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State v Geruye [2024] PGNC 190; N10862 (11 June 2024)

N10862

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1105 OF 2021

THE STATE

V

MARITIN BOMB GERUYE

Minz: Miviri J
2024: 10^th & 11^th June

CRIMINAL LAW – PRACTICE AND PROCEDURE – Manslaughter S302 CCA – Plea – Deceased Neck Cut with Bush knife – Instant Death – Attack on Public Road – Allegation of Sorcery Over Death of Relative – Unlawful Action – Neck and Cervical Vertebrae Severed – Instant Death – First Offender – strong deterrent sentence – Prevalent Offence – 19 years IHL.
Facts
Accused cut the neck of Deceased over allegation of Sorcery killing him instantly.

Held
Guilty plea.
First time offender.
Protection of Life
Prevalent Offence
18 years IHL

Cases Cited:
Avia Aihi v The State (No 3) [1982] PNGLR 92
Kairi v The State [2006] PGSC 8; SC831
Kovi v The State [2005] PGSC 34; SC789
Lialu v The State [1990] PNGLR 487
Lawrence Simbe vs. The State [1994] PNGLR 38
Kumbamong v State [2008] PGSC 51; SC1017
State v Hurotove [2017] PGNC 114; N6754
Tapi v The State [2000] PGSC 2; SC635
State v Walus [2005] PGNC 147; N2802
Marangi v The State [2002] PGSC 15; SC702
State v Hagei [2005] PGNC 60; N2913
Tardrew, Public Prosecutor [1986] PNGLR 91
Acting Public Prosecutor v Mailai [1981] PNGLR 258
Public Prosecutor v Hale [1998] PGSC 26; SC564
State v Kapoi [2021] PGNC 181; N9021
State v Kolokolo [2021] PGNC 74; N8849
State v Tony [2017] PGNC 125; N6774
State v Nicholson [2016] PGNC 247; N6442
State v Kande [2021] PGNC 251; N9104

Counsel:
J. Kesan, for the State
R. Mangi, for the Defendant

SENTENCE

11^th June 2024

1. MIVIRI J: Martin Bomb Geruye of Banzamil village, Banz, Jiwaka Province appears to be sentenced for Manslaughter of Miling Suwi after pleading guilty to the Indictment pursuant to section 302 of the Code.
   
2. He pleaded guilty that on 05^th day of March 2021 at Banzamil village, Banz, Jiwaka Province he cut the neck of Miling Suwi who was at the funeral at Banzamil. The deceased there was his uncle one Peter Kiss. It came out there that wife of the deceased had committed adultery with the deceased who was responsible through Sorcery for the death of the deceased. He saw the deceased accompanied by his wife and brother escorting him away after being assaulted at the funeral gathering. He was armed with a bush knife that he swung at the back of the neck of the deceased cutting him. Then left him and ran away. Deceased walked a few meters away collapsed onto the ground and died. He was pronounced dead upon arrival at the Hospital and left in the morgue.
   
3. The charge is pursuant to section 302 of the offence of Manslaughter which is in the following terms, “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.”

4. The prisoner could be sentenced to the maximum of life imprisonment for the offence. Which draws if his offence is of the worst case of its kind: Avia Aihi v The State (No 3) [1982] PNGLR 92. It is one of the most serious offences of manslaughter but not the worst. So, the maximum penalty of life imprisonment will not flow. But surely a determinate term of years will be accorded his facts and circumstances. Which is the balance proportionate after consideration of all mitigating, aggravating, and any extenuating circumstances. What remains outstanding and bold at the outset is the fact that the deceased was cut with a bush knife to the neck, severing the cervical vertebrae as set out by the medical report dated the 09^th March 2021. The words of Doctor Peter Kolkia at the Mt Hagen Hospital state that, “(a) High Cervical Spinal Injury and Haemorrhoid Shock. (b) Bush knife wound to the Left Neck.” That medical report is an attachment to the affidavit by the Doctor dated 09^th March 2021. It shows instant death of the deceased because of that injury. It is gruesome detailed out by the photographs that the police have reproduced of the extent of the injuries taken off by the police informant who collected. The neck is cut in a zagged cut around just at the base where it meets the shoulders under the right ear. It severed the cervical spine C3 and C4 extending the right edge of the vertebral body. It is independent evidence of the extent of the force that was exerted in the bush knife that the prisoner used on the neck of the deceased. The left vertebrae artery and internal carotid artery were both severed including the spinal code. It details out the massive blood loss that is set out by the doctor. These are the details in the postmortem report dated 09^th March 2021 conducted 1529hrs by Doctor Peter Kolkia of the Mt Hagen Provincial Hospital. Which dates death as of the 05^th March 2021. The deceased was Miling Siwi aged 42 years old.
   
5. The law has been breached in the death of the deceased, which impact does not show similar as Kairi v The State [2006] PGSC 8; SC831 (28 April 2006). There is no justification either in fact or law for the actions of the prisoner. And it is perpetrated on a public area as he left from the funeral after fighting that happened there. It is concentrated to an extent where it can be termed a determined effort to eliminate the deceased. Because the actions of the prisoner follow and earlier attack by others at the funeral. It was not content that he was assaulted by the others but that the prisoner also set out as is set out above. Which is serious aggravation when a fellow human being is set out in this way. Because it is defiance of the rule of law. Particularly given that the prisoner is educated to university level at the Divine Word University where he was going to do third year physiotherapy. He had no excuse for the way that he behaved. It is a reoccurring and very prevalent offence that calls for the protection of life and the enforcement of section 35 the right of life under the Constitution.
   
6. I am reminded of Kovi v The State [2005] PGSC 34; SC789 (31 May 2005) that I am sentencing on the basis that a dangerous weapon, a bush knife was used mercilessly upon the deceased who stood no chance of survival in the way a very vital part of the human autonomy, the neck was cut. Because the carotid left vertebrae artery and internal carotid artery were both severed including the spinal code. There is in my view planning to be able to deliver with precision that blow on the sudden upon an unsuspecting unarmed victim. And in my view, it would warrant a sentence at the third category scale set out by the guide in Manu Kovi (supra), drawing 17 to 25 years imprisonment. There is little or no regard for human life because through the neck is life giving blood to the brain so one is a human being. A human without a head is not a human being. To be cut at the neck in this manner is viciousness in its raw form. It cannot be downplayed by plea bargaining. There are therefore special aggravating features that warrant that sentence here must be determined by the individual facts and the circumstances. Which when considered in the light of the National Court cases sited by counsel do not bear out the seriousness of this case. This is not a simple punch to the abdomen rupturing the spleen to draw 10 years imprisonment: Lialu v The State [1990] PNGLR 487. I reject submissions by both counsels given.
   
7. I hold that it is the facts and circumstances posed individually: Lawrence Simbe vs. The State [1994] PNGLR 38, that will warrant and entail sentence against the prisoner. No one case is the same and will be subject only to the will of the legislature inscribed here of life imprisonment. To adhere to tariff and range will be legislating not the territory of the Courts Kumbamong v State [2008] PGSC 51; SC1017 (29 September 2008). The prevalence of the offence imposes upon the Court duty to impose sentences that will punish and have a deterrent effect on like or would be offenders, State v Hurotove [2017] PGNC 114; N6754 (5 June 2017). In manslaughter the Court has emphasized in Tapi v The State [2000] PGSC 2; SC635 (30 March 2000) maintaining 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. Here it is the same scene of the prisoner who is educated but saw no light with it except divulging into a viciousness cutting of the neck 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. 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.” Marangi v The State [2002] PGSC 15; SC702 (8 November 2002).
   
8. But it remains prime that a Life of a human being is not cheap by section 35 the right to life. That is mandatory and a fundamental right with the use of the words that it cannot be deprived intentionally. There is nothing exceptional setting out sentence from the ordinary: State v Hagei [2005] PGNC 60; N2913 (21 September 2005). Here I bear in mind the observation made for suspension of sentence in Tardrew, Public Prosecutor [1986] PNGLR 91. There is nothing warranting a sentence other than appropriate by the facts circumstances here Acting Public Prosecutor v Mailai [1981] PNGLR 258. I do not have the benefit of a presentence or probation report to see a non-custodial sentence, Public Prosecutor v Hale [1998] PGSC 26; SC564 (27 August 1998). There is no record of any orders made by this Court even before entry of the guilty plea entailing a presentence report in the way counsel for the defence has contended. The cart does not come before the house. A guilty plea has been entered but no submissions made requesting a presentence report. Consequently there is no basis for suspension of the sentence.
   
9. Prisoner expressed very sincere remorse for his actions to GOD the laws of the Country, including family and relatives of the deceased. He took responsibility for his actions that took the life of the deceased. And of any consequences that came with it. Now Pastor of the PNG Revival Church he accepted that amends be made in his life. He explained that he had joined others to escape from jail, but he was serving time for it. And gave details of his voluntary surrender to the law after. He was serving time for it. It was not a prior conviction as it come out after his dent
   
10. The time he has spent in custody awaiting determination of this matter will be deducted from the time imposed for the offence. Each case comes with its own set of facts and circumstances. But it is relevant to consider like offences that have drawn sentences for like offences as in State v Kapoi [2021] PGNC 181; N9021 (13 August 2021) which in my view does not spell out in equal with the facts of the present because the neck of the deceased is cut. Who is unarmed and dies because of persistent and determined assault on the basis of an allegation of sorcery. That sentence will not be on par with the facts here. It would amount to the scene painted out in State v Kolokolo [2021] PGNC 74; N8849 (26 February 2021), because that is a deliberate attack with the knife stabbing him in the legs leading to his death. Where there is deliberate attack with an offensive weapon it must draw serious consequences in the sentence imposed. In this regard I am not bound by that decision here given my facts and circumstances. Nor would I be in the case State v Tony [2017] PGNC 125; N6774 (21 April 2017). As is the case there here being deliberate use of the knives to cut and inflict the injuries that lead to death. This is not a case of continuous physical violence over a period so that it will fall similar as in State v Nicholson [2016] PGNC 247; N6442 (25 July 2016). Nor would it equate State v Kande [2021] PGNC 251; N9104 (2 September 2021). Because she sets out in response to the deceased call with a knife in preparation for what the deceased was going to do to her. That in my view is a lot serious than the present.
    
11. Yes, He is a first offender who has pleaded guilty but now has taken amends in her prison life now a pastor of the PNG revival Church. Coupled with his guilty plea it is recognizance of the gravity of what he has committed. He will serve his sentence and come back to life outside, but it does not leave out the fact that the deceased will not return ever, no amount of compensation will bring him back, Lialu (supra).
    
12. The aggregate is he is sentenced to 18 years imprisonment in hard Labour forthwith. His time awaiting on remand will be deducted forthwith. He will serve the balance in jail.
    

Sentenced accordingly.

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