N5381

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR No. 1369 of 2010

THE STATE

V

ANTON VELE AGA (No.2)

Wewak: Geita AJ
2013: 17, 24, April
15 August

CRIMINAL LAW – Sentence – Manslaughter - Dangerous weapon used – First time offender - A police SLR Assault rifle used - cause of death accidental – Genuine remorse shown – Willingness to pay some form of compensation – Aggravating, extenuating and Mitigating factors considered – Sentence of 7 years wholly suspended with conditions..

Cases Cited

Rex Lialu v The State [1988] PNGLR 487
Steven Loke Ume, Charles Patrick Koana & Greg Wawa Kavoa v The State (2006) SC 836
Thress Kumbamong v The State (2008) SC 1017,
The State v Jacklyn John Tuanis; (unreported 15 March 2013) CR No, 365 of 2010, 
John Wanamba v The State (1998) SC 551
Manu Koivi v The State (2005) SC 789

Counsel

Ms. Nancy Lipai & Timothy Ai, for the State
Mr. Johnson Malambaul, for the Accused

15 August 2013

DECISION ON SENTENCE

1.	GEITA AJ: On 25 March 2012 the State presented an indictment against you for wilful murder under section 299 of the Criminal Code Ch. No. 262. You pleaded not guilty and a trial ensued. At the end of your trial the court returned a verdict of guilty for manslaughter under section 302 of the Criminal Code Act. Due to circuit schedules that year coupled with the lawyer's inability to make submissions on time including the need for a Pre sentence Report on your behalf this matter could not be finalised any earlier as I would have liked. Nonetheless we have eventually reached that point this year in this circuit hence your decision on sentence. 

2. The offence comes under Section 302 of the Criminal Code and attracts a life term imprisonment. However subject to Section 19 of the Criminal Code a lesser sentence may be imposed by the Court:

"S. 302 Manslaughter
A person who unlawfully kills another under such circumstances as not to constitute wilful murder, murder or infanticide is guilty of manslaughter.
Penalty: Subject to Section 19, imprisonment for life.

Brief Facts
3. The facts as found by me on the conviction following trial are these: On Saturday 14th August 2010 between 7.00 pm and Sunday next day 3.00 am you and other auxiliary policemen were on duty, providing security at the Wewak Yacht Club dance. Around 3 am the dance was stopped due to unruly behaviour by drunks and patrons told to leave the premises. A patron Steward Kapak approached you and demanded the return of his bayonet which was earlier removed from him before he entered the dance area but was told to collect it from the Police Station the next day and so he moved on. He was soon followed by the deceased Christopher Kawi who came up to you and argued with you over a previous police matter resulting in his friend been arrested for possessing marijuana. The argument erupted into a struggle and became life threatening forcing you to retreat to your parked police vehicle to get the weapon in order to ward off the deceased's approach. However the deceased followed closely by and a scuffle ensued resulting in the rifle going off, wounding the deceased through the left ribs. He was then rushed to the hospital by you in the police vehicle but pronounced dead on arrival.

Allocutus
4. In your allocatus you told court that you were sorry for what had happened and apologised to the family of the deceased and his relatives. You said you did not mean to harm the deceased that night and expressed shock when wounded. You asked for leniency from this court saying that the incident arose during the course of duty as a policemen carrying out state duties. Furthermore you are an asthmatic patient on regular monthly medication and any orders for incarceration would cause your health condition to deteriorate rapidly. Your stated the following, "I have co-operated with Police all these years waiting for my case to be determined and my family subjected to constant threats and harassment over the years. I am 55 years and have served the Police Force for more than 30 years up to the time of incident. I also want to thank the court for finally determining my case as I have waited for more than three (3) years". 

Antecedents
5. The prisoner is aged 57 and comes from Gava village, Rigo in the Central Province. He is married to his wife Agatha and have grown up children, all married with their own families.He is a member of the Roman Catholic faith and at the time of the incident was a policemen and resident with his family at Perigo Police Barracks in Wewak. He was educated up to primary school education and has no prior convictions.

Extenuating circumstances
•	Arrest of the deceased brother/accomplice by the prisoner in an earlier incident
•	Deceased was heavily intoxicated at time of incident and caused much nuisance. 
•	Deceased accosted the prisoner
•	The deceased and the prisoner struggling for the gun (rifle) resulting in a shot being accidently fired from the rifle

Aggravating factors.
•	A dangerous weapon was used ( a rifle)
•	One shot was fired

Mitigation factors.
•	No prior conviction, good citizen with unblemished record
•	Was on duty at the time serving the State and Police Department as a police officer
•	Is a Christian
•	First time offender
•	Cooperated with police
•	Expressed genuine remorse,
•	Deteriorating health, old age as a result of his
•	Asthmatic condition

Defence Submissions.
6. Although Defence Counsel Mr. Malambaul conceded that his client's case was one which could easily fall within a prison term of between 20 – 30 years, category 2 of the schedule of tariffs decided in the Supreme Court case of Manu Kovi v The State (2005) SC 789, the uniqueness of his clients case distinguishes it from Manu Kovi. He submitted that in light of overwhelming mitigating and extenuating circumstances in favour of his client, a reduction in the seriousness of this crime is warranted. All relevant aggravating circumstances also considered. The need for balance of all relevant factors under the circumstances and final determination of a suitable punishment befitting the crime be observed: (Steven Loke Ume, Charles Patrick Koana & Greg Wawa Kavoa v The State (2006) SC 836.)

7. Mr Malambaul submitted that the court depart from Manu Kovi case in light of another Supreme Court case of Thress Kumbamong v The State (2008) SC 1017 and exercise its discretionary powers befitting the present case. The Supreme Court bench comprising Salika, Kandakasi and Yagi JJ expressed reservations about the curtailing of courts discretionary powers in Manu Kovi.

8. The court was referred to two other cases: The State v Jacklyn John Tuanis; (unreported 15 March 2013) CR No,365 of 2010, a guilty plea for murder within a domestic setting, reduced to manslaughter upon findings that the circumstances were quite peculiar. In that case I ordered a prison term of 10 years, deducted 3 years with the balance wholly suspended. The second case involved a rifle-incident killing by a police officer. In his attempts to disperse a rowdy crowd by firing his rifle into the air he accidently touched the trigger, setting the rifle off into the oncoming crowd killing one of them. The Supreme Court having found the appellant guilty of manslaughter after trial imposed a 4 years prison term. (John Wanamba v The State (unreported 29/04/1998 SC 551 in Wewak.

9. Mr Malambaul submitted that the above case be distinguished from his client's case in that here both the prisoner and the deceased were involved in a struggle over the gun which accidently went off causing his death. Defence Counsel submitted that a prison term of 5 years be considered with conditions involving the making of reasonable compensation to the victim's wife and children. A wholly suspended sentence was also called for on behalf of his client.

State Submissions
10. Mr Kupmain conceded that the prisoner was a long serving police officer with over 40 years impeccable record however the crime has caused the loss of a life and he must be made accountable for his wrongs. The seriousness of the crime warrants a maximum life imprisonment however Parliament in its wisdom has also put in place alternative punishments provided under s.19 Criminal Code Act. He submitted that the court consider a deterrence sentence in view of the prisoners failure in neglecting to take extra precautions in his handling of a dangerous weapon, a rifle. 

11. In his response to the lead case of Manu Kovi (supra) and Thress Kumbamong he submitted that the court apply and adopt the tariff guidelines set in the former case: mitigating and aggravating circumstances considered. Mr Kupmain recommended that a prison term in the upper range of Category 1 in Manu Kovi be considered: 13 years. On the issue of suspension of the prisoner's sentence Mr Kupmain said it was a discretionary matter for the court and is best left to the court to decide. 

Section 19 Criminal Code Act.

S.19 CONSTRUCTION OF PROVISIONS OF CODE AS TO PUNISHMENTS.
(1) In the construction of this Code, it is to be taken that, except when it is otherwise expressly provided–

(aa) ...

(a) a person liable to imprisonment for life or for any other period, may be sentenced to imprisonment for any shorter term; and

(b)...

(c) ...

(d) a person convicted on indictment of an offence not punishable with death may–

(i) instead of, or in addition to, any punishment to which he is liable–be ordered to enter into his own recognizance, with or without sureties, in such amount as the court thinks proper, to keep the peace and be of good behaviour for a time fixed by the court; and

(ii) comply with such other conditions as the court may, in its discretion, impose; and

(7) A Judge may, on being satisfied that the offender has committed a breach of any of the conditions of a recognizance under Subsection (6), forfeit the recognizance and commit him to prison to undergo the suspended portion of his sentence or any part of it.

Sentence in your Case.
12. The main issue now before me is to decide on what is an appropriate sentence for you, bearing in mind all relevant facts including your personal and family background and the circumstances under which you committed the offence. I will also be looking at the mitigating and aggravating factors. Both Lawyers have referred me to some important cases in which courts have extensively discussed situations for and against sentencing guidelines. 

13. What than is an appropriate sentence for a case of this nature? 
In the case of Rex Lialu v The State [1988] PNGLR 487 some guidelines for sentencing in manslaughter cases were set out: p. 497. The Court held;

(a) The Court must have careful regard to the circumstances of death and the way in which death was actually caused;

(b) The following matters may be relevant to the nature of the accusing death;

i) The nature and frequency of any attack or assault;

ii) Whether the injury which caused the death arose directly from an attack or assault or was caused by, for example, falling on an object;

iii) Whether the injury was caused by the person or by a weapon;

iv) Whether there was deliberate intention to harm;

v) Whether there was provocation in the non-legal sense;

vi) Whether the deceased had a thin skull; and

vii) Whether the deceased had an enlarged spleen.

14. If the above test is to be used as a yardstick against your case, the number of ticks in my view would heavily lean in your favour. It follows that the facts of this case appear similar to John Wanamba v The State (unreported 29/04/1998 SC 551 in Wewak. (Woods, Jalina & Kirriwon JJ, presiding), where after a trial on a charge of manslaughter, the Court found the accused guilty and sentenced him to a period of 4 years. The rifle in the prisoners hand accidently fired, killing a member of a rowdy crowd. I adopt and apply the principles decided in that case here.

15. As can be seen from the cases I referred too, sentences for manslaughter cases vary, depending on the seriousness of the circumstances. In this case, the deceased struggled with you over the rifle which was in your hand in his intoxicated state resulting in it firing accidently causing his death as found by this court. State assertion of you being negligent in your handling of a dangerous weapon that fatal night is ruled out. I agree with your Lawyers submission that together with your mitigating circumstances, the extenuating circumstance appears to be in your favour. Your pre sentence report and all affected persons interviewed spoke very highly of your character and your unblemished policing carrier of 30 years.

16. Due to the foregoing reasons I find that an appropriate sentence favouring you is a non custodial sentence outside the sentencing tariffs as set out in Manu Kovi case. In saying this I am not downplaying the seriousness of the crime committed. I acknowledge that a precious life has been lost and a family denied of their loved one.

17. In the exercise of my discretion under Section 19 of the Criminal Code Act, I order that an appropriate sentence under the circumstances would be 7 years. I further order that the whole of the sentence will be suspended with conditions as follows:

1.	You to enter into your own recognizance and be of good behaviour during the suspension period;

2.	You are ordered to make reasonable compensation to the victim's wife and children, if you have not already done so within a period of six months as from today.

18. The prisoner's bail monies shall be refunded to him upon production of the receipt. The time spent in custody on remand shall be applied towards reduction of sentence.

Orders accordingly. 
_______________________________________ 
Public Prosecutor: Lawyer for the State 
Paul Paraka Lawyers: Lawyer for the Accused