State v Damun [2011] PGNC 128; N4295 (12 May 2011)

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CRIMINAL LAW – sentencing – manslaughter, Criminal Code, Section 302 – sentence after guilty plea – offender attacked and killed a man who had attempted to rape the offender's wife – use of bushknife – sentence of 10 years.

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 severely times with the bushknife, inflicting multiple wounds from which he died. The offender pleaded guilty to manslaughter.

Manu Kovi v The State (2005) SC789
Saperus Yalibakut v The State (2006) SC890
The State v Steven Lucas (2008) N3540
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 a young Rai Coast man, Rex Damun, who has pleaded guilty to the manslaughter of another young man from the same part of Madang Province, Roko Naila. The incident happened on 28 December 2008 near Gor village, where the offender and his wife had been in the early part of the day. The offender's wife left Gor and walked ahead, by herself, towards Lamtup. On the way she was confronted by the deceased and he attempted to rape her but she escaped and ran back to her husband and told him what had happened to her. The offender, angered by what he was told, went to his house, got his bushknife and went looking for the deceased. He found him and confronted him. The deceased argued with the offender and tried to fight him, but the offender cut him severely with the bushknife, inflicting multiple wounds from which he died.

I apologise to the court for what I have done and apologise for taking up so much of the court's time with my case. I am 27 years old and married with two children. I am not employed and I depend on a small income from cash crops to sustain my family.

The only reason this incident happened is that the deceased attempted to rape my wife. When she told me what happened I got very angry and in fact I thought he had already raped her. My wife was pregnant at the time with our second child and I thought we might have lost the child. All sorts of thoughts were going through my mind when I went after the deceased. When I caught up with him I questioned him and he tried to fight me with his knife but I removed it from him and I cut him. I only recall cutting him once. I was so angry I do not remember what happened after that. When my mind came back to normal I thought that I had only injured him but I found out later that he had died.

I apologise to God for killing this man and I ask for His forgiveness and mercy. I say sorry to the deceased's family for what I have done. I apologise to the Court for breaking the laws of this country.

My family has paid K10,000.00 compensation to the deceased's family and for that reason I did not want earlier to plead guilty. I thought that if my case went to trial and I gave my story the court would find me not guilty. I still feel that in some ways I am innocent and that what I did was right. I am very worried about the welfare of my wife and our two children. I want to be a free man again so I can look after them. I ask for the mercy of the court, for a light sentence. I am not a trouble-maker. I only committed the offence because of what the deceased did. I have been in remand for more than two years and I have learned a lot in that time. I do not want to spend more time in prison. Please give me a non-custodial sentence so that I can be with my family.

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 the following matters:

5. I received a pre-sentence report from the Community Corrections and Rehabilitation Service. Rex Damun is from Singor village. He was raised principally by his father, after his mother left the family home some years ago. His father, Damun Dau, is still alive and lives at Yabob village, near Madang town, and is strongly supportive of his son. He feels that it was the deceased who caused his own downfall. Mr Dau pointed out that a lot of compensation (five pigs and foodstuff, in addition to K10,000.00 cash) had been paid to the deceased's relatives and that this was sorted out in January 2009, soon after the death. The offender has a grade 9 education, from Rai Coast High School. He has no formal employment record. His health is sound. He wants to return to the village and support his family when he gets out of jail and return to life as a villager and subsistence farmer. He has a sound reputation in the community, is a member of the Lutheran Church and an active participant in church activities. He is considered suitable for probation.

6. Mrs Meten conceded that commission of the offence involved elements of viciousness and submitted that the circumstances of the case straddled categories 1 and 2 (the least serious categories) of the guidelines given by the Supreme Court in the case of Manu Kovi v The State (2005) SC789. Therefore the starting point should be in the range of 8 to 16 years. She submitted that the sentence should be at the bottom of the range – eight years – because of the strength of the mitigating factors. There was a high degree of de facto provocation on the part of the deceased. If he had not attempted to rape the offender's wife, he would still be alive. The incident would never have happened. The offender's rage – which was understandable – got the better of him and caused him to lose control. The offender has no previous convictions and he pleaded guilty. Also there has been substantial compensation paid. He has a favourable pre-sentence report, warranting a substantially suspended sentence, she submitted.

7. Mr Kaluwin, for the State, did not agree that the case fell within the least serious category of manslaughter cases. The case fell within the second category of the Manu Kovi guidelines as the offender had inflicted death by a lethal weapon and stabbed the deceased three times, and this showed a deliberate intention to injure the victim. He reminded the court that the maximum sentence is life imprisonment, which demonstrates the inherent value of human life, which no one has the right to take away unlawfully. Too much weight should not be given to the payment of compensation. Though it was a substantial sum, it should not be allowed to exonerate the offender from the very serious offence of which he has been convicted. A sentence of 13 to 16 years should be imposed, Mr Kaluwin submitted.

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

9. 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.

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. I agree with the prosecutor that the manner in which death was inflicted – three severe wounds with a bushknife – prevent the case falling within the least serious category. There are both mitigating and aggravating factors and death was caused by an offensive weapon, so it falls within category No 2. The starting point is 13 to 16 years.

12. There are several aspects of this case that make it similar to a West New Britain case I dealt with, The State v Steven Lucas (2008) N3540. The offender, a 19-year-old man, pleaded guilty to the manslaughter of a young man at Gigo in Kimbe. The sequence of events that led to the death started at 10.00 am when a group of young men 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. The deceased 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 youths responsible, then a fight erupted. The offender saw the deceased run out with a gun so he stepped out from where he was hiding and fired a shot which struck the deceased in the lungs, killing him almost instantly.

13. There were a number of mitigating factors: a high degree of de facto provocation, the victim was armed, the offender surrendered to the police, he cooperated with police, compensation was paid, he pleaded guilty, he expressed some remorse, he was a first-time offender, he was a young offender, with a good community record. Aggravating factors were the use of a lethal weapon, the gun and that the offender took the law into his own hands. A sentence of ten years imprisonment was imposed.

14. 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 note the similarities between the present case and that of Steven Lucas.

17. 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. 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 a case where an offender has inflicted a single sharp blow with a part of the body, such as a fist. After comparing this case with that of Steven Lucas, I consider a sentence below the starting point range is warranted, the same as that in Lucas's case. 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?

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

19. 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 cutting him with a bushknife in a savage and vicious attack. The court can appreciate why he was angry but to impose a fully suspended sentence can have the effect of devaluing human life. The offender must serve more time in prison. This is not double punishment. The compensation that has been paid has been taken into account as a mitigating factor. But compensation cannot be used to buy an offender's way out of prison. After taking account of all those matters, it is appropriate to suspend three years of the sentence on the following conditions:

20. Rex Damun, having been convicted of one count of manslaughter under Section 302 of the Criminal Code, is sentenced as follows:

Length of sentence imposed	10 years
Pre-sentence period to be deducted	2 years, 4 months, 2 weeks
Resultant length of sentence to be served	7 years, 7 months, 2 weeks
Amount of sentence suspended	3 years
Time to be served in custody	4 years, 7 months, 2 weeks
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 Damun [2011] PGNC 128; N4295 (12 May 2011)