N6880
PAPUA NEW GUINEA
    [IN THE NATIONAL COURT OF JUSTICE]

CR NO 1248 OF 2016

THE STATE
	
V

LIAM LEAHY

Madang: Cannings J
     2017:  8 August, 6, 22 September 

CRIMINAL LAW – sentence – manslaughter – Criminal Code, Section 302 – guilty plea – offender,  a security officer, shot and killed a man he believed was a suspect who had just committed an armed robbery – intention was to fire warning shots, not to shoot the deceased – death caused by negligence rather than deliberate act. 

The offender pleaded guilty to manslaughter of a young man who he shot and killed in the course of his employment as a security officer. The offender was a licensed firearm user. He believed that the deceased was escaping after committing an armed robbery. He fired warning shots to get the deceased to surrender but he did not surrender. The deceased was swimming in the sea at the time he was shot dead. The offender did not intend to hit the deceased. Death was caused by negligence rather than by deliberate act. This is the judgment on sentence.

Held:

(1)	The maximum penalty for manslaughter is life imprisonment. The starting point for sentencing for this sort of killing (involving a lethal weapon with both mitigating and aggravating factors) is 13 to 17 years imprisonment (Manu Kovi v The State (2005) SC789 guidelines applied).

(2)	Mitigating factors: the offender acted alone; death arose due to negligence rather than a deliberate act; he made early admissions and cooperated fully with the Police and the Court; he pleaded guilty; he has expressed genuine remorse; he has no prior convictions; he has a very favourable pre-sentence report, demonstrating that he is fundamentally a person of good character  whose family and personal relationships are strong, supportive and enduring; he and his family showed genuine compassion and caring for the deceased’s family by paying bel kol and contributing to funeral expenses.

(3)	Aggravating factors: high degree of negligence; use of a firearm; the deceased was in a vulnerable position and reasonably regarded as harmless at the time the offender shot him; the death was totally unnecessary. 

(4)	The high number of mitigating factors warranted a sentence below the starting point range: 12 years imprisonment was imposed. Six years of the sentence was suspended.

Cases cited

The following cases are cited in the judgment:

Manu Kovi v The State (2005) SC789
Saperus Yalibakut v The State (2006) SC890
The State v Simon Moses (2017) N6617
The State v Turuk Willie CR 446/2010, 15.09.11

SENTENCE

This was a judgment on sentence for manslaughter.

Counsel:

F K Popeu, for the State
H J Leahy, for the Offender

22nd September, 2017 

1.   CANNINGS J: This is a decision on sentence for Liam Leahy (the offender) who pleaded guilty to the manslaughter of a 17-year-old man, Jeffery Mambox Joro. The offender shot and killed the deceased near Binnen Point, Madang town, on the morning of Saturday 19 March 2016.

2.    The offender was the Madang Branch Manager for Guard Dog Security Services. He was on duty, driving into town, when he received a radio call from the control room that an armed robbery had taken place at the MTS supermarket on Modilon Road, close to where he was. The call was Code 9 indicating a request for urgent backup as the suspects, about six male youths, were escaping towards Binnen Point. The control room then dispatched a Code Red (emergency) signal, indicating that the suspects were armed and dangerous. The offender responded by driving in the direction of the supermarket. He was equipped with a bullet-proof vest and company-issued firearm, a 9-mm Armsco pistol. He was a licensed firearm user. Before he arrived at the supermarket the control room issued another radio dispatch, that the suspects were then swimming from Binnen Point to the Fisheries area. The offender went there and checked the area. He got out of his vehicle and walked towards the Fisheries area where he saw what he believed to be two of the suspects in the sea. One reached the adjacent property further out, while the other was waist deep in the sea about 20 metres or more away from the offender at Fisheries Point. The offender saw that this suspect – the deceased – was holding an item, such that the offender was cautioned to heed the radio dispatch that the suspects were armed and dangerous. The offender called out to the deceased to surrender and put his hands in the air. The deceased raised his hands but continued moving backwards further into the sea towards the adjacent property. The offender then fired three warning shots into the sea away from the deceased, to deter him from escaping. After a few seconds the offender again called out to the deceased to surrender, but the deceased did not take heed and kept moving further into the sea away from the offender. The offender then fired another warning shot away from the deceased. At that time the deceased dived into the water in the direction of the warning shot.  This shot connected with the deceased and he died soon afterwards.

3.    The offender, in those circumstances, pleaded guilty to killing the deceased unlawfully (without lawful justification or excuse), ie committing the offence of manslaughter contrary to Section 302 of the Criminal Code.  

ANTECEDENTS

4.    The offender has no prior convictions.

ALLOCUTUS

5.   The offender was given the opportunity to address the court. He said:

I am very remorseful for what happened and I apologise to the deceased’s family for what I did. I attended the scene of a robbery in the course of my employment.  I went there with no intention to harm anyone. I was aware that the suspects were likely armed but the worst case scenario was I thought that I would have to apprehend them. I thank the Court for its time in dealing with my case. I will accept the decision of the Court. 

OTHER MATTERS OF FACT

6.   As the offender has pleaded guilty he will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State (2006) SC890). The offender reported the incident to Police immediately after the incident and has made early admissions and cooperated fully with the Police. He and his family assisted the deceased’s family, in particular his mother, with funeral expenses and paid total bel kol of K31, 200.00. 

PRE-SENTENCE REPORT

7.    Liam Leahy is aged 27. He is from Mt Hagen. He is the eldest in a family of four children. He is strongly supported by his parents. His father, Gerard Eric Leahy, gave evidence in support of his son. The offender has a stable and loving de facto relationship and in that sense is married with one child. His wife has made a statement strongly supportive of him. Prominent residents and community leaders of Mt Hagen and Madang have given glowing character references.

8.   Liam Leahy has a grade 12 education, the most recent years of his schooling being completed at Nudgee College, Brisbane, Australia. Prior to the incident in March 2016 he was gainfully employed in the security industry in a number of positions in Mt Hagen, Lae and Madang. The mother of the deceased was interviewed and she accepts the genuineness of the offender’s concern and that of his family for her welfare. She does not want to see him given a long custodial sentence. She prefers that some more financial support be provided to her, following the loss of her son.  The pre-sentence report is very favourable 

SUBMISSIONS BY DEFENCE COUNSEL

9.   Mr Leahy submitted that a sentence of ten years would be appropriate and that it should be wholly suspended.  

SUBMISSIONS BY THE STATE

10.   Mr Popeu submitted that the sentence should be at least 12-13 years to reflect the gravity of the offence and that it should in large part be a custodial sentence.  

DECISION MAKING PROCESS

11.    To determine the appropriate penalty I will adopt the following decision making process:

•	step 1: what is the maximum penalty?
•	step 2: what is a proper starting point?
•	step 3: what sentences have been imposed for equivalent offences?
•	step 4: what is the head sentence?
•	step 5: should the pre-sentence period in custody be deducted?
•	step 6: should all or part of the sentence be suspended?

STEP 1: WHAT IS THE MAXIMUM PENALTY?

12.    The maximum penalty under Section 302 (manslaughter) of the Criminal Code is life imprisonment. The court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code.

STEP 2: WHAT IS A PROPER STARTING POINT?

11.   In Manu Kovi v The State (2005) SC789 the Supreme Court suggested that manslaughter convictions could be put in four categories of increasing seriousness, as shown in the following table.

SENTENCING GUIDELINES FOR MANSLAUGHTER FROM KOVI’S CASE

No	Description	Details	Tariff	
1	Plea – ordinary cases – mitigating factors – no aggravating factors.	No weapons used – offender emotionally under stress – de facto provocation – killing in domestic setting – killing follows straight after argument – minimal force used – victim had pre-existing disease that caused or accelerated death, eg enlarged spleen cases.	8-12 years	
2	Trial or plea – mitigating factors with aggravating factors.	Use of offensive weapon, eg knife, on vulnerable parts of 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 offence.	Dangerous or offensive weapon used, eg gun, 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 element of viciousness and brutality – some pre-planning and pre-meditation – killing of harmless, innocent person – complete disregard for human life.	Life imprisonment	

Mr Leahy submitted that the case straddles categories 1 and 2. Mr Popeu submitted that the use of a gun brings the case within category 3. I agree that the use of the gun is a significant aggravating factor, however considering all the circumstances this is a case that does not fall neatly within category 3. A gun is a lethal weapon and there are mitigating factors with aggravating factors. I will regard this as a category 2 case, which means that the starting point range is 13 to 16 years imprisonment.  

STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED RECENTLY FOR EQUIVALENT OFFENCES?

12.    As this was a case of criminal negligence, I refer, for precedent purposes, to the cases outlined in the table below. 

SENTENCES FOR MANSLAUGHTER INVOLVING DEATH CAUSED BY NEGLIGENCE AS DISTINCT FROM DELIBERATE ACTION OF OFFENDER
No	Case	Details	Sentence	
1	The State v Turuk Willie
CR 446/2010, 15.09.11, Madang	Guilty plea – the offender was in the bush near his village, hunting pigs – he fired indiscriminately from his speargun into a bush, when he saw leaves rustling – he shot and killed the deceased who was having consensual sex in the bush. 	10 years
(no suspension)	
2	The State v Simon Moses
(2017) N6617,
Madang
	Guilty plea – the offender unlawfully killed his baby child, which was in hospital receiving medical treatment – the offender assumed the task of swinging the baby, which was in a bilum, to relax the child, and negligently swung the bilum with too much force, causing the baby’s head to hit a hard metal object – the baby died instantly due to intra-cranial bleeding.	10 years
(no suspension)	

STEP 4: WHAT IS THE HEAD SENTENCE?

13.    Mitigating factors are:

•	the offender acted alone; 
•	death arose due to negligence rather than a deliberate act;
•	he made early admissions and cooperated fully with the Police and the Court; 
•	he pleaded guilty; 
•	he has expressed genuine remorse; 
•	he has no prior convictions;
•	he has a very favourable pre-sentence report, demonstrating that he fundamentally a person of good character  whose family and personal relationships are strong, supportive and enduring;  
•	he and his family showed genuine compassion and caring for the deceased’s family by paying bel kol and contributing to funeral expenses.

14.   The aggravating factors are:

•	high degree of negligence;
•	use of a firearm;
•	the deceased was in a vulnerable position and reasonably regarded as harmless at the time the offender shot him;
•	the death was totally unnecessary. 

There are more mitigating factors than aggravating factors and, although the negligent use of a firearm is a very weighty aggravating factor, I consider that a sentence below the starting-point range is justified. Having said that, although this can be regarded as a case of criminal negligence the sentence should not be as low as ten years, as in the two cases referred to above – Willie and Moses – the degree of negligence was less than in this case. I impose a sentence of 12 years imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

15.    Yes. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment the whole of the pre-sentence period in custody, which is four days. 

STEP 6: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

16.    I uphold the submission of Mr Popeu that this is not an appropriate case for a wholly suspended sentence. The offender has unlawfully taken a young man’s life. Homicide cases are rarely suitable for wholly suspended sentences. There are a handful only of such cases that have been reported in PNG. I have never given a wholly suspended sentence for a homicide offence and I don’t propose to start now. Mr Leahy, for the offender, has put a number of case authorities to me in which judges have said that a suspended sentence is not an exercise in leniency. I disagree. A suspended sentence is necessarily a lenient sentence compared to a non-suspended sentence as the offender faces a less onerous sentence.   I have yet to deal with an offender who prefers a custodial sentence. Deprivation of liberty is an onerous penalty. The only more onerous sentence is a death sentence. 

17.   A partially suspended sentence, though it involves a degree of leniency, can be justified in some homicide cases and I consider that this is such a case. The pre-sentence report is very favourable and the deceased’s mother actually supports the idea of a suspended sentence. It is appropriate that half of the sentence – six years – be suspended, subject to the following conditions:

1	must by 22 January 2018 participate in a reconciliation ceremony with the deceased’s family, supervised by the OIC, Madang Probation Office, and for the purposes of the reconciliation:
(a)	the place of the reconciliation shall be determined by the OIC, Madang Probation Office, after considering the views of the deceased’s family and the offender and ensuring that the Police and the Correctional  Service are consulted and that proper security is in place;
(b)	the offender’s family shall prior to the reconciliation pay into a bank account nominated by the deceased’s mother, an amount of compensation of K10,000.00, representing the final amount of compensation payable for the death of the deceased;
(c)	the offender shall, subject to the Jail Commander being satisfied that adequate security is in place, be released from custody during the day of the reconciliation so that he can attend the reconciliation and participate meaningfully in it;
(d)	the offender’s family shall provide at  least three live pigs and foodstuffs; and 
(e)	the deceased’s family shall contribute at least five chickens and foodstuffs; 
2	must appear before the National Court at Madang on 8 February 2018 at 9.00 am to prove compliance with condition (1);
3	must not be released from custody to serve the suspended part of the sentence except by order of the National Court;
4	must reside at a place notified and acceptable to the Probation Office and nowhere else except with the written approval of the National Court;
5	must perform at least three hours unpaid community work, to be arranged through the Probation Office;
6	must attend his Church every weekend for service and worship and assist the church in its community activities;
7	must report to a probation supervisor appointed by the Probation Office during the first week of every month;
8	must not consume alcohol or drugs;
9	must keep the peace and be of good behaviour;
10	must have a satisfactory probation report submitted to the National Court every six months or as and when required by the Court;
11	if the offender breaches any one or more of the above conditions, he shall be brought before the National Court to show cause why he should not be detained in custody to serve the rest of the sentence.

PLACE OF CUSTODY

18.  The offender will be immediately committed to custody at Beon Correctional Institution, Madang Province, as the offence was committed in Madang, the court proceedings have been conducted in Madang and the conditions of the partially suspended sentence provide for a reconciliation that will need to take place in Madang. The offender will be able, if he so wishes, to apply for transfer to another correctional institution, after the Court is satisfied that the reconciliation is complete. The application would need to be made as an application for enforcement of human rights pursuant to Sections 37(20) and 57 of the Constitution in accordance with Order 23 (human rights jurisdiction) of the National Court Rules.  

SENTENCE

19.   Liam Leahy, having been convicted of one count of manslaughter contrary to Section 302 of the Criminal Code, is sentenced as follows:

Length of sentence imposed	12 years	
Pre-sentence period to be deducted	4 days 	
Resultant length of sentence to be served	11 years, 11 months, 3 weeks, 3 days	
Amount of sentence suspended	6 years	
Time to be served in custody	5 years, 11 months, 3 weeks, 3 days	
Place of custody	Beon Correctional Institution	

Sentenced accordingly,
_____________________________________________________________
Public Prosecutor:   Lawyer for the State		 	
Pacific Legal Group Lawyers:   Lawyers for the Offender