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State v Kopnga [2021] PGNC 294; N8985 (19 July 2021)

N8985

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 796 OF 2021
CR NO. 797 OF 2021

THE STATE

v

RAMON JAMES KOPNGA
&
ANTHONY BOSS KOPI

Minj: Salika CJ
2021: 13^th,16^th,19^th July

CRIMINAL LAW – Practice and Procedure – Convicted of Manslaughter – Sentence – What is appropriate sentence – Strong extenuating circumstances – Peculiar circumstances leading to death – Taken into account

Cases Cited:
Papua New Guinea Cases

Goli Golu v The State [1979] PNGLR 653
Ure Hane v The State [1984] PNGLR 429
Manu Kovi v The State (2005) SC789
Rex Lialu v The State [1990] PNGLR 487

Overseas Cases

R v Philips (1985) 7 Cr App (S) 235 at 237

Counsel:

Mr F Popeu for the State.
Mr. L. Siminji for the Accused.

SENTENCE

19^th July, 2021

1. SALIKA CJ: INTRODUTION: I convicted the two Accused on an alternative count of Manslaughter under S539 of the Criminal Code Act after they were acquitted of one count of Wilful Murder.
   

Facts

2. The facts are that Dalie Mond had gone to the banana garden of the two prisoners in the night of 28^th January 2021. He harvested a banana from their garden and was caught in the act of stealing the banana and the two Accused chased him from their garden up on a mountain down. They chased him for about a kilometer when Dalie Mond perhaps lost his footing and rolled down from the mountain to the base of it to a small stream at the base of the mountain. He was left there and died there.

3. The only injury the two prisoners may have inflicted on the deceased was a deep wound on his wrist, but the cause of death was not attributed to that deep wound. The medical report said that the cause of death was a blunt trauma to the head. I found that the trauma to the head was not inflicted directly by the two men but by him rolling down the mountain that night. I found that Dalie’s body when rolling down the mountain would have bumped onto stones, rocks, trees and logs as he rolled down. I then found that this would not have happened if the two men did not chase him.

4. But by the same token two men would not have chased him had he not stolen their banana from their garden.

Issue

5. The issue is what punishment should the Court impose on the prisoners.

The Law

6. The maximum penalty for Manslaughter is life imprisonment under S302 of the Criminal Code Act.

7. The Court however has a discretion to impose a lesser penalty than the maximum prescribed. Generally, the maximum penalty is usually reserved for the worst type of cases in manslaughter cases. See Goli Golu v The State (1979) PNGLR and Ure Hane v The State.

8. Is this the worst type of manslaughter case? It’s not, in my respectful view, and so I cannot impose the maximum penalty on the two prisoners.

9. The Supreme Court authority of Manu Kovi v The State (2005) SC 789 determined that this case would fall in the first category of the scale of manslaughter cases. Under that category, the sentence prescribed is 8 to 12 years imprisonment. Should this Court impose a sentence in the range of 8 to 12 years as suggested in the Manu Kovi case?

10. I refer to the case authority of R v Philips (1985) 7 Cr App (S) 235 at 237 where the Court there said that in sentencing for manslaughter, the Court must have careful regard to the circumstances of death and the way in which death was actually caused.

11. I have described the circumstances Dalie Mond met his death earlier.

12. The Supreme Court in Rex Lialu v The State (1990) PNGLR 487 said that in considering the nature of the act of the offender in causing a death, the following matters should be taken into account:

a) the nature and frequency of the attack or assault on the deceased;
b) whether the injury which 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 weapon;
d) whether the offender deliberately set out to hurt anyone;
e) whether there was any provocation in the non-legal sense;
f) whether the deceased had a thin skull, or
g) whether the deceased had an enlarged spleen.

13. Items (b), (d) and (e) above are relevant in this case, given the factual circumstances of this case. I found that the deceased was put in this situation because the prisoners chased him in the night through the bushes on the side of a mountain making him to fall and roll down the mountain. The evidence of how he rolled down given by the State witness was that he rolled down like a ‘‘basketball’’ which means he had no control of his body when rolling down like a basketball. This eventuated as a direct result of the two prisoners chasing him and he would have rolled on objects which caused the trauma to his head, which in turn caused his death. There was no evidence of anyone hitting him with a blunt object.

14. I found that the two prisoners set out deliberately to catch the thief who was stealing their bananas. They caught him and then chased him. Because they chased him in the night for about a kilometer, by inference they intended to injure him.

15. I also am of the view that there was some provocation in the non-legal sense by Dalie Mond when he was stealing their banana. The deceased was the thief stealing from their banana garden and he was caught in the act of stealing.

Personal Particulars

16. The following are the particulars of the prisoners:

Ramon James Kopnga

- He is 25 years old from Tombil Village in the Jiwaka Province.
- He is married but has no children.
- Parents are both alive.
- He is educated to grade 12 level and he planted the banana to earn a living and to pay for his school fees for the next phase of his life.

Anthony Boss Kopi

- He is 20 years old, from Tombil Village in the Jiwaka Province.
- He is single and comes from a broken home.
- He lives with his father but his mother left and remarried another man.
- He too is educated to grade 12 level and planted the bananas to earn a living and to pay for his school fees for the next phase of his life.

Extenuating Circumstances

17. I consider that Dalie Mond contributed to his own demise by being the person who first caused the problem. Had he not been stealing from the two prisoners, he would be alive today. The prisoners would not have chased him if he did not do what he did. His actions caused the two prisoners to chase him. He provoked and instigated the chase which led to his fall and eventually to his demise. I will take these important factors into account in mitigating their respective sentences.

Mitigating Factors

18. The prisoners are young first time offenders.

Aggravating Factors

19. The prisoners chased him and the deceased fell and rolled down the mountain to his death.

SENTENCE

20. The circumstances leading to the death of Dalie Mond has been canvassed in the earlier part of this decision. The significant factor I note is that the deceased is the primary cause of the chain of events. It is hard for me to determine the blameworthiness. In other words, do I blame the deceased 50% and the prisoners 50% for the cause of death of Dalie Mond? I note the Manu Kovi (supra) authority. I also take into account the Rex Lialu (supra) factors. I consider that in the first place if Dalie Mond had not gone to steal, his death would have been a non event. The bulk of the blame must fall on Dalie Mond himself in my respectful opinion.

21. Considering the mitigating factors and the extenuating factors, I impose a term of imprisonment of 4 years each. I will however suspend all of those 4 years on conditions that each of them be of good behavior on their own recognizance for a period of 2 years.

________________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Accused