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State v Parker [2017] PGNC 196; N6838 (21 August 2017)

N6838

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 130 OF 2016

THE STATE

V

JUSTIN PARKER

Waigani: Salika DCJ

2017: 10^th, 1^st & 21^st August

CRIMINAL LAW – Practice & Procedure – Matter for sentence – S.302 Criminal Code Act – Charge of Manslaughter – What is the appropriate sentence – Sentence is a matter of discretion of the Court – Sentencing tariff in Manu Kovi may be outdated now – no proper basis to suspend part of the sentence.

Case Cited:
Manu Kovi v. The State [2005] SC789
Anna Max Marangi v. The State [2002] SC702
The State v. Tuma (2017) N6618
The State v. Kovio (2016) N6461
Rex Lialu v. The State [1990] PNGLR 448

Lawrence Simbe v. The State [1994] PNGLR 33
Thress Kumbamong v. The State [2008] SC1017
The State v. Ladiah Kilala & Ors [2012] N5080
The State v. Anita Kelly [2009] N3624
The State v. Bernard Hagei [2005] N2913
The State v. Douglas Mareva [2012] N4805
The State v. Iori Veraga [2005] N2921
Public Prosecutor v. Kwalimu Goina (Unreported Supreme Court Judgment 27 July 1982) SC 230

Counsel:

Miss. H. Roalakona, for the State
Mr.D.Wood, for the Prisoner

SENTENCE

21^st August, 2017

1. SALIKA DCJ: INTRODUCTION: The prisoner was convicted on one count of unlawful killing of one Lapan Nason on 8 June 2015 pursuant to S.302 of the Criminal Code Act. After the conviction, his counsel asked for a pre-sentence report to be compiled by the probation service. The court granted the application and adjourned for that purpose. It took the probation service some time to prepare the pre-sentence report. The court received its copy of the pre-sentence report on 10 July 2017. Submissions on sentence were heard on 1^st August and the decision on sentence was reserved to 21^st August 2017.

Facts

2. The prisoner is the owner and principal of Golden Valley Enterprise Limited. For the purpose of the company’s operation he decided to purchase and operate a bell helicopter.

3. Lapan Nason, the deceased and victim was a licenced air craft engineer. He was engaged by the company to assist in enabling the helicopter to be made operational so that an application could be made to the Civil Aviation Safety Authority (CASA) for approval to fly the air craft in Papua New Guinea. June 5^th was the appointed day for CASA inspectors to inspect the helicopter with the view to make the helicopter declared safe and to issue a safety and airworthy certificate issued to fly in PNG.

4. On 5 June 2015 Lapan Nason did not attend the inspection of the helicopter with Civil Aviation Safety Authority Officials (CASA) to make the helicopter operational.

5. Lapan Nason and his daughter lived in the upper part of a house located at Section 2 Lot 10, Gorobe Street, Badili (Badili house). The house belongs to either Justine Parker or Golden Valley Enterprise Limited.

6. Justin Parker stayed in the separate lower part of the house when he was in Port Moresby, otherwise he was ordinarily resident in Lae. On the evening of 5 June 2015 Justin Parker came to Badili home and enquired with his security guard if Lapan Nason was in and was informed that he was not in. Justin freshened up and went to the Aviat Club in Konedobu to play pokies. He was there until about 2 am on 6^th June when the club closed. He and some friends then went to Lamana to play more pokies. Lamana closed about 2:30 am and Justin returned to the Badili house. His security guard Akai opened the gate for him and allowed him in. He asked the security guard if Lapan was in and he was told he was in and that he was awake watching television.

7. At about 4: am Saturday 6 June 2015 Justin went to see Lapan Nason to ask him why he did not show up for the helicopter inspection. Justin shouted out Lapan’s name and Lapan came out and Justin asked him why he did not show up for the helicopter inspection. Lapan is alleged to have said “where is my pay. I will just work for nothing.” Justin told Lapan to check his pay with the manager and then sacked him. There was an altercation between Justin and Lapan.

8. In the meantime Elsha, Lapan Nason’s daughter was asleep in her room in the same house. She was woken up by Justin’s shouting of her father’s name and she came down to see what was going on. When she arrived at the scene she saw Justin pulling her father outside.

9. Justin Parker punched Lapan Nason three (3) or four (4) times on his head and face and Lapan Nason was bleeding from his nose. Justin then held Lapan by his shirt and swung him causing Lapan to hit his head on the stone wall. Justin retreated to his room from there.

10. Lapan was not well. Elsha and Akai assisted him into the house where she attended to him to stop the bleeding and wiped the blood from his face and head. Elsha asked Akai to get a taxi but Akai said he needed to see Justin first. Elsha then called one of her father’s friends for help to take her father to the hospital. Her father’s friend and his wife who live at Morata arrived and tried to get Lapan into their car but could not. The friend and his wife went to St. Johns Ambulance and got an ambulance to help take Lapan to Port Moresby General Hospital where he was admitted and two days later on 8 June 2015, Lapan Nason died.

11. The post mortem report compiled by the doctor says the cause of death was a subdural haemorrhage as a result of a blunt force to the head which was most probably occasioned after he was swung by Justin which caused him to hit his head on the stone wall.

ISSUE

12. The issue for the court now is to consider the appropriate sentence to impose on the prisoner. What is the appropriate sentence to impose on the prisoner?

THE LAW

13. To answer the question the starting point is Section 302 of the Criminal Code which says:

“A person who unlawfully kills another under such circumstances as not
to constitute wilful murder, murder and infanticide is guilty of
manslaughter.

Penalty: Subject to Section 19, imprisonment for life.

The maximum penalty the court may impose is life imprisonment subject to s.19 of the Criminal Code.

14. The court will however consider the current sentencing trends imposed by the National Court and the Supreme Court to come to a fair sentencing decision. It will also look at case precedents and peculiar circumstances of the case to come to a decision on a sentence.

15. In homicide cases wilful murder is more serious than murder and murder is more serious then manslaughter. The prisoner is convicted on one count of manslaughter. The maximum sentence for wilful murder is death and for murder and manslaughter is life imprisonment and that is because taking away a person’s life is a serious thing. Human life is lived only once. Once lost it is lost forever. The maximum sentence is reserved for the worst case and is usually determined when one is dealing with the who, why, what, when, where and how questions in other words, the circumstances of the commission of the offence. The sentence is usually determined or arrived at on the circumstances of each case.

CIRCUMSTANCES OF THE OFFENCE

16. Circumstances leading to the commission of the offence is captured in the facts alluded to. In short Justin was not happy that Lapan did not turn up for the inspection of the helicopter on 5^th June 2015 to be granted its safety licence to operate in PNG. Lapan deliberately did not attend because he had not been paid. He was meant to be present and was needed there because he was the one to answer any questions from the Civil Aviation Safety Authority inspectors responsible for granting safety licences for aircrafts to operate. Lapan’s presence was sorely missing. Lapan never informed Justin he would not be coming and Justin expected him to be there. As Lapan never showed up Justin was angry.

17. Justin determined in his own mind that he would confront Lapan. He did confront him on 6^th June 2015 at 4:00 am. The rest of the story is as stated in the facts earlier.

PRINCIPLES OF SENTENCING

18. The following factors are usually considered by the Courts to determine the appropriate sentence:-

(a) degree of participation;

-in this case Justin was the instigator and the aggressor and is solely

responsible for the death of Lapan Nason.

(b) degree of ignorance of the law;

-no evidence if Justin was not aware that it is wrong and against the law to kill someone.

-but it is common sense for anyone in his position to know.

(c) age of the offender;

-Justin is 46 years old.

(d) is the offender a first time offender;

-yes he is a first time offender and taken into account.

(e) offenders previous good record;

-he has no prior convictions.
-that is taken into account.
(f) restitution;
-not applicable here.
(g) offenders physical and mental conditions;
-prisoner suffers from severe hypertension and is on a daily
medication for high blood pressure.
(h) remorse;
-the prisoner has expressed remorse for what happened.

(i) assistance given to police;

-prisoner cooperated with police.

(j) plea of guilty;

-this was a trial.

(k) aggravation offered by the victim or provocation not amounting to a
defence;

-Justin was angry Lapan did not attend the helicopter inspection by

the civil aviation safety authority officials to have the helicopter

operational. In that sense – yes.

-but there was a lot of time for Justin to calm or cool down and in

any case the safety certification was to be given later that day and

so there was no more reason to be angry and bitter with Lapan.

(l) effect on a jail term on the offenders family;

-the effect on the family will be huge, especially after his wife
also passed on earlier this year but this is a natural consequence of

crime.

-that is why the courts keep saying think of your family first before
you embark on an enterprise or before you do anything which

might land you in trouble.

(m) the effect of a jail term on the offenders job, education or
income.
-in this case Justin is his own boss and if imprisoned he will no
longer be in charge of the running of his company.

-the risk of his company breaking down is real but if the management
of the company is good the company will survive.

-the risk of all those employed by his company is real.

-again those are the natural consequence of committing a very serious

offence and being imprisoned.

(n) technical nature of offence;

-not applicable.

(o) Customary punishment received or compensation paid to the
victim;

-Justin paid for the funeral expenses of Lapan Nason to the tune
of K90, 000.00.

- there was a natural expectation that as Justin was responsible for the

death of Lapan he must meet all funeral expenses.

(p) prevalence of offence;
-manslaughter is a prevalent offence.

CASE PRECEDENTS

19. Counsel referred to the cases of:

(i) Manu Kovi v. The State [2005] SC789 and
(ii) Anna Max Marangi v. The State [2002] SC702

Both those cases were dealt with by the Supreme Court and are domestic violence related cases that is husband and wife arguments leading to death. This was an employer, employee relationship case.

20. Relevantly the Supreme Court in Manu Kovi v. The State (supra) said:

“In homicide cases, as with any other offences, the use of a tariff though has its limitations, because the determination of appropriate punishment in each case, is an exercise of discretion, having regard to the seriousness of the offence, the gravity or otherwise of the circumstances of the offence, the personal circumstances of the prisoner which aggravate or mitigate the punishment and the interests of the community in ensuring the punishment achieves its purpose. As the Supreme Court said in Lawrence Simbe v. The State.

I have said it before and I say now again that sentencing an offender is a exercise of discretion, taking into account all the relevant considerations and making a decision on sentence. I agree there is no scientific or mathematical formula. Case precedents of similar factual circumstances helps a judge to decide what a sentence is to be.

21. The sentencing tariff to be used as a guide as in the Manu Kovi case was suggested in 2005. Some 12 years later now, manslaughter offences have not decreased; in fact they continue to increase. Are the sentencing ranges in Manu Kovi case still relevant now? I suggest they are outdated and perhaps they need to be increased. I also suggest some refinement in the type of cases of manslaughter. Sentence for guilty plea should be different from trial. The Manu Kovi suggested tariffs have been in use for 12 years now but have not served as a deterrent at all. Manslaughter cases continue to rise at will. In my respectful opinion this court should be at liberty to progressively increase sentences from the tariffs suggested in Manu Kovi 12 years ago as there is no decline in the number of unlawful killings. Similarly the Court must be at liberty to impose lower sentences in appropriate cases.

22. Counsel for the offender cited the case of The State v. Tuma (2017) N6618 for the proposition that part of the sentence be suspended. In that case the prisoner pleaded guilty to the charge of manslaughter. The deceased in that matter was having an adulterous affair with the prisoner’s wife. On the night of the killing the prisoner caught the man and the wife naked. The offender cut the man with a bush knife on his left wrist intending to hurt him. The incident took place in a remote location in the Madang Province and the man died due to loss of blood. The deceased family was of the view that the deceased brought about his own death in that the pay for his adulterous acts was death and he was a drug taker, a trouble maker and a headache in the community. It was a relief to the community that he was gone for good.

23. The facts in this case are different. For a start this was a trial. Every issue was contested. There was no evidence that there was any plea bargaining to reduce the charge to manslaughter before the State ended up charging the prisoner with one count of murder. The benefit of that was lost, that is to voluntarily reduce the charge or plead guilty to a lesser charge. There was room for plea bargaining in this case to have some benefit to a reduced term.

24. The killing in this case was not self-inflicted. Justin could have waited for another time later that morning to talk things over with Lapan or he could have allowed his manager Luke Von Boehm to handle the situation for him. In the Tuma case the court using the Manu Kovi guide said the starting point was 12 years imprisonment. The mitigating factors with high level of defacto provocation (with respect, in PNG, finding one’s spouse with another man both naked about to have sex in a remote location in my opinion was not defacto provocation: it was a provocation at a high level) and an early guilty plea reduced the 12 years to 10 years and a further 4 years suspended. This is the kind of benefit that was allowed to pass in my respectful opinion in this case. This case shows that a plea of guilty has benefits of a reduction in sentence. I raised the point earlier that Manu Kovi case was decided 12 years ago. Should Manu Kovi tariff for manslaughter of the type in the Tuma case be raised to say 13 to 15 years now and not continue to be on 12 years?

25. In the matter of The State v. Kovio (2016) N6461 the deceased and the prisoner were biological brothers. Their respective wives had continuous arguments and fights. Prior to the day and date of the offence, the prisoner had an argument with the deceased’s wife. The deceased was not there then. The deceased learnt of the argument in the afternoon and in the night he went and broke the wall of the prisoner’s house and the prisoner got his spear and speared him on his left thigh. The deceased died from blood loss. The prisoner was sentenced to 6 years but 2 years of that was suspended on conditions that he be of good behaviour for 2 years. He pleaded guilty and got the benefit of a reduction in sentence.

26. Again with respect, the factual circumstances are different. This was a family matter, turned fatal and the deceased was the aggressor.

27. The point is made and that is that the court has discretion to suspend whole or part of the sentence on conditions and on proper basis. This court will consider whether whole or part of the sentence in this case should be suspended.

PERSONAL PARTICULARS

28. Justin never knew his father. He only met him once for several minutes when he was about 6 years old. His father Clifford was an expatriate and he thinks he may have been a truck driver. He does not know if his father is alive. His mother “kicked” him out of his house when he was 12 years old. Since then he has lived with different families. He has limited contact with his mother.

29. Justin’s wife passed away in February 2017, leaving two children Corbin and Saffron, 13 and 11 years respectively. He has three (3) other children from previous relationships. Jessica 22, Sonya 21 and Emmanuel 19 years old. He is also responsible for 7 orphaned children. He is from Minj in Jiwaka Province and went as far as grade 10 at Minj High School.

30. Justin Parker is now 46 years old and is a self-made local businessman. He has given many years of meaningful contribution to develop his immediate community and PNG at large. He donated a tractor each to Minj Town and Wau Town and has sponsored Easter games in Wau Bulolo twice in 4 years. Presently Justin’s business employs 129 full time staff. He owns Golden Valley Enterprises which has depots in Wau/Bulolo, Tabubil, Porgera, Pt Moresby, and Lae. When one looks at his story, it is truly an inspirational one; from an unwanted boy going through many hardships in his young life and only grade 10 education, he has beaten all odds to be what he is today only for is unfortunate and unnecessary event to be now in his way.

General Principles

31. Sentencing for manslaughter offences must be lower than sentences for murder and wilful murder. The court must pay careful attention to:-

(i) the circumstances leading to the death ; and
(ii) the way death was actually caused ;when considering the

appropriate sentence. (see Rex Lialu v. The State (1990) PNGLR 448).

32. In considering what an appropriate sentence in manslaughter cases should be the following factors should be considered:-

(a) circumstances of the death and the way the death was actually caused.

-in this case the facts be seen
(b) was the assault on the deceased vicious or not vicious;
-it was vicious
(c) was there any deliberate intention to harm;
-yes
(d) what was the nature of the assault;
-3 or 4 punches to the head and face and swinging him to hit head on
stone wall.
(e) was the injury that caused death directly from an attack or assault or
was it caused by a fall on an object.
-yes
(f) was injury caused by a weapon or by the person;
-by the person
(g) was injury by fist.
-yes

33. However, a sentence in my respectful opinion should be decided on its own peculiar facts and circumstances (see Lawrence Simbe v. The State [1994] PNGLR 33). The use of sentencing tariffs has its limitations with respect, and should only be used as a reference tool by a sentencing authority in considering an appropriate sentence.

34. Defence counsel has urged the court not to penalise the prisoner for exercising his right to plead not guilty to the charge. I appreciate that submission but the sentencing tariffs in the Manu Kovi case, does allow for penalty variations with those who plead guilty and those who plead not guilty. In other words the courts do recognise the benefits of a plea of guilty to an offender who pleads guilty to an offence. A plea of guilty is a clear demonstration of an accused’s acceptance of his or her actions which were wrong and his or her profound regret for what happened. It may be an expression of genuine remorse and not by talk only that he or she is remorseful about what happened. A plea of guilty saves time and costs to the court and the prosecution. A plea of guilty is indeed a mitigating factor – which must result in a reduced sentence. In consideration how much reduction is to be given for a plea of guilty is again in the discretion of the court after examining the circumstances giving rise to the plea of guilty.

35. In this case the 21 year old daughter of Lapan Nason witnessed a good part of what happened to her father. She was put through rigorous cross-examination of the events as they occurred on that early morning of 6^th October 2015. She was accused of lying in court during cross-examination and made to relive the trauma of seeing her father assaulted and fatally injured right in front of her eyes. Her sworn evidence was put to the ultimate test by a very experienced counsel. An offer of a plea of guilty at the outset would have saved her reliving trauma of her father’s assaults. That was not to be as Elsha Nason was made to painfully relive the trauma of the events leading to her father’s death. She was flown in from Kavieng to relieve that.

36. It was submitted on behalf of the prisoner that the following constitute exceptional mitigating factors:-

(a) Justin Parker’s wife died from stomach cancer in February 2017,
which was a very traumatic time for his two children and him;

(b) Cobin and Saffron Parker need their father and they will lose that
connection with him if he sentenced to a term of imprisonment;

(c) Mr. Parker’s adopted children and his three other children greatly
rely on his support;

(d) Mr. Parker has been a great contributor to the community and that
support will be lost if he is sent to prison;

(e) If Mr. Parker is given a term of imprisonment, his business with
either be sold off or collapse and the future of his 129 employees
(most of whom have families to support) will be grim;

(f) Mr. Parker has no prior convictions and there is no suggestion of
him being a future risk to society. He is currently on bail and is
abiding by his strict bail conditions;

(g) Mr. Parker has provided very supportive character reference
regarding his good character and contributions to the community,
including the mention by Pastor Paul Dirua that he was baptised in
April 2017;

(h) in the Pre-Sentence Report it is stated the victim’s wife has
forgiven Mr. Parker and has “asked the Court to consider the
Offender’s young children as his wife died recently.”

(i) Mr. Parker has already served 18 months at Bomana Jail and it is
submitted in the circumstances that Justin Parker be given a prison
sentence at the low end of the scale, which sentence is wholly
suspended sentence, with the condition that he be of good character.

37. However, in fairness, I say the following in respect of each of those factors:-

(a) -the wife’s death was caused by cancer and indeed it would be a very

traumatic time for the prisoner and his two young children.

-similarly in my respectful opinion more tragically Lapan Nason’s
life was taken away from him and his family. Elsha his 21 year old

daughter said it like this in her victim impact statement on paragraph

5:-
“it has been hard for me emotionally because I was present when my
dad was badly assaulted. It was very traumatizing for me and even
though it has been 2 years after dad’s death, to me it is still fresh in my
mind. I personally feel that my future was taken away from me so
fast.”
Justin Parker is responsible for prematurely taking Lapan’s life away
from Elsha.

(b) -it is a natural or expected consequence for an offender to be separated

from his or her children, family and loved ones as a result of his or her

own actions.

-their separation is however not permanent as the children will and can
visit him in prison as and when convenient and if sentenced to
imprisonment term after he serves his time he will still come back to
them to be reunited as a family.
-on the other hand Elsha and her family are permanently separated from
their father and husband. The permanent separation and depravation
was caused by Justin Parker.

(c) similarly Lapan Nason’s family greatly relied on their father and

husband as stated in Elisha and her mother Diana’s victim impact
statements.

(d) no evidence of community involvement

(e) the business has a management team. I think it is a sweeping statement
to make that the business will collapse.
-does he have any faith and trust on his management team to carry on
business.
-the business can survive given proper management by the management
team.

(f) this factor is a mitigating factor already but is not an exceptional
mitigating factor.

(g) prior good character is not an exceptional mitigating factor but is a
mitigating factor.

(h) forgiveness is not an exceptional mitigating factor in my respectful
opinion but will be taken into account.

(i) ill health is a mitigating factor but is not an exceptional mitigating
factor. In Thress Kumbamong v. The State [2008] SC1017. The Supreme

Court said a medical condition of a prisoner should not form any
foundation for a lenient sentence unless, it is a case of life and death and

no arrangements can be made administratively by the correctional

service for a prisoner with a medical condition to access and receive

appropriate medical treatment.

-the prisoner is already on daily medication for that condition and is

attended to by Dr. Paul Modia and further arrangements can be

administratively made by the correctional service to cater for his
medical conditions.

MITIGATING FACTORS

38. The mitigating factors are:-

(i) the prisoner is a first time offender
(ii) he was the sole attacker
(iii) no weapon was used

Aggravating Factors

39. The following are the aggravating factors:-

(a) the prisoners attack on Lapan Nason was vicious as his 3 or 4 punches
to Lapan’s face connected and Lapan bled from his nose and his face
was swollen.

(b) the prisoner knew that Lapan’s leg was shorter than the other and had
a limp and therefore unsteady on his feet and was overweight.

(c ) there was intention to cause some bodily harm.

(d) there was some pre-planning to cause some bodily harm to Lapan
after he failed to show up at the inspection of the helicopter by the
Civil Aviation Safety Authority officials at the airport.
-he asked for Lapan when he came back in the evening and again in
the early morning. In the evening Lapan was not in.

(e) as if the punches were not enough the prisoner held Lapan by his
shirt and swung him causing him to fall and hit his head on the
stone wall.

(f) prisoners actions were unnecessary.

(g) the death of Lapan is a significant loss to his family.

EXTENUATING CIRCUMSTANCES

40. The physical condition of Lapan Nason can either be an extenuating factor or an aggravating factor. There were three factors in so far as Lapan’s physical condition was concerned. Firstly, because of an operation he had on his hip his other leg is shorter and he had a limp when he walked. Secondly, he was obese. The defence has suggested in their submission, firstly, that if he had a normal leg and did not limp he might have been more steady on his feet when swung and not fallen down so easily and hit his head on the stone wall. Secondly, because he was obese that contributed to him not getting better at the hospital. Thirdly, as he was obese he fell hard on the stone wall. The defence submission supports the proposition that Lapan’s physical condition was an extenuating factor.

41. On the other hand it can be an aggravating factor because Justin knew Lapan had those disabilities yet he attacked him viciously and swung him hard such that his shirt tore. Why swung him like he did when he knew Lapan would not be in a position to balance himself and control his fall. Moreover Justin knew there was a stone wall there and that swinging Lapan would land him on the stone wall.

Allocatus Statement

42. Mr. Parker read from a typed allocatus statement. A copy was given to the court and much of what is in the allocatus statement was what his counsel had in his submissions on sentence and I need not restate them again.

SENTENCE

43. The end result in all homicide cases is that a human life is lost. Section 35 of the Constitution says:-

“35 (1) No person shall be deprived of his life intentionally except –
(a) in execution of a sentence of a court following his conviction
of an offence for which the penalty of death is prescribed by
law; or
(2) Nothing in Subsection (1)(b) relives any person from any liability
at law in respect of the killing of another.

Whether Lapan was short legged or obese he had the right to live his full life. Life is a gift from God and no one has the right to end another person’s life. Taking away a person’s life is repulsive and despicable. The court must be seen to be protecting human life because life is lived only once in this world. The sanctity and value of life is more precious and valuable than material wealth silver, gold or diamond and this Court takes serious notice of that undeniable fact. No amount of compensation in monetary terms, regret or remorse is ever going to restore a life that is lost. (see The State v. Ladiah Kilala & Ors [2012] N5080, The State v. Anita Kelly [2009] N3624. Lapan Nason is now gone forever. That is the reality.

44. I agree with the sentiments made by the National Court in The State v. Bernard Hagei [2005] N2913, where the court said:-

“There are so many wanton killings happening in the country as well as though life is some form of commodity or a replaceable item that can be borrowed or bought from the hardware shop in town. Killings in this country are becoming more daring without fear and there is no respect for sanctity of life. Brutal horrific and cold blooded killings are becoming too frequent.”

There are indeed far too many cruel, violent, deliberate, wilful, unjustifiable and senseless killings as happened in this case. There appears to be no end in sight for such killings.

45. The National Court in The State v. Douglas Mareva [2012] N4805 said:-

“Whatever sentences the Court decides to impose must reflect the
purposes of the criminal justice system that should balance over between
the offender, the victim and the effect it may have on the community.”

46. One purpose for imposing a sentence is that one will have an opportunity to look back at his or her actions, and work on those weak parts of his or her habits and character with a view to reform and rehabilitate oneself.

47. The sentence also plays a role in educating our communities to live peaceful lives with one another and to deal with issues in a civilised manner. Our people must identify and practice proper standards of conduct in the community, that includes proper respect and tolerance for one another and have common decency. The Court should be seen as an educational tool in that sense.

48. The Court also sentences offenders to imprisonment to prevent reoffending by the same person. In some cases the Court sends offenders to serve jail terms to ensure peace and safety in the community is safe guarded.

49. Another purpose for sentencing is to try and reconcile the parties so that previous good relationship is restored. Another purpose for sentencing an offender is the need for retribution that is the need for the offender to be punished for the crime he or she committed. The offender must realise that he or she has committed a crime, in some instances, a very serious crime and that he or she deserve to be punished for doing wrong.

50. Another purpose for sentencing is to reform and rehabilitate the offender. The offender learns from the punishment the folly of his or her wrong (see The State v. Iori Veraga [2005] N2921). There is also the need for justice to the victim and the victim’s family. Justice is a double edged sword. Justice to the offender and Justice to the victim and victim’s family. Deterrence is in the mix there always. Punishment should have the effect of deterring future offences by the offender and deterring other would be offenders.

51. I consider these sentencing purposes as important and I am only hopeful that the prisoner takes full cognition of the reasons for the sentence he is to be sentenced to.

52. I take into account all the circumstances of the offence, the reasons for the attack, the timing of the confrontation, the vicious punching of Lapan on his face and head and holding him by his shirt and swinging him and causing him to fall and hit his head on the stone wall.

53. I also take into account all the mitigating factors in favour of the prisoner, the K90, 000.00 he spent on funeral expenses and the “haus cry.” I also take into account his comprehensive allocatus statement and the compressive submission made on his behalf by his counsel. I take into account his family and business circumstances.

54. I take into account the case precedents referred to by counsel to assist me. I have referred to some of them in the decision. This case falls into category two (2) of the Manu Kovi at the lower range and I am guided by that decision although with respect I am of the opinion that it is now outdated.

55. Iam reminded by what the Supreme Court said in Kwalimu Goina (27 July 1982) SC 230 when it said:-

“We are mindful of the increase in crimes of violence and the undisputed
public concern about such offences. Such conduct will be met by firmness
on the part of the courts and we give warning that sentences will increase
substantially.”

56. What happened to Lapan Nason was totally unnecessary. The violence applied and the confrontational behaviour was unnecessary. As the Supreme Court said in the Kwalimu Goina case “such conduct will be meet by farness on the part of the Courts.” The warning was given then that sentences would increase substantially. This Court is under that obligation to be firm and sentence the prisoner accordingly.

57. I impose a sentence of 13 years imprisonment. He has been in custody 18 months. I will deduct that from the 13 years. The balance to serve is 11 years and 6 months. I have decided that there is no proper basis to suspend any or part of the sentence.

Ordered accordingly.

Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Accused