State v Lucas [2008] PGNC 333; N3540 (11 December 2008)

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CRIMINAL LAW – sentence – manslaughter – Criminal Code, Section 302 – guilty plea – offender fired shot at deceased with home-made gun, during group fight, killing him –– sentence of 10 years.

A man pleaded guilty to manslaughter. He killed the deceased by shooting him with a home-made gun following a group fight. There was a strong element of de facto provocation as, prior to the incident, the deceased had invaded the offender’s home and assaulted his mother and raped his sister.

Manu Kovi v The State (2005) SC789
Saperus Yalibakut v The State (2006) SC890
The State v Daniel R Walus (2005) N2802
The State v Jacklyn Boni CR 786/2005, 08.09.05

1. CANNINGS J: Steven Lucas, a 19-year-old man from the Kandrian area, WNB, has pleaded guilty to unlawfully killing Stanley Maleng at Gigo 2 in Kimbe on 1 January 2008. He must now be sentenced for committing the crime of manslaughter. The sequence of events that led to Stanley Maleng’s death started at about 10.00 am when a group of young men from a part of Gigo 2 called ‘Paradise’ chased a young man in the direction of where the offender was standing. They saw the offender and decided to chase him instead. They chased him up past his house. Then they went into the offender’s house and attacked his mother and his sister. Stanley Maleng was in this group. After they left, the offender went to his house and discovered that his mother had been injured and his sister raped. The offender looked for a gun. He found a popgun (a home-made gun) and a cartridge. Then, he went looking for the youths responsible for assaulting his mother and sister. He was joined by some friends and they located the Paradise youths, then a fight erupted. The offender saw Stanley Maleng run out with a gun, so he stepped out from where he was hiding, and fired a shot, which struck Stanley Maleng in the lungs, killing him almost instantly.

3. The offender was given the opportunity to say what matters the court should take into account when deciding on punishment. He said:

This incident happened because of a fight between people from Simbu and people from Kainantu, Eastern Highlands. I had nothing to do with it. But Stanley’s boys were chasing someone and they saw me and thought I was with their enemies. So they chased me. I hid from them and they went into my house and cut my mother with a knife and raped my sister and they also set fire to the house. I got angry and gathered my uncles and we fought with them. Stanley had a gun so I fired a shot at him, which got him. Then Stanley’s people chased me again and burned down six of my uncles’ houses.

4. As the offender has pleaded guilty he will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State (2006) SC890). In that regard, I will take into account that:

5. A pre-sentence report prepared by the Kimbe branch of the Community Based Corrections shows that Steven Lucas was raised at Gigo by his mother, after Steven’s father deserted the family some years ago. He has been educated to grade 6 and was planning to enter grade 7 this year but his education has been interrupted by this case and the time he has spent in remand. Steven has strong family support from his mother and sister, who do not want him to be sent to jail for a long period. His local ward member, Benny Fidelis, speaks highly of him. He is not a known troublemaker. Compensation has been paid to the deceased’s relatives. The report concludes that he is not a danger to the community and is suitable for probation.

6. Mr Yapao submitted that despite the use of a firearm, a moderate sentence, in the vicinity of 12 years imprisonment should be imposed. The death followed a group fight, the deceased was armed and there was substantial provocation.

7. Mr Popeu suggested that this was a planned attack. Although it was a group fight, the offender was supported by others and time was taken to mobilise his uncles and others. There was time for the offender’s passion to cool – time for him to take a course of action other than taking the law into his own hands. A sentence of 17 years would be appropriate.

8. To determine the appropriate penalty I will adopt the following decision making process:

9. Under Section 302 (manslaughter) of the Criminal Code the maximum penalty is life imprisonment. The court however has a discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code.

10. In Manu Kovi v The State (2005) SC789 the Supreme Court suggested that manslaughter convictions could be put in four categories of increasing seriousness, as shown in table 1.

TABLE 1: SENTENCING GUIDELINES FOR MANSLAUGHTER DERIVED FROM THE SUPREME COURT’S DECISION IN MANU KOVI’S CASE

No	Description	Details	Tariff
1	Plea – ordinary cases – mitigating factors – no aggravating factors.	No weapons used – offender emotionally under stress – de facto provocation – killing in domestic setting – killing follows straight after argument – minimal force used – victim had pre-existing disease that caused or accelerated death, eg enlarged spleen cases.	8-12 years
2	Trial or plea – mitigating factors with aggravating factors.	Use of offensive weapon, eg knife, on vulnerable parts of body – vicious attack – multiple injuries – some deliberate intention to harm – some pre-planning.	13-16 years
3	Trial or plea – special aggravating factors – mitigating factors reduced in weight or rendered insignificant by gravity of offence.	Dangerous or offensive weapon used, eg gun, axe – vicious and planned attack – deliberate intention to harm – little or no regard for sanctity of human life.	17-25 years
4	Worst case – trial or plea – special aggravating factors – no extenuating circumstances – no mitigating factors, or mitigating factors rendered completely insignificant by gravity of offence.	Some element of viciousness and brutality – some pre-planning and pre-meditation – killing of harmless, innocent person – complete disregard for human life.	Life imprisonment

11. In this case there are both mitigating and aggravating factors present and death was caused by an offensive weapon, the gun. The case falls within category 2. The starting point is therefore 13 to 16 years.

STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED RECENTLY FOR EQUIVALENT OFFENCES?

12. Before I fix a sentence, I will consider other manslaughter sentences I have handed down recently in West New Britain. There have been about 15 such cases, most of them concerning deaths arising from domestic disputes. The sentences have ranged from 8 to 18 years imprisonment. In The State v Jacklyn Boni CR 786/2005, 08.09.05, a juvenile offender pleaded guilty to unlawfully killing her husband by hitting him with a stick, rupturing his spleen, following an argument over a small domestic matter. She was sentenced to eight years imprisonment. In The State v Daniel R Walus (2005) N2802 a young man pleaded guilty to punching and kicking the deceased, a female, a number of times, rupturing her spleen and killing her. He was sentenced to 18 years imprisonment.

15. In weighing all these factors I place great weight on the substantial provocation and the guilty plea and the fact that the offender surrendered to and co-operated with the police. After comparing this case to the other manslaughter cases I have dealt with, I consider a sentence below the starting point range is warranted, even below what was contended for by the defence counsel. I impose a head sentence of ten years imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

16. Yes. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment the whole of the pre-sentence period in custody, which is 11 months.

17. The favourable pre-sentence report, showing that the offender is recommended for probation, means that there is a case for suspension of the sentence. But not all of it. Fully suspended sentences for homicide cases must be reserved for the most exceptional and unusual cases. The offender killed a man by shooting him with a gun and though the case has some unusual features, it was an unnecessary unlawful killing. I will suspend three years of the sentence, on the following conditions:

18. Steven Lucas, having been convicted of one count of manslaughter, is sentenced as follows:

Length of sentence imposed	10 years
Pre-sentence period to be deducted	11 months
Resultant length of sentence to be served	9 years, 1 month
Amount of sentence suspended	3 years
Time to be served in custody	6 years, 1 month
Place of custody	Lakiemata Correctional Institution

Sentenced accordingly.
_____________________________________________________________
Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyers for the Offender

National Court of Papua New Guinea

State v Lucas [2008] PGNC 333; N3540 (11 December 2008)