N10168

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 323 OF 2019

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

V

JAMIE VISSER

Vanimo: Thoke, AJ
2022: 18th & 21st February

CRIMINAL LAW – Sentence – s.302 of the Criminal Code – Manslaughter – Prisoner was provoked and assaulted by deceased- Conviction upon Guilty Plea – Suspended Sentencing

On 9 September 2018, between 4.00 to 5.00 AM, the Accused, Jamie Visser unlawfully killed Pais Maka. The instrument by which the killing was occasioned was by a boom box.

Cases Cited:

Manu Kovi v The State (2005) SC789
Goli Golu v The State [1979] PNGLR 653
Lawrence Simbe v The State [1994] PNGLR 38
State v George (2021) PGNC 98; N8776
State v Jimmy Mogoi (2012) N4680
State v Elias Peter Wano Miva (2006) N3454
State v Billy Joel (2014) N5797
Kumbamong v The State (2008) SC1017
State v Willie Cr. No. 269 of 2020
State v Malas Wamii Cr. No. 615 of 2019
State v Mambe (2014) N6527 
State v Simon Moses (2017) N6617
State v Mano (2019) N8238
State v Vealolo (2019) N7802
State v Kairu (2022) N9826
State v Samuel Kalib CR. No. 318 of 2013
State v Namaliu [2020] PGNC 234; N8506
State v Tardew [1986] PNGLR 91
State v Frank Kagaii [1987] PNGLR 320

Counsel:

Ms. Linda Maru, for the State
Mr. Paul Moses, for the Defendant 

DECISION ON SENTENCE 

21st February, 2022

1.	THOKE AJ: On 9 September 2018 at about 3.00 AM, the Prisoner, Jaimie Vissor, was drinking alcohol with four (4) of his friends – Junior Gubon, Diana Wanum, Rosela Sio, and another [who was unnamed in the Record of Interview] – at the residence of one Simon M’ledu at West Tower, Vanimo, West Sepik Province.

2.	Sometime after, the Prisoner and his party left the residence and were walking along the West Tower road. Somewhere near the Lutheran Church they met a police officer, Freddy Kakaukra, with whom they entered into conversation.

3.	While the Prisoner and his party were engaging in conversation with Mr. Kakaukra, the Deceased approached the party and questioned the Prisoner about an incident which had occurred earlier in which the Prisoner had sworn or punched a friend of the Deceased.

4.	An argument ensued which escalated when the Deceased punched the Prisoner on the left side of his face. Before the situation escalated any further, Mr. Kakaukra held off the two and quelled the situation.

5.	An hour later, the Prisoner was walking along the road at West Tower on his way back home after dropping off his friends when he saw the Deceased on the road with Mr. Kakaukra and another, Jessie Kupe. The party of three were listening to music which was being played from a boom box belonging to the Deceased.

6.	The Prisoner approached the party and turned off the boom box. He then stepped aside to urinate. While he was urinating, the Deceased called out the actions of the Prisoner and scolded the accused, within earshot of the Prisoner, with words similar to the following:

“Em no tef bilong yu. Yu wrong! Em tef belong me. Yu wrong!”

That is:

“This is not your turf. This is my turf. Your actions [in turning the boom box off] is wrong!”

[Expansion of translation mine.]

7.	The Prisoner reacted by charging back and turning the boom box off again. The Deceased then repeated his earlier statement and scolded at him a second time.

8.	The Prisoner lost his temper, picked up the boom box, and swung the boom box on the Deceased’s face and head. The blow landed on the right eye brow of the Deceased causing a deep laceration just above the right eye brow. As the Prisoner was about to swing another blow with the boom box, Mr. Kupe intervened and fended off the Prisoner from the Deceased.

9.	Mr. Kupe then attempted to grab the Prisoner upon which the Prisoner fled the scene fearing Mr. Kupe.

10.	The Deceased was rushed to the Vanimo General Hospital (Hospital) for medical treatment where he was admitted. After a week of being at the Hospital the Deceased died from the injuries sustained from the attack by the Prisoner on 18 September 2018.

11.	The Prisoner, Jamie Visser pleaded guilty to one (1) count of manslaughter under Section 302(1) of the Criminal Code Act (Code). The Prisoner was convicted accordingly.

LAW ON SENTENCING TARIFFS FOR CONVICTION OF MANSLAUGHTER

12.	In Manu Kovi v The State (2005) SC789 the Supreme Court set out the following sentencing tariffs for convictions of manslaughter.

	Description	Details	Tariff	
1	Plea – ordinary cases – mitigating factors – no aggravating factors.	No weapons used – offender emotionally under stress – de facto provocation – killing in domestic setting – killing follows straight after argument – minimal force used – victim had pre-existing disease that caused or accelerated death, eg enlarged spleen cases.	8-12 years	
2	Trial or plea – mitigating factors with aggravating factors.	Use of offensive weapon, eg knife, on vulnerable parts of body – vicious attack – multiple injuries – some deliberate intention to harm – some pre-planning.	13-16 years	
3	Trial or plea – special aggravating factors – mitigating factors reduced in weight or rendered insignificant by gravity of offence.	Dangerous or offensive weapon used, eg gun, axe – vicious and planned attack – deliberate intention to harm – little or no regard for sanctity of human life.	17-25 years	
4	Worst case – trial or plea – special aggravating factors – no extenuating circumstances – no mitigating factors, or mitigating factors rendered completely insignificant by gravity of offence.	Some element of viciousness and brutality – some pre-planning and pre-meditation – killing of harmless, innocent person – complete disregard for human life.	Life imprisonment	

13.	In Goli Golu v The State [1979] PNGLR 653 [and many other cases that have followed on its heels], it has been well fortified in our jurisdiction that the maximum penalty is only reserved for the worst case and that each case should be determined on its own particulars.

14.	Despite sentencing tariffs and comparative precedents, Section 19 of the Code provides the Court with a broad discretion on sentence and every sentence should be determined according to its own facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38.

SUBMISSION BY THE STATE

15.	The State in its submission set out the following aggravating and mitigating factors:

(i)	Aggravating Factors

(a)	a boom box was used to inflict the deadly wound

(b)	the Deceased was unharmed and defenseless

(c)	the Prisoner intended to cause grievous bodily harm

(d)	the Prisoner’s efforts to deliver other blows was stopped by Mr. Kupe

(e)	the Prisoner was intoxicated

(ii)	Mitigating Factors

(a)	the Prisoner is a first time offender

(b)	the Prisoner expressed remorse in Court to the family of the Deceased

(c)	the Prisoner pleaded guilty early

(d)	there was some element of de facto provocation

16.	The State assisted the Court with the following cases involving De facto provocation for comparison:

(i)	State v George (2021) PGNC 98; N8776

The Prisoner, a 42-year-old pleaded guilty to one (1) count of manslaughter under Section 302 of the Code. The Prisoner was a person of very little education who killed the Deceased an 83-year-old man with a bush knife. The killing was a result of a land dispute. The Prisoner inflicted serious multiple injuries on the Deceased’s right hand and left arm. The Court imposed a sentence of 15 years in hard labor less pre-trial custody period of 1 year and 5 days. The Prisoner served the balance of 13 years 11 months 3 weeks 2 days in custody.

(ii)	State v Jimmy Mogoi (2012) N4680

The Offender pleaded guilty to one count of manslaughter. The Deceased and his friends had earlier on assaulted the Defendant with an iron rod resulting in him sustaining superficial wounds to his body. The Defendant armed himself with a kitchen knife and went to a nearby market. A few hours later he saw the Deceased and his friends at the market and chased the Deceased. He stabbed the Deceased on the chest. The wound was a deep one and the Deceased died almost instantly from severe loss of blood. The Court found that there was a high degree of de facto provocation and the Court imposed a sentence of 13 years in hard labor.

(iii)	State v Elias Peter Wano Miva (2006) N3454

The Offender pleaded guilty to one count of manslaughter after the Deceased died from a severe head injury that the Offender had inflicted upon him with a bush knife during a drinking party. The Accused was sentenced to 16 years in hard labor.

(iv)	State v Billy Joel (2014) N5797

The Offender was a person who was trying to stop a fight between the Deceased and another man. It was during this time that the Offender accidentally stabbed the Deceased on the chest with a knife. He pleaded guilty to manslaughter. He expressed remorse and was a first-time offender. A sentence of 12 years in hard labor was imposed.

17.	The State submitted that this case falls within Category 1 of the Manu Kovi guidelines and should attract a sentencing range of 8 – 12 years in hard labor.

18.	Further, the State also added, apart from the aggravating factors above, that the Deceased was a teacher who added value to the lives of children in Vanimo and the Nation. Thus, the loss of his life negatively impacts on children and education in Vanimo and the Nation as a whole.

19.	The State concluded by submitting that the appropriate sentence would be 10 years less the pre-trial custody period.

SUBMISSION  BY THE DEFENCE

20.	The Defense set out the personal particulars of the Prisoner as a male age 29 years, from Kiorata village, of the Sohe District in Oro Province, whose wife deserted him, while he was in custody. He is a member of the Christian Brethren Church, and is the only child born out of wedlock to Able Taima of Kiorata, Oro Province and Serah Visser from Jayapura, Indonesia. His biological mother deserted him at birth and left him in the care of his grandmother, Lyn Visser, who raised him up as her son. He is only educated up to Grade 9. He last attended Vanimo Secondary School in 2009. He had no interest in school so he left school thereafter. In 2010, he completed an IT certificate course at Hytech School in Vanimo. In 2011, he attended Popondetta Skills Training Institute and completed an auto-mechanic course. He was later employed as a Security Guard with the Sandaun Fuel Service Company in 2012. After a year he resigned to do his own fuel sales business. In 2013, he got employed as a driver with Bewani Oil Palm Limited but he crashed the company vehicle and was terminated. He was unemployed at the time of the offence.

21.	Further, the Defence in its submission set out the following mitigating and aggravating factors:

(i)	Mitigating Factors

(a)	the Defendant pleaded guilty

(b)	the Prisoner is a first-time offender

(c)	the Prisoner was remorseful

(d)	the Prisoner acted alone

(e)	there was strong provocation by the Deceased

(ii)	Aggravating Factors

(a)	loss of life

(b)	such offence is prevalent in this Province – i.e. West Sepik

22.	The Defense then assisted the Court with the following cases for comparison, in determining an appropriate sentence for the prisoner. 

(i)	Kumbamong v The State (2008) SC 1017

The Appellant appealed a sentence of 9 years on a charge of manslaughter. The appeal was on the basis that the sentence was manifestly excessive and that although the trial judge indicated that he took mitigating factors into account, it was not reflected in the final sentence.

In the case, the Appellant had killed her husband’s girlfriend. It was alleged that the husband spent more time and money with the Deceased than the Appellant. The Appellant offered that the Deceased live with them so that her husband could take care of the both of them. The Deceased then started verbally insulting the Appellant and thereafter attacked the Appellant with a knife. The Appellant wrestled the knife away from the Deceased and stabbed the Deceased. Though the defenses of provocation and self-defense existed, the Appellant chose not to take them up.

The Supreme Court reconsidered the principles of criminal sentence and stated that not every case is appropriate for incarceration. This is especially in cases where offences are not committed consciously. It was held that the focus of the Courts should be on rehabilitation and sparing where appropriate.

I quote paragraph 64 for ease of reference:

“This court is of the view that it is high time now to review the society’s approach to dealing with the offenders through the courts. Not every case if human error is criminal and not every criminal case warrants imprisonment. The courts need to re-examine and identify cases that require imprisonment for the protection of the society and the cases that do not warrant imprisonment but correction outside the prison system. This is not a new thing. The courts have been doing that of centuries but have failed to guarantee safer societies. What is new, however is the question of what should be primary focus of criminal sentence and the suggested answer of correction and rehabilitation and not necessarily imprisonment in prisons. Adopting such an approach would enable the courts to address that which matters most, which is the emotional needs of an offender and the society as a whole for a safer society. 

The Supreme Court ordered that 2 years 1 month in pre-trial custody was sufficient. The balance of 6 years 11 months was suspended on conditions of recognition to keep the peace and to be of good behavior for period of suspended sentence.

(ii)	State v Willie Cr. No. 269 of 2020

This case was dealt with in Vanimo in 2021 before Rei AJ. The Prisoner assisted her aunt and cousin brother to attack a drunkard with a piece of timber. Those drunkards swore at his cousin and aunt and were about to assault them when the offender came to their rescue and hit the Deceased on his head. The Deceased was taken to Vanimo General Hospital where he died.

The Court sentenced the prisoner to 12 years of imprisonment, in which 6 years was suspended.

(iii)	State v Malas Wamii Cr. No. 615 of 2019

The Offender was charged with willful murder. The matter proceeded to trial on the defense of provocation. The Offender was acquitted of willful murder but convicted of murder only.

In this case, the Deceased had unlawfully entered the home of the Offender and his family whereupon he began cutting his kitchen house and the post and the side walls of the house that the Offender was sleeping in. The Accused got angry, retrieved his spear gun, and shot the Deceased in the chest killing him.

The Court imposed a sentence of 12 years in hard labor of which 6 years was suspended.

23.	The Defense agreed with the State that this case falls within Category 1 of the Manu Kovi guidelines and should attract a sentencing range of 8 – 12 years in hard labor.

24.	The Defense argued strongly for a suspended sentence on very strict conditions. The argument was primarily on the basis that the prisoner needed rehabilitation, as he had not grown up under the guidance of his biological parents but under the custody of his grandmother. Thus, such upbringings were tough. Further, it was added that he and his grandmother resided alone.

FURTHER COMPARATIVE CASES

25.	The State v Mambe (2014) N6527, Batari J, in which the offender was convicted of manslaughter following a trial. The offender confronted the deceased on the road in a settlement in West New Britain. After a short altercation over complaints that the offender still owed the deceased K50.00, the offender assaulted him with his fists. After he fell and was lying on the ground, the deceased kicked him on the side of his ribs. He died a week later due to internal bleeding. Batari J found that the offending fell within category two having regard to the not guilty plea, and the violence used, showing a deliberate intention to harm. He was sentenced to 10 years of imprisonment, less time spent in custody, with two years, 9 months suspended leaving 6 years to serve;

26.	The State v Simon Moses (2017) N6617, Cannings J, in which the offender pleaded guilty to the manslaughter of his baby child. The baby was in Modilon General Hospital and the offender assumed the task of swinging the baby, which was in a bilum, to relax the child. He negligently swung the bilum with too much force, causing the baby’s head to hit a hard metal object. The baby died instantly due to intra-cranial bleeding. He pleaded guilty and was sentenced to 10 years’ imprisonment. The court found that whilst it was mitigating that death arose from negligence rather than a deliberate act, the high degree of negligence was an aggravating factor;

27.	The State v Mano (2019) N8238, Kaumi J, the offender had been drinking with the deceased at the offender’s house in Lae. Later that night the deceased sent the offender out on an errand. When the offender returned, he heard the deceased calling the name of his wife. This made him angry and he kicked the deceased on the chest and he fell down and hit the back of his head on the cement floor. The deceased died a week later from blunt force trauma to the head. The offender pleaded guilty and was sentenced to 8 years of imprisonment, less time spent in custody, but for three years to be served in custody, the balance was suspended on conditions;

28.	In The State v Vealolo (2019) N7802, Susame AJ, the offender was with his wife at their home in the village in East New Britain Province. The prisoner asked the deceased for the file to sharpen his knife. He became angry when she handed it to him and it was wet. In his anger the prisoner swung the bush knife against the bamboo seat. The knife slid on the surface of the bamboo seat and cut his wife on the right calf muscle at back of the knee causing a deep wound. The deceased was rushed to the nearby aid post at Lau. From there she was referred to the aid post at Rali but died along the way. The prisoner voluntarily surrendered to police and confessed to the killing. He was sentenced to serve 8 years of imprisonment, which was wholly suspended.

29.	In The State v Edmund Kairu (2022) N9826, this is a case that came before me, whereby, the Prisoner pleaded guilty to the charge of Murder. The offence took place after an argument ensued over food, whereby, the prisoner used the aid of a timber to strike the deceased on the abdomen which led to his death.   There was no strong intent to cause grievous bodily harm. The prisoner was a first –time offender and acted solely. There were also elements of de facto provocation involved. Hence, I sentenced him to 12 years hard labor, however, after exercising my discretion under section 19 of the Criminal Code, K3,400.00 was paid as compensation and 7 years was suspended,  allowing him to serve the balance of 5 years in prison, less the amount of time served in pre-trial custody.

30.	In The State v Samuel Kalib; CR. No. 318 of 2013, Gabi J, the prisoner was charged with manslaughter for killing his maternal uncle. The circumstances giving rise to the case was that the prisoner was drunk and was in the company of other drunken youths. One of the drunken youths went and caused some damage to the deceased’s house. The prisoner went to stop the youth and a fight broke out between them. Whilst they were fighting the deceased returned from his garden and without finding out first who caused the damage to his house, he assumed that the prisoner was the one who caused damage to his house so he hit him on his head with a piece of firewood. The prisoner fell unconscious and the deceased continued to hit him. The prisoner got up and ran away and the deceased chased after him. The prisoner picked up a stone and threw it at the deceased. The stone hit the deceased and he fell down and died a few minutes later. The medical report showed that he died of a ruptured spleen.

31.	In sentencing the Prisoner, the court took into account that K5, 000 and 2 pigs was paid as compensation and sentenced the offender to 7 years less his pre-sentence custody period.

CONSIDERATIONS ON SENTENCE

32.	Firstly, the offence perpetrated by the Prisoner resulted in the loss of life of the Deceased. Regardless of the fact that the Prisoner may or may not have intended for the Deceased to die, when under the influence of alcohol, anything is bound to happen. As the old but wise adage goes:

“He who chooses the beginning of a road also choses where it leads to”.

Alcohol intoxication, bad temperament, recklessness, and general negligence in life leads to many bad places, and often death becomes one of those places these vices lead to.

33.	The fundamental right to human life is enshrined in Section 35 of the Constitution. For these reasons, manslaughter is a serious offence as indicated by the maximum punishment of life imprisonment. Our society and the laws of our jurisdiction places a high value on human life.

34.	The Prisoner’s early guilty plea brings this case under Category 1 of the Manu Kovi sentencing tariffs for conviction on manslaughter. That is, a sentence between 8 – 12 years in hard labor.

35.	In this regard, I note both the State and the Defense have, more or less, submitted for similar sentencing albeit a difference of 1 year. That is, the State submitted for 10 years while the Defense submitted for 9 years.

36.	The Defendant has also expressed remorse before this Court and to the Deceased’s family. Further, he had his Defense counsel submit that he is willing to pay a compensation of K5,000.00 to the Deceased’s family and relatives.

37.	As to the argued mitigating factor of strong provocation by the Defense, I am minded to tread gently. Youths and also adults in particular areas, especially in our suburbs and small towns participate in a never-ending toing and froing of provocations involving the use of threats and altercations, fights, score keeping, egoism, pride, and retaliation.

38.	The scuffle that happened between the Defendant and the Deceased was conceived out of a previous incident occasioned by the Prisoner for which the Deceased wanted to hold him accountable. This was the psychological environment that caused provocation of the offence by the Deceased.

39.	I find that there was provocation but it was not provocation to the extent that the Deceased was fully or solely responsible for the same. Both parties’ hands were not clean [as equity would put it].

40.	Next, though the Prisoner has stated that he did not intend to kill the Deceased, he did intend to cause grievous bodily harm to the Deceased. In doing so, he had no regard for human life and was criminally negligent. This argument goes both ways as an aggravating and mitigating factor.

41.	Regarding the Defense’s submissions on a suspended sentence, I find that the law has not been fully addressed on the same. The only convincing case cited is the Kumbamong v The State (2008) SC1017.

42.	In State v Namaliu [2020] PGNC 234; N8506, His Honor Berrigan J referenced State v Tardew [1986] PNGLR 91, State v Frank Kagaii [1987] PNGLR 320, and Kumbamong v The State (2008) SC1017 at par. 63:

“63.	In The State v Tardrew [1986] PNGLR 91 the Supreme Court set out three broad, but not exhaustive, categories in which it may be appropriate to suspend a sentence, namely: (i) where it will promote the general deterrence or rehabilitation of the offender; (ii) where it will promote the repayment or restitution of stolen money or goods; or (iii) where imprisonment would cause an excessive degree of suffering to the particular offender, for example because of bad physical or mental health. Suspension is not an act in leniency but a form of punishment that is to be served outside the prison system in the community interest to promote restitution or rehabilitation: The State v Frank Kagai [1987] PNGLR 320; affirmed Kumbamong v The State (2008) SC1017.”

[Insertion of Roman numerals mine.]

43.	I find that the nature of the Defense’s submission on behalf of the Prisoner falls in the first category. That is, suspended sentence is appropriate “where it will promote the general deterrence or rehabilitation of the offender”.

44.	I have taken into account the Pre-Sentence Report by the Probation Officer, Marilyn Binjari. In particular, that the Prisoner’s grandmother, Mrs. Lyn Visser has painfully recounted her rearing of the Prisoner. She has spoken well of his character. More, she has iterated that she is aging and she requires the Prisoner’s aid in repair and maintenance for the family guest house business and running errands for her.

45.	In the same Report, the community are also of the view that the Prisoner is a first-time offender and is not a threat to the community.

46.	Further, Ms Binjari has considered the Defendant a favorable candidate for non-custodial sentence.

ORDERS

47.	Accordingly, I make the following orders:

(i)	Sentence to a term of (9) years imprisonment with hard labour.

(ii)	Pre-trial custody of 3 years, 6 months and 3 days shall be deducted.

(iii)	The balance of the sentence shall be wholly suspended and the Prisoner shall enter into his own recognizance and released on probation with conditions.

(iv)	The Office of Community Based Corrections in Vanimo shall take charge of the Prisoner’s supervision and furnish his progress report, at quarterly intervals.

(v)	The Prisoner failing to comply to any or all of the probation conditions, will be arrested and brought before the National Court to show cause, as to why he should not be detained in custody to serve the rest of his term.

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