State v Wani [2011] PGNC 65; N4328 (17 June 2011)

	Home \| Databases \| WorldLII \| Search \| Feedback National Court of Papua New Guinea

CRIMINAL LAW – Sentencing – manslaughter – Criminal Code Act – section 302 – plea of guilty – husband had argument with wife – picked up spade – threw spade at wife – head of the spade flew-off – struck innocent child on the head – the child died – no intention to do grievous bodily harm on the child – sentence of 9 years as head sentence – offender to serve 4 years, 9 months & 26 days IHL while 4 years suspended on conditions.

Kesimo Apo v State [1988] PNGLR 182
Antap Yala v State SCR69 of 1996
State v Steven Kenny (1999) N1881
Jenny Wasu v State (2002) SC697
Anna Max Marangi v State (2002) SC702
Manu Kovi v The State (2005) SC789
State v Issac Ulul CR No. 203 of 2007

"A person who unlawfully kills another under such circumstances as not to constitute willful murder, murder or infanticide is guilty of manslaughter.
Penalty: Subject to section 19, imprisonment for Life."

7. The offender was given an opportunity to express his views on the offence he has committed and the type of punishment or penalty that he thinks the Court should impose upon him. In return, the offender said;

"I am married and lived with my wife's parents. I did all the work for my wife's parents. I told my wife that we should go to my place but she refused. So we both had an argument and the incident happened. I brought the child to the hospital and she died on the way. We brought the child back home. I was locked up in the cell the next day. I am sorry for what I did. It was not my intention to do that. I ask for mercy."

8. Mrs. Meten submitted that the maximum penalty for manslaughter is life imprisonment. However, she said that this Court has a considerable discretion whether to impose the maximum penalty or not by virtue of section 19 of the Criminal Code Act. She said it is a general practice that the maximum penalty is usually reserved for the worst type of cases. The counsel submitted that the present case is not within the range of worst manslaughter cases. She therefore, referred to the more recent case of Manu Kovi v State (2005) SC789. This was a Supreme Court case presided by Injia DCJ, Lenalia J & Lay J. The Supreme Court in Manu Kovi reviewed sentencing guidelines for all manslaughter cases. Counsel submitted that the sentencing range the court may consider is between 13-16 years.

9. Defence counsel further submitted that in deciding an appropriate head sentence, this Court may impose more or less than the term of years as stated above. However, she said the Court can do this by weighing the mitigating factors against the aggravating factors.

10. Mrs. Meten cited the following cases in support of her submission. This is the case of State v Jenny Dei CR No. 407 of 2010 (N4260). In that case, the accused was found guilty of manslaughter, where the accused killed her husband by stabbing him in the neck during a domestic dispute. The Court presided by Cannings, J imposed a sentence of 9 years imprisonment. This sentence was imposed after the court found there were strong mitigating factors to warrant a sentence below the starting point.

11. Another case cited was the case of State v Issac Ulul CR No. 203 of 2007, a man pleaded guilty to manslaughter. He killed his brother by slashing him with a bush knife. There was a strong defactor provocation. The court imposed 10 years and suspended 4 years.

12. Defence counsel said that in this present case, the mitigating factors outweigh the aggravating factors. In that the offender pleaded guilty to the offence, he has co-operated with the police, his guilty plea, saved court's time and State's cost of putting up a trial. That he is a first offender. Counsel submitted that this Court considers a head sentence of 9 years but should use its discretion under section 19(f) of the Criminal Code Act to suspend the sentence.

13. Finally, the counsel submitted that the Court should also take in to account the recommendation by Probation officer through the pre-sentence report. The Pre-Sentence Report (PSR) says the following:

"The accused is a suitable candidate to supervise for probation given that he is a first time offender and has no prior conviction. He is a young man who can and has shown that he can contribute meaningfully to his community and family. The PSR also states he is not of high risk to his community or to anyone. The PSR recommends at p.7 a part custodial and non-custodial sentence."

14. Mr. Popeu do agree with the submission by defence counsel that though the penalty under section 302 of the Criminal Code Act, chapter 262 is life imprisonment subject to section 19, the circumstances do not make this case the most serious warranting maximum penalty to be imposed.

15. The state prosecutor said the offender pleaded guilty and has shown remorse for what he did. His pleading has saved the Court's time and State's costs. He initially co-operated with the police by making early admission through the Record of Interview (ROI). The State also says that the offender will live with the stigma of having killed his very own child. On the converse, State has also stated that the offender has demonstrated his readiness to resort to violence as a solution to simple domestic problems, that a young life has been lost forever that can not be restored and the offence committed with use of an offensive weapon.

16. Mr. Popeu cited the case of Kesimo Apo v State [1988] PNGLR 182 in which His Honour Los, J (as he then was) stated, "as a rule, ... a custodial sentence is a starting point for the fundamental reason that all human lives must be protected..." The state prosecutor made observation that the general sentencing trend for manslaughter cases have increased from 2 years to 9 years since the Kesimo Apo's case. This has further increased to 12 years in Jack Tanga v State (1999) SC602.

17. In the case of Antap Yala v State SCR 69 of 1996, Mr. Popeu said this case held that sentence for each case should be determined upon its own peculiar set of facts also suggested that in an unintentional killing case which is uncontested, whatever the extenuating or mitigating factors may be, the application of vicious force, with or without the use of a weapon causing serious bodily injury resulting in death, may attract sentence between 10 years and above. In some cases, even life imprisonment.

18. Mr. Popeu also submitted the following cases State v Steven Kenny (1999) N1881 in which a sentence of 6-7 years was suggested in a plea of guilty. In the cases of Anna Max Marangi v State (2002) SC702, and Jerry Wasu v State (2002) SC 697 which were both uncontested cases, 12 years were imposed. In the cases of Simon Kama v State [2004] SC740 and Manu Kovi v State (supra) both cases have come up with sentencing guidelines and tariffs to assist Courts to come up with appropriate sentences.

19. In the present case, the state prosecutor submitted that the use of weapon had some elements of viciousness, although not directed at the deceased, places this case in the second category attracting a term of sentence between 13-16 years. However, the state prosecutor said given the peculiar circumstances of this case, including the unintentional loss of his daughter at his own hands, a suggested sentence ranging from 10 to 13 years as head sentence would be appropriate from this head sentence, adjustments can be made upwards or downwards depending on the pre-sentence report and mitigating & aggravating factors taken in to account.

20. The first "port of call" in any manslaughter cases is to re-visit the Manu Kovi's case (supra). In this regard, it is appropriate to re-state the sentencing guidelines in that case:

NO	DESCRIPTION	DETAILS	TARIFF
1	Plea – ordinary case – 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 disense that caused or accelerated death eg. ...	8 – 12 years
2	Trial or plea – mitigating factors with aggravating factors	Use of offensive weapon, e.g. 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, e.g. gun, axe – vicious and planned attack – deliberate intention to harm – little or no regard for sanctity of human life.	Life Imprisonment
4	Worst case – trial or plea – special aggravating factors – no extenuating circumstances – no mitigating factors, or mitigating factors rendered completely insignificant by gravity of offences.	Some element of viciousness and brutality – some pre-planning and pre-mediation – killing of harmless, innocent person – complete disregard for human life.	Life Imprisonment

21. I do agree with both counsels submission that the present case fall in to the second category of the sentencing guidelines in the Manu Kovi's case. The Court would consider a sentence within the range of 13-16 years. I do note the following mitigating factors in favour of the offender in that;

22. These mitigating factors can be measured against the following aggravating factors;

23. The sentences in manslaughter cases have differed in the past and present, depending on the circumstances of each case. As in this present case, after carefully looking at how the offence was committed, the mitigating and aggravating factors and the pre-sentence report (PSR), in my view a head sentence of 9 years would be appropriate. I therefore sentence the offender to imprisonment for a term of 9 years. I order that the pre-sentence period of 3 months, 4 days to be deducted from 9 years. Offender would have 8 years, 9 months and 26 days to serve. Of these the offender will serve 4 years, 9 months and 26 days IHL at Boram Correctional Institution while 4 years is suspended and the offender is placed on probation.

National Court of Papua New Guinea

State v Wani [2011] PGNC 65; N4328 (17 June 2011)