State v Mwoyola [2013] PGNC 385; N9044 (24 October 2013)

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ABRAHAM MWOYOLA
Losuia, Alotau: Toliken, AJ
2013: 18^th July, 22^nd August, 24^th October

CRIMINAL LAW – Sentence – Manslaughter – Guilty plea – Spleen death - Low culpability - Aggravating and mitigating factors considered – Appropriate sentence – 5 years less time in custody – Suspension – Appropriate case for – Resultant sentence wholly suspended with conditions – Criminal Code Ch. 262, s 302.

Rex Lialu v The State [1990] PNGLR 487
Manu Kovi v The State (2005) SC789
Thress Kumbamong (2008) SC1017
The State v Steven Rupen (2008) N3941
The State v Tony Domi (2012) N4767

1. TOLIKEN, AJ: On the 18^th of July 2013, the prisoner Abraham Mwayola was indicted for one count of manslaughter pursuant to Section 302 of the Criminal Code Act, Chapter 262.

“...On the 17^th day of January 2012, at Mumuwata Island, Losuia, in Papua New Guinea, [he] unlawfully killed one MORUBUBUNA DUKWAKWASI”.

3. The brief facts in support of the charge and upon which the accused is to be sentenced are as follows: On the day in question, the accused was in his house at Mumuwata village. Some children were playing outside his house and making alot of noise. This disturbed the accused, so he came out of the house and told the children to go away. As he was talking to the children, he threw a piece of metal measuring about 30 cm at them. The piece of metal landed on the ground, bounced off and hit a child by the name of Morububuna Dukwakwasi on the side of his abdomen. The child immediately felt pain and was taken to his parents.

4. The pain got bigger, and the child was taken to the Village Community Health worker who administered some medicine. However, his condition got worse, and he died the next day from spleen injuries caused by the accused.

5. The State alleged that the accused was not authorised by law to throw the metal object in the manner that he did which caused the death of the deceased. It further alleged that the accused was negligent in his duty to the deceased.

6. The prisoner pleaded guilty to the charge. I confirmed the plea after perusing the District Court committal depositions and accordingly convicted him for one count of manslaughter.

7. The State tendered the Antecedent Report, and I administered the allocutus. However, counsel for the prisoner, Mr. Palek requested for a Pre-Sentence Report (PSR) which unfortunately could not be prepared in Losuia as the Voluntary Probation Officer (VPO) there did not know how to prepare one. Hence, orders were issued for the Provincial Probation Officer in Alotau to prepare the report and have it filed at the Registry there. The matter was then adjourned for submissions to be heard in Alotau at the August sittings of the Court.

8. The PSR was filed on the 09^th August 2013 but the matter did not resume for submissions until the 22^nd of August 2013 when both lawyers addressed the court. This was a day before the court rose, so the matter was adjourned to the October sittings.

9. The prisoner is 66 years old and comes from Munuwata village, in Misima, Milne Bay Province. He was 65 years old when he committed the offence. He is married with 3 daughters and 2 sons who are all grown up and have kids of their own. He is the first born in a family of 6 and is a member of the United Church where he was prior to the offence an elder in the Local Congregation. He never obtained any formal education and is a simple villager. He is a first-time offender.

“It is true that I committed this crime. This has forced you to come here to hear my case... I regret breaking the law. I am truly sorry about it. I [have] felt the weight of the whole crime. I wish to say sorry to the parents of the deceased for causing their son’s death.

I will leave everything to the hand of the law. I have a wife and children who are now at home who now have no-one to care for them.

I wish very much to return to the village and go back to the community and assist with the development of the community and the village.

I apologise again to the court and the deceased’s parents once more. I wish to petition the court to consider my case and make the best decision for me, to consider what I have done and have pity on me. I wish to ask the court to pardon me and return me back to the village. That is all”.

11. Mr Palek submitted that this case falls just under the lower end of Category No. 2 of the Supreme Court guidelines in the Manu Kovi v The State (2005) SC 789. He submitted that given the mitigating factors which include guilty plea, no priors, advanced age and lack of education, expression of remorse, co-operation with the police and CS and payment of compensation, the appropriate sentence should be below 7 years.

Mr Palek submitted that given the fact that the prisoner was a very favourable Pre-Sentence Report, the Court should suspend the sentence wholly after deducting the pre-sentence period of 1 year, 7 months and 2 days.

12. On behalf of the State, Mr Auka, conceded that this case does indeed fall under Category 2 of Manu Kovi (7 – 12 years) and that the prisoner did not intend to kill the deceased child. However, he said that a young life had been lost or prematurely taken. The injuries from which he died were the direct result of the prisoner’s act. He died directly from being hit by the iron rod thrown by the prisoner.

Mr Auka also conceded that the prisoner’s Pre-Sentence Report was very well prepared. He urged the court, however, to consider the need to protect lives when considering an appropriate sentence. He conceded though that this was not the worst type of manslaughter and suggest 4 years which can then be wholly suspended.

13. As directed by the court, a PSR was duly filed. The report is very comprehensive and is one of the best that I have seen in a long while. It is well written and consisted of everything that ought to be covered in a good PSR such as the prisoner’s antecedents, the circumstances of the offence, offender’s and his family’s attitude to the offence, the victim’s family’s views and those of the community. It further details compensation payments made by the prisoner and his family to the deceased’s family and relatives. There is a general view by the community that they will be happy to have the prisoner back in the community. The PSR recommends probation supervision essentially because of the support expressed by the community, including the deceased’s relatives. I commend the author of the report, Mr Billy Joel, the Senior Probation Officer for Milne Bay Province for a very professionally prepared report.

14. The crime of manslaughter is provided by Section 302 of the Code as follows:

A person who unlawfully kills another under Circumstances as not to constitute wilful murder, murder or infanticide is guilty of manslaughter.

15. While life imprisonment is the maximum sentence or penalty, it is well settled that the maximum penalty is always reserved for the worst instance of any crime. It is also settled that each case must be treated on its own merit or according to its own circumstances. (Golu v The State [1979] PNGLR 653; Avia Aihi v The State (No.3) [1982] PNGLR 92)

16. What must be stated here, however, is that while manslaughter is different from other homicide offences (wilful murder, murder, or infanticide) or attempted murder for that matter because of the absence of an intention to cause death or grievous bodily harm, the crime is nonetheless serious because a life is lost. Parliament recognises the sanctity of life by its prescription of life imprisonment, subject of course to the sentencing court’s discretion under Section 19 of the Code.

17. To bring about consistency and parity in sentencing for the crimes of manslaughter, wilful murder and murder, the Supreme Court provided some guidelines in the case of Manu Kovi (supra). The tariffs there provide starting points and not prescriptions for actual head sentences, which are pretty much left to the discretion of the sentencing court, for to prescribe actual sentences would be to fetter the court’s discretion unnecessarily or unlawfully as forcefully suggested by the Supreme Court in Thress Kumbamong (2008) SC 1017. Manu Kovi laid down the following in respect of manslaughter.

Category	Description	Circumstances	Tariff
1	Plea – Ordinary Case – Mitigating factors – No aggravating factors.	No weapons used – Offender emotionally under stress – de-facto provocation – Killing in domestic setting – Minimal force used – Victim had pre-existing decease that caused or accelerated death e.g., Enlarged spleen.	8 - 12 years
2	Trial or Plea – Mitigation factors with aggravating factors.	Use of offensive weapon e.g. A knife on vulnerable parts of the 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 the offence.	Dangerous weapon used e.g., Gun or 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 elements of viciousness and brutality – Some pre-planning and pre-meditation – Killing of harmless innocent person – Complete disregard for human life.	Life imprisonment

18. Let me now consider after recent cases to see how manslaughter cases have been treated by this court.

19. The State v Noelyn Anton (2012) N4828. In a trial, the prisoner was convicted for the manslaughter of the deceased during a fight between the prisoner and the deceased’s mother, over allegations that the prisoner was having an affair with her husband (deceased’s father). The prisoner struck the deceased (who had come in to help her mother) on the side of her body with a piece of bamboo, rupturing her spleen which resulted in the death the deceased. His Honour Cannings J. imposed a sentence of 10 years but suspended 3 years from the resultant sentence after deducting the pre-trial custody period.

20. The State v Tony Domi (2012) N4767. The prisoner who worked as a security guard in Madang heard of allegations that his wife who lived in Banz, Western Highlands Province, was going around drinking with other man. He travelled up to Banz to sort out the matter. During a confrontation with his in-law, the deceased, he struck the deceased on the head with a pole. The deceased fell to the ground unconscious. He was rushed to the hospital but was pronounced dead on arrival. The Medical Report revealed that the deceased died instantly from a fractured skull. David J. sentenced the prisoner to 10 years.

21. The State v Steven Rupen (2008) N3941. The prisoner had an argument with his wife and during the argument, he picked up two unripe pawpaws and threw them at her. The second pawpaw hit her on her stomach and ruptured her spleen and she died. The court considered that the case fell under Category 1 of the Manu Kovi tariffs and imposed a sentence of 10 years. None of this was suspended.

22. In coming into an appropriate sentence for you, I note firstly your mitigating factors.

23. Against you, I find one aggravating factor – that you used an offensive weapon, and the offence is prevalent. So, what should be an appropriate sentence for the prisoner? Are the circumstances of your offence so serious that it should attract the maximum penalty of life imprisonment? In arriving at an appropriate sentence, the Supreme Court said in Rex Lialu v The State [1990] PNGLR 487 held that the following considerations ought to be considered –

24. Before I proceed further, at this juncture, let me reiterate what is settled law – that the maximum penalty is reserved for the worst cases and that cases ought to be treated on their own merits.

25. For the prisoner, it must be stated at once that his offence does not deserve the maximum penalty of life imprisonment. If anything, this was an unfortunate case in what appeared or started as a seemingly innocuous attempt by the prisoner to get the children away from your premises but turned out to be tragic not only for the deceased but also for you.

26. To apply Rex Lialu to this case, I find that the deceased was struck by a piece of iron rod which the prisoner hurled at the direction of the children who were playing outside his house. I accept from his statement in the Pre-Sentence Report and his lawyer’s submission that he intended to hit a drum and not any of the children including the deceased. Instead, the rod glanced off the ground and hit the deceased on his abdominal area.

27. I accept also that the prisoner did not intend or set out to hurt anyone but simply intended scare the children away. I accept that the prisoner was sick and was asleep in his house. And, finally, I accept that the deceased had an enlarged spleen for which he had been getting medication at the local Aid Post for the last 6 months prior to this tragic incident.

28. Spleen deaths often arise in different circumstances. In some cases, there is serious culpability on the part of the assailant. For instance, in the case of the State v Noelyn Anton, the prisoner there attacked the deceased with a piece of bamboo. She struck her on the side of her body, rupturing her spleen as a result. It is obvious that in those circumstances, there was some intention to hurt. However, in the current case, there wasn’t. The prisoner intended to hit a drum to scare the children away but unfortunately, the iron rod ended up striking the deceased. The prisoner’s culpability was therefore very low.

29. These circumstances place this case under the current Category 2 of the Manu Kovi tariffs – attracting a starting point of between 8 – 12 years. The prisoner pleaded guilty, the deceased was struck by an offensive weapon hurled by the prisoner, but he did not intend to cause harm to the deceased or anybody else.

30. As I alluded to above, this case is quite different from the matters cited above which all displayed a slightly higher degree of moral blameworthiness given the circumstances under which the deaths were caused even though they are all spleen deaths.

31. So, given the circumstances of this case, I feel that an appropriate starting point should be in the lower range of the Manu Kovi tariffs – if not lower than that - if not lower. This in no way should be seen as downplaying the offence because a child’s life had been prematurely ended by the prisoner’s act. On the contrary, a sentence on the suggested range merely reflects the circumstances under which the offence was committed and the prisoner’s moral blameworthiness. I fix a starting point at 6 years.

32. Due to the prisoner’s significant mitigating factors, I fix a head sentence of 5 years imprisonment. From that, I deduct 1 year 7 months and 2 days for spent in pre-sentence custody. That leaves a resultant sentence of 3 years 4 months and 28 days. Should any of these be suspended?

33. Both counsel support suspension of any sentence imposed on the prisoner largely because of the circumstances under which the offence was committed and the prisoner’s antecedents particularly his very advanced age.

34. And perhaps, that view is enforced by a very favourable Pre-Sentence Report where there is all round support by the prisoner’s community including the deceased’s relatives for the prisoner to be released back into the community. Indeed, the deceased’s family recognise the unfortunate nature of the offence and have accepted the compensation paid by the prisoner’s people, which was largely customary, thus having a deeper impact on them. In this regard, I am of the form view that a strong case has been made out for me to exercise my discretion to consider suspension of the sentence The Public Prosecutor v Don Hale (1998) SC 564). I feel further that a wholly suspended sentence would be most appropriate in the circumstances.

35. I, therefore, wholly suspend the resultant sentence of 3 years 4 months and 28 days and order that the prisoner shall undergo a period of probation for 3 years with the following additional conditions -

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

National Court of Papua New Guinea

State v Mwoyola [2013] PGNC 385; N9044 (24 October 2013)