N4390

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1010 OF 2010

THE STATE

V

TOLLY SAUN & STANLEY SAUN

Madang: Cannings J
2011: 19 April, 6, 12, 21 June, 4, 22 August, 15 September

CRIMINAL LAW – practice and procedure – manslaughter and grievous bodily harm – Criminal Code, Sections 302, 319 – two accused, two indictments, one proceeding – guilty plea: by one accused to both charges; by other accused to one charge only – whether proper to arraign an accused on a charge of manslaughter at the same time as arraignment on another charge.

CRIMINAL LAW – manslaughter and grievous bodily harm – Criminal Code, Sections 302, 319 – whether sentences should be served concurrently or cumulatively – totality principle

Two accused were jointly charged with grievous bodily harm (GBH), and in the same proceeding, under a separate indictment, one of them was also charged with manslaughter. The charges related to the same incident, an altercation between the two accused, who are brothers, and the victims, also brothers, in which one of the victims died. One of the accused pleaded guilty to both manslaughter and grievous bodily harm. The other accused pleaded guilty to grievous bodily harm.

Held:

(1)	If an accused is charged with wilful murder, murder or manslaughter and another offence it is proper for the accused to be arraigned, convicted and sentenced for both offences in the one proceeding if the offences are charged in separate indictments and the accused pleads guilty to both charges.

(2)	The following notional sentences were imposed on the first offender: count 1 (manslaughter): 10 years; count 2 (GBH): 3 years. The total potential sentence is thus 10 + 3 = 13 years imprisonment.
 
(3)	The sentences should be served cumulatively as there were two different victims but a reduction of 1 year under the totality principle was warranted. The total sentence was thus 12 years imprisonment.

(4)	The second offender was sentenced to 2 years, 6 months imprisonment for GBH.

(5)	The pre-sentence period in custody was deducted from each sentence but no part of the sentences were suspended as the pre-sentence report did not warrant probation, there being insufficient evidence of reconciliation with the relatives of the deceased or forgiveness or a preparedness to work towards customary resolution of the problems created by commission of the offences.

Cases cited

The following cases are cited in the judgment:

Acting Public Prosecutor v Konis Haha [1981] PNGLR 205
Charles Ombusu v The State [1996] PNGLR 335
Manu Kovi v The State (2005) SC789
Mase v The State [1991] PNGLR 88
Public Prosecutor v Kerua [1985] PNGLR 85
Saperus Yalibakut v The State (2006) SC890
The State v Isaac Ulul CR No 203 of 2007, 16.10.07
The State v Justin Ipa (2008) N3439
The State v Rex Damun (2011) N4295

SENTENCE

This was a judgment on sentence for two offenders, one being convicted of manslaughter and grievous bodily harm and the other being convicted of grievous bodily harm.

Counsel

S Collins, for the State
A Turi & J Mesa, for the offenders

15 September, 2011

1. CANNINGS J: This is a decision on sentence for Tolly Saun and Stanley Saun who have been convicted of offences committed in an incident on Baidal Road, near Wagol, Madang town, in the early hours of Sunday 23 August 2009, in the following circumstances:

•	Tolly Saun pleaded guilty to one count of manslaughter (the deceased being Pixie Abel) and one count of unlawfully doing grievous bodily harm (the victim being Alfie Abel);

•	Stanley Saun pleaded guilty to one count of unlawfully doing grievous bodily harm (the victim being Alfie Abel).

2. The offenders, who are brothers – Tolly was aged 20 at the time, Stanley was 16 – were walking with two friends along Baidal Road from the area around the LBC Compound towards their home at Biliau Maus Rot. It was 2.00 am. They were drunk. The deceased, Pixie Abel, came walking along the road in the opposite direction. He was arguing loudly with his wife, causing a disturbance. He was also drunk. The two groups for some reason levelled verbal abuse at each other. The deceased's wife left the scene but then his brother, Alfie Abel, arrived. By this time the verbal exchange had escalated to a physical fight and the deceased, aided by Alfie, was brandishing a bushknife at Tolly and Stanley and their friends. In the course of swinging it the deceased dropped the bushknife and, suddenly finding himself unarmed, fled. Tolly, angered by the attack, chased him, caught him, and stabbed him twice with a pocket knife. He inflicted one wound to the arm, which was superficial, and one wound to the chest, which was inflicted with such force that it fractured ribs and penetrated a lung and the heart, causing massive blood loss and almost instant death. He then went back to where Stanley was fighting with Alfie, grabbed the bushknife from Stanley and used it to strike Alfie twice on the head, rendering him unconscious and causing him grievous bodily harm. The offenders ran off to the junction of Baidal Road and North Coast Road, where they reported the incident to relatives.

3. Though he was attacked by the deceased first and was provoked and was defending himself, Tolly used excessive force, so the defences of provocation and self-defence are not available to him. He unlawfully killed the deceased and has been convicted of manslaughter under Section 302 of the Criminal Code. As to the assault on Alfie Abel, no defences are available to either Tolly or Stanley. Grievous bodily harm was done unlawfully, giving rise to an offence under Section 319 of the Criminal Code. Tolly was the principal offender as he directly did the harm to the victim. He was enabled and aided by Stanley who has been convicted of the same offence by virtue of Section 7(1)(b) the Criminal Code.

PROCEDURE

4. The State presented two indictments, one containing the manslaughter charge against Tolly and the other the GBH charge against Tolly and Stanley. I queried whether arraigning Tolly on the grievous bodily harm charge at the same time he was arraigned on the manslaughter charge offended against the principles of practice and procedure set out by the Supreme Court in Charles Ombusu v The State [1996] PNGLR 335, which require that an accused face trial only for one or more of the primary homicide offences, wilful murder, murder and/or manslaughter; the accused cannot be tried, in the same proceedings, for any other offence. I asked for submissions from counsel on this issue. It was contended by the prosecutor Mr Collins and agreed by defence counsel Mr Mesa that the rule against joint trial of homicide and non-homicide offences only applies if an accused pleads not guilty and a full trial is conducted. I accepted that submission. If an accused is charged with wilful murder, murder or manslaughter and another type of offence it is proper for him to be arraigned, convicted and sentenced for all offences in the one proceeding, provided that the offences are charged in separate indictments (thereby complying with Section 531(4) of the Criminal Code) and the accused pleads guilty to all charges. Those requirements were met here.

ANTECEDENTS

5. Neither offender has any prior convictions.

ALLOCUTUS

6. Each offender was given the opportunity to address the court.

Tolly Saun: I say sorry for what I did. I know that the laws of the country and God's laws say that I must not kill a person, which is what I did. I apologise to the deceased and to his wife and children for what I did and I apologise to his brother, Alfie Abel, and to Alfie's wife and children. But I want people to understand that it could easily have been the deceased facing the court rather than me. He provoked me. He attacked me first. His brother was telling him to kill me. I was trying to protect myself. I did not know him and I bore no grudge against him. I am not the sort of person to do this sort of thing. When I realised what I had done I surrendered myself to the police. I have co-operated with the police throughout their investigation of the incident. I have co-operated with the Correctional Service. I have been re-baptised while in custody. I believe that God has forgiven my sins and will have mercy on me and give me a second chance in life. I am not a threat to the community. If the court gives me the chance I will make peace and harmony in the community. I have a grade 10 education and I have done some computer studies and I want to pursue a career in computers. I am not in a good physical condition. I was once shot by the police and I have been hospitalised and I get chest infections because there is a pellet still lodged in my chest and I also have a problem with urinary tract infections. I am a first time offender and I ask for the mercy of the court.

Stanley Saun: I apologise to the victim and to the lawyers for taking up their time on my case. I am a first time offender. I ask for the mercy of the court and a non-custodial sentence.

OTHER MATTERS OF FACT

7. As the offenders have pleaded guilty they 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). This is a case in which there is strong de facto provocation as explained in the facts to which the offenders pleaded guilty and in Tolly Saun's allocutus. Other mitigating factors are that the offenders, with the assistance of their relatives, surrendered to the police and cooperated at all stages of the police investigation, including making comprehensive admissions in their records of interview.

PRE-SENTENCE REPORT

8. A pre-sentence report prepared by the Madang branch of the Community-Based Corrections and Rehabilitation Service shows that Tolly Saun and Stanley Saun, now aged 22 and 18 years respectively, are brothers, from the Ambunti area of Wosera-Gawi District, East Sepik Province. They have been raised in the Biliau Maus Rot settlement in Madang town. They are each single, their parents are alive, they have three sisters and a brother and a strong family support network. They have each been to high school. Tolly has health issues, and medical evidence was adduced that corroborates what he stated in allocutus. Stanley's health is sound. A written statement by their local ward councillor vouches for their good reputation in the community. There has been no reconciliation with the victim Alfie Abel or the deceased's other relatives, who are demanding K50,000.00 compensation for the death and K5,000.00 for the grievous bodily harm and if these amounts are not paid, they do not want the offenders shown leniency. Because of the lack of reconciliation, the report concludes that the offenders are not suitable candidates for probation.

SUBMISSIONS BY DEFENCE COUNSEL

9. Ms Turi submitted the outstanding feature of the case was the strong de facto provocation provided by the deceased being the aggressor. There was no element of premeditation. It was a spontaneous incident caused by the deceased. Both offenders surrendered soon after the incident and co-operated with the police. Both are first-time offenders. The mitigating factors warrant a total sentence of no more than 13 years for Tolly and 3 years for Stanley.

SUBMISSIONS BY THE STATE

10. Mr Collins submitted that because of the use of lethal weapon, the pocket knife, a sentence of 13 to 16 years on the manslaughter charge for Tolly Saun would normally be warranted, but because of the strength of the mitigating factors, a lesser sentence in the range of 10 to 12 years would be sufficient. A sentence of three or four years on the GBH charge would be appropriate.

DECISION MAKING PROCESS

11. I will firstly fix a total sentence for Tolly Saun by taking the following steps:

•	step 1: what is the maximum penalty for each offence?
•	step 2: what is a proper starting point for each offence?
•	step 3: what sentences have been imposed for equivalent offences?
•	step 4: what is the appropriate head sentence for each offence?
•	step 5: should the sentences be served concurrently or cumulatively?
•	step 6: what is the effect of the totality principle?
•	step 7: should the pre-sentence period in custody be deducted?
•	step 8: should all or part of the total sentence be suspended?

12. After fixing Tolly's total sentence I will fix a total sentence for Stanley, which will take account of his degree of involvement in the offence and personal circumstances, particularly his age.

STEP 1: WHAT IS THE MAXIMUM PENALTY FOR EACH OFFENCE COMMITTED BY TOLLY SAUN?

13. The maximum penalty for manslaughter under Section 302 of the Criminal Code is life imprisonment. For the GBH offence the maximum is seven years imprisonment. The court has the discretion to impose lesser or alternative sentences under Section 19 of the Criminal Code.

STEP 2: WHAT IS A STARTING POINT FOR EACH OFFENCE COMMITTED BY TOLLY SAUN?

14. For the manslaughter offence, I accept Mr Collins' submission that under the Supreme Court sentencing guidelines in Manu Kovi v The State (2005) SC789 the present case has both mitigating and aggravating factors and death was caused by an offensive weapon so it falls within category No 2, and the starting point is 13 to 16 years imprisonment. For the GBH offence I will use the middle of the available range: 3 years, 6 months.

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

15. Two recent manslaughter cases in Madang, where there was strong de facto provocation, use of an offensive weapon and a guilty plea, provide useful points of comparison. In The State v Isaac Ulul CR No 203 of 2007, 16.10.07 the deceased provided provocation by drinking home brew with the offender's young son, which angered the offender, and then chasing the offender, his wife and children with an axe and damaging his house. The offender responded by cutting the deceased on the head with a bushknife, killing him. The sentence was 10 years imprisonment. In The State v Rex Damun (2011) N4295 the offender was told by his wife that the deceased had attempted to rape her, so the offender armed himself with a bushknife and went after the deceased, found him and confronted him. The deceased argued with the offender and tried to fight him, but the offender cut him with the bushknife, inflicting multiple wounds from which he died. The sentence was 10 years imprisonment.

16. As for a GBH offence under Section 319 involving use of a bushknife a guilty plea will usually, as pointed out in The State v Justin Ipa (2008) N3439, lead to a sentence of three to six years.

STEP 4: WHAT IS THE HEAD SENTENCE FOR EACH OFFENCE COMMITTED BY TOLLY SAUN?

17. The mitigating factors are:

•	the strong de facto provocation;
•	it was a spontaneous incident, which occurred in the heat of passion;
•	the victim was armed;
•	the offender surrendered to the police;
•	the offender co-operated with the police throughout the police investigation;
•	he pleaded guilty;
•	he expressed some remorse;
•	he is a first-time offender;
•	he is a young offender;
•	he has a good community record.

18. Aggravating factors are:

•	his attack on the deceased was vicious and savage and unnecessary, given that the deceased had fled the scene after he dropped his bushknife;
•	use of a lethal weapon, the pocket knife;
•	the offender took the law into his own hands.

19. In weighing all these factors I place great weight on the substantial provocation and the guilty plea and the fact that the offender co-operated with the police. This case warrants a sentence lower than the starting point range of 13 to 16 years. It is similar in many respects to the cases of Isaac Ulul and Rex Damun and I consider that the same sentence as in those cases should be imposed: ten years imprisonment.

20. As for the GBH offence the same mitigating factors apply and make it appropriate to sentence below the starting point. Three years is an appropriate sentence.

Total potential sentence

It is:	10 years (manslaughter) + 3 years (GBH) = 13 years imprisonment	

STEP 5: SHOULD TOLLY SAUN'S SENTENCES BE SERVED CONCURRENTLY OR CUMULATIVELY?

21. The general rule is that if two or more offences are committed in the course of a single transaction all sentences in respect of the offences should be concurrent unless there are different victims (Public Prosecutor v Kerua [1985] PNGLR 85; Mase v The State [1991] PNGLR 88). Here, there was one incident but two victims so the sentences should be served cumulatively.

STEP 6: WHAT IS THE EFFECT OF THE TOTALITY PRINCIPLE ON TOLLY SAUN'S SENTENCE?

22. I now look at the total sentence that the offender is potentially facing (13 years) to check if it is just and appropriate having regard to the totality of the criminal behaviour involved (Acting Public Prosecutor v Konis Haha [1981] PNGLR 205). I consider that a slight reduction, of one year, will lead to a sentence that more accurately reflects all the circumstances in which these offences were committed. The total sentence will be 12 years imprisonment, apportioned as follows: manslaughter, 9 years, 6 months; GBH, 2 years, 6 months.

STEP 7: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED?

23. 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 which is 2 years, 3 weeks.

STEP 8: SHOULD ANY PART OF TOLLY SAUN'S SENTENCE BE SUSPENDED?

24. There is nothing in the pre-sentence report to warrant suspension of the sentence, there being no evidence of reconciliation with the relatives of the deceased or the victim Alfie Abel or forgiveness or a preparedness to work towards customary resolution of the problems created by commission of the offences. I decline to suspend any part of the sentence.

CONCLUSION RE TOLLY SAUN'S SENTENCE

25. The total sentence for Tolly Saun, covering both offences, is 12 years imprisonment, none of which is suspended.

STANLEY SAUN'S SENTENCE

26. Stanley played a lesser role in commission of the GBH offence and he was a juvenile at the time, so a slightly lesser sentence is appropriate. The head sentence is 2 years, 6 months. His pre-sentence period in custody is the same as Tolly's and will be fully deducted. As with Tolly none of the sentence is suspended.

SENTENCE SUMMARY FOR EACH OFFENDER

27. Tolly Saun, having been convicted of one count of manslaughter under Section 302 of the Criminal Code and one count of unlawfully doing grievous bodily harm under Section 319 of the Criminal Code, and Stanley Saun, having been convicted of one count of unlawfully doing grievous bodily harm under Section 319 of the Criminal Code, are sentenced as follows:

Details	Tolly Saun	Stanley Saun	
Length of total sentence imposed	12 years 	2 years, 
6 months	
Pre-sentence period to be deducted	2 years, 
3 weeks	2 years, 
3 weeks	
Resultant length of sentence 
to be served	9 years, 
11 months, 1 week	5 months, 
1 week	
Amount of sentence
suspended	Nil	Nil	
Time to be served 
in custody	9 years, 
11 months, 1 week	5 months, 
1 week	
Place 
of custody	Beon 
Correctional Institution	Beon 
Correctional Institution	

Sentenced accordingly.
_________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender