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State v Wally [2022] PGNC 265; N9690 (15 June 2022)

N9690

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 506 OF 2018

THE STATE

V

GIDEON WALLY

Wewak: Miviri J
2022: 03^rd, 15^th June

CRIMINAL LAW – PRACTICE AND PROCEDURE – Manslaughter S302 CCA – Plea – Retaliation Over Earlier Assault – Matter Referred to Village Magistrate – Took Law Into Own Hands – Five Persons Against Deceased – Severely & Brutally Assaulted – Internal Injuries to Chest – Death Immediately After – sanctity of life – Prevalent Offence – strong deterrent sentence.

Facts
Accused argued then assaulted the deceased severely on the chest over an earlier assault upon him. He was assisted by four other members of his family. Deceased suffered internal injuries to her chest and died shortly after.

Held
Plea
Matter already with local authorities
Took law into own hands
Venerable part of the body chest
Sanctity of Life
15 years IHL

Cases Cited:
Kovi v The State [2005] PGSC 34; SC789
Avia Aihi v The State (No 3) [1982] PNGLR 92
Kumbamong v State [2008] PGSC 51; SC1017
Simbe v The State [1994] PNGLR 38
State v Walus [2005] PGNC 147; N2802
State v Yambukai [2018] PGNC 342; N7465
State v Lahuwe [2018] PGNC 518; N7625
State v Tiki [2013] PGNC 51; N5219
State v Kange [2021] PGNC 119; N8888
State v Joel Tiampo [2021] N9261
Tapi v The State [2000] PGSC 2; SC635
State v Aitsi No 2 [2008] PGNC 21; N3296
Rex Lialu v The State [1990] PNGLR 487
Marangi v The State [2002] PGSC 15; SC702
Tanga v The State [1999] PNGLR 216

Counsel:

F. K. Popeu, for the State
A. Kana, for the Defendant

SENTENCE

15^th June, 2022

1. MIVIRI J: Gideon Wally of Kiarifu, Yangoru Sausia East Sepik Province appears for sentence after pleading guilty that he unlawfully killed Jacintha Maragau contrary to section 302 of the Criminal Code.
   
2. He had retaliated against the deceased Jacintha Maragau who had fought him on the 1^st of January 2021 in the course of which the deceased punched him to the ground and then sat on him and punched him. This fumed the family of the accused and they were not happy so demanded K5000.00 and two (2) live pigs as compensation. On the 03^rd January 2021 between 1.00pm and 1.30pm the accused family including accused Gideon Wally and his sisters gathered at Kiarifu village. He called to the deceased and went up the veranda of her house where she was and punched her. She got up and jumped down to the ground. He followed her to the ground and they fought in the course of which accused Leah Nakamani and Narau Kanawi came in and assisted him to fight the deceased. Leah Nakamani threw punches at the deceased face, whilst Narau Kanawi grabbed the deceased around her waist causing her to fall down to the ground. Then the accused came in and kicked the deceased hard in her chest as she was lying on the ground. Here the deceased then tried to go to the Police Station to get assistance, but she was met by another co accused Kanawi Wally who confronted her and punched her hard on the Chest causing her to become weak and she had to sit down.
   
3. She was assisted back to the veranda of the house and as she was been taken up the accused Stephanie Wally came and punched her on her face. And then again grabbed her by the throat and strangled her until She was seen to be struggling to breath. Deceased was then placed in the accused Stephanie Wally’s vehicle and taken to Yangoru Health Centre for medical assistance but she died there. Medical examination showed that she had died from Tension Hemopneumothorax due to the severe Chest injury. The Accused Gideon Wally when he kicked her on the chest and Kanawi Wally when he punched her on the Chest caused the chest injury. And when he did the accused had no lawful excuse or justification for causing her death in this manner.
   
4. The evidence in the file was straight forward and confirmed the charge. He made detailed admissions to Police in the record of interview. And the medical evidence also confirmed the internal injuries that culminated in her death. Noted from the external finding in the medical report dated the 03^rd February 2021 under hand of Doctor Jimmy Kambo Government Medical Officer she was 29 years old. Her skin scratches noted over the left neck, right neck, and left eyebrow. Skin haematoma noted on mid sternum of the chest. The internal findings showed notably that the chest cavity is noted to have old blood and blood clots. Left lung filled with old blood clots. Left lung bruised and fixable. And the cause of death was due to Tension Hemopneumothorax, severe chest injury. Death occurred 03^rd January 2021 and examination was 31 days after death.
   
5. Witnesses at the scene showed an assault perpetrated by the siblings of this prisoner together with this prisoner, a total of five persons against the lone deceased. The two male siblings delivered the blows that culminated in the severe chest injury that she suffered leading to her death. It was serious in that it arose over an earlier assault of the prisoner at the hands of the deceased. She was a woman he was a man who was beaten by her. He was humiliated and therefore his siblings sided with him in the light of custom from that area of Yangoru. And demanded compensation and placed the matter with the village magistrate for hearing to solve. But even before it was settled lawfully in that manner, it was taken unceremoniously out of its grasp and dealt with by the Prisoner accompanied by siblings to dish out the penalty of death upon her for her assault upon him.
   
6. There is no respect for the rule of law and the mechanism that dispute resolution has been set down by law to entail lawful solution. It was a matter that should have never ended in death as was seen. And the assaults were perpetrated without mercy and understanding because the prisoner is a community schoolteacher and his wife is also a community schoolteacher. Both had no excuse in the commission of the offence. They behaved like uneducated persons who did not display that they were college graduates responsible as teachers for the learning of young children into life. He was a first offender aged 37 years old married of Kiarivu village, Yangoru, East Yangoru LLG, Yangoru Sausia East Sepik Province. He was the third born out of a family of five brothers and a sister. His father was deceased and the mother was surviving. Personally, out of his marriage he had a 14-year-old child who was doing grade 7 at Mongnial Primary School here in Wewak. And the second born child was 10 years old, in grade 1 at Negri Primary School in Yangoru. And the third child was 3 years old and at home schooling. And the last was 2 years old with his wife the mother in Corrective Institution Boram.
   
7. He was educated at Bamesaka Secondary School Wewak in 2013 and went on to Madang Teachers College where he graduated with diploma in Primary School teaching in 2016. And was employed since 2017 up to the end of 2020 when he was arrested for this offence. He has been in custody since awaiting. And the last posting as a teacher was at Aupik Primary School in Maprik. He will return to that post if released. That is confirmed by a letter from the education division of the East Sepik Provincial Administration. It is not clear as to the basis of a convicted prisoner convicted of manslaughter returning to teach children. What values can he pass as a professional to young and tender life in the schools he teaches. He has not reflected the learning in the way he has behaved. He would not be an example to follow in the schools if indeed he was to go back there.
   
8. Life is precious and sanctified and under section 35 of the Constitution it is a right that is enshrined by the Constitution on every person man or woman child or old. No one is different one from the other. It is therefore precious and should not be wantonly taken as was the case here. The deceased was his in-law married to his younger brother aged 29 years old. And she was educated and working with Hargy Oil Palm in Kimbe West New Britain and had come home because the husband had won a senior position with the Vanimo oil Palm company when she was killed. K 25, 000. 00 was paid as compensation but it was used in the funeral expenses of his daughter states father of the deceased George Wramani, ambulance driver at Yangoru Health Centre. The mother Anna Mari also confirms that it was funeral expenses not compensation. She says they planned to kill her so let them all go to Jail.
   
9. This is yet another homicide that has resulted initially from the consumption of liquor that has continued to where it has ended with the death of the deceased. It does not pay to consume alcohol where it is abused as is the case here. The deceased and the prisoner with the other co accused were there to solve the matter amicably in custom for what was uttered by the deceased to the prisoner. But he instigated without giving accord to that process to settle the matter. He instigated because he was assaulted earlier and resorted to take the law into his own hands to settle the matter. As it happened it went out of hand leading to other family members siblings joining to the demise of their in-law leaving their brother Walter Wally the husband a widow with the children orphans without their mother. There is no voice from the husband in the presentence report that has been obtained. The father of the deceased states that he has been given a new wife whilst his daughter was in the morgue. It shows clear intent to kill his daughter. And he wants the prisoner to go to jail. Because the family never received the compensation that was paid. Even then no amount of compensation will bring back the deceased from the grave to be with her loved ones.
   
10. And it is understood also the actions that relatives took to burn down 13 houses of the relatives of the prisoner. Photographs show ashes scattered together with corrugated iron. It is not clear what type of houses have been burnt down. There are 13 but not independently verified by owners of the said properties to confirm or deny their relationship with the prisoner. And if indeed they have lost out as seen in the photographs. It is not verified by owners of the respective houses if indeed there were houses. So, the weight is not there sufficient to seriously affect the sentence against the prisoner. For it is worth it could be anything and this is a court of law evidence properly sourced from the owners to put proper weight. That is not the case in favour of the prisoner. Accordingly, the weight in off setting his sentence is not there. He is the leader of the pack in the killing of the deceased. And he leads by example by delivering the telling blow that is resultant of the severe injuries to the chest that lead to the death of the deceased. He is accompanied by his brother one Kanawi Wally who delivers a hard blow to that area seen by the doctor evidenced out above. The latter should be sought out and arrested for this homicide. And the leadership of the prisoner is to the words that he utters kill her I will pay for her head. He is therefore for all intent and purposes the leader of the pack in the demise of the deceased. Without his instigation She would be still alive. He made sure by his actions that she was beaten up and good and proper. He did not accord her mercy yet he stoops to dig out mercy for his circumstances favourable yet he did not accord her the same.
    
11. In this regard compensation should not be in favour of the haves against the have nots, the former who can pay their way out of jail, the latter who bear the brunt of their actions. There must be disparity in sentence avoided. And this is the language of the Criminal Law (Compensation) Act 1991 section 5 (3) (b) that sets out compensation by not to exceed K 5000 either as goods or cash or kind. There is a minimum amount here K 25, 000. 00 which was presumably paid. It does not in my view pay out time that is due by the will of the legislature which prescribes life imprisonment for the crime of manslaughter pursuant to section 302 of the code.
    
12. What then is the appropriate sentence given these for the prisoner here?
    
13. I am mindful and take due regard of Kovi v The State [2005] PGSC 34; SC789 (31 May 2005), in particular that it is involving no use of weapons in the assault upon the deceased. And in my view, there is no de facto provocation because on the date of this offence 03^rd of January 2021 the deceased never uttered any vulgar or swear words to the prisoner. Nor did She act in a way to call his repute as a male member of the Yangoru society into question. For all it is worth he was the instigator of this assault leading to the death of the deceased. He did not have the common courtesy and respect for the local magistrate to hear out and settle the matter. He cannot sing de facto provocation where it is nonexistence here. Provocation must be there but not sufficient legally to extinguish in the events on this day. He cannot rely on a matter that is 2 days old to say they constitute provocation in the non-legal sense. He is a trained schoolteacher with a diploma in teaching. He ought to know better. He will not shield to avoid under what is not there by the facts here. There is preparedness on his part because he instigates when she is sitting on her veranda. It is a carry on to revenge for the assault that he suffered at the hands of the deceased a woman two days on the 1^st January 2021. He simply was prepared to revenge against her for what she did to him sitting onto him and punching him. There was pre-existing brewing fume between him and her which he instigated leading to her death.
    
14. In fact, he was the one who gave her the blow that injured her severely to her demise. The medical report sets it out explicitly. She died almost immediately after suffering the blows that he gave leading with his brother. That is why the demarcation that has been made by State and defence in charging the others less than him. His role is paramount and significant to her eventual demise. He cannot state that there was little or no preparation in what he did. And the force he exerted cannot be minimal when it sustained the left lung in the condition that the doctor describes set out above with old blood he saw. It was a very heavy blow that landed her breathless and gasping for air. No human being should be made to suffer in this regard to their death especially in the prime of their life, here a 29-year-old young woman.
    
15. I am conscious that the maximum penalty is always reserved for the worst offence. And I take due account that the facts circumstances here do not attract it as the worst case. In this regard Avia Aihi v The State (No 3) [1982] PNGLR 92 (5^th March 1982) but, here the fact is that the deceased was not suffering from a pre-existing condition with respect to her left lung, as in the case of an enlarged spleen unbeknown to the prisoner who assaulted and securing the death. This is not that case by the medical evidence which I have set out above relevant to the immediate area, the left lung. It was not diseased and therefore as in an enlarged spleen vulnerable to succumb to a rupture at the slightest amount of force. That is not the case here. Her left lungs were normal including the right. She was a healthy person not suffering from any disease so it was accelerated upon by his kick to her chest. The totality is that it cannot fall under category 1 in the tariff and range of spleen cases in Kovi’s case (supra). It cannot be 8 to 12 years given. Because by its fact and circumstances it is a lot more serious that category 1 in that case. The force is one factor here that sets it apart. It was upon a healthy individual. And the attack is repeatedly and compounded in that there were also four others who were involved leading to her demise. Not after some time but almost immediately after the assault on that part of the body. In my view it is likened to using an offensive weapon to part of the body that is well protected. Here the lungs are in a rib cage protected. The force would be extraordinary to go through that protection to cause the injury it did here. In my view it is analogous to the use of an offensive weapon to penetrate natures protective covering to give the injury. And it is a vicious attack because it is compounded and sustained encouraged by the prisoner leading to a case where she is gasping for air, foaming and been bubbly at the mouth. That is the character likened to having an offensive weapon and projecting protruding the covering that nature has engulfed to protect the lungs. It is a determined and persistent attack by five persons led by the prisoner against a lone woman who succumbs as a result. In my view it is likened to category 2 of Manu Kovi (supra) drawing 13 to 16 years imprisonment. She is not a pig who has been brought to slaughter to celebrate an occasion. She is a human being who had a long way to live. She was only 29 years old.
    
16. I am mindful that for all intent and purposes I am not shackled in my sentencing discretion which is the dictate of the Legislature for all intent and purposes open given. Shackling the discretion of the Court by this means is with the greatest respect amounting to legislating. And the courts are not by law in that domain. Application of the law to a given set of situation or circumstances is indeed the domain of a court. I am not alone in this regard with reference to Kumbamong v State [2008] PGSC 51; SC1017 (29 September 2008). From which I draw that all facts in the presentence report must be given their proper weight not lip service. And that I do here in the consideration of this sentence under the various heads of the sentence. It is good practise to take account of similar facts and circumstances in sentencing, but the overall driver should be the immediate facts circumstances at hand in an offence Simbe v The State [1994] PNGLR 38 (2 March 1994).
    
17. Viciousness of the attack, persistence of the attack, as here, increases the sentence, because the resultant is very serious injuries, leading to death as this court held in State v Walus [2005] PGNC 147; N2802 (25 February 2005) 18 years IHL was imposed upon the prisoner who pleaded guilty to assaulting the deceased, who sustained a broken neck as well as a ruptured spleen from which she died. The assault was vicious drawing very serious injuries from which the deceased succumbed.
    
18. The State v Yambukai [2018] PGNC 342; N7465 (22 August 2018) was really a case of murder more than manslaughter because the prisoner was self-intoxicated by homebrewed alcohol and marijuana. He as a result assaulted the deceased continuously leading to her exiting blood from her vagina. She was pregnant and died the next morning. The matter was reduced because of plea bargaining. It did not see real justice because it was a lot more serious than it was projected. The sentence of 10 years was shallow and did not gauge that life was sacred and sanctified. In fact, there was a life within the womb of the mother that also succumbed. It was a decision of another National Court and did not necessarily tied with the facts and circumstances in the present case. Its application is not on point with the present. Because that was by its agreed fact category I which is not the present case as set out above. State v Lahuwe [2018] PGNC 518; N7625 (7 December 2018) is not applicable here because it was stabbing with a knife to the side of the wife from which she died. It was really a category 2 within Kovi’s case. And a suspended sentence was clearly disproportionate given that fact. The same goes for State v Tiki [2013] PGNC 51; N5219 (14 May 2013) a brick was used to break her skull he should have been charged convicted with murder not manslaughter. Even in the latter it was more category 3 more than 1. And the same is so of both State v Kange [2021] PGNC 119; N8888 (16 June 2021) which was a very serious case and would have fitted into category 3 not 1. And in the case of State v Joel Tiampo [2021] N9261 it was a sentence that was out of proportion to the guidelines in Manu Kovi and should be appealed to set it on par. It is not applicable here by the facts here. Slavishly following guidelines will not end homicide once and for all. The justice due in one case does not fit all.
    
19. The prevalence of this offence including all other homicide offences gives comfort that each case must be drawn its sentence derived from its own facts and circumstances, Tapi v The State [2000] PGSC 2; SC635 (30 March 2000) the supreme court maintained that it was the top end of manslaughter cases for 16 years to have been imposed on a husband who had cut up the wife causing massive bleeding from which she died. Where a weapon is used the sentence goes up a piece of iron rod was used to hit the deceased over the head and he died as a result which attracted 17 years imposed upon the prisoner State v Aitsi No 2 [2008] PGNC 21; N3296 (28 March 2008). This is not a one punch situation as in Rex Lialu v The State [1990] PNGLR 487. There 4 years imprisonment was considered disproportionate and 6 years was substituted on appeal. That was in 1990. This is 2022 the law must take account with the lapse of time. It is not static. Sentencing discretion is not frozen with the lapse of time.
    
20. Because "Manslaughter is a very serious matter or offence and it carries a maximum penalty of life imprisonment. And the life imprisonment is because a life is gone and that person is never going to come back. "No matter whose fault it is, the person is dead and it is tragic. I cannot ignore the fact that you were carrying a knife with you at the time and unfortunately this court sees time and time again women who are walking around everywhere, not just in the Highlands, in many places of the country who are carrying knives and so much harm comes out of it. You stabbed her twice and what makes this case even sadder than everything is that the deceased was seven months pregnant. And the State has asked me to take that into consideration as an aggravating circumstance. As I understand the foetus died and the whole incident is tragic. It is sad and it should never have happened. You have done something that you will have to live with for the rest of your life.... I cannot ignore the fact that not only did the lady die but the seven months foetus has died as well. Women must realize that they cannot express their anger with the use of a knife; it is just not acceptable under any circumstances. If they do so, they can expect to go to jail." Marangi v The State [2002] PGSC 15; SC702 (8 November 2002). That is applicable here because the prisoner was determined and ready to extinguish any reliance upon the law and the rule of law. He was very persistent undeterred and wilfully encouraging and leading. It is as if he was armed and pursuing to attain his revenge. The law will not be light given.
    
21. This view has been confirmed in Tanga v The State [1999] PNGLR 216 (19 April 1999) where the appellant challenged the 12 years imprisonment that the court imposed arguing that it was excessive. He had repeatedly punched her all over her body. When she passed out he carried her to another location along the river bed. When she regained consciousness, he repeatedly punched her until she was not moving. She was dead when taken to the hospital. The Supreme Court dismissed the appeal confirming the 12 years that was imposed for manslaughter stating that sentences are set out by the legislature not by tariff and range leading defendants to believe it would be 6 years as in Lialu supra).
    
22. I consider in all the circumstances weighing the aggravating as well as the mitigating factors of the case that a just and proportionate sentence in your case would be 15 years IHL with reference to the fact that it is category 2 offence within tariff and range proposed in Kovi’s case supra. And I impose that upon you. Compensation is a token of peace reconciliation, but not a dictate to reducing sentence, time in custody is not paid out nor is it deducted with the payment of compensation. It is one of the matters weighed. Here you were the leader the instigator of this assault compounded and vicious against the deceased in retaliation of her assault upon you two days prior. It was still to be settled lawfully. You were determined to take the law into your own hands disregarding the sanctity of life.
    
23. In my view 15 years imprisonment in hard labour is proportionate to considering. Time in custody of 1 year 3 months 2 weeks will be deducted forthwith. You will serve the balance of 13 years 8 months 2 weeks in jail IHL. There will be no suspension in view of all set out above.
    

Sentenced accordingly.

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Defendant