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State v Kange [2021] PGNC 119; N8888 (16 June 2021)

N8888

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 543 OF 2017

THE STATE

V

FELIX KANGE

Waigani: Berrigan, J
2020: 23^rd October
2021: 16^th June

CRIMINAL LAW – Sentence - S. 302 of the Criminal Code - Manslaughter – Criminally negligent use of a firearm in a home – Need for deterrence - Sentence of 8 years of imprisonment imposed, partially suspended.

Cases Cited:

Manu Kovi v The State (2005) SC789
The State v Namaliu (2020) N8506
Beraro v The State [1988-89] PNGLR 562
The State v Leahy (2017) N6880
The State v Simon Moses (2017) N6617
The State v Aiwa (2017) N6948
The State v Maniwogin (2004) N2740
The State v Kolol (2004) N2658
The State v Steward Yambukai (2018) N7465
The State v Lahuwe (2018) N7625
The State v Albert Tiki (2013) N5219
The State v Julu Tumpi (2019) N7912
The State v Vealolo (2019) N7802
The State v Parker (2017) N6838
The State v Kalu (2011) N5270
The State v Turuk Willie, CR 446/2010
Lawrence Simbe v The State [1994] PNGLR 38
Rex Lialu [1990] PNGLR 487
Goli Golu v The State [1979] PNGLR 653
The State v Warur (2018) N7545
Regina v Peter Ivoro [1971-72] PNGLR 374
Ume v The State (2006) SC836
Tanga v The State [1999] PNGLR 216
The State v Tardrew [1986] PNGLR 91
The State v Frank Kagai [1987] PNGLR 320Kumbamong v The State (2008) SC1017

References Cited

Ss. 19, 287, 302 of the Criminal Code (Ch. 262) (the Criminal Code)

Counsel

Ms H. Roalakona, for the State
Mr F. Kuvi, for the Offender

DECISION ON SENTENCE

16^th June, 2021

1. BERRIGAN J: The offender, Felix Kange, was found guilty following trial of causing the death of his wife, Regina Morove, on 14 May 2016, through criminal negligence.
   
2. The State alleged that between 7 and 8 pm that day the offender was with his wife, Regina Morove, in the bedroom of their home at Garden Hills in Port Moresby, with two other relatives. Whilst getting ready for a night out, the offender took a pistol from the dresser drawer, and negligently applied pressure to the trigger of the pistol discharging a bullet, shooting his wife through the mouth and causing her death, contrary to s. 302 of the Criminal Code (Ch. 262) (the Criminal Code), on the basis that he was criminally negligent pursuant to s.287 of the Criminal Code.
   
3. The evidence at trial established that the offender, a reserve police officer and licenced firearm holder, was in the upstairs bedroom of his home at Garden Hills in Port Moresby in the company of three others, namely his wife, the deceased, the offender’s sister-in-law and her husband. The deceased was standing less than 10 metres away from the offender near a window. The offender’s sister-in-law was seated on the floor not far from the deceased. The offender’s sister-in-law’s husband was standing near the door to the room and close to the offender. The offender removed a 9 mm calibre firearm from a dresser drawer in the bedroom. In the course of attempting to clear the weapon the offender negligently caused the gun to discharge, shooting the deceased in the head and causing fatal injuries to the base of her skull. In addition to negligently handling the gun itself, the evidence established that, at a minimum, the offender failed to take all reasonable care and precaution to ensure that the gun was pointed away from the deceased at the time he was handling it.
   
4. The offender was convicted of manslaughter. It remains for me to sentence him.
   

Submissions on Sentence and Comparative Cases

5. In Manu Kovi v The State (2005) SC789 the Supreme Court suggested the following scale of sentences for a conviction of manslaughter:

6. The State submits in aggravation that: the offence involved the use of a dangerous weapon; there was a significant breach of the duty of care, particularly having regard to the fact that the offender was a reserve police officer and a licenced firearm holder; there was no imminent threat or danger to have warranted the handling of the firearm; the loss of life; and the prevalence of killings from firearms. It submits that any cooperation with police was limited to the very early stages of the investigation. The death, whilst not the result of an argument, nevertheless took place in the home, resulting in the death of the offender’s wife, and leaving a young child without its mother. It submits that the offending is the worst type of criminal negligence, that it falls between categories 2 and 3 of Manu Kovi and that a sentence of between 20 and 25 years of imprisonment is appropriate.
   
7. The State relies on the following cases by way of comparison:
   
   1. Beraro v The State [1988-89] PNGLR 562 in which the appellant took a borrowed shotgun and went into the Waigani swamps to shoot something for dinner. He fired three shots at birds, one or two of which hit and killed the deceased, who at that time was near his bandicoot trap. The Supreme Court upheld the appellant’s appeal against conviction for wilful murder and by majority convicted him of manslaughter through criminal negligence, finding that he was grossly negligent given the lethal nature of the weapon used and in circumstances where he was shooting on public land, just a few hundred metres from a large suburb, frequented by adults and children for various purposes, who were present, and where in poor light he shot into long kunai grass that could easily obscure an adult or a child, rather than into the air. He was sentenced to the four years of imprisonment already served;
      
   2. The State v Leahy (2017) N6880, Cannings J: the offender pleaded guilty to the manslaughter of a young man whom he shot and killed in the course of his employment as a security officer in Madang. 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. The deceased was swimming in the sea at the time he was shot dead. Death was caused by negligence rather than by deliberate act. Cannings J held that the offence fell in the second category of Manu Kovi given the use of an offensive weapon but sentenced the offender to 12 years of imprisonment having regard to the mitigating circumstances, six years of which was suspended;
      
   100. The State v Simon Moses (2017) N6617, Cannings J, in which the offender pleaded guilty to the manslaughter of his baby child. The baby was in Modilon General Hospital and the offender assumed the task of swinging the baby, which was in a bilum, to relax the child. He 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. He pleaded guilty and was sentenced to 10 years’ imprisonment. The court found that whilst it was mitigating that death arose from negligence rather than a deliberate act, the high degree of negligence was an aggravating factor;
        
   4. The State v Aiwa (2017) N6948, Salika DCJ (as he then was): the offender pleaded guilty to manslaughter. The offender met his uncle in the village in Chimbu and had an argument over an accident that injured seven people. His uncle started his motorbike attempting to leave when the offender removed a bush knife from his motorbike. He wanted to scare his uncle when the deceased got in the way and was cut by the bush knife on his neck. He sustained a 10-15 cm wound on his neck that led to his death. The State submitted that the offender had negligently handled the bush knife. Whilst finding that the case fell within category two (2) of Manu Kovi at the upper range and being guided by that decision the sentencing judge expressed the view that the ranges provided in that case were now outdated. He sentenced the offender to 20 years of imprisonment, less time spent in custody;
      
   5. The State v Maniwogin (2004) N2740, Batari J: a clash precipitated by a land dispute arose between the offender’s sons on the one side and the deceased with his relatives on the other. The fight progressed towards a hut where the offender was sitting and fearing, understandably, for his own safety at his old age, he retreated into the nearby bushes. Whilst in hiding, he heard his son had been knocked to the ground and assumed, albeit wrongly, that he was dead. So, fearing the worst for his other two sons, the offender returned to his house where he picked up a firearm and shot the deceased who was then engaged in a fight with one of his other sons. He pleaded guilty and was sentenced to eight years, less time spent in custody, the balance of the sentence was suspended leaving one year to serve in custody;
      
   6. The State v Kolol (2004) N2658, Lenalia J: the prisoner and the deceased went to their village to leave some traditional costumes with their relatives there for someone to do them up. The prisoner and the deceased were close relatives and went to the prisoner’s elder brother’s house. Once there they went upstairs to rest on the bed when the deceased felt something from under the mattress poking him on his side, which he subsequently found to be a homemade gun. He and the offender examined it for some time before they took it to the other room, where the deceased asked the prisoner how it would be fired. The deceased handed over the gun to the offender and asked the offender to demonstrate how a gun is fired. The prisoner pulled the trigger to demonstrate, firing the gun and killing the deceased. The prisoner was 16 years old at the time of the offence, and 18 at the time of sentence.

“Having explored the circumstances of the shooting and taking into account, the prisoner’s guilty plea and his young age and the fact that the deceased was an uncle of the prisoner some concessions must be given to the accused for losing a relative as discussed in Kesino Apo -v- The State [1988] PNGLR 182. I have observed the young prisoner and am of the firm view that, he does not possess the propensity to commit crimes nor does he appear to be a violent person. To send this young man to prison would have a crushing effect on his future life. Taking into account all those factors together, the sentence of this Court is four (4) years imprisonment.”

7. The State v Namaliu (2020) N8506, Berrigan J: the offender was convicted following trial for manslaughter through criminal negligence. The deceased died when she jumped in fear for her life and safety from the vehicle the offender was driving whilst he repeatedly assaulted her. In aggravation: the offender used the moving motor vehicle to trap the deceased whilst he assaulted her; there was some planning of the assault by the offender; the offence took place over a period of time, for some distance and whilst the vehicle was travelling at speed; the offender not only failed to stop the vehicle but deliberately refused to do so on at least three occasions; and the offending took place in the domestic setting. He was sentenced to 15 years’ imprisonment.
   

8. Defence counsel submits that there are no aggravating factors in this case, other than that the deceased died from a gunshot wound. He submits in mitigation that the offender cooperated from a very early stage with police. He reported the incident and took them to the scene. He submits that if he did not do that there would be no evidence against the offender. Furthermore, that this is his first offence and he is of excellent character.
   
9. Defence counsel submits that there are also extenuating circumstances. The offender is suffering from a diagnosed heart condition. He may also be suffering from a psychiatric condition. The parents and relatives of the deceased have called for a non-custodial sentence and there is a deed of release between the deceased’s parents and the offender setting out his commitments to the deceased’s family and his young son.
   
10. Defence counsel asked the Court to consider the following cases:
    
    1. The State v Steward Yambukai (2018) N7465, Geita J, in which the offender was sentenced to 10 years’ imprisonment. The offender pleaded guilty to the manslaughter of his pregnant wife in which the wounds inflicted were “vicious and many” inside their village home in East Sepik Province;
       
    2. The State v Lahuwe (2018) N7625, Geita J, in which the offender was sentenced to 9 years of imprisonment, less time spent in custody, after pleading guilty to stabbing his wife in the abdomen following an argument at their home in the village in East Sepik Province;
       
    100. In The State v Albert Tiki (2013) N5219 the deceased and three other persons were sitting outside a trade store in Mt Hagen when the offender and his wife had an argument inside. The prisoner's wife then ran out of the trade store and was pursued by the prisoner. One of the persons sitting with the deceased grabbed the prisoner to prevent him from assaulting his wife. The offender picked up a brick-like object from the ground and hurled it intending to hit his wife. The scuffle between the offender and the other person caused the brick-like object to ricochet of the wall of the store and hit the deceased at the base of his skull. The deceased was admitted to hospital but died from his injuries four days later. The offender was convicted of manslaughter through criminal negligence following a trial for murder. He was sentenced to eight years of imprisonment from which time spent in custody awaiting trial was deducted.
         

Whilst David J agreed with the prosecution submission that the guidelines in Manu Kovi do not “specifically” cover manslaughter by criminal negligence he considered that the case fell within the range of sentences recommended in category 1 of Manu Kovi as the circumstances of death demonstrated that there was no preparation by the prisoner to kill the deceased by a brick-like object or at all;

4. The State v Julu Tumpi (2019) N7912, Gora AJ, the offender pleaded guilty to the manslaughter of two passengers, who were sitting in the back tray of her vehicle, when at the top of a junction her brakes failed and she lost control of the vehicle and it ran off the road. Both deceased were thrown from the vehicle, dying instantly. She was sentenced to three years on each count to be served cumulatively, wholly suspended on conditions including compensation and community service;
   
5. In The State v Vealolo (2019) N7802, Susame AJ, the offender was with his wife at their home in the village in East New Britain Province. The prisoner asked the deceased for the file to sharpen his knife. He became angry when she handed it to him and it was wet. In his anger the prisoner swung the bush knife against the bamboo seat. The knife slid on the surface of the bamboo seat and cut his wife on the right calf muscle at back of the knee causing a deep wound. The deceased was rushed to the nearby aid post at Lau. From there she was referred to the aid post at Rali but died along the way. The prisoner voluntarily surrendered to police and confessed to the killing. He was sentenced to serve 8 years of imprisonment, which was wholly suspended; and
   
6. The State v Parker (2017) N6838, Salika DCJ (as he then was), the prisoner went out looking for the deceased. He pulled the deceased outside and punched him three or four times on his head and face. He then held the deceased by his shirt and swung him causing the deceased to hit his head on the stone wall. The deceased died two days later from his injuries. The offender was convicted following trial. Salika DCJ expressed the view that the sentences in Manu Kovi may now be out of date but found that the offence fell into category two and sentenced the offender to 13 years of imprisonment, less time spent in custody.
   

11. Defence counsel submits that unlike Leahy (supra) where the offender fired in order to stop a robber escaping, there was no deliberate action on the part of the offender firing the gun, it simply went off. In all other cases there has been direct action by the offender. In Tumpi it can be said that she knowingly created her situation by driving carelessly. In Vealolo the offender deliberately struck the seat in anger with his wife. By comparison this case was simply a tragic accident in the way that most people would understand it. The case is similar to Lahuwe in that the prisoner was convicted on his own admissions but in that case he admitted to deliberately stabbing his wife and received a suspended sentence. Here the offender was with his family getting ready on a Saturday night to go out when the weapon discharged. There was no planning, pre-meditation, physical assault or argument before the death occurred. This was not a typical domestic setting killing because there was no argument or assault. Accordingly, the case does fall within any of the categories of Manu Kovi and a sentence of between 3 and 6 years, wholly suspended is appropriate.
    
12. I have also had regard to the following case:
    
    1. The State v Turuk Willie, CR 446/2010, unreported 15.9.11, Cannings J: The offender pleaded guilty to manslaughter. He was in the bush near his village, hunting pigs. He fired indiscriminately from his spear gun into a bush when he saw leaves rustling and shot and killed the deceased who was having consensual sex in the bush. In mitigation this was a spontaneous event, almost an accident, no intention to harm, the offender reported the matter to the village committee and made early admissions, expressed remorse, was a first time offender and had a good community record. He was sentenced to ten years of imprisonment.
       

Consideration

13. A detailed report has been provided by Probation Services.
    
14. The offender is 43 years old. He is originally from Maia Village in Pangia, Southern Highlands Province. He currently lives in his own home in Port Moresby, with his elderly father who is dependent on him and undergoing medical treatment at hospital. His mother passed away in 2017 from cancer. The offender is the eldest of four children, all of whom are married, and all of whom are dependent financially on the offender.
    
15. The offender comes from a highly respected and devout Christian family. He is an active member of the PNG Bible Church. This is the offender’s first offence and he is of prior excellent character.
    
16. The prisoner is highly educated, a former lawyer and a successful businessman. He obtained his Bachelor of Laws Degree from the University of Papua New Guinea in 2002 and worked for several years in private practice before setting up his own law firm in 2005, which employed several lawyers at the time. He currently operates two successful businesses, a security company he established in 2008, and a construction company established in 2010, which employs fifteen staff members including engineers, architects, carpenters and plumbers. He owns several high value properties in Port Moresby. He serves as a reserve police officer in his spare time.
    
17. The offender is married with four children, three from his first marriage, aged 11, 16 and 20. It is submitted that all children are supported by the offender financially but that is not borne out by the affidavit evidence of his former wife, Dr Merrilyn Mathias, of the Port Moresby General Hospital, and the affidavits of his children, which I accept. Financial support ceased in 2015.
    
18. The offender is also father to a young boy he had with the deceased. At the time of her death the child was only 6 months old. He is now five years old and resides with his maternal grandparents in Australia.
    
19. Statements have been provided by the deceased’s parents and family in support of a suspended sentence. The family make the request on behalf of the deceased’s young son. They state that throughout his married life, the offender showed himself to be a loving and caring husband and father. The family was not aware of any verbal or physical abuse. They seek suspension so that the offender might meet his compensation obligations under custom. Whilst they are still trying to come to terms with what happened that night, they see no reason for the offender to be punished further for killing their daughter when he did not intend to harm her.
    
20. Following conviction, the offender entered into a “Deed of Release and Indemnity” with the parents of the deceased under which he committed to providing for the maintenance and welfare of his son until the child reaches 18 years of age. In addition, the offender agreed to pay compensation of K60,000 to the family for their grief and loss. He further committed to assist the family secure a home and vehicle in Cairns, Australia, and provide a monthly allowance at a mutually agreed rate. He recently sent money to cover the deceased’s funeral and burial expenses.
    
21. The offender’s father speaks of a loving and devoted son, a caring and loving husband. He acknowledges the gravity of the offence and the deep loss of the deceased. He and his family are willing to participate in customary obligations to demonstrate their sadness and they plead for a suspended sentence so that the offender can continue to support his medical costs and the financial costs of the extended family.
    
22. Several character references are provided in support of the offender. His Pastor, Mark Walea, has known him for over twenty years and confirms that the offender is a committed Christian who supports his community through charity work. Mr Raymond Molu, a community leader at Morata who has known the offender for more than 30 years and is employed by the offender in his security company confirms this. The offender has helped unemployed youth through his security company and has been supportive of community based programs to address alcohol and drug use amongst young people. He undertakes to support the offender through his rehabilitation.
    
23. Mr David Raymond, one of the offender’s senior employees at his security company says that the offender is a good and generous boss, who has helped him and his family, looking after the medical costs of his sick mother. He fears for his job and the jobs of the other guards if the offender is incarcerated. Dr Zui Neofa, a client, confirms that the offender is a humble and sober man.
    
24. Mr Manu Riva, a project manager at the offender’s construction company says that the offender is a good and humble man who has always provided financial assistance to his employees when needed. On behalf of all employees he too pleads for leniency so that he continue to operate the business.
    
25. Inspector Lowa Tambua, has known the offender for fifteen years. He has mentored the offender throughout that time and knows him to be a humble and selfless person who has been raised in a loving and disciplined home.
    
26. Mr Jacko Kariko, has known the offender as both a friend and lawyer and knows him to be an honest and diligent professional, a kind and polite gentleman, and a good family man who loves and cares for his family and children very much.
    
27. The offender suffers from a number of health conditions, which are supported by medical reports. He has high blood pressure and high cholesterol, and is currently under medication. He is also suffering from clinical depression.
    
28. On allocutus the offender said it had been a difficult five years since he lost his wife. He thanked the Court, the State, the police and his lawyer for dealing with his matter, and fully accepts the Court’s decision. He thanked both his own family and that of the deceased for their support. He also thanked his doctors for caring for him and spoke of the phycological trauma he has suffered since the incident. He spoke of the love for his children, who he is trying his best to care for, and pleads with the Court to allow him to continue to do so outside of prison. He sincerely apologised to the parents and family of the deceased for their loss. He grieves for her still, and life for him without her is very hard. He misses her every day. He knows that when his son is older it will be very difficult to explain to him why she is no longer alive. He is committed to looking after his wife’s family and meeting his customary obligations and the promises he has made to them.
    
29. It has been submitted in mitigation that the offender cooperated with police.
    
30. A failure or a refusal by an offender to provide cooperation to law enforcement agencies does not aggravate his offending. (See a similar discussion in The State v Warur (2018) N7545 at [31] to [34] regarding guilty pleas.) However, cooperation with authorities, like an early guilty plea, will only be a significant factor in mitigation when it constitutes genuine contrition and remorse, or reflects a willingness to assist authorities in their investigations and facilitate the course of justice. The nature and extent of the cooperation and its value to authorities are relevant factors in this regard: see Namaliu at [53].
    
31. Whilst I do accept that the offender reported the matter to police, he did not do so immediately, and he took the police to a crime scene that had already been cleaned, and deliberately provided the police with a weapon other than the one that caused the death of the deceased. Nevertheless, as defence counsel submits it is the offender’s admissions to police that morning upon which the State relied to make its case, and that is a significant matter to be taken into account in mitigation.
    
32. I also accept that the impact of the offence on the offender has been and will continue to be very grave. I have no doubt that his conviction has caused both shame and a loss of standing to himself and his family. Any time spent in custody will have a significant impact on his businesses, his family and friends, the offender himself, his children, and of course, his very young son.
    
33. I also accept that he has suffered deeply as the result of his wife’s death, and that the fact he caused it will continue to haunt him for the rest of his life.
    
34. I don’t accept defence counsel’s characterisation of his medical condition, or the compensation he has undertaken with the deceased family as “extenuating circumstances”. Extenuating circumstances are “some relevant circumstances which operate so as to diminish the culpability of the prisoner, not in the strict legal sense but broadly, regard being had not only to moral considerations but to all the considerations which might reasonably be taken into account in order to determine whether it would not be just that the law should be applied in its full rigour”: see Regina v Peter Ivoro [1971-72] PNGLR 374; Ume v The State (2006) SC836. They go to the commission of the crime itself, for instance a parent who steals to feed her children.
    
35. The matters highlighted are, nevertheless, relevant on sentence, as matters in mitigation, but in my view they are most relevant to the issue of suspension.
    
36. Manslaughter is a serious offence as demonstrated by the maximum punishment, which is life imprisonment. “This reflects the value the society places on human life and its total condemnation of one person’s unlawful taking of another’s life under any circumstances”: Tanga v The State [1999] PNGLR 216.
    
37. Section 19 of the Criminal Code provides the Court with broad discretion on sentence. Whilst guidelines and comparative cases are relevant considerations, I remind myself that every sentence should be determined according to its own facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38. Furthermore, that in a case of homicide, careful regard must be had to the circumstances of death and especially to the way death was caused: Rex Lialu [1990] PNGLR 487.
    
38. It is well established that the maximum penalty is reserved for the most serious instances of the offence: Goli Golu v The State [1979] PNGLR 653. The state submits that this is the worst type of criminally negligent manslaughter.
    
39. I do not agree. There is no separate offence of criminally negligent manslaughter. Whilst the facts and circumstances giving rise to the offence are highly relevant, the offence remains one of manslaughter. This case is not the worst type of manslaughter.
    
40. The State also relies on Beraro (supra) to submit that criminal negligence involving a gun is more serious than dangerous driving causing death because a gun is more lethal than a motor vehicle. That is true in any event as dangerous driving causing death is a separate and lesser offence than manslaughter. Putting that aside, I do agree in general terms that manslaughter by criminally negligent driving is less serious than manslaughter resulting from the criminally negligent use of a firearm, given that a gun is, by its nature, more dangerous.
    
41. The Supreme Court in Beraro also expressed the view, however, that manslaughter by an assault that leads to a spleen death is more serious than death by the criminally negligent use of a firearm because the punch or kick is deliberate. I strongly agree with those views.
    
42. The State submits that this case is more serious than Namaliu. Again, I do not agree. Regardless of the fact that the State conducted that case on the basis of the criminally negligent use of a motor vehicle, the negligence in that case was particularly egregious as it involved, amongst other seriously aggravating factors, a degree of planning, the deliberate use of the vehicle to trap the deceased, and the deliberate and repeated use of violence, in a domestic setting. The offence occurred over a period of time, by a person under the influence of alcohol and fatigue, whilst travelling at speed, and refusing to stop. I cannot agree with the submission that this case is more serious simply because it involved a dangerous weapon rather than a vehicle.
    
43. Nevertheless, I do agree that this remains a serious case of manslaughter.
    
44. The deceased was a young woman, with a young son, a caring family, and much to live for. The loss of the deceased to her young son at a time when he needs his mother most is impossible to quantify. I have no doubt that her death will have a profound impact on the rest of his life.
    
45. At trial the State established that the danger or risk of harm was extreme and obvious and that the offender’s use and management of the firearm was grossly negligent and showed complete disregard for the life and safety of the deceased. The degree of negligence involved in a case in which s. 287 of the Criminal Code has been established is necessarily very great.
    
46. Both parties agree that this case is aggravated, however, by the fact that the offence involved a dangerous weapon.
    
47. In Namaliu (supra) I said that killing in the domestic setting is by its nature a significantly aggravating factor attracting the penalties beginning in category two of Manu Kovi. I agree with defence counsel, however, that whilst the offence involved the death of the offender’s wife, there was no deliberate violence on the part of the offender.
    
48. This case does not fall neatly within the categories outlined in Manu Kovi. Whilst conviction followed a trial and an offensive and dangerous weapon was used, there was no vicious attack, no multiple injuries, no planning and no intention to cause harm for the purposes of category two.
    
49. Whilst the offender did not deliberately shoot his wife, he did deliberately take the weapon out of the drawer and did attempt to clear it whilst in the bedroom of a residential home, at a time others were present, when there was no reason for doing so, and without taking all care and precaution to ensure that the gun was not pointed at his wife at the time.
    
50. To my mind that is more serious than the situation in Beraro. The offender should never have been handling the gun in his home in the first place, let alone clearing the weapon, i.e. checking to see if it was empty of ammunition, in the presence of others. The offender was a licenced firearm holder and a reserve police officer and should have appreciated better than anyone the danger of his conduct. There was no threat at the time. Instead there is a strong inference that the offender was showing the weapon off to those in the room.
    
51. For similar reasons, it is more serious than the villager in The State v Turuk Willie, CR 446/2010, who was out hunting for a meal, with his spear, when he spontaneously reacted to a noise in the bush and killed a person who was deliberately hidden. He reported the matter immediately and pleaded guilty.
    
52. It is also far more serious than that of the curious and naïve sixteen year old in Kolol who, with the deceased, stumbled across the gun at their relative’s house with such tragic consequences. I also note, however, that it is perhaps unlikely that the sentence imposed in that case would be applied today having regard to the Juvenile Justice Act, 2014.
    
53. This case requires a penalty that will send a strong deterrent message so that similarly tragic but entirely preventable deaths are avoided in the future. It must serve as a warning.
    
54. Guns are not toys, nor are they trophies. They must be kept in good working order. They must be kept safely away from others. They cannot be left lying around for curious children to find. They are not to be brandished or flaunted, or even handled unnecessarily, in the presence of others. The simple fact is that guns are for killing. No one should have a gun in their custody or control unless they are prepared to take all necessary care and precaution to keep them safe, or live with the severe consequences in the event that they fail to do so.
    
55. As I said in Kange (2020) 8488:
    

“The risk associated with a firearm is both extreme and obvious. It is by its nature a lethal weapon, the very purpose of which is to inflict serious harm. Deliberate and active diligence is required to discharge the duty of reasonable care imposed by s. 287. As a matter of common sense this includes keeping the firearm safely and in good working order, whilst also taking great care in its handling.”

56. In summary, I have taken into account in mitigation that the offence was not planned, and that there was no intention to harm. I have also taken into account the offender’s lack of previous conviction, his prior good character, his contribution to the community and charitable works, together with the compensation paid, and committed, in reconciliation, the fact that the offender reported the matter to police, and his expression of remorse, which I accept as genuine. I also take into account that it was the offender’s own admissions which were relied upon by the State at trial to establish the case against him. I accept that the effect of the sentence on him is and will continue to be grave. Against this I have taken into account the use of a dangerous weapon, the significant departure from the duty of care, including that the offence took place in a home, in a room with other people, by a licenced firearm holder and reserve police officer, when there was no need or reason for the offender to be handling the gun, and the need to send a strong deterrent message. This case involves a tragic loss of life.
    
57. Having considered all of the above matters, including the guidelines contained in Manu Kovi and comparative cases, I sentence the offender to 8 years of imprisonment.
    
58. In The State v Tardrew [1986] PNGLR 91 the Supreme Court set out three broad, but not exhaustive, categories in which it may be appropriate to suspend a sentence, namely: where it will promote the general deterrence or rehabilitation of the offender; where it will promote the repayment or restitution of stolen money or goods; or where imprisonment would cause an excessive degree of suffering to the particular offender, for example because of bad physical or mental health. Suspension is not an act in leniency but a form of punishment that is to be served outside the prison system in the community interest to promote restitution or rehabilitation: The State v Frank Kagai [1987] PNGLR 320; affirmed Kumbamong v The State (2008) SC1017.
    
59. The report by Probation Services recommends the offender as suitable for probation, which is strongly supported by his friends, family and colleagues, together with the deceased’s family.
    
60. Whilst I accept that the offender’s medical and psychiatric conditions will require ongoing attention in custody, I am not satisfied that they will cause him to suffer exceptionally to the extent that the whole of the sentence should be suspended.
    
61. Nor am I persuaded that his sentence should be wholly suspended so that he may continue to operate his businesses and contribute to the community through his charitable work, or so that he may meet his customary obligations.
    
62. Whilst I accept that the offender will have difficulty maintaining full involvement in the operations of his businesses, they are well established and there is no evidence before me that they cannot continue to operate.
    
63. Whilst I also appreciate that compensation is important under custom in recognition of the deceased’s family’s loss and in order to promote reconciliation, and is demonstrative of his remorse, this must be balanced against the broader interests of justice in imposing an appropriate sentence that meets the purposes of sentencing, namely punishment, deterrence, denouncement, rehabilitation and community protection. In addition, the material before me suggests that the offender has the financial means to make at least some compensation from prison.
    
64. Neither counsel addressed the issue of delay. A lapse of time between the commission of an offence and the imposition of sentence is not a mitigating factor of itself: In R v Law; Ex parte A-G [1995] QCA 444; [1996] 2 Qd R 63.
    
65. Delay may be a relevant consideration on sentence but it will depend on the circumstances. In determining whether delay is a mitigating factor it is suggested that consideration should be given to the reason for the delay. Section 37(3) of the Constitution guarantees a fair trial within a reasonable time. Where there has been a failure on the part of enforcement authorities or the judicial process to bring an offender to justice within a reasonable time that may properly constitute a factor in mitigation. This may be particularly relevant where an offender has cooperated with authorities from an early stage. Consideration should also be given to the conduct of the offender himself and his role in the delay. For obvious reasons a person who absconds should not benefit by the delay he himself has caused. Delay may also be relevant where the offender has made demonstrable progress towards his or her rehabilitation during the period of delay. As in any case delay must be balanced against all the other factors for consideration, including the nature and seriousness of the offence.
    
66. In this case it has been more than five years since the commission of the offence. Delay since conviction has largely been due to the pandemic, including the offender’s own covid illness, as well as the desire of the offender to obtain reports from the deceased’s relatives overseas. The delay in the lead up to the trial is not clear to me. In my view the head sentence is appropriate in the circumstances of the case and for that reason I did not reduce the head sentence for delay, but I do think it is appropriate to reflect delay when considering suspension in this case. In doing so I bear in mind that mitigating factors should not be relied upon to produce an effective sentence which is overly generous to a prisoner: Tardrew (supra).
    
67. I am, however, satisfied that partial suspension of the sentence would promote the offender’s rehabilitation into the community.
    
68. Having regard to the offender’s medical conditions, the delay occasioned in bringing the matter to trial, and his strong prospects for rehabilitation, I intend to suspend part of the sentence.
    
69. Accordingly, I make the following orders.
    

Orders

(1) The offender is sentenced to 8 years of imprisonment in light labour to be served at Bomana Correctional Institution.

(2) Time spent in custody, namely 11 months, 6 days is deducted from the time to be served, leaving a balance of 7 years, 24 days.

(3) A further 3 years, 24 days is suspended on condition that the offender enter into his own recognisance, without surety, to keep the peace and be of good behaviour during the period of suspension.

(4) Leaving a balance of 4 years to be served in custody.

(5) Any bail monies are to be immediately refunded.

(6) As a precautionary measure during the Coronavirus State of Emergency, the offender is to be held in an isolation facility at the Bomana Correctional Institution for at least two weeks before transfer to the main compound, subject to medical assessment.

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Public Prosecutor: Lawyer for the State
Elema Lawyers: Lawyer for the Offender