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State v Junior [2021] PGNC 207; N8952 (11 June 2021)

N8952

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 483 & 484 OF 2018

THE STATE

-v-

WILLIAM PERUAN JUNIOR &

FRANK THOMAS

Kavieng: Kangwia J.

2021: 03^rd, 09^th & 11^th June

CRIMINAL LAW – Manslaughter – convicted after trial – first time offenders – Prevalence of offence – Sanctity of life - Deterrence warranted – sentenced to 10 years.

Cases Cited

Manu Kovi v the State (2005) SC789
Antap Yala v the State (1996) SC69
Rex Lialu v the State [1990] PNGLR 487
Anna Max Matangi v the State (2000) SC702
State v Steven Kenny (1999) N2881
Kesino Apo v the State [1988] PNGLR 1880
State v Brian Romantien CR No 857 of 2013 (Unreported Judgement of14 October 2014)
State v Isorombo (2016) N6433

Counsel
C. Sambua & C Langtry, for the State
M. Mumure, for the Defence

11^th June, 2021

1. KANGWIA J: William Peruan Jnr and Frank Thomas are appearing as prisoners for sentencing. They were charged with Wilful Murder but after a trial were convicted of Manslaughter pursuant to s 302 of the Criminal Code Act.

2. The brief facts were that the prisoners assaulted the deceased. After the assault, the prisoners escorted the deceased to a kitchen where he lay in a coma. The next day the deceased was still in a coma when the prisoners carried him to a vehicle and dropped him off at the deceased’s sisters house. The deceased died two days later. The medical report showed that the deceased died from brain injuries.

3. Prisoner William Peruan is 30 years old and married with 03 children. He was employed by NID since 2015 till time of arrest.

4. Prisoner Frank Thomas is 41 years old and married with 04 children. He was employed as a security guard by Ligga Bible College.

5. Both prisoners have no prior convictions.

6. In allocatus both prisoners elected to remain silent and let their lawyer speak on their behalf.

7. On their behalf Mr. Mumure through a written submission sought a sentence under category one of the guidelines in Manu Kovi v the State (2005) SC 789 which carried a sentence range of 8 to 12 years.

8. It was submitted that the prisoners were educated and in gainful employment when arrested. There was no pre-planning and no weapons were used. There was some element of de facto provocation, but the degree of participation was not clear. The prisoners had no prior convictions.

9. Mr Mumure referred the Court to the sentences in a number of manslaughter cases as guides in sentencing. The cases referred to arose out of various circumstances and the sentences ranged between 10 and 12 years.

10. On behalf of the State Ms. Langtry also through a written submission while highlighting the sentencing guidelines and tariffs in the Manu Kovi case submitted that a sentence between 10 and 16 years should be imposed. Manslaughter was a serious offence, and a deterrent sentence was appropriate.

11. It was submitted that the offence was prevalent. More than one person was involved in the assault of the deceased and the assault was vicious on a vulnerable part of the body. The deceased sustained a fractured skull. The assault was motivated by jealousy.

12. Ms Langtry also referred to a number of cases where sentences were imposed for manslaughter. The sentences in those cases ranged between 10 and 16 years.
13. The law on manslaughter and its prescribed penalty is provided under s.302 of the Criminal Code in the following terms:

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.

14. Life Imprisonment is the maximum penalty prescribed primarily because a life is lost. However, the law permits discretion in sentencing by operation of s. 19 of the Criminal Code.

15. In the case of Antap Yala v the State (1996) SC69 the Supreme Court held that sentences for manslaughter will depend on the peculiar facts and circumstances of each case.

16. The Supreme Court also set guidelines and suggested tariffs in sentencing for manslaughter cases in the case of Rex Lialu v the State [1990] PNGLR 487 followed by Anna Max Marangi v the State (2000) SC 702.

17. Those guidelines and tariffs were suggested more than 20 years ago. The Court in the case of the State v Steven Kenny (1999) N2881 his Honour Kirriwom J criticised the suggestions in Rex Lialu and said:

“I must say categorically that Rex Lialu is out of date and in view of the prevalence and rising trend of violent deaths in totally unacceptable circumstances”.

18. The sentencing guidelines for manslaughter in Rex Lialu and Anna Max Marangi are good law and of universal application, however the tariffs suggested in those cases are outdated and inappropriate for the present case.

19. Suggestions by both counsels that guidelines in the first category of the Manu Kovi case was appropriate in sentencing, is accepted.

20. The Supreme Court in that case set guidelines and suggested tariffs for all homicide cases which saw increases in later sentences.

21. Courts have time and again placed great importance on the sanctity of life and the need to impose adequate sentences on those offenders who cause a death or are in any way involved in the loss of a life.

22. In the case of Kesino Apo v the State [1988] PNGLR 1880 the Supreme Court held that imprisonment should be the starting point owing to the sanctity of life, a consideration which parliament intended.

23. On the sanctity of life, I restate what I stated in the case of The State v Brian Romantien CR No 857 of 2013 (Unreported Judgement of14 October 2014):

“Taking sanctity of life as the paramount consideration in sentencing, my view is that the single common denominator in sentencing for the loss of life by any homicide should be a custodial sentence. The exercise of Courts discretion to impose any non-custodial sentence should be a rarity.”

24. The suggestions in those two cases should form the basis for sentencing in all homicides.

25. In the present case the prisoners are first time offenders. No offensive weapons were used.

26. However, the deceased did not defend himself. He was unarmed, dragged out of a kitchen and assaulted. There was no justification for the assault. Whatever the reason may have been for assaulting the deceased, becomes a nugatory with the loss of a life. A loss of life whether by a relative, friend or foe, demands custodial sentence for the perpetrators.

27. The offence is prevalent and with it comes the dire need for deterrent sentences with the aim of preventing unnecessary loss of future lives and the preservation of life in general. Courts must be stern in its sentences with deterrence in mind and an overall view of giving effect to the “right to life” entitlement under s. 35 of the Constitution.

28. It is considered that this case is similar in nature to the case of the State v Isorombo (2016) N6433 which both counsels referred to in submissions.
29. In that case the deceased was punched and after he fell down, he was kicked by a number of people which resulted in a ruptured spleen. The offender was sentenced to 10 years.

30. The circumstances in the other cases referred to by counsels are different from the present case even though the sentences imposed are consistent with the sentencing trend in this country and are relevant for this case.

31. Both Counsels have also suggested that this case fell into the first category of the Manu Kovi criteria. The first category suggests a sentence of 8 to 12 years imprisonment which are considered reasonable. From that range a sentence may be increased or lowered under the given circumstances or when the necessity presents itself.

32. In the present case the prisoners are married with children. Whatever concerns they may have for the welfare of their family is something they have to bear. It is a consequence of falling out of line with the law. These are the likely consequences the offenders overlooked or failed to consider when they committed the offence.

33. Even though the prisoners were first time offenders they were convicted after a trial. They have expressed no remorse. Any discount in sentencing for an offender who pleaded guilty or expressed remorse is not available to the prisoners.

34. The prisoners are each and severally sentenced to 10 years imprisonment. The period spent in custody before bail and after conviction shall be deducted and the balance of the sentence shall be served at CIS Kavieng.
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Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Defence