given a ‘good behaviour bond’ (Section 19(1)(d)); or
  
• the prisoner can be discharged and the sentence postponed (Section 19(1)(f)); or
  
• the court can suspend all or any portion of the sentence imposed, subject to conditions (Section 19(6)).
  

Sentencing joint offenders

The five prisoners were jointly convicted on the same indictment in relation to the same incident. So they are each liable to a maximum penalty of life imprisonment. The court, however, still has to exercise a discretion in relation to each sentence. It may impose different sentences. Like all sentences this is matter of applying a range of relevant considerations. They include the circumstances in which the crime was committed; how each prisoner has conducted himself since the crime was committed; and the personal circumstances of each, eg whether he is a young offender, paid compensation etc. (See Secretary for Law v Kaibug Jimbun and Another [1976] PNGLR 288, Supreme Court, Frost CJ, Prentice DCJ, Williams J; SCR No 1 of 1984, Re Minimum Penalties Legislation [1984] PNGLR 314, Kidu CJ, Kapi DCJ, Bredmeyer J, Kaputin J, McDermott J; The State v Peter John Plesman and Others (1997) N1657, National Court, Batari AJ.)

It will be necessary, in particular, to consider the degree of participation of each in the crime. A main perpetrator will tend to receive a heavier sentence than a passive participant.

DEALING WITH FACTS IN DEPOSITIONS THAT WERE NOT IN PROSECUTOR’S SUMMARY

General principles

As mentioned earlier there were significant issues of fact raised by the depositions that were not in the prosecutor’s summary. How is the court to deal with them? I consider that the following principles apply:

• The effect of a plea of guilty is that an accused person admits to the elements of the offence and the facts that have been put to the accused.
  
• Once the court considers the depositions, accepts the plea and enters a conviction, the accused must then be given the benefit of any reasonable doubt on matters of penalty.
  
• If the judge detects any aggravating or mitigating matters in the depositions that were not put to the accused the judge must ascertain whether there is agreement between the prosecution and the defence on those matters.
  
• If there is agreement, the judge should work on the basis of what has been agreed to.
  
• If there is a dispute between the parties about those matters, it would be appropriate for the court to take sworn evidence on them. The accused can be invited to give evidence, but cannot be forced into the witness box.
  
• If, however, the court does not take sworn evidence and there is no agreement between the parties as to the contentious matters, the court must act on the version of the facts which, within the bounds of possibility, is most favourable to the prisoner.
  

(See R v Gabai Vagi and Others [1973] PNGLR 30, pre-Independence Supreme Court, Raine J; Public Prosecutor v Tom Ake [1978] PNGLR 469, Supreme Court, Prentice CJ, Pritchard J, Greville Smith J; The State v Sabarana Yakal [1988-89] PNGLR 129, National Court, Brunton J; The State v John Gurave Guba (2000) N2020, National Court, Kandakasi J; The State v Jason Dongoma (2000) N2038, National Court, Kandakasi J; The State v Peter Yawoma (2001) N2032, National Court, Kandakasi J.)

Two issues raised by depositions

There were two issues raised in the depositions that were not in the prosecutor’s summary. First the claim that the prisoners thought that the deceased had a gun. Secondly the details of the differing degrees of involvement of each prisoner in the killing. It is necessary to make findings on each issue by applying the above principles.

The claim that the deceased had a gun

The depositions contain a record of interview and a confessional statement of each prisoner. Each prisoner asserts in either or both of those documents he has signed that: (a) the deceased went into his vehicle when he saw them approaching him; and (b) when he did that they thought that he was going to get a gun and shoot them; and (c) that is why he was attacked.

I consider that that was an important issue of fact that should have been brought out by the prosecutor or defence counsel. It was not, however. There was no agreement on the issue and I did not consider it was appropriate to call for evidence on it. The prisoners’ claim – and each of them says it – begs the obvious issue of whether the real reason the deceased went into his vehicle was so that he could drive off and escape an angry mob that was about to attack him. Nevertheless, I do not think that their ‘gun’ claim is outside the bounds of possibility. So, applying the principles outlined above, each prisoner will be given the benefit of the doubt on this issue.

I therefore find as a fact that each prisoner believed that the deceased had a gun in his vehicle and that he intended to use it on their group and that is why they attacked him. None of the depositions indicate whether that belief was based on reasonable grounds, so I am not prepared to make a finding to that effect.

Degrees of involvement

The table below summarises the degree of involvement in the killing that each prisoner admits to in his record of interview and confessional statement. There was tacit agreement on this issue, which I rely on for sentencing purposes.

TABLE 1: DEGREES OF INVOLVEMENT

As there has been agreement on the above matters I find as follows:

• Mark Kanupio was the main perpetrator. He was the one who stabbed Marcus Wasa in the back, with a fatal cut.
  
• Balwin Kining played the second major role in the attack. He was the one who cut the deceased with the sharp cassowary bone. The wound he inflicted was minor.
  
• Peter Pasikio and Steven Lipilas were in the second group of attackers (behind Kanupio and Kining). They armed themselves with sticks and hit the deceased once each. They played a lesser role than Kining; and significantly lesser than Kanupio.
  
• Paul Nowor joined in the attack by arming himself with a stick but there was no space and he did not land a blow. Of the five, he had the smallest role in the killing.
  

THE ISSUE OF COMPENSATION

A possible mitigating factor

As pointed out earlier Mr Oiveka filed an affidavit that deals with the question of compensation. The deponent states that compensation was paid to the relatives of the deceased. When the affidavit was tendered I expressed the view that the amount of compensation, if any, might be taken into account as a mitigating factor in the sentencing process. But I would not act on a claim that compensation was paid, that it was sufficient, or that it has reduced tension in the community, if the claim came from only one side. This is something that has to be either agreed on or adjudicated upon after both sides have been given the opportunity to present evidence. It is not proper for the court to act on one side’s view only.

Three scenarios

As the case proceeded, the court was presented with three different compensation scenarios.

The first one was in the affidavit Mr Oiveka filed, sworn by Leo Musiap, a committee member of Kandrian Inland Local-level Government. He states that 225 pieces of shell money and two pigs have been paid in accordance with custom. There is an outstanding amount of compensation still to be paid, consisting of 80 more pieces of shell money, two more pigs and one mokmok (gold) money. The mokmok is very valuable. Once paid it exonerates the guilty party from the wrongdoing. At the moment there is no tension due to the down payment of compensation that has been made.

The second version was revealed by the pre-sentence reports prepared by the Community Correction and Rehabilitation Service. It is that in addition to the 225 pieces of shell money and the two pigs, K44,000.00 cash has been paid to the deceased’s relatives.

The third version comes from two affidavits filed by Mr Popeu on 23 February 2005. One is by John Polup who states that he is a brother of the deceased. He states that no compensation has been paid. The other affidavit is by Paul Lisio who states that he is a constable attached to Kandrian Police Detachment. He states that he would be aware if compensation were paid. But he is unaware of it.

Finding

The evidence is clearly inconsistent and contradictory. I conclude that there is insufficient evidence of compensation having been paid. The finding of fact must therefore be that no compensation has been paid.

ANTECEDENTS

None of the prisoners has any prior conviction.

ALLOCUTUS

Each prisoner was given the opportunity to say what matters the court should take into account when deciding on punishment. A paraphrased summary of each response follows:

Mark Kanupio

I apologise to the court for the trouble that I have committed. I ask for the court’s mercy so that I can be put on a good behaviour bond or probation. I want to continue with my education. My parents are in the village, they are very old, I have a block, and I need to look after them.

Balwin Kining

I apologise to the court for the trouble that I have committed. My mother is deceased, my father is old, and I have to look after him.

Peter Pasikio

I apologise to the court for the trouble that I have committed. I ask to be put on a good behaviour bond. I am married with two children and there is no one else to look after my family.

Steven Lipilas

I apologise to the court for the trouble that I have committed. I am just a boy from the village. I ask for the court’s mercy so that I can be put on a good behaviour bond or probation.

Paul Nowor

I apologise to the court for the trouble that I have committed. I ask for the court’s mercy so that I can be put on a good behaviour bond or probation. My parents are deceased. I am married with one child and I need to look after my family.

SUBMISSIONS BY DEFENCE COUNSEL

Mitigating factors

Mr Oiveka referred to a number of mitigating factors. The prisoners pleaded guilty, saving the trouble and expense of a trial. Their guilty pleas are genuine. They cooperated with the police and admitted to their involvement in the killing of Marcus Wasa. They each signed a confessional statement. They have no prior convictions. It was an election-related death, which was not premeditated. There were many more people involved and they have not been charged. The court should look at the respective degrees of participation in the killing.

Mr Oiveka also raised the issue of compensation. He stated that some had been paid and more would be paid in future. However as indicated, I decided that there was insufficient evidence of compensation being paid and that none was paid.

Personal particulars

Mr Oiveka submitted that the prisoners are all young men with their lives ahead of them. They are all from an undeveloped and unsophisticated rural area. Some are married with young children to care for. Others have their parents to look after.

SUBMISSIONS BY THE STATE

Mr Popeu, for the State, submitted that the prisoners were guilty of a serious offence. The trend is now towards severe penalties for this type of offence. The court must consider the prevalence of such crimes and impose a penalty that provides a deterrent against this sort of thing becoming widespread.

He referred to the Supreme Court’s decision in Anna Max Marangi v The State (2002) SC702, Jalina J, Injia J, Sawong J. A woman pleaded guilty to the manslaughter of a woman who she suspected was having an affair with her husband. The court reviewed the sentencing guidelines for uncontested manslaughter cases in a domestic setting and suggested that the following categories be used:

• application of force in an uncalculated manner, of a single blow, kick or punch on any part of the deceased’s body: 3 to 7 years imprisonment;
  
• repeated application of vicious force, with or without an instrument or weapon, eg repeated kicks or punches applied to the head or chest with intention to wound or cause grievous bodily harm, or single or multiple knife wounds on a vulnerable part of the body, with other aggravating factors: 8 to 12 years imprisonment;
  
• application of direct force in a calculated manner with a weapon such as a knife, bushknife or axe: 13 to 16 years.
  

DECISION MAKING PROCESS

I have adopted the following decision making process for purposes of determining the appropriate penalties.

• step 1: what is the appropriate head sentence, in terms of years?
  
• step 2: should all or part of the sentence be suspended?
  
• step 3: if all or part of the sentence is suspended, what conditions should be imposed?
  

I will apply that process to each of the five prisoners. Though they have been jointly indicted they must be sentenced separately. I will identify an appropriate head sentence for each prisoner, then consider whether all or part of his sentence should be suspended and if so, what the conditions will be for that prisoner.

STEP 1 - WHAT IS THE APPROPRIATE HEAD SENTENCE?

Approach

In setting an appropriate head sentence I will take this approach:

• first, I will identify an appropriate starting point. This will be the same for each of the five prisoners;
  
• secondly, I will set out the considerations that should be taken into account in deciding whether to impose a sentence equal to, lesser or greater than the starting point. Again these considerations will be used for each of them;
  
• thirdly I will apply those considerations to the circumstances of each prisoner, thus arriving at a head sentence for each of them.
  

Starting point

I accept Mr Popeu’s submission that the starting point for working out the head sentences should be identified by considering Marangi’s case. It was a case where the unlawful killing occurred in a domestic setting, ie where there was a domestic dispute between the offender and the deceased. The present case was something different. It was an incident occurring outside the home. As Mr Oiveka suggested it could be classed as an election-related incident. I agree with him. However I do not think the categorisation of the incident in those terms makes it any less or more serious than a death occurring in a domestic setting. In Marangi the court noted that historically manslaughter cases occurring in the home tended to attract lower sentences. But that has changed, particularly since the Supreme Court’s decision in Antap Yala v The State (1996) unreported SCR 69/96, Amet CJ, Salika J, Injia J. The view was strongly expressed that the National Court had been too lenient on sentencing for manslaughter in a domestic setting.

Therefore the Marangi categories apply irrespective of whether the death occurred in a domestic setting.

The present case, I consider, falls into the third and most serious category. Force was applied in a direct and calculated manner by Mark Kanupio with a knife. The deceased’s spinal chord was cut. The fact that it was a gang attack on one man aggravates the circumstances of death and brings the case squarely into the most serious category. I think it is fair to use the concept of a starting point and I will adopt the point which is in the middle of the range, ie 14 years.

Relevant considerations

I will now set out the things I consider should be taken into account when determining whether to increase or decrease the head sentence or leave it at the starting point. In arriving at this list I have considered previous manslaughter cases decided by the Supreme Court, including Rex Lialu v The State [1990] PNGLR 487, Kapi DCJ, Hinchliffe J, Jalina J; Jack Tanga v The State (1999) SC602, Jalina J, Injia J, Kirriwom J; John Kapil Tapi v The State (2000) SC635, Kapi DCJ, Injia J, Sawong J; as well as Marangi and Yala.

The relevant considerations are:

1. Did the attack on the deceased consist of just a single blow?
   
2. Was just one person involved in the attack?
   
3. Was there some intervening cause of death, ie did the death not result directly from the assault due to death being caused by an object when the deceased fell down?
   
4. Was the deceased injured by only a fist?
   
5. Did the offender not set out to hurt anyone?
   
6. Did the deceased or any other person provoke the offender in ‘the non-legal sense’, eg did the deceased abuse or assault the offender?
   
7. Did the deceased have a pre-existing condition making him susceptible to serious or fatal injury by a moderate blow, eg did the deceased have a thin skull or enlarged spleen?
   
8. Can the attack on the deceased be classed as ‘not vicious’?
   
9. Did the offender play a relatively minor role in the attack?
   
10. Did the offender give himself up after the incident?
    
11. Did the offender cooperate with the police in their investigations?
    
12. Has the offender done anything tangible towards repairing his wrong, eg offering compensation to the family of the deceased, engaging in a peace and reconciliation ceremony, personally or publicly apologising for what he did?
    
13. Has the offender pleaded guilty?
    
14. Has the offender genuinely expressed remorse?
    
15. Is this his first offence?
    
16. Can the offender be regarded as a youthful offender or are his personal circumstances such that they should mitigate the sentence?
    
17. Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence?
    

The above considerations have been drafted so that an affirmative (yes) answer to any one can be regarded as a mitigating factor, a negative (no) answer will be an aggravating factor and a neutral answer will be a neutral factor. The more mitigating factors that are present, the more likely it is that the head sentence will be reduced. The more aggravating factors present, the more likely it is that the head sentence will be lifted above the starting point. However, sentencing is not an exact science. It is a discretionary process. When a factor is marked as mitigating or aggravating it does not mean necessarily that it is given the same weight as another mitigating or aggravating factor. Some mitigating factors may be ‘strongly mitigating’. Others may be ‘mildly mitigating’. The same goes for aggravating factors.

Another thing to note is that there are, in general, three sorts of considerations listed.

Numbers 1 to 9 focus on the circumstances of the incident that led to the death. All manslaughter cases are bad. The death that has occurred is invariably unnecessary and tragic. But the circumstances of each incident are different. Some are worse than others. These considerations are intended to capture the circumstances of the incident.

Numbers 10 to 14 focus on what the offender has done since the incident and how he has conducted himself.

Numbers 15 to 17 look at the personal circumstances of the offender and give an opportunity to take into account any other factors not previously considered. As pointed out by the Supreme Court in Lialu a list of considerations or sentencing criteria of this sort is not meant to be exhaustive.

Application of considerations

I apply the above considerations to each prisoner as follows:

Mark Kanupio

1. No though Mark Kanupio may have only stabbed the deceased once, there were other blows struck by others.
   
2. No there were at least five people involved in the attack.
   
3. No there was no other intervening cause of death. Mark Kanupio stabbed the deceased in the back, severing the spinal chord.
   
4. No the deceased was not injured by only a fist. Knives and sticks were used.
   
5. No it cannot be said that Mark Kanupio did not intend to do any harm. The force of the stab wound indicates an intention to do serious harm.
   
6. Yes from the point of view of the prisoner, the deceased did two provocative things. First he transported a number of his people to Widat intending to take away a new member of the local-level government. Secondly he went into his vehicle, as if to get a gun.
   
7. It is not known whether the deceased had a pre-existing condition making him susceptible to serious or fatal injury by a moderate blow.
   
8. No the attack on the deceased cannot be classed as ‘not vicious’. It was a very vicious attack. Though Mark Kanupio may have thought that the deceased had a gun, it was Mark Kanupio and his accomplices who staged the attack in the first place. Mark Kanupio’s reaction was entirely out of proportion to the grievance he had with the deceased. It was also entirely out of proportion to the fear that the accused had a gun. The group, which Mark Kanupio was a part of, did enough to relieve themselves of the fear that the deceased would be able to use a gun when they pulled him out of the car and cornered him.
   
9. No Mark Kanupio did not play a minor role in the attack. He led the attack. He was the main perpetrator. If he had done only as much as the others the deceased would clearly have survived the attack.
   
10. No Mark Kanupio did not give himself up to the police.
    
11. Yes he cooperated with the police in their investigations.
    
12. No there is no evidence he has done anything tangible to repair or remedy his wrongs.
    
13. Yes he pleaded guilty.
    
14. It is not clear whether Mark Kanupio is genuinely remorseful. All he said in his allocutus was that he was sorry to the court. He gave no indication that he was deeply and genuinely sorry for what he had done or that he appreciated the gravity of his crime.
    
15. Yes this is his first offence.
    
16. No he cannot be regarded as a youthful offender. He is a young man who should have known better. Mr Oiveka suggested that the court take account of the fact that the prisoners came from an undeveloped rural area. I do not accept that that is a relevant factor in this case. To take it into account the court would need to be satisfied that the prisoners were so unsophisticated they really did not know that it was wrong to stage a gang attack on one man and risk killing him in the process. I am not satisfied of that in relation to any of the prisoners. I find that there is nothing in Mark Kanupio’s personal life to mitigate the sentence.
    
17. No there are no other circumstances of the incident or the offender that warrant mitigation of the head sentence.
    

I regard consideration Nos 1 to 5, 8 and 9 as serious aggravating factors. This attack was so vicious, unnecessary and cowardly as to take the case beyond the range suggested in Marangi. This is a case where, at least as far as Mark Kanupio is concerned, the elements of the crime of murder appear to exist. He has not been charged with murder. But it is a very serious manslaughter case and in the absence of mitigating factors, the head sentence I consider would have been at least 20 years imprisonment. That would have been above the suggested range in Marangi. But the court stated in Marangi that its categories were guidelines only and in an appropriate case the penalties could be higher.

There are two weighty mitigating factors: those numbered 11 and 13. He co-operated with the police and he pleaded guilty. The other considerations I have not specifically mentioned here are those that are neutral (Nos 7, 14 and 17) or those I think are neither significantly aggravating nor significantly mitigating (Nos 6, 10, 12, 15 and 16).

Taking all the above considerations into account and comparing this case with the sentences in the previous cases referred to, the head sentence for Mark Kanupio is 15 years imprisonment.

Balwin Kining

All but one of the 17 considerations applied to Mark Kanupio apply to Balwin Kining and the other three prisoners. The exception is No 9, which takes account of the degree of involvement of each prisoner in the attack. Balwin Kanupio was the one who used a sharp cassowary bone as a knife. He cut the deceased. But it was not a lethal blow. I estimate his culpability for the death to be about half of that of the main perpetrator. I fix a head sentence for Balwin Kining as 7 years imprisonment.

Peter Pasikio and Steven Lipilas

These two should be treated equally. They played a lesser role than Balwin Kining. I fix a head sentence for each of them as 5 years imprisonment.

Paul Nowor

He did the least amount of damage. He did not land any blows on the deceased. But this was not because he elected not to. He tried but there was no space. I fix a head sentence for Paul Nowor of 4 years imprisonment.

STEP 2 - SHOULD ALL OR PART OF THE HEAD SENTENCES BE SUSPENDED?

To help me make a decision on this issue I requested and received a pre-sentence report under Section 13(2) of the Probation Act in relation to each prisoner. The reports were prepared by the Kimbe office of the Community Correction and Rehabilitation Service. The reports paint a fairly uniform picture of each prisoner. They are young village men, some single, some married with young families. They have no history of bad character. They come from an undeveloped area. They were caught up in dirty politics. They did a bad thing. None is considered a threat to the community. They are each candidates for probation supervision.

The assessment given of each prisoner, even of Mark Kanupio who has been found to be the main culprit, is encouraging. However I do not consider any of the reports to be sufficiently detailed to warrant, at this stage, suspending the sentences for any of the prisoners. Furthermore the circumstances of Marcus Wasa’s death were so violent and barbaric that it is not appropriate to consider suspending the whole of any of the sentences.

On the other hand the pre-sentence reports usefully make the point that incarcerating these young men for a long term may not help anybody. It might not help them and it might make them worse individuals. I am mindful of those valid concerns.

I will therefore qualify the prison sentences by ordering that each may be suspended after each prisoner has served a minimum term of imprisonment if before the expiration of the term prescribed the National Court approves a post-release parole period with strict conditions attached.

The problem with the pre-sentence reports at the moment is that no firm conditions are recommended and there is no guarantee that if the prisoners were released into their community they would have the support of the community.

The conditions that I envisage would be suitable are, for example, that each prisoner do some strictly controlled community work; that he submit to regular counselling with an officially recognised and reputable local church or other place of religious worship; that his movements be restricted; that he refrain from consuming drugs; that he be of impeccable behaviour. The vexed issue of compensation could also be addressed. Proof of genuine steps towards peace and reconciliation between the prisoners and the relatives of the deceased, carried out in accordance with local custom, would be viewed favourably.

Each prisoner will be at liberty to, at any time, make an application to vary the sentence so as to suspend the remaining part of the term of imprisonment.

SENTENCE

The Court makes the following order:

1. The prisoners, having been convicted of the crime of unlawful killing, ie manslaughter, are sentenced as follows:
   
   • (a) Mark Kanupio – sentenced to 15 years imprisonment in hard labour, 9 years of which must be served and the balance of 6 years of which may be suspended by order of the National Court if and when an application for suspension is granted;
     
   • (b) Balwin Kining – sentenced to 7 years imprisonment in hard labour, 3 years of which must be served and the balance of 4 years of which may be suspended by order of the National Court if and when an application for suspension is granted;
     
   • (c) Peter Pasikio – sentenced to 4 years imprisonment in hard labour, 2 years of which must be served and the balance of 2 years of which may be suspended by order of the National Court if and when an application for suspension is granted;
     
   • (d) Steven Lipilas – sentenced to 4 years imprisonment in hard labour, 2 years of which must be served and the balance of 2 years of which may be suspended by order of the National Court if and when an application for suspension is granted; and
     
   • (e) Paul Nowor – sentenced to 3 years imprisonment in hard labour, 1 year of which must be served and the balance of 2 years of which may be suspended by order of the National Court if and when an application for suspension is granted.
     

2 For the avoidance of doubt:

(a) the suspension of any of the above sentences will only come into effect if and when ordered by the National Court; and

(b) there shall be deducted from each term of imprisonment the period in custody that the relevant prisoner has already spent in relation to this offence.

Sentenced accordingly.
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Lawyers for the State : Public Prosecutor
Lawyers for the accused : Public Solicitor