Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

State v Maim [2022] PGNC 248; N9735 (15 June 2022)

N9735

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 66 OF 2021

BETWEEN:

THE STATE

AND:

MANASA MAIM

Maprik: Rei, AJ
2022: 7^th, 14^th & 15^th June

CRIMINAL PRACTICE - PRACTICE & PROCEDURE – plea – manslaughter – deceased shot at with arrows – chased accused with bush knife – accused fled – accused armed with bamboo spear – speared deceased in abdomen with bamboo spear – loss of blood – death.

Cases Cited:

Manu Koivi -v- The State [2005] PGSC 34, SC789
Lawrence Gimble -v- The State [2008] PGSC 51, SC1017
Goli Golu -v- The State [1979] PNGLR 63
Jerry Wasu -v- The State SCRA No.1 of 2002 [2002] PGSC 16, SC697
Timothy Diva -v- The State SCRA No.4 of 2006, SC892
The State -v- Kiosai [2021] PGNC 359; N8961
The State -v- Vealolo [2019] N7802
The State -v- Tuma [2017] N6618
Public Prosecutor –v- Bruce William Tardew [1986] PNGLR 91

Legislation:

Section 19 & Section 302 of the Criminal Code
Criminal Law (Compensation) Act No. 26 of 1991

Counsels:

Mr. Andrew Kaipu, for the State
Mr. Dan Siki, for the Defence

15^th June, 2022

1. REI AJ: The State presented an indictment against the accused Manasa Maim on the 7^th of June 2022 alleging that:
   

MANASA MAIM of Sengo Village, Wosera/Gawi District, East Sepik Province stands charged that he, at Sengo Village, Wosera/Gawi, East Sepik Province in Papua New Guinea, on 12^th day of August 2019 unlawfully killed Isaac Gawi contrary to S.302 of the Criminal Code.

2. Brief facts were put to the accused in which the State alleged that on the 12^th day of August between 1 pm and 2 pm while the deceased was walking to his house from the bush, an argument erupted in which the daughter of the accused, Villa Manasa told the deceased that he was mentally affected.
   
3. It was reported to the accused by Mesi Judas and Sonia Ewe that his daughter Villa Manasa was assaulted by the deceased and the accused got bow and arrows and shot at the deceased. The deceased retaliated by arming himself with a bush knife and attacked Maxwell who is the brother of Villa Manasa.
   
4. The accused then got a bamboo spear and walked towards the house of the deceased and attacked the deceased while he emerged from his house wounding him in the area of his abdomen.
   
5. The deceased died as a result of the wounds inflicted by the accused.
   

PLEA

6. The contents of the indictment and the brief facts were read to the accused and asked to enter a plea.
   
7. The accused entered a plea of guilty.
   
8. Mr. Siki confirmed that the plea was consistent with his instructions whereupon a provisional guilty plea was entered.
   
9. Mr. Kaipu tendered the committal file and upon perusable, the plea of guilty was confirmed as there are confessions contained in the record of interview conducted on 17^th October 2019 in answers to Q.19, 20, 21 & 22 thereof.
   
10. In answer to Q21, the prisoner stated that “I knew he is a mentally affected person and was going to attack me, so to defend myself, I speared him with a bamboo spear.”
    
11. No proof of the mental condition of the deceased was tendered as evidence.
    
12. The accused was found guilty of the charge of manslaughter and convicted accordingly.
    

ANTECEDENTS

13. No prior conviction.
    

PRE-SENTENCE REPORT (“PSR”)

14. Mr. Siki submitted that a PSR be provide which was filed on 14^th June 2022.
    

ALLOCUTUS

15. The prisoner acknowledged in his allocutus that he has breached the law as such he voluntarily reported to the Police to be brought to justice.
    
16. He said sorry to the Court for taking its time and also said sorry to the relatives of the deceased.
    
17. He is a married man who has 6 children who were not attending school since he was remanded in custody from the 13^th August 2019 and has spent 2 years 10 months in remand.
    
18. His wife has a serious health condition and that he does all the work a wife does.
    
19. As a result of committing this crime, the prisoner said that four (4) of his bush material houses were burnt down, 2 vanilla gardens containing 300 and 200 vanilla plants were destroyed, 13 coconut trees and 7 mango trees chopped down.
    
20. The prisoner asked the Court to be lenient given these facts so that he can start a fresh to fend for his family.
    

MITIGATING FACTORS

21. The factors in mitigation are:
    

i. Pleas Guilty. The prisoner admitted to the charges which saved the Court and the State its resources to run the entire trial.

2. The prisoner had no prior convictions or is a first time offender.
3. He was very remorseful and apologized to God, the State, the Court and the family of the deceased.
4. Not pre-planned.
5. There was provocation in the non-legal sense. The deceased assaulted the prisoner’s daughter.
6. Prisoner caused no further trouble and voluntarily surrendered and cooperated with the police.
7. The deceased relatives retaliated and destroyed the prisoners properties.
8. The prisoner and his family were willing to pay compensation but the deceased family refused. The prisoner and his family are willing to pay K5,000.00 with a pig as compensation to the family of the deceased.
   9. Prisoner is of old age.
      

AGGRAVATING FACTORS

22. The aggravating factors are:
    
    1. loss of life.
    2. use of dangerous weapon, a bamboo spear
    3. vulnerable part of the body, the abdomen
    4. prevalent offence
    5. had an intention to harm when he armed himself with bamboo spear.
       

DECISION ON SENTENCE

23. Section 302 of the Criminal Code provides:
    

“A person who unlawfully kills another person under such circumstances is not to constitute wilful murder, murder or infanticide is guilty of misdemeanor,”

“Penalty: Subject to Section 19, imprisonment for life.”

24. Section 302 of the Criminal Code provides that a person who unlawfully kills another person without any intention of doing so is to be imprisoned for life subject to Section 19 of the Criminal Code.
    
25. The decision of the Supreme Court in Manu Kovi -v- The State [2005] PGSC 34, SC789 (Waigani: Injia DCJ, Lenalia & Lay JJ: 2004: July 27^th October 27^th, 2005, May 31^st) sets out sentencing guidelines as follows:
    

26. But each case is to be determined on its own facts and circumstances (Lawrence Gimble -v- The State [2008] PGSC 51, SC1017 case) and that the penalty of imprisonment for life or any higher sentence be reserved for the worst scenario case – Goli Golu -v- The State [1979] PNGLR 63.
    
27. This case falls within category1 and 2 of the Manu Kovi case which calls for a term of 20 to 30 years imprisonment.
    
28. It involves the use of a bamboo spear which the prisoner used to inflict wounds on the area of abdomen of the deceased piercing it resulting in death.
    
29. The mitigating factors are that the prisoner reported the matter to the police, entered a plea of guilty thus saving time and costs and the ensuing events resulting in the complete destruction of his four (4) bush material houses and vanilla gardens of 500 vanilla plants and coconut and mango trees outweigh the aggravating factors of use of dangerous weapon.
    
30. Additionally, the whole family is now displaced in the community because of the destruction of the gardens and houses.
    
31. Mr. Kaipu submitted that the prisoner be given a prison term of 13 years while Mr. Siki submitted that a sentence of 10 years be imposed which should be partly suspended.
    
32. Mr. Kaipu referred me to the case of Jerry Wasu -v- The State SCRA No.1 of 2002 PGSC 16; SC697 in which the Supreme Court comprising of Kapi DCJ, Sheehan and Davani JJ confirmed a sentence of 12 years on a charge of manslaughter laid under Section 302 of the Criminal Code.
    
33. In that case, the prisoner chased the victim and hit him with a stick.
    
34. He also referred to the case of Timothy Diva -v- The State SCRA No.4 of 2006, SC892 the Supreme Court also confirmed the decision of His Honour Kandakasi J, as he then was, in which he imposed a term of 15 years.
    
35. In that case the prisoner struck the deceased with a spade resulting in his death.
    
36. In both cases, the appellants did not have the intention to inflict the wounds resulting in death. There was no strong intention to kill.
    
37. Mr. Siki submitted that the murder of the deceased in this case was accidental and that; as in the case of The State -v- Kiosai [2021] PGNC 359; N8961 which I decided. The prisoner in that case tried to distract the deceased from using a bush knife to harm in the process of which he struck the deceased resulting in his death. A sentence of 12 years was imposed part of which was suspended because of a favourable PSR.
    
38. In the case of The State -v- Vealolo [2019] N7802, Mr. Siki submitted that the prisoner swung a bush knife and hit his wife on right calf resulting in her death and was sentenced to 8 years imprisonment which was wholly suspended.
    
39. Mr. Siki also referred to The State -v- Tuma [2017], N6618 in which His Honour Cannings J. sentenced the prisoner to 10 years imprisonment, deducted time in remand awaiting and suspended 4 years. He served the balance of 5 years 4 months in goal.
    

SENTENCE

40. This case falls within the reasons for judgement in The State -v- Tuma (supra), and The State -v- Kiosai (supra).
    
41. I note that there was no strong intention to kill and the mitigating factors outweigh the aggravating factors.
    
42. The PSR speaks favourably for the prisoner which strongly recommends a non-custodial sentence. It also says that after the death of the deceased there has been a relief in the village community as the deceased was high on drugs. That report also states that the vanilla gardens of 500 vanilla plants, coconut trees and mango trees was completely destroyed.
    
43. I have considered these factors and impose a sentence of 10 years imprisonment. In the exercise of my discretion under S.19 and in line with the decision in Public Prosecutor –v- Bruce William Tardew [1986] PNGLR 91 part of the sentence be suspended.
    
44. 44. The Court orders are:
    
    • (i) 10 years in prison;
    • (ii) 2 years 10 months, be deducted leaving a balance

of 7 years 2 months;

(iii) 4 years of that sentence is suspended upon the following

conditions:

• prisoner be supervised by the Probation and Parole Officer, Wewak for 2 years;
• be of good behaviour; and
• to be involved in church activities of the Seventh-day Adventist Church of which he is a member

(iv) 3 years 2 months is to be served IHL.

________________________________________________________________

Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Defendants