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State v Eric [2017] PGNC 134; N6790 (15 May 2017)

N6790

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1035 of 2015

BETWEEN

THE STATE

V

BILLY ERIC
Defendant
Popondetta: Liosi, AJ

2017: 12^th & 15^th May

CRIMINAL LAW – Manslaughter – S.302 &19 Criminal Code Act – Guilty plea – Offender and deceased step brothers – Mitigating and aggravating factors discussed – Youthful offender – Intoxication – Prevalence of offence – 12 years imposed less pre-sentence custody period – 4 years 7 months suspended – prisoner to serve 5 years in hard labour.
Cases Cited:

Goli Golu v. The State [1979] PNGLR 653
Kesino Apo v. The State [1988-89] PNGLR 182
Manu Kovi v. State [2005] SC 789
Public Prosecutor v. Don Hale [ 1998] SC564
Thress Kumbamong v. The State [2008] SC1017
Ure Hane v. The State [1984] PNGLR 105

Counsel:

K. Umpake, for the State
C. Namano & L. Mamu, for the Prisoner

15^th May, 2017

DECISION

1. LIOSI, AJ: On the 12^th May 2017, you pleaded guilty to killing Dick Jipuri on the 3^rd day of December 2014 at Siroga, Popondetta. Consequently, the State indicted you with 1 count of manslaughter pursuant to s.302 of the Criminal Code.
   
2. On arraignment, you pleaded guilty to the following facts. Between 7 and 8a.m on 3^rd December 2014 at Siroga you were drunk and disturbing neighbours. The deceased who is your elder brother came to stop you. You argued then fought with him. During the fight the deceased cut you on your left hand with a knife. You were also armed with a grass knife. During the scuffle you both fell to the ground. When you fell the deceased fell on the sharp point of the grass knife you were holding. The grass knife penetrated his left abdomen severing a major blood vessel and also cut through a large intestine. He died from massive loss of blood.
   
3. The offence carries a maximum penalty of life imprisonment. However, the law also says that they are reserved for the worst offences. There is also the discretion under s.19 of the Criminal Code Act.
4. On allocatus you said you are sorry to the Constitution of Papua New Guinea, the deceased family and citizens of Papua New Guinea. You are a first time offender and you seek mercy of the Court. You asked to be put on a good behaviour bond or probation so that you can live outside. You said your future is important so you want to continue with your education.
   
5. You are 20 years old and was a Grade 10 student at the time of the offence at Embogo High School and you follow the Lutheran faith.
   
6. Your counsel submits your case does not warrant a maximum penalty. You were under the influence of alcohol when you had the argument with your elder step brother who is the deceased. During the argument you tussled with him, slipped and fell to the ground. You were in possession of a grass knife at that time. You fell down on the ground and the deceased fell on top of you subsequently impaling himself on the grass knife you were holding. The autopsy report states that he died from loss of blood from the abdominal wound.
   
7. He concedes a life is lost which cannot be replaced and this offence is prevalent here and throughout the country. In mitigation, you pleaded guilty showing remorse and you have no prior convictions. Your case therefore it is submitted falls into the second category of Manu Kovi, which attracts a sentence of 13 - 16 years. However, the Court still has a discretion to suspend portions of the sentence and 13 years should be the starting point. As 2 years and 5 months had been served in pre-trial custody, it should be deducted. The Court is also asked to further suspend a portion of the resultant sentence.
   
8. The State submits this is another of many manslaughter cases. The aggravating factors are that the offender was drunk, it is a prevalent offence and the deceased was his own brother. Further an offensive weapon was used. It submits the case fell under category 2 of Manu Kovi, which attracted 13 - 16 years imprisonment.
9. As stated in many of the judgments, the offence of manslaughter against you is serious. It carries a maximum penalty of life imprisonment. The need for people to appreciate and respect life explains why stiff penalties are imposed for manslaughter cases.
   
10. To consider an appropriate penalty for you, I will need to consider various matters. The first is to decide whether your case falls into the worst category case. Having considered the factual circumstances of your case alone, I agree with counsels that your case falls into the second category of Manu Kovi which attracts 13 - 16 years imprisonment.
    
11. I note you are a youthful offender. You are 20 years old from Bengi Village in the Sohe District in Oro. You were in fact a Grade 10 student at Embogo High School at the commission of this offence. You are a follower of the Lutheran faith.
    
12. I have also considered mitigating factors for you and aggravating factors against you. Your mitigating factors include your guilty plea which I accept is an expression of remorse in itself as submitted by your lawyer. You have no prior convictions, I note the deceased herein is your step brother and that is why he stepped in to try and stop you from disturbing the neighbourhood. Sadly it turned out fatal for him. This itself maybe a form of punishment as you have lost a close member of your family. See Kesino Apo -v- The State [1988-89] PNGLR 182.
    
13. The aggravating factors are that a life is lost, the prevalency of this offence in the Oro Province and that the killing was done whilst you were under the influence of alcohol. Alcohol abuse is becoming rampant in this province particularly with young offenders. You pleaded guilty to the fact that you were drunk and was causing disturbance to the neighbourhood when your stepbrother the deceased tried to intervene to stop you when he got killed.
14. In your allocatus you pleaded for mercy from the Court and you asked to be put on Good Behaviour Bond or to be put on probation. You were a grade 10 student when this offence was committed and you say your future is important so you want to continue with your education. Whilst the Court sympathises with you and would want to assist you its hands are tied. The Court can only assist you to an extent but it cannot exonerate you completely to an extent where you can complete your education as you ask. This is something you should have thought of before getting drunk. What you did was out of alcohol abuse and you will have to pay the price for a life that has been taken.
    
15. Considering all the circumstances of the case and particularly your young age, I will need to consider what an appropriate starting point should be. Whilst Manu Kovi has laid down the guidelines, the case of Thress Kumbamong also says that this should not take away the unfettered discretionary powers of the Court under s.19 of the Code.
    
16. Given that, I use my discretion to impose a head sentence of 12 years as a starting point which is 1 year below the lower end of the range of sentence in category 2 of Manu Kovi. I deduct 2 years 5 months for pre-trial custody period leaving a balance of 9 years and 7 months to be served.
    
17. Should any of this be suspended? The Supreme Court case of Don Hale says there should not be any suspension of sentence without a Pre-Sentence Report. Whilst that may be the case, the Court still has powers under s.19 of the Code to suspend a sentence. Given that I suspend 4 years and 7 months leaving a balance of 5 years to be served by you at Biru Corrective Institution Services.
    
18. The sentence is as follows:
    • (a) You are sentenced to 12 years imprisonment in hard labour.
    • (b) 2 years 5 months is deducted for pre-trial custody period.
    • (c) 4 years and 7 months is suspended on conditions.
    • (d) You will serve the balance of 5 years at Biru Corrective Institution Services.

Ruling accordingly,
________________________________________________________________The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Accused