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State v Borewa [2018] PGNC 611; N9246 (7 February 2018)

N9246

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1043 OF 2014

THE STATE

V

PETER GIBLIN BOREWA

Alotau: Toliken, J.
2017: 05^th, 25^th May
2018: 07^th February

CRIMINAL LAW – Sentence – Manslaughter – Plea – Offender strikes deceased with aluminium pipe after unprovoked assault by deceased – Deceased succumbs to injuries 4 days later – Mitigating factors considered – Aggravating factors considered – Appropriate sentences – 11 years less time in custody – No suspension – Criminal Code Ch. 262; s 302.

Cases Cited:

Saperus Yalibakut (2006) SC 890
Manu Kovi v The State (2005) SC 789
Public Prosecutor v Don Hale (1998) SC 564
Rex Lialu v The State [1990] PNGLR 487
Avia Aihi v The State (No. 3) [1982] PNGLR 91
Goli Golu v The State [1979] PNGLR 615
The State v Mesioni Andrew Patoi; CR 849 of 2016 (unreported and unnumbered judgment dated 10^th February 2017)
The State v Sandra Piamnok; CR 998 of 2013 (Unreported and unnumbered judgment dated 13^th November 2015)
The State v Ruben Naidi (2016) N6430
The State v Dubie Kais (No.2) (2012) N 5178

Counsel:
J Apo, for the State

P Palek, for the Prisoner

SENTENCE

07^th February, 2018

1. TOLIKEN J: On 03^rd May 2017, the State presented an indictment, charging the prisoner, Peter Giblin Borewa (“the prisoner” hereafter) with one count of manslaughter pursuant to Section 302 of the Criminal Code for the unlawful killing of one Adrian Buiyo (deceased) on 17^th November 2013. I took the plea then and heard submissions on 25^th May 2017 but had not been able to pass sentence until now. This is my judgment.
   
2. The brief supporting facts are that on 16^th November 2013, the prisoner was at home at the Doyle Barracks here in Alotau. The deceased (a relative of the defendant’s) and a friend had gone to a party at the nearby Cameron Club that night. The party ended at around 1.00am on 17^th November 2013.The people including the deceased started to leave when a fight broke out inside the club and continued outside between a group of boys from Garuboi Street and another group of people. As the vehicle the deceased was in drove out it was stoned by the Garuboi Street boys.
   
3. The vehicle continued to the Charles Abel Highway and then drove into the Police Station. The deceased alighted and placed a report at the Station. He was advised by duty Officers to wait while they attended to the report. However, the deceased and two of his friends left the Station and ran down the road towards the Doyle Police Barracks, asking everyone they met on the way as to who had stoned the vehicle they had been travelling in.
   
4. As they were running down and shouting “husat stonim kar?” they came upon the prisoner and others who were standing on the Doyle Street Junction. The prisoner did not know who had stoned the vehicle nor was he given any chance to explain himself because the deceased and his friends immediately set upon him saying “husat stonim kar, em you tasol stonim kar”, and began assaulting him. At that time the prisoner had a plaster cast on his right hand from a fracture he had sustained some weeks prior this incident, so he could only protect himself with his left hand.
   
5. Essentially helpless he was knocked to the ground but managed to move into Police Officer Rhona Lemek’s house where he picked up a galvanized aluminium pipe.
   
6. Angry and frustrated by what happened to him, given that he was not involved in the stoning of the vehicle, he returned to the road and attacked the deceased and his friends with the pipe. He hit the deceased on the head and the deceased collapsed to the ground. Bystanders disarmed Borewa and the deceased was taken to the Alotau General Hospital having sustained extensive head injuries. He remained in a coma and succumbed to his injuries four days later.
   
7. The prisoner pleaded guilty to the charge and I entered a provisional guilty plea which I confirmed after I had read the Committal Court depositions.
   
8. The offence of manslaughter carries a maximum penalty of life imprisonment. The maximum penalty is, however, usually reserved for the worst types of offending. A sentence will therefore depend on the peculiar circumstances or facts of each case. If the circumstances warrant, an offender may be given the maximum penalty, otherwise an appropriate sentence below the maximum will be imposed. These are well settled principles of sentencing (Golu v The State [1979] PNGLR 612; Aihi v The State (No. 3) [1983] PNGLR 92)
   
9. I must impose an appropriate sentence for the prisoner. And to do that I must determine firstly whether or not this is a worst case of manslaughter. If I decide that it is, then I may give him a life sentence. If it is not, then, I must impose an appropriate term of years below the maximum.
   
10. The prisoner is 31 y ears old and comes from Boianai village, Rabaraba, Alotau District, Milne Bay Province. He is married and has a 3-year-old son. He is the only male in a family of 3 siblings. He is a member of the United Church and holds a Bachelor’s degree in Political Science (Public Administration) from the University of Papua New Guinea. At the time of his arrest he was employed with PNG Land Ltd. The prisoner has no prior convictions and has been in pre-sentence custody for a period of 4 years, 2 months, and 23 days.
    
11. On Allocutus the prisoner had this to say:

“Thank you, your Honour, for giving me this time to speak. On 17^th November 2013, between 12.00a.m – 2.00a.m right at the turn off into Doyle Street, I was being aggressively approached and assaulted by the deceased ... and two his friends. They accused me of stoning their vehicle which I didn’t do because at that time I had a plaster cast around my right hand which clearly shows that I could not possibly have used my right hand. I am a right hander. I was frustrated that I was innocent and late Adrian and his two friends picked on me.

I understand that I was wrong to apply such a force upon the deceased which resulted in him losing his life in the hospital four days later. I am so sorry that late Adrian lost his life because of my actions. I had no right to take away his life. I am so sorry for that. I never meant to do that. It wasn’t my intention to take away his life.

I want to say sorry to the parents of late Adrian Buiyo, to his brothers and to his sisters for losing someone they love. I am so sorry for that. I want to say sorry to the Independent State of Papua New Guinea for breaking the law, for committing a serious crime. I want to say sorry to the members of the RPNGC especially those that are serving here in Alotau and MBP for the loss of one of their serving members. I humble myself before this Honourable Court and I say sorry for the offence that I had committed, and I ask for mercy when handing my punishment.

I would like this court to kindly consider that I am a first time offender and that I do not have criminal record and that I did not start the fight , the trouble brought itself to me. I only reacted from the assault I received from the deceased and two of his friends. I have been detained in custody for 3 years 6 months 1 week since 17 November 2013. During this period of time in prison serving as a remand, I have taken time out to re-evaluate my life and I have made some positive changes to my life in prison. I have prayed to God above and I have confessed my sins to him, and I asked him for forgiveness. I have been living in God’s peace ever since. I actively participate in the Christian Ministry in which I play the Keyboard during Church services. Your Honour I have a very clean record in prison over the 3 years 6 months 1 week.

Having stated all these I humble myself before this Honourable Court and I once again say sorry for the offence that I have committed. And I ask that if possible, can this Court kindly consider me for a non-custodial sentence so that I can go back work to support my aging old parents and take care of my wife and child? Your Honour, be merciful to me, a law breaker. Thank you, your Honour.”

12. Mr. Palek submitted in behalf of the prisoner that this is not a worst case of manslaughter and that it should fall under Category 1 of the tariffs set by the Supreme Court in Manu Kovi v The State (2005) SC 789, thus it should attract a sentence between 4 – 8 years.
    
13. Mr. Palek said that the prisoner was provoked in the non-legal sense, did not pre-plan to kill the deceased, pleaded guilty, had expressed remorse and is willing to pay compensation to the deceased’s relatives. This Counsel submitted ought to mitigate the offence. And lastly that the prisoner ought to be given the benefit of the doubt on matters he raised in his allocutus or in submissions not contested by the State. (Saperus Yalibakut v The State (2006) SC 890)
    
14. The prisoner’s Pre-sentence Report details the prisoner’s account of the events of the night in question, his (and his relative’s) efforts to reconcile with the deceased’s relative which were thwarted by the Police Hierarchy (the deceased’s being a Probationary Constable) and of his willingness to pay compensation nonetheless. Though the author of the PSR spoke of the prisoner in good light, as did those members of the community who were interviewed, he left it to the Court to decide on an appropriate sentence.
    
15. Mr. Apo submitted in behalf of the State that this is a case of “being in the wrong place at the wrong time.” Counsel acknowledged the mitigating factors presented by the defence, but that the prisoner’s belated guilty plea came after three years after his arrest, committal and subsequent remand thereafter. Counsel submitted that the killing of someone is a serious offence and that the prisoner had struck the deceased on a vulnerable part of the body – the head, the consequences of which ought to have been known by the prisoner. The prisoner also used an offensive weapon – a galvanised pipe to mete out his frustration on the deceased on something he said he did not do. Counsel did indeed concede that the depositions do show that the prisoner did not stone the vehicle in question and Counsel said that this ought to be applied favourably to the prisoner. A life has been lost and cannot be redeemed. Counsel submitted that the prisoner showed complete disregard to the life and welfare of the deceased on the night in question. And finally, because of the prevalence of this offence a sentence should carry a message of deterrence for the wider community.
    
16. The taking of someone else’s life is a grave offence that in times past almost always attracted a reciprocal penalty – life for life. The notion to avenge the death with death is universally held, the only difference being that in some cultures and societies, retribution follows a judicial inquiry, while in others the relatives of the victim take it upon themselves to mete out retributive justice regardless of whatever reasons the manslayers may have had, sometimes referred to as jus taliones or jungle justice.
    
17. Our criminal law reflects our Judeo-Christian heritage where the Mosaic Law decreed that one who takes another person’s life must also have his life taken – life for life. This reflected how the Author of life, Jehovah God, viewed the sanctity of life. Hence a wilful taker of life must be put to death after due enquiry by judges or elders. For the one who accidentally took a life, the Law, however, was tempered with a merciful arrangement – the provision of cities of refuge where someone those who accidentally caused the death of another could run to and seek refuge from the avenger of blood. This merciful provision stipulated that once the death had been adjudged accidental, the manslayer must remain in the city until the death of the incumbent high priest. If he happens to venture out of the city though, he runs the risk of being killed by the deceased’s relatives whose right to retribution still remained and only suspended by the safety accorded the manslayer within the walls of the city of refuge. (Deuteronomy 41- 43; Numbers 35; Joshua 20)
    
18. At this juncture, I must say that this is not necessarily the worst case of manslaughter hence it will not attract the maximum penalty of life imprisonment. The prisoner’s culpability is therefore low. However, the offence involved the use of an offensive weapon and that should be reflected appropriately in setting a starting point and the eventual head sentence.
    
19. The case of Manu Kovi (supra) is the prevailing Supreme Court authority on sentencing for homicide offences. It categorizes the circumstances under which each offence (manslaughter, murder, and wilful murder) may be committed and provides for sentencing tariffs in an upward scale for each of the four categories for each offence.
    
20. For the offence of manslaughter Manu Kovi principles provide the following –

Category 1: Guilty plea - Ordinary cases where there are mitigating factors - no aggravating factors - no weapon is used - the victim was emotional and under stress - de facto provocation e.g. killings in domestic setting - killing follows immediately after argument - little or no preparation - minimal force used - victim has pre-existing diseases which caused or accelerated death e.g. enlarged spleen cases.

Sentence Range: 8 – 12 years

Category 2: Trial or Plea – use of offensive weapon, such as knife on vulnerable parts of body - vicious attack - multiple injuries -some deliberate intention to harm - pre-planning.

Sentence Range: 13 – 16 years.

21. In Rex Lialu v The State [1990] PNGLR 487, the Supreme Court had earlier suggested that certain matters should be considered 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.

22. The tariffs suggested in Rex Lialu are of course outdated, but the above considerations are still very much relevant.
    
23. But for the use of an offensive weapon, the other relevant considerations in the current case are those under Category 1. The case therefore falls at the top of Category 1 and the bottom of Category 2. The killing followed immediately after an altercation without any pre-planning at all, though the attack was not vicious, and force of some magnitude was used. Even though the attack was not vicious the deceased was attacked on a vulnerable part of his body – the head. Because culpability is quite low, as I have said above, an appropriate starting point therefore ought to be between 12 and 13 years. I set the starting at 12 years. What then should be an appropriate head sentence?
    
24. An appropriate head sentence will necessarily depend on the aggravating and mitigating factors and of course on a consideration of previous sentences in similar cases.
    
25. I find the following to mitigate the offence:
    
    • Guilty plea though a belated one.
    • No prior convictions.
    • No pre-planning involved.

• The prisoner did not instigate the incident and in fact was innocent of accusations labelled against him by the deceased and his two friends which resulted in the initial unprovoked assault on him.
  • He was thus provoked in the non-legal sense.
• He has shown genuine remorse, which he was, however, not able to demonstrate meaningfully towards the deceased’s relatives because of contrary instructions from the local police hierarchy. (Saperus Yalibakut v The State (supra) applied)
  

26. The only aggravating factors I find against the prisoner are that he used an offensive weapon to attack the deceased, that he attacked the deceased on a vulnerable part of his body (the head) and that this offence is a very prevalent offence.
    
27. The killing of the deceased, a young Probationary Constable, who obviously would have been looking forward to a long career in the Police Force, adds to the litany of unnecessary and untimely killings that are becoming too frequent in our societies and communities. And as is often the case, the prisoner is also a young man in the bloom of his life and may have had a promising career. The prisoner here is not your ordinary, uneducated, or semi-educated, restless and misguided young man from the suburbs in Alotau Town or rural village. He is a university graduate who was undertaking further studies for further qualifications while working. Hence, two lives have been wrecked in a matter of minutes – the deceased losing his four days after being attacked by the prisoner, and the prisoner for his part has lost his liberty. In both cases families and loved ones have been left devastated, more so the deceased relatives because their loss is a permanent one.
    
28. This was one death that was totally unnecessary. Granted, the prisoner was innocent of the accusations labelled against him and had to suffer a beating for what he did not do. However, he reacted violently out of his anger and frustration, which is understandable, and unfortunately unintentionally caused the untimely death of the deceased. The fact that the deceased and his friends were intoxicated did not help all, and once again we see abuse of alcohol rearing its ugly head up, resulting in what is increasingly becoming an inevitable result – loss of a precious life.
    
29. The prisoner’s sentence must therefore reflect the circumstances prevailing at the time he attacked the deceased with the aluminium pipe. However, because of the frequency of these types of killings a clear message of personal and general deterrence must be sounded out.
    
30. Let me just consider a few cases of manslaughter which I have dealt with here in Alotau some of which were helpfully cited to the Court by Mr. Palek.
    

In The State v Sandra Piamnok; CR 998 of 2013 (Unreported and unnumbered judgment dated 13^th November 2015), 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 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 largely because the offender was a youthful offender.

31. In The State v Ruben Naidi (2016) N6430, the offender pleaded guilty of one count of manslaughter. There the deceased went to the offender’s house in the early hours of the morning and stole kitchen utensils while the offender was asleep. When the offender woke up, he realised that his utensils were missing and also saw footprints on the sand. He got on his canoe and paddled along the shore in search of the thief and saw the deceased walking away with the utensils. He paddled ashore and a scuffled ensued between him and the deceased who was armed with a spear. The offender grabbed the spear from the deceased and during the scuffle the deceased got speared on the thigh and died soon after from the injury he sustained. The offender was a first-time offender, had expressed remorse and was provoked in the non-legal sense. I sentenced him to 10 years imprisonment less time in custody. None of his resultant sentence was suspended.
    
32. In The State v Mesioni Andrew Patoi; CR 849 of 2016 (unreported and unnumbered judgment dated 10^th February 2017) I sentenced the offender on a guilty plea on a charge of manslaughter to 9 years imprisonment. He had been drinking with the deceased and others when the deceased repeatedly teased and swore at the offender who would push the deceased away every time, he had teased him. The deceased became angry and punched the offender to the ground. As he fell to the ground the offender’s hand fell on a stick. He picked it up and hit the deceased on the head injuring him. The deceased died a day later from his injuries. The offender was also a first-time offender and had no priors. I sentenced him to 9 years less time in custody.
    
33. As case which I think has some similarity with the current case is that of The State v Dubie Kais (No.2) (2012) N 5178. There I had found the offender guilty after trial on one count of murder. The offender and a friend had been drinking at settlement area in Kimbe and were joined later by the deceased. When they ran out of drinks the deceased asked the offender and his friend for money to buy more drinks. The offender and his friend did not have any money so this angered the deceased who immediately chased them around with a bush knife. The offender’s friend managed to knock the bush knife out of the deceased’s hand with a stone which he threw at him from a distance. The offender immediately picked up the knife and repeatedly chopped the deceased on his arms, back and neck. The accused was intoxicated, had a strong intention to cause grievous bodily and used an offensive weapon, though some compensation was paid, and he was a first-time offender. I sentenced the offender to 12 years which sentence, in hindsight may have been too lenient.

However, I cite this case to contrast the offender’s degree of culpability with that of the current offender.

34. I would think therefore that offender in this case should get a head sentence that is slightly lower than that of Dubie Kais and more in keeping with the sentences in the formerly cited cases.
    
35. Homicide cases continue to rise, and the courts need to give appropriate attention to this so that we can perhaps be able to control the incidence of homicides and other offences of violence in this province. Sentences must therefore steadily increase. Manslaughter is by no means a trivial offence and that is reflected by the maximum prescribed penalty of life imprisonment. Offenders and others must be made to realise that life is precious and lived only once. Hence the taking of another’s life will be met with appropriate punitive as well as deterrent sentences.
    
36. In the circumstances of this case, I think that an appropriate sentence should be 11 years. I therefore sentence the prisoner to 11 years imprisonment with hard labour. From that I deduct 4 years, 2 months and 23 days.
    
37. I have considered the prisoner’s plea for a non-custodial sentence. However, I do not think that that would be appropriate in the circumstances, for while a PSR had been filed it appears to be not balanced as none of the deceased’s relatives were interviewed.
    
38. Furthermore, the author of the report did not specifically make any recommendations in favour of a non-custodial sentence let alone a suspension for that matter. The requirements for a suspended sentence are therefore not met. (Don Hale v Public Prosecutor (1998) SC 564)
    
39. The prisoner will serve the balance of his sentence at Giligili Corrective Institution.
    

Ordered accordingly

________________________________________________________________

The Public Prosecutor: Lawyer for the State

The Public Solicitor: Lawyer for the Prisoner