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State v Aike [2006] PGNC 102; N3455 (24 October 2006)

N3455

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 244 OF 2006

THE STATE

-V-

RONNY AIKE

Kerema: Kandakasi, J.
2006: 9 and 24 October

DECISION ON SENTENCE

CRIMINAL LAW – SENTENCING – Manslaughter – Domestic argument – Wife taking refuge at deceased’s house – Prisoner getting drunk and going to deceased’s house calling for wife – Deceased getting punching prisoner down – Prisoner pulling out pocket knife and swinging at deceased but missed – Deceased and prisoner collided – Deceased stubbed with the pocket knife on his left groin causing him to fall – Deceased dying due to loss of blood - Guilty plea – First time offender – Expression of remorse without tangible evidence of - Sentence of 16 years imposed - Criminal Code Sections 302 and 19.

Cases cited:
The State v. Sabarina Yakal [1988-89] PNGLR 129.
Dori Inaria v. The State (10/07/02) SC688.
The State v. James Gurave Guba (12/99) N2020.
The State v Jimmy Banes Ere (24/7/02) N2254.
Roger Jumbo and Aidan Awatan v. The State (26/03/97) SC516.
Public Prosecutor v. Tom Ake [1978] PNGLR 469.
The State v. Roger Kivini (29/04/04) N2576.
Manu Kovi v. The State (31/05/05) SC789.
Sakarowa Koe v. The State (01/04/04) SC739.
Anna Max Marangi v. The State (08/11/02) SC702
The State v. Elias Peter Wano Miva CR 448 of 2005 (Judgment delivered 26/10/06)
The State v. Dominic Mangirak (29/04/03) N236.
The State v Jimmy Morgan (17/12/01) N2171.
The State v. Samuel Benimo (18/04/02) N2203.
The State v. Hobert Erick (18/04/02) N2201.
The State v. Saku Sogave (15/12/00) N2086.
The State v Charles Maniwa and Joseph Utura Maniwa (22/06/04) N2674.
The State v. Hiliong Gunaing (25/02/05) N2803.
The State v. Daniel Ronald Walus (25/02/05) N2802.
Simon Kama v. The State (01/04/04) SC740.
See Rudy Yekat v. The State (22/11/01) SC665.
Allan Peter Utieng v. The State (Unreported judgment delivered in Wewak on 23/11/00) SCR 15 of 2000.
The State v. Lucas Yovura (29/04/03) N2366.

Counsels:

Mr. D. Mark, for the State.
Mr. P.Kapi, for the Prisoner.

24 October 2006

1. KANDAKASI J: On Monday 9th this instant the State presented an indictment against you charging you with one count of manslaughter contrary to Section 302 of the Criminal Code. I reserved a decision on your sentence after receiving submissions on your behalf from your lawyer and the lawyer for the State on behalf of the State. Here is now the decision of the Court.

The Facts

2. The relevant facts as put to you during your arraignment and the depositions are these. On 30 November 2005, in the earlier part of that day at the Kaintiba government station, here in the Gulf Province, you had an argument with your wife. Your wife went to your sister in-law’s place and took refuge there. Your wife went and got drunk with some of your friends. After getting drunk you went to your sister in-law and her husband, Kenneth Kennedy’s house and called for your wife. The evidence from the depositions, which the law permits me to take into account[1] as long as there is no conflict with any primary facts that is favourable to you[2] reveals that you swore at your wife and then broke part of the walls of the deceased’s house. The deceased and his wife came out and told you that your wife was with them. Thereafter, without any warning, the deceased punched you and you fell to the ground. You got up pulling a pocket knife as you did. You went with the pocket knife. You swung the pocket knife at the deceased but missed him. Eventually, the two of you collided. In the process, the pocket knife stubbed the deceased on his left groin, causing him to fall to the ground.

3. The deceased’s wife and others sought help and took the deceased initially to the Kaintiba Health Centre. The health workers there tried all their best to help the deceased. Unfortunately, nothing they could do was able to prevent the deceased from dying due to heavy loss of blood from the pocket knife stab wound you inflicted on him. That wound measured 10.1cm in depth, 3 cm in length and 1.6cm in width. This reveals that the wound you inflicted upon the deceased was a serious one.

Allocutus and Submissions

4. In your address on sentence, you said sorry for what you have done, to the deceased’s relatives including the untimely loss of her husband by your sister in-law. You are saddened too that you lost the deceased. You and the deceased have been very close friends like brothers well before the two of you married your respective wives who are biological sisters. As such, you have had no differences with the deceased. Also, you informed the Court that, you are married with two children and that this is your first ever offence. Finally, you asked the Court to exercise mercy toward you.

5. Your lawyer added by informing the Court that you are aged 30 and come from Karaeta Village, Kerema, Gulf Province. Both of your parents are alive and well. You are the eldest and the only male child in your family of one boy and three girls. Education wise, you graduated with a diploma in business management from the University of Technology in Lae. After your graduation and as at the time of the commission of the offence, the Department of Gulf employed you as the Business Development Officer for the Kaintiba District based at Kaintiba. By way of religion, you follow the Christian faith as a member of the United Church. Your lawyer concluded by pointing it out that you have been in custody awaiting your sentence from 22 November 2005, being the date of the commission of the offence.

6. Before the Court proceeds to consider an appropriate sentence for you, your lawyer urged the Court to note and take into account your family background as outlined above. He also urged the Court to take into account the fact that you pleaded guilty to a serious charge. That saved the State the time and money it could have outlaid to secure your conviction through a trial. He further urged the Court to take into account the fact that you are a first time offender, meaning that you have not been in trouble with the law before. Hence, this is your first ever offence. Furthermore, your lawyer urged the Court to note that your parents contributed financially to the funeral expenses of the deceased. Finally, your lawyer urged the Court to take into account the loss and your expression of remorse over the loss of a close relative and friend.

7. At the same time, your lawyer correctly acknowledged that you committed a very serious offence, which carries a maximum penalty of life imprisonment. However, he urged the Court to note that, the Supreme and the National Courts have imposed sentences below that. He then referred the Court to the Supreme Court decision in Manu Kovi v. The State[3] and before that the decision also of the Supreme Court in Sakarowa Koe v. The State.[4] The first decision seeks to further categorize homicide cases from what Parliament has already provided for in the Criminal Code. Going by that decision, your lawyer submits that your case falls in the second category of manslaughter or unlawful killing cases. Accordingly, he submitted that you should be given a sentence of 14 years having regard to all of the factors operating for and against you.

8. Counsel for the State, Mr. Mark, endorsed the submissions of your lawyer. In so doing, he pointed out that the offence you committed is a prevalent one. He also pointed out the fact that, the medical report shows that the wound you inflicted upon the deceased directly contributed to his death. A life has thus been lost prematurely and directly by your actions and as such you should be appropriately punished.

9. These submissions gives rise to only one issue for this Court to determine and that is. What is the appropriate sentence in your case? This issue can be decided by having regard to the sentence prescribed by Parliament, the sentencing guidelines and trends per the Supreme and National Court judgments and the particular circumstances in which you committed the offence from which comes, the factors in your aggravation as well as those in your mitigation.

The Offence and Sentencing Trend

10. In the decision I have just handed in the matter of The State v. Elias Peter Wano Miva (CR 448 of 2005), I pointed out that s. 302 of the Criminal Code creates the offence of manslaughter and prescribes the penalty of life imprisonment as its maximum penalty subject to s. 19. However, the courts have imposed sentences lower than that in the exercise of the discretion vested in them by s. 19 of the Code. I then reviewed the relevant cases on point up to the decision of the Supreme Court in the case of Anna Max Marangi v. The State[5] and eventually, the decision in the Manu Kovi case.

11. The Supreme Court in the Anna Max Maringi case further categorized manslaughter cases in the context of domestic killings into three categories, as follows:

(1) Cases in which force is used accidentally or in an uncalculated manner, such as a single blow, punches or kicks on any part of the deceased’s body. This also includes cases in which death is caused by an acceleration of a pre-existing disease or condition leading to death. These kinds of killings attract sentences between three (3) years and seven (7) years.

(2) Cases that involve repeated application of vicious force, with or without the use of an instrument or weapon, such as repeated kicks and punches applied to the head or chest with deliberate intention to wound or cause bodily harm. Deaths caused by a single or multiple knife stab wounds applied to the head, neck, chest or abdomen or on any other vulnerable part of the body, even if there is no other special aggravating factors, come under this category. This category attracts sentences between 8 and 12 years.

(3) Cases in which there is direct application of force in a calculated manner, on the body using a weapon such as a knife, bush knife or axe causing serious bodily injuries, such as piercing vital organs or severing vital parts of the body. Deaths caused by chopping the neck, legs and arms with an axe or bush knife are examples of this kind of killings. This includes death caused by single or multiple knife stab wounds on the head, face, neck, chest or the abdomen if accompanied by other special aggravating factors may also fall under this category. These kinds of killings attract sentences between 13 and 16 years.[6]

12. Anna Max Maringi was a case of a wife killing her husband’s girlfriend by the use of a kitchen knife to stab twice the deceased who was pregnant caused her to have an early termination of her foetus, found it serious and falling in the second and or the third categories. However, the Court decided to uphold the National Court’s sentence of 9 years, saying the appellant was fortunate enough to receive that sentence as it was of the view that she deserved a higher sentence, considering other case in which sentences beyond the 9 years mark for manslaughter cases were imposed.[7]

13. In April of 2004, the Supreme Court in Sakarowa Koe v. The State,[8] further reviewed the sentences and guidelines for sentences in manslaughter cases. It then varied the guidelines in Anna Max Marangi in three respects. First, the Court held that the categorization of the offence of manslaughter in that case applies with appropriate modification to all other cases of unlawful killings. Secondly, it suggested a fourth category and finally, it suggested a new range of tariffs in terms of the following (from the head note):[9]

"Given the prevalence of the offence and past sentences not appearing to deter other would be offenders as well as the fact that there can be no excuse except as provided for by law for the taking away of any other person’s life, the sentencing range for the three categories of manslaughter identified in Anna Max Marangi v. The State (08/11/02) SC702 was varied to cover all types of manslaughter cases and increased the tariffs in terms of, seven (7) to twelve (12) years for the first category, thirteen (13) to seventeen (17) years for the second category and eighteen (18) years to life imprisonment for the third category. The use of a firearm, which was not considered in the categorization of manslaughter cases, could fall at the worse end of the third category if not a separate category."

14. These guidelines have since been applied by the National Court.[10] This led the Supreme Court to eventually endorse the need for increase in the sentences in its recent decision in the Manu Kovi case. There the Court once again reviewed all cases of homicide and suggested four categories of manslaughter cases and recommended an increased range of sentences. The first category is at the lower end of the scale for simple cases of manslaughter which does not involve any weapons, brutality or viciousness, pre-meditation and or planning and the offender pleads guilty attracts sentences between 8 to 12 years. The second category is for cases which involve an offensive weapon, some planning, viciousness or brutality and an intention to do harm attracts sentences between 13 to 16 years, whether or not the offender pleads guilty. The third category is for cases which involve offensive weapons such as a gun and axe, some planning, viciousness or brutality and an intention to do harm, attracts sentences between 17 to 25 years, whether or not the offender pleads guilty. The fourth and final categories are serious cases in which more serious elements than those present under first and the other categories exist. This category attracts life imprisonment, whether or not the offender pleads guilty.

15. Finally I just expressed the view with respect in the The State v. Elias Peter Wano Miva that, there is a serious fallacy in the Supreme Court’s further categorization of manslaughter cases, particular in relation to the third and fourth categories because of the fact that these categories make provision for preplanning and intention to either kill or to cause grievous bodily harm to the deceased or another person. In support of that view, I referred to the decision of the Supreme Court in Simon Kama v. The State,[11] which questioned the power of the Supreme Court to further categorize homicide cases. Then eventually, I concluded that there is clearly a conflict here as to the correct sentencing approach for manslaughter cases. One is as per Simon Kama and the other is per, Anna Max Maringi as modified by Manu Kovi. I pointed out that only the Supreme Court has the power to correct this apparent conflict. Until that is done, I indicated that, we must do the best we can with what we have. Then in the end, I applied the Manu Kovi guideline to arrive at the decision in Elias Peter Wano Miva’s case.

Your Sentence

16. Going by the submission of counsel before me it is clear to me that no careful thought has been given to the matters I have just discussed regarding the further classification of manslaughter cases per the Manu Kovi decision. To avoid any disadvantage this may bring to you, I will approach your sentence according to the Manu Kovi decision in much the same way I did in the Elias Peter Wano Miva’s case.

17. Your lawyer submitted that your case falls under the second category per the Anna Max Maringi case as modified by Manu Kovi case. That category attracts sentences in the range of 13 to 16 years imprisonment. You submit through your lawyer that a sentence of 14 years is appropriate in the particular circumstances of your case. As already noted, the State endorses that submission.

18 This does not mean that the Court must impose that sentence. Instead, the Court is duty bound to consider what sentence is appropriate taking into account the evidence before it, the submissions of both the State and yourself, the relevant sentencing guidelines, trends and tariffs and come up with a sentence that is appropriate in the particular circumstances of your case. In order to do that, I note and take into account your family back ground as outlined by your lawyer in his submissions. In addition, I need to take into account both the factors for and against you. I do that by first considering the factors in your favour.

19. First, I note that you pleaded guilty to a serious offence which carries a maximum penalty of life imprisonment. That saved the State the time and money it could have spent to successfully have you tried and convicted. It also saved the Court the time it could have spent in conducting a trial on the issue of your guilt or innocence. Further, it avoided the need for the relatives of the deceased to come into Court and relive the grief and pain your actions have caused them.

20. Secondly, I note that this is your first ever offence. That means you have not been in trouble with the law before. The law allows for a lenient sentence in appropriate cases where the offender is a first time offender. The conversed of that is that a repeat offender may be given a far sterner sentence. The idea behind this is to avoid crushing a first time offender with a heavier penalty and the risk of turning the offender into a hard core criminal. Hence a lighter sentence would serve as a punishment as well as serve the communities desire to prevent the offender from re-offending.
21. Thirdly, I noted that you said sorry for what you have done. You regret having killed a friend and a brother through marriage. It is hard to accept the death of a close family member or a close friend and more so when you caused the death. This regret may be with you for some time. Your parents have contributed to the funeral expenses of the deceased. However, there is no evidence of you paying any compensation or otherwise doing something to appease the wrong and loss you have brought upon the deceased’s relatives and your sister in-law. As I said in a number of cases already, a mere expression of remorse means nothing unless it is accompanied by something tangible like the payment of compensation.[12]

22. Another factor that could arguably be in your favour is your claim of acting under a de factor provocation. This is so only to the extent that, the deceased punched you first. There is no evidence of the deceased further attacking you. There is also no evidence of the deceased arming himself with a stick, knife or any other weapon to attack you. Clearly therefore, the deceased was of no further threat to you let alone any need for you to arm yourself with any object or weapon. Despite that, you armed yourself with a pocket knife you already had with you and swung it at the deceased, missed and then the two of you collided and the pocket knife stabbed the deceased. All of the trouble started with you and finished with you. So I am not persuaded that you acted under any de factor provocation particularly when you started it all.

23. Further, as I have just said in Elias Peter Wano Miva’s case, I cannot understand how you could possibly raise a de factor provocation in the particular circumstances of your case given your being a Christian following the United Church teaching. Christians are admonished by the Holy Bible, God’s word to be slow to anger. In fact the Bible teaches that if someone slaps you on one side of your cheek you should allow him to slap you on the other side as well.[13] In other words the Bible teaches that you should not be retaliating in the way you acted if you are a true Christian. So what you did was contrary to what is required of a Christian. Indeed, your actions on that fateful day are more unchristian. You argued with your wife and she took refuge in the deceased’s house with your child. You went and got drunk and went to the deceased’s house and were abusive and eventually caused the death of the deceased using a dangerous object, a pocket knife. Christians are not to be alcoholics to the point of getting drunk and angry and becoming violent.

24. I note that the comments I have just made in relation to the last two factors you raised in your mitigation apply and do in fact operate against you. In addition to those factors, I note that there are at least two serious aggravating factors against you. First, the offence you committed is a prevalent offence. The senseless taking away of human life is on the increase throughout the country. There is therefore a need for a strong and deterrent sentence to stop you as the offender and other like minded persons from committing these kinds of offences. The forgoing discussion of the relevant sentencing trend and tariffs testify of this. I sincerely hope that the kind of sentences the Supreme Court has suggested and are being imposed by the Courts now will go toward a deterrence of you and other like minded persons from senselessly taking away the lives of other people regardless of whatever the reason.

25. Your actions have taken away a father and a husband for the deceased’s immediate family. His parents and community lost a son too prematurely. They are the ones who will be suffering the most. The deceased is gone for good. You are sitting here in Court pleading for mercy toward you and your immediate family. You are complaining about a few years in prison whilst the deceased is gone for good. Indeed, I note that your pleading for mercy or leniency is in effect asking this Court to place more value to your own life and freedom and have little or no regard for that of the deceased and those who are going to and are continuing to be affected in the long term following his untimely death at your hands. These people did nothing to deserve such a loss. You will be receiving the just rewards of your own actions in accordance with the law and in a more civilized way as opposed to your jungle justice inflicted against the deceased.

26. Secondly, you used a dangerous weapon, a bush knife to cause a serious injury to the deceased and eventually his death. You did that in circumstance that did not call for it. The ready use of pocket knives, kitchen knives, bush knives, axes and such other dangerous weapons to bring about too manly killings are on the increase. As noted in the summation of the facts, you inflicted a very serious injury to the deceased’s left groin measuring 10.1cm in depth, 3 cm in length and 1.6cm in width. The medical evidence also states that the deceased lost a lot of blood at the scene of the offence before the deceased was taken to the hospital. That means the injury you inflicted upon the deceased directly led to heavy bleeding and eventually the loss of his life.

27. Additionally, I note that you are a well educated and married man. At the time of the offence, you were the Kaintiba District’s Business Development officer. You were therefore in a better position to appreciate and uphold the rule of law and respect for one another in our communities. I am sure the community looked upon you to provide the right kind of leadership for development. What you did on that fateful day runs contrary to the respect the community had in you as well as the expectation it had of you. You set a very bad example for other people.

28. Weighing the factors for and against you, I note that the aggravating factors out weigh those in your mitigation. Given the sacredness of human life, the prevalence of the offence and the use of the pocket knife weigh heavily against you. I accept your lawyer’s submission that your case falls into the second category per the Supreme Court decisions in Anna Max Marangi as modified by Manu Kovi guidelines. I consider an immediate custodial sentence of 16 years is appropriate. Accordingly, I impose that sentence against you.

29. Of the head sentence of 16 years, I order a deduction of the period of 11 months and 4 days you have already spent in custody whilst awaiting your trial and sentence. That will leave you with the balance of 15 years and 28 days, yet to serve. I order that you serve that sentence in hard labour at the Bomana Correction Services. A warrant of commitment in those terms shall issue forthwith.

Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyer for the Prisoner

^[1] See The State v. Sabarina Yakal [1988-89] PNGLR 129; Dori Inaria v. The State (10/07/02) SC688; The State v. James Gurave Guba (12/99) N2020 and The State v Jimmy Banes Ere (24/7/02) N2254.
^[2] See for examples of authorities on point Roger Jumbo and Aidan Awatan v. The State (26/03/97) SC516, Public Prosecutor v. Tom Ake [1978] PNGLR 469 and The State v. Roger Kivini (29/04/04) N2576.
^[3] (31/05/05) SC789, per Injia, DCJ; Lenalia and Lay JJ.
^[4] (01/04/04) SC739, per Sevua, Kandakasi and Lenalia JJ.
^[5] (08/11/02) SC702.
^[6] As stated in The State v. Dominic Mangirak (29/04/03) N2368, per Kandakasi J.
^[7] See for example The State v Jimmy Morgan (17/12/01) N2171, per Kandakasi J; The State v. Samuel Benimo (18/04/02) N2203, per Jalina J.; The State v. Hobert Erick (18/04/02) N2201, per Jalina J.; and The State v. Saku Sogave (15/12/00) N2086, per Gavara-Nanu J.
^[8] (01/04/04) SC739, per Sevua, Kandakasi and Lenalia JJ.
^[9] From the head note.
^[10] See for example The State v Charles Maniwa and Joseph Utura Maniwa (22/06/04) N2674, per Kandakasi J. The State v. Hiliong Gunaing(25/02/05) N2803, per Cannings J and The State v. Daniel Ronald Walus (25/02/05) N2802, per Cannings J.
^[11] (01/04/04) SC740, per Sevua, Kandakasi , Lenalia, JJ.
^[12] See Rudy Yekat v. The State (22/11/01) SC665; Allan Peter Utieng v. The State (Unreported judgment delivered in Wewak on 23/11/00) SCR 15 of 2000, in The State v. Lucas Yovura (29/04/03) N2366.
^[13] Mathew 5:39.