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State v Naidi [2016] PGNC 228; N6430 (8 June 2016)

N6430

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 888 OF 2015

THE STATE

V

RUBEN NAIDI

Alotau: Toliken, J.
2016: 07^th & 08^th June

CRIMINAL LAW – Sentence – Manslaughter – Plea – Deceased fatally wounded with own spear during scuffle with offender – Mitigating, extenuating and aggravating factors considered – Appropriate sentences – 10 years less time in custody - No suspension – Criminal Code Ch. 262; s 300(1)(a).
Cases Cited:
Avia Aihi v The State (No. 3) [1982] PNGLR 91
Goli Golu v The State [1979] PNGLR 615
Manu Kovi v The State (2005) SC 789
Public Prosecutor v Don Hale (1998) SC 564
Rex Lialu v The State [1990] PNGLR 487
Saperus Yalibakut (2006) SC 890
The State v Joel (2014) N5797
The State v Sandra Piamnok; CR 998 of 2013 (Unreported and unnumbered judgment dated 13^th November 2015)
The State v Tony (2015) N6054

Counsel:
H. Roalakona, for the State

C. Kambua, for the Prisoner

SENTENCE

08^th June, 2016

1. TOLIKEN, J: Ruben Naidi, yesterday you pleaded guilty to an indictment charging you with the unlawful killing (manslaughter) of Eleku Malafwaya on the 12^th day of October 2014 at Sivesive village, Bolubolu, in the Esa’ala District of Milne Bay Province.
   
2. The brief facts put to you on arraignment are that on 12^th October 2014 between the hours of 2 a.m. and 3 a.m. you were asleep in your house at Sivesive. While you were asleep the deceased Eleku Malafwaya came to your house and stole your bush knife, saucepan, rope and a floater. When you woke up you realized that your properties were missing. You walked out of your house and saw footprints on the sand. You then got on your canoe and paddled along the shore. You saw the deceased walking along the shore so you paddled ashore and confronted him. The deceased punched you and a scuffle between the two of you ensued. The deceased had a spear with him. You grabbed the spear as you were struggling and in the process the deceased got speared on the left thigh. He died from the injury he sustained as a result.
   
3. I initially entered a provisional plea of guilty which I confirmed after perusing the committal court depositions.
   
4. The offence of manslaughter is provided for by Section 302 in the following terms:
   

302. Manslaughter

A person who unlawfully kills another under circumstances not constituting wilful murder, murder or infanticide is guilty of manslaughter.

Penalty: Subject to Section 19, imprisonment for life.

5. Manslaughter is the less serious of homicide offences because of the absence of the intention to kill or cause grievous bodily harm. It is nonetheless a very serious offence, hence, the maximum penalty of life imprisonment.
   
6. The maximum is usually reserved for the worst instances of a particular offence. A sentence in each particular case will depend very much also on the peculiar circumstances of the case. In other words a sentence must fit or be proportionate to the circumstances of the crime. (Goli Golu v The State [1979] PNGLR 615; Avia Aihi v The State (No. 3) [1982] PNGLR 91.)
   
7. In your case, the sentencing issues for me then are:
   1. Is this a worst case of manslaughter that should attract the maximum penalty of life imprisonment?
   2. If it is not, what should be an appropriate sentence for you?
   3. Should your sentence or any part thereof be suspended?
8. You are 35 years old and come from Sivesive village, Watuluma Ward on Goodenough Island. You are married with one child. You come from a family of nine siblings of which you are the fifth born. Your parents are still both alive. You are a member of the United Church and have a Fifth Grade education only. You are a subsistence villager.
   
9. You apologised to the court for breaking the law. You apologised for causing the death of the deceased. You apologised to the deceased’s family and your own .You said you did not mean to kill him. You said you were only trying to defend yourself during the scuffle and that he fell on his own spear in the process. You said that your family had already paid compensation to the deceased’s family. You asked the Court to consider the fact that you are a first time offender and that you are currently suffering from a case of profound hearing loss – you referred the court to a medical certificate to that effect. You therefore asked for mercy and asked for probation or good behaviour bond.
   
10. Your lawyer, Ms. Kambua submitted that your case is not a worst instance of manslaughter. Counsel submitted that your mitigating factors outweigh your aggravating factors. She said that whilst the deceased’s death was caused by a spear, the spear belonged to the deceased and was in his possession the entire time during the scuffle. Counsel was of the view therefore that in the circumstances, an appropriate sentence for you should be between 8 – 12 years. Counsel also said that this may be an appropriate case for suspension.
    
11. Ms. Roalakona for the State, on the other hand, submitted that an appropriate sentence for you should be 8 – 13 years. Counsel conceded that you are a first time offender and had pleaded guilty to your offence and that there was some non-legal provocation. She, however, says that a life had been taken and due to the prevalence of this type of offence a deterrent sentence is needed.
    
12. So is this a worst case that should attract the maximum penalty of life imprisonment? No, your case does not fall under the worst category of manslaughter therefore it cannot attract the maximum penalty of life imprisonment, needless to say, though, that every case of unlawful killing is serious because a life had been taken.
    
13. Life is precious and only lived once. Once someone is killed (often prematurely) a lot of people are left devastated because they will not only lose a loved one, but, in most cases their principal, if not, their sole provider. Deceased persons often leave behind widows and children and other relatives whose quality of life is reduced dramatically. So the reason why the law provides the maximum penalty of death for wilful murder and life imprisonment for murder and manslaughter is a reflection of how society, through Parliament, regards the sanctity of life.
    
14. So if yours is not a worst case what then should be an appropriate starting point for you?
    
15. The Supreme Court in Manu Kovi v The State (2005) SC 78, had set guideline sentencing tariffs for the crimes of wilful murder, murder and manslaughter. It set out starting points and sentencing ranges under three categories for each offence and suggested the circumstances in which a sentencing court can impose a sentence within those categories.
    
16. Both lawyers agree that the circumstances of your offence would place it under Category 1 of the Manu Kovi guidelines for manslaughter and should therefore attract a sentence between 8 – 12 years. The circumstances that should justify a sentence this range are, on a plea in ordinary cases where there are mitigating factors but no aggravating factors are, where no weapon is used, the victim was emotional and under stress and de facto provocation e.g. killings in domestic setting, killing follows immediately after argument, little or no preparation, minimal force used or the victim has pre-existing diseases which caused or accelerated death e.g. enlarged spleen cases.
    
17. In Rex Lialu v The State [1990] PNGLR 487, the Supreme Court had earlier suggested that certain matters should be taken into account when considering an appropriate sentence for manslaughter. These include :
    • (a) The nature and frequency of the attack or assault on the victim.

(b) Whether the injury that caused the death arose directly from the assault, or whether the injury was caused by an object when the deceased subsequently fell.
(c) Whether death was caused by a fist or a weapon.
(d) Whether the offender deliberately set out to hurt anyone.
(e) Whether there was provocation in the non-legal sense.

18. Before I determine an appropriate sentence for you let me just consider a few cases to see how this court had been treating offenders for manslaughter.
    
19. The State v Sandra Piamnok; CR 998 of 2013 (Unreported and unnumbered judgment dated 13^th November 2015): There, the offender had an argument with the deceased, a fellow student at the Salamo School of Nursing, Esa’ala. They got into a scuffle and the offender stabbed the deceased with a small knife which she had with her on the right axillary region just above the armpit. The deceased died from massive blood loss. I sentenced the offender there to 10 years imprisonment, less time in custody, on a plea of guilty. She was a first time youthful offender. I suspended 4 years and 6 months from her resultant sentence of 7 years and 6 months.
    
20. The State v Joel (2014) N5797 (Cannings J): The offender pleaded guilty for manslaughter. He had tried to stop a fight and in the process stabbed the deceased with a knife on the chest. The deceased died as a result. The offender was sentenced to 12 years.
    
21. The State v Tony (2015) N6054 (Lenalia J): The offender pleaded guilty to the manslaughter of his uncle. They were drinking with some friends when the offender decided to walk away with a full bottle of rum which they were drinking. Seeing this, the deceased followed him and asked him to return the bottle of rum but the offender did not respond. The deceased then picked up a piece of brick and then assaulted the offender. The offender retaliated by throwing an empty beer bottle at the deceased. A fight resulted in which the deceased was trying to attack the offender with the piece of brick. During the fight the offender stabbed the deceased on the left ribs with a small knife in an attempt to defend himself. The deceased was rushed to the hospital but died soon after.
    
22. The circumstances of your case do seem to support a sentence within Category 1 of Manu Kovi. While the deceased died from a spear wound, I do accept your version of the facts that he actually fell on his spear during the scuffle with you. I also accept that there was no intention on your part to cause any harm on the deceased and that you may have indeed only acted to defend yourself. (Saperus Yalibakut (2006) SC 890) Your culpability seems therefore to be quite low. In the circumstances I set a starting point at 11 years. So what should be an appropriate sentence for you?
    
23. To answer this I need to consider your mitigating and aggravating factors, and sentences which have been imposed in cases similar to yours. I find the following mitigating and extenuating factors in your favour:
    • You pleaded guilty to the charge.
    • You are a first time offender.
    • You have expressed some remorse for your offence.

• You were all provoked in the non-legal sense by the fact that the deceased had just stolen from you and was walking away with your properties when you followed him in your canoe and confronted him on the shore.
• There was no intention on your part to cause the deceased harm and even though he died from a spear wound he most likely fell on his own spear resulting in his death.
• There was no pre-planning on your part.
• You are a simple unsophisticated villager.
• Your family and relatives have reconciled and paid compensation in goods and kind to the value of K13000, comprising 10 pigs (K7450), 20 chickens (K300), 20 baskets of yam (K320), 27 bunches of banana (K240), 4 necklaces (K1160) and 12 clay pots (K420).

24. Against you, however, are the following aggravating factors:
    • A life had been prematurely taken.
      • Use of and offensive weapon.
      • This offence is very prevalent.
25. I do agree that your mitigating factors do outweigh your aggravating factors. However, I must reiterate that a life has been lost here. The deceased has left behind a family that will miss his support both physical and emotional. His clan lost a member whose services will also be missed by the clan. There is too much killing in our communities and the court most impose a sentence that which exact respect for the sanctity of life and also deter you personally and other as well. I must therefore strike a balance between your interest and the interest of the State and the interest of the victims here – for indeed there are always victims to homicides apart from the deceased.
    
26. So taking into account all the circumstances of your case, your mitigating and aggravating factors, I think that an appropriate head sentence for you should be 10 years.
    
27. I therefore sentence you to 10 years imprisonment less the period you have spent in pre-conviction custody – 1 year 7 months and 2 days.
    
28. Now should any part of your resultant sentence be suspended? The power to suspend is discretionary and must be exercised on proper principle. Basically, a suspension may be considered if it supported by a favourable Pre-Sentence Report. (Public Prosecutor v Don Hale (1998) SC 564)
    
29. You do have a favourable Pre-sentence Report, but I think that if the sentence is to serve any purpose at all, particularly if it is to deter you and others at all, no suspension should be considered. You will therefore serve the balance of your sentence in full at Giligili Corrective Institution.

Ordered accordingly.
____________________________________________________
The Public Prosecutor: Lawyer for the State
The Public Solicitor : Lawyer for the Prisoners