N8243

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 859 OF 2016

THE STATE

-V-

GLEN ILAISA LAIDA
(No 2)

Alotau:	Toliken, J
2019:	12th November

CRIMINAL LAW – Sentence after trial - Murder – Prisoner kills deceased after initial provocation and assault with lethal weapon by deceased on him – Significant mitigating factors and extenuating circumstances – Aggravating factors – Intoxication – Prevalent offence – Appropriate sentence – 13 years less time in pre-trial/sentence detention - Criminal Code Ch. 262,ss. 300. 

Cases Cited: 

Avia Aihi v The State (No.3) [1983] PNGLR 92
GoliGolu v The State [1979] PNGLR 653
Manu Kovi v The State (2005) SC 789
The State -v- Laida (2018) (PGNC144: N7837

Counsel:

C Sambua and A Kupmain, for the State
N Wallis, for the Prisoner 

JUDGMENT ON SENTENCE

12th November, 2019
1.	TOLIKEN J: The Prisoner, Glen Ilaisa Laida was originally indicted for the wilful murder of one Allan Ningilom on the 29th December 2015 at Alotau town. However, on the 07th May 2019 I’ve returned an alternative verdict for manslaughter instead. On the 12th August 2019, I administered the allocutus and heard the submissions on sentence and reserved. This is my judgment.(See The State -v- Laida (2018) (PGNC144: N7837 for my judgment on verdict).

2.	The brief facts for the purpose of sentencing the prisoner are as follows: On the morning of the 20th December 2015, the prisoner was at his garden hut on the hills above Niugini Compound, Alotau Town. The deceased arrived with a bottle of illicit spirit and wanted to drink at the prisoner’s place. The prisoner protested but the deceased persisted and started drinking. The deceased then got the prisoner’s radio and started meddling with the volume control breaking it in the process. This angered the prisoner and a fight broke out between them. During the fight, the deceased, somehow picked up a bush knife and was just about to cut the prisoner when a friend of theirs named Nason came just in time and tackled the deceased to the ground. Nason and prisoner then grappled with the deceased until finally Nason managed to remove the knife from the deceased and threw it down the gulley.

3.	Immediately after this, the prisoner left for Musa compound. He was there for some time. He, however, ran back to his garden house, upon hearing the deceased destroying his properties. He confronted the deceased and the deceased swung an axe at him nipping him on the right hand. He then attacked the prisoner with a bush knife. Fearing for his safety the prisoner ran to his house and picked up his bush knife to defend himself. He then ran uphill as the deceased pursued him,swinging the bush knife at the prisoner. Every time he swung his bush knife at the prisoner aiming at his legs, the prisoner would jump one step up and the knife would miss him. The deceased missed the prisoner a total of 4 times. At the 5th swing, the prisoner managed to step aside at a flat area on the hill and struck the deceased with his knife on the right shoulder. The deceased slipped down hill but did not desist from attempting to attack the prisoner further despite the prisoner’s plea for him to stay down. And so, the prisoner cut him. He lost controlof himself cutting him repeatedly. He inflicted a total of 18 wounds to various parts of his body. The deceased died from these injuries before he could be taken to the hospital. 

4.	The offence of manslaughter carries a maximum penalty of life imprisonment.

5.	It is, however, trite that the maximum penalty is reserved for the worst instances of offending. Furthermore, each case most be treated on its own fact and circumstances. (Goli Golu v The State [1979] PNGLR 653; Avia Aihi v The State (No.3) [1983] PNGLR 92)

6.	I must therefore determine an appropriate sentence for the prisoner. I must first determine if this is a worst case. If I find it to be such a case, then I may very well impose the maximum penalty. 

7.	At the outset I must say that viewing the circumstances of the case objectively this does appear to be close to being worst case of manslaughter.

8.	I have heard the prisoner’s plea in mitigation. He said he was minding his own business and he did not instigate the matter, but the deceased did byfirst attacking him and that he merely retaliated to preserve his own life.

9.	Mr. Wallis submitted in behalf of the prisoner that an appropriate sentence ought to be between 11-13 years placing the case under categories 1 &2 of the Manu Kovi tariffs. (Manu Kovi v The State (2005) SC 789) Mr. Wallis cited several mitigating factors and several cases which he said ought to guide the Court in arriving at an appropriate sentence for the prisoner. I will return to these later.

10.	The prisoner’s Pre-sentence Report (PSR) recommends a term of probation supervision for the prisoner. A total of K14228.70 in cash and kind was paid to the deceased’s relatives and there are plans to pay additional compensation. 

11.	Mr. Kupmain for the state, on the other hand, while agreeing with the verdict of manslaughter, conceded that the prisoner had lost control of himself and he had acted initially to preserve his own life. However, the fact that he not able to control himself showed that he is a danger to the community because we have no facilities for anger management outside of prison which can assist him if he were to be given a non-custodial sentence. But considering the provocation to the prisoner and self-defence then a lower sentence may be justified. Counsel therefore submitted that an approximate sentence should be13-15years. 

12.	As I intimated at the outset, this case pretty much falls under the worst category. But for some significant mitigating factors, it could easily justify the imposition of the maximum penalty of life imprisonment.

13.	That said, I find, however, that it falls under Category 2 of the Manu Kovi tariffs as it exhibited the following factors; there was use of offensive weapon, i.e. a bush knife, the attack on the deceased was vicious, the infliction of multiple injuries on the deceased and there was strong intention to cause grievous bodily harm. I fix a starting point of 16 years. What should be an appropriate head sentence?

14.	The prisoner was 28 years old when he committed the offence, he is now 33 years old. He comes from Unewana village in the Huhu Rural Local Government area, Alotau District, Milne Bay Province. He is single and is the last born in a family of four siblings. His parents are both deceased, and he is a member of the Seventh Day Adventist Church. He was educated up to Grade 3 only, so he is essentially illiterate. His only formal work experience was a stint with Provincial Works Supervision Unit as a general labourer in 2014. He is a first-time offender. He had been in pre-trial/ sentence detention for a period of 3 years, 10 months and 4 days.

15.	I find the following mitigating factors in favour of the prisoner –

•	He is a first-time offender
•	He was of good character prior to his offending 
•	He co-operated with the police by admitting that he killed the deceased but said he did so in self-defence
•	There was no pre-planning
•	He is an illiterate unsophisticated man
•	Some compensation was paid to the accused relatives in repatriating the deceased’s body to his home province.

16.	I also find that there are extenuating circumstances. The prisoner was provoked in the non-legal sense by the deceased when he firstly broke the volume to his boom box and secondly when the deceased chopped down the prisoner’s properties such as betelnut trees after the prisoner left the scene when the initial fight was broken up.

17.	Secondly, I find that the prisoner honestly believed that his life was in imminent danger when the deceased firstly missed him with an axe and then pursuing him uphill with a bush knife delivering no less than five swings with the knife which the prisoner only managed to avoid by jumping up every time the deceased swung at his legs. The prisoner thus defended himself and would have been justified in killing the deceased had he not continued cutting him after he had effectively rendered him defenceless.

18.	But against I find the following aggregating factors:

•	The use of a dangerous weapon
•	The infliction of multiple wounds on the deceased
•	The use of intoxicating liquor 
•	The prevalence of the offence.

19.	Now a precious life has been taken unlawfully once again. A family has once again been deprived of their father, husband and bread winner. And so, another widow and orphans have again been left to fend for themselves due to the untimely and unlawful killing of the loved one and provider.

20.	Homicides are becoming too frequent in this province and unfortunately most, if not all are fuelled by alcohol - mostly illicit alcohol most times.

21.	There appears to be a total lack of respect for the sanctity of life, judging by the way people use or too quickly resort to violence to resolve the most trivial of disputes.  

22.	The prisoner must be punished adequately, while at the same time taking into account the circumstances under which he killed the deceased. His mitigating factors are quite significant, and his extenuating circumstances are especially weighty.

23.	I have considered the sentences cited to me by Mr. Wallis and do take them into account as a guide. However, the prisoner here must be sentenced according to the facts and circumstances of his own case.

24.	I have set a starting point of 16 years. Taking into account the prisoner’s significant mitigating factors and extenuating circumstance, I would think that an appropriate sentence would be 13 years.  I therefore sentence the prisoner to 13 years imprisonment less 3 years 10 months and 4 days for time spent in pretrial/sentence detention. The balance will be served at Giligili Corrective Institution. None of this will be suspended.

Ordered accordingly.
____________________________________________________________________
P Kaluwin, Public Prosecutor: Lawyer for the State
L B Mamu, Public Solicitor: Lawyer for the Prisoner