State v Kapus [2010] PGNC 109; N4114 (18 March 2010)

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CRIMINAL LAW – sentencing – manslaughter, Criminal Code, Section 302 – sentence after trial – victim, a 52-year-old man – altercation in settlement – young offenders.

Three young men were convicted after a trial of the manslaughter of their 52-year-old male relative. Two of the offenders inflicted fatal wounds to the deceased's head by using a tommyhawk and by punching him in the head. The other offender whipped the deceased with a rubber hose. This is the judgment on sentence.

Ignatius Pomaloh v The State (2006) SC834
Manu Kovi v The State (2005) SC789
The State v Mark Kanupio & 4 Others (2005) N2800
The State v Melchior Kapus & 7 Others, CR No 291 of 2007, 16.02.10
The State v Vincent Matana Laore and 3 Others CR No 915 of 2005, 24.04.08

1. CANNINGS J: This is a decision on sentence for three young men, who are brothers, convicted after trial of the manslaughter of their 52-year-old relative, John Sindat. They killed him in an altercation at the place they all lived, Biliau Maus Rot settlement, on the outskirts of Madang town on the evening of Friday 15 September 2006.

2. Not long before that, there had been an altercation involving Mr Sindat's son. Mr Sindat came to find out who had fought with this son, and this led to the altercation with the offenders. Essau Kapus and Derick Kapus inflicted fatal wounds to Mr Sindat's head by using a tommyhawk and punching him in the head. They directly caused his death. Melchior Kapus whipped the deceased with a hydraulic hose on the side of his body. Though the wounds he inflicted were not fatal they contributed to the overpowering of the deceased, which had begun when Melchior pulled his shirt over his head, making him vulnerable to a lethal attack. Melchior Kapus indirectly killed the deceased.

3. The offenders and five others were charged with murder and pleaded not guilty. There was insufficient evidence against the other five and they were acquitted. It was found that in view of the nature of the wounds and the spontaneousness of the incident there was no conscious intention by the offenders to do grievous bodily harm. Hence they were not guilty of murder. However their killing of the deceased was unlawful and they were convicted of manslaughter. Further details of the circumstances in which the offence was committed are set out in the written judgment on verdict (The State v Melchior Kapus & 7 Others, CR No 291 of 2007, 16.02.10).

5. Each offender was given the opportunity to say what matters the Court should take into account when deciding on punishment:

Melchior Kapus: I apologise to the Court and the family of the victim. I am going to Madang Teachers College, and I am in my final year. I ask for mercy so that I can complete my schooling and help my family.

Essau Kapus: I apologise to God and to the Court and the victim and his family for what has happened. I am worried about my schooling and my life. I ask to be put on probation.

Derick Kapus: I apologise to the Court and the family of the victim. Our father has already died and we are looking after our mother. I am due to do my grade 10 this year. I ask for mercy and probation so I can continue my schooling.

6. I received a pre-sentence report from the Community Corrections and Rehabilitation Service. All the offenders come from Sotmeri village in the Wosera-Gawi area of East Sepik Province but they have lived for most or all of their lives at Biliau Maus Rot. Melchior is 24 years old, married with three children. Essau, aged 20, and Derick, aged 18, are single. At the time of the offence they were aged 21, 17 and 15. Melchior is the oldest in the family of five. Their father died in 2003. They have been raised by their mother, Nancy Kapus, and been living with her prior to their imprisonment.

7. Melchior last year completed the first of a two-year teacher training course at Madang Teachers College. Essau is attempting enrolment in an external course with Unitech, Lae. Derick has done grade 9 at Tusbab Secondary School. None have any serious health problems. They all have a sporting background. They are members of the Seventh-Day Adventist Church, attend church regularly and are involved in church activities. They are financially dependent on their mother who earns informal-sector income and has a chicken project at the settlement.

8. They have attempted reconciliation and offered compensation to the deceased's relatives but these overtures have been rejected. The author of the pre-sentence report attempted to interview the deceased's widow but she did not want to talk. One of the deceased's relatives, John Apa Tumakuru, a State witness at the trial, was interviewed and conveyed the clear impression that the deceased's family do not want to see the offenders given non-custodial sentences.

9. They all have a good record in the community apart from this offence. They are not considered a threat to the community and are recommended for probation.

10. Mrs Meten submitted that the case fell within the second category of the guidelines given by the Supreme Court in the case of Manu Kovi v The State (2005) SC789 and therefore the starting point should be in the range of 13 to 16 years. She submitted, however, that the sentences should be lower than that – as low as eight years – and not more than 14 years, because of the strength of the mitigating factors. It was a group fight and the attack on the deceased could not be regarded as vicious. They are first-time offenders and they co-operated with the police, they have expressed remorse and they are willing to pay compensation. The death of the deceased was not planned, it was a spontaneous incident.

11. Mr Kupmain, for the State, agreed that the case fell within the second category of the Manu Kovi guidelines but submitted that there was no case for sentencing at a lower range within that category (13 to 16 years). It was a group fight and the court should impose sentences that will provide a deterrent to this sort of crime. He conceded, however, that because of the favourable pre-sentence report, a partial suspension of the sentence would be appropriate.

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

13. The maximum penalty for manslaughter under Section 302 of the Criminal Code is life imprisonment. The National Court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code.

14. 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

15. The present case has both mitigating and aggravating factors and death was caused by an offensive weapon. I agree with counsel that it falls within category No 2, so the starting point is 13 to 16 years.

16. There are several aspects of this case that make it similar to a recent West New Britain case I dealt with, The State v Vincent Matana Laore and 3 Others CR No 915 of 2005, 24.04.08: multiple offenders (four), convicted of manslaughter after a trial in which they and a number of others (eight) had been charged with wilful murder, it was a group fight, the deceased was a relative who was directly killed with a lethal weapon (bushknife) by one of the offenders and indirectly killed by the others. I took into account the different degrees of involvement of the offenders in accordance with the Supreme Court decision in Ignatius Pomaloh v The State (2006) SC834 and imposed a sentence of 15 years on the principal offender and 12 years each on the other three.

17. In arriving at those sentences I considered 20 other manslaughter cases and of them the one most similar to the present is The State v Mark Kanupio & 4 Others (2005) N2800. It was a case of election-related violence, a mob attack on an innocent man, death was inflicted by knives, sticks and stones. The offenders pleaded guilty and they had markedly different degrees of involvement. The sentences were 15, 7, 4, 4 and 3 years.

18. I have decided that each of the offenders should get the same sentence. Although two of them, Essau and Derick, had a more direct involvement in the killing, they were juveniles at the time (being aged 17 and 15 respectively), whereas Melchior, though having a lesser degree of involvement, was an adult. They are brothers and they all have the same background and similar aspirations, so it is appropriate to impose the same sentence on each of them.

19. I refer to the list of sentencing considerations set out in The State v Vincent Matana Laore and 3 Others CR No 915 of 2005, 24.04.08 and highlight the following mitigating and aggravating factors.

22. I reject the defence counsel's submission that a sentence as low as eight years is warranted. That sort of sentence should be reserved for guilty pleas. After weighing all these factors, comparing this case with others, particularly Vincent Matana Laore (which I regard as a more serious case than this one) the head sentence should be at the bottom of the starting point range. I impose a head sentence of 13 years imprisonment.

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

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

24. The pre-sentence report suggests that the offenders could be given fully suspended sentences and put on probation immediately. However, I agree with the prosecutor's submission that the ultimate sentence must provide a deterrent and only partial suspension is warranted. No one should lose sight of the fact that a man has been killed. It was a brutal killing. To impose a fully suspended sentence would have the effect of cheapening the value of human life.

25. That said, because each offender has a good pre-sentence report and a good record of co-operating with the police and the court, I will suspend three years of each sentence on the following conditions:

26. Melchior Kapus, Essau Kapus and Derick Kapus, having been convicted of manslaughter under Section 302 of the Criminal Code, are each sentenced as follows:

Length of sentence imposed	13 years
Pre-sentence period to be deducted	4 months
Resultant length of sentence to be served	12 years, 8 months
Amount of sentence suspended	3 years
Time to be served in custody	9 years, 4 months
Place of custody	Beon Correctional Institution

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender

National Court of Papua New Guinea

State v Kapus [2010] PGNC 109; N4114 (18 March 2010)