N8943

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NOS. 467 & 468 OF 2021

THE STATE

V

PIUS MIDICKO

&

PHILIP ANGEL

Kimbe:  Numapo, J
2021:	17th June & 16th July

CRIMINAL LAW – Particular offence – Manslaughter – s. 302 Criminal Code - Guilty Plea – Sentencing discretion to impose a lesser sentence s. 19 - Aggravating & Mitigating factors - Extenuating circumstances – Gravity of the offence.

Held:

(i)	The facts of this case places it at the higher end of the sentencing scale on manslaughter.

(ii)	The seriousness of the offence is determined by its own peculiar facts being; the aggravating and mitigating factors and the extenuating circumstances.

(iii)	This was a mob attack on an unsuspecting individual who was ill-prepared to defend himself.

(iv)	The killing was uncalled for as the deceased was trying to stop the fight when he got killed, a total disregard to a human life. 

(v)	Sentenced to 15 years less the pre-trial custody period.

(vi)	Prisoners to pay a compensation of K5000 each to the relatives of the deceased. 

(vii)	Three (3) years will be suspended from the total sentence if compensation is paid.

Cases Cited:

Goli Golu v The State [1979] PNGLR 653
Avia Aihi v The State (No 3) [1982] PNGLR 92
Manu Kovi v The State (2005) SC789
State v Kapus & 2 others (2010) N4114
State v Windu (2009) N3827
State v Eneg (2016) N6318
State v George (2021) N8776
State v Roho (2006) N4483 

Counsel:

A. Bray, for the State
J. Kolowe, for the Defence 

SENTENCE 

16th July, 2021

1.      NUMAPO J: This is a decision on sentence. The accuseds PIUS MIDICHO and PHILIP ANGEL both pleaded guilty to one count of Manslaughter pursuant to section 302 of the Criminal Code and were convicted accordingly.

A.	BRIEF FACTS

2.     The brief facts were that; on the 21st of August 2020 there was a fight between two clans over a land dispute. The offenders are from Ayumete village (Inland Kandrian) whilst the deceased (Peter Lasi) is from Akur village (Kandrian Coastal).

3.     The fight continued the next day, the 22nd August 2020 at Akur village. The offenders and their clansmen came over to the deceased’s village and fought with them. The deceased stood in the middle and tried to stop the fight when Pius Midicho chopped the deceased’s right leg severing the leg leaving it hanging by the skin. The deceased fell to the ground and Philip Angel hit the back of the deceased’s neck with the blunt part of the axe he was carrying. The deceased died shortly after that.

4.     The matter was reported to Police and the offenders were arrested and charged with one count of manslaughter pursuant to section 302 of the Criminal Code. 

B.	LAW

5.     The offence of manslaughter carries the maximum penalty of life imprisonment under section 302 of the Criminal Code.  

Section 302 Manslaughter:

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

Penalty: Subject to Section 19, imprisonment for life.

6.     Section 19 of the Criminal Code gives the court a wider sentencing discretion to impose a lesser sentence in place of the maximum penalty prescribed by law including a non-custodial sentence where appropriate.

C.	APPROPRIATE SENTENCE FOR MANSLAUGHTER

7.     The offence of Manslaughter carries life imprisonment however, it is trite law that the maximum penalty is reserved for the worst type offence. See Goli Golu v The State [1979] PNGLR 653 and Avia Aihi v The State (No 3) [1982] PNGLR 92. 

8.     The most recent Supreme Court case of Manu Kovi v The State (2005) SC 789 sets out the guidelines for Manslaughter as shown in the table below:

Category	               Description	                   Details 	             Tariff	
      1	Plea - Ordinary cases – Mitigating factors with no Aggravating factors	No weapons used – Little or no pre-planning - Minimum force used – Absence of strong intent to do GBH	    8 – 12 years	
      2	Trial or Plea – Mitigating factors with Aggravating factors	Use of offensive weapons used such as a knife etc.– vicious attack – multiple injuries-some pre-planning involved	   13 – 16 years	
     3	Trial or Plea – special aggravating factors – mitigating factors reduced in weight or rendered insignificant by gravity of offence	Dangerous weapons used, eg. gun, axe etc. – vicious attack – multiple injuries - pre-planning – some deliberate intention to harm – little or no regard for human life.	    7 – 25 years	
     4  	Worst Case – Trial or Plea – special aggravating factors – no extenuating circumstances- no mitigating factors or mitigating factors rendered completely insignificant by the gravity of the offence	Pre-meditated attack- some of viciousness and brutality – some pre-planning – killing of innocent, harmless person – complete disregard for human life.	Life Imprisonment	

9.     The facts of this case places it at the higher end of the sentencing scale on manslaughter. I say this because this was a mob attack and dangerous weapons were used it was deliberate and there was some pre-planning involved. Furthermore, it was an unprovoked killing with no apparent reason involving an innocent person who was only trying to stop a fight. This calls for a deterrent sentence with a punitive effect. 

D.	COMPARABLE CASE LAWS

10.     A number of comparable case laws were cited by Counsels to assist the Court in determining the appropriate sentence in this case. It shows the current trend on sentencing in manslaughter cases. I refer to some of them below:

(i)	State v Kapus & 2 Others (2010) N4114

11.     The prisoners used an axe and also punched the deceased on his head. He later died from his injuries. The prisoners were sentenced to 13 years IHL less the pre-trial custody period.

(ii)	State v Windu (2009) N3827

12.    The Court imposed a sentence of 14 years IHL on the prisoner for hitting the deceased with a stone on his leg and when the deceased fell down the prisoner used an iron bar to hit him who then died a few days later.

(iii)	State v Eneg (2016) N6318

13.     The prisoner used a bushknife to cut the deceased on his left leg that resulted in a death due to loss of blood. Prisoner was sentenced to 10 years IHL. 

(iv)	State v George (2021) N8776

14.     A fight erupted following a land dispute between two groups of people. The prisoner chopped the deceased on both his left and right arm and left the scene. The deceased died later due to loss of blood. He was sentenced to 15 years IHL less the pre-trial custody period. 
 
(v)	State v Roho, N4483 of 24 August 2006 

15.     A 28-year old man pleaded guilty to manslaughter for killing his mother by kicking her in the abdomen after he became angry over her actions in chasing his sister down a cliff during which his sister sustained injuries. The deceased died of a ruptured spleen and other internal injuries. 

16.     The court found that there was no intervening cause of death and that the offender solely responsible for the death and his was not a youthful offender. He was sentenced to 10 years imprisonment.

E.	PRESENT CASE

17.      The seriousness of the offence is determined by its own peculiar facts being; the aggravating and mitigating factors and the extenuating circumstances. See: Antap Yala v The State (1996) SCR 69 and Jack Tanga v The State (1999) SC602.

18.     In the present case, the following factors and circumstances are taken into account:

(i)	Aggravating factors

(a)	Use of dangerous weapons (bushknife & axe) to carry out the attack 
(b)	Multiple injuries inflicted on the victim
(c)	Loss of life
(d)	Vicious mob attack
(e)	Victim was unarmed and only tried to stop the fight
(f)	The attack was pre-planned
(g)	Prevalence of the offence.

(ii)	Mitigating factors

(a)	The offenders pleaded guilty early.
(b)	First time offenders.
(c)	Expressed remorse.
(d)	Cooperated well with the police.

F.	SENTENCING TREND

19.     The sentencing trend reflected in the case laws above with similar aggravating factors and circumstances places this case under category 3 of the Manu Kovi guidelines hence, a sentence of between 7 – 25 years is appropriate. One aggravating factor that stands out is that this was a mob attack on an unsuspecting individual who was ill-prepared to defend himself. Furthermore, the deceased was only trying to stop the fight between two groups of people when he was killed. The killing was uncalled for and was a total disregard of a human life.

F.	SENTENCE

20.     I make the following Orders:

(i)	   The prisoners are each and severally sentenced to Fifteen (15) years IHL.

(iii)	I deduct One (1) year for the pre-trial custody period leaving a balance term of 14 years.

(iv)	I further order that a sum of K5000 each to be paid by the prisoners to the family of the deceased within three (3) months from the date of this Order pursuant to section 5 of the Criminal Law (Compensation) Act 1991 under the supervision of the Police or the Probation Office.

(v)	     I further order that upon the payment of the total compensation in the sum of K10, 000 (K5000 each), three (3) years will be suspended from the total term of imprisonment with the prisoners to serve the balance of Eleven (11) years IHL.  

(vi)	Failing to pay the said compensation, the prisoners will be required to serve their full term of Fourteen (14) years IHL.

(vii)	No suspended sentence.

Orders Accordingly.
__________________________________________________________________
Public Prosecutor	:	Lawyer for the State
Public Solicitor	:	Lawyer for the Defence