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State v Bobby [2024] PGNC 328; N10998 (2 September 2024)

N10998

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 2194 OF 2023

THE STATE

V

OMAI BOBBY

Waigani: Miviri J
2024: 09^th, 20^th & 29^th August, 2^nd September

CRIMINAL LAW – PRACTICE AND PROCEDURE – Manslaughter S302 CCA – Plea – Drunken Dispute – Deceased Pushed Backwards Falling – Head Hit on Hard Service – Skull Fracture – Internal Bleeding – First Offender – Unlawful Action – Death Resulting – Prevalent Offence – strong deterrent sentence – 8 years IHL.

Facts

Accused pushed the deceased who fell backwards and hit his head on a hard surface fracturing his skull from which he died.

Held

Guilty plea
First time offender
Protection of Life
Prevalent Offence
8 years IHL
Remand Deducted

Cases Cited:
Lialu v The State [1990] PNGLR 487
Kovi v The State (2005) PGSC 34; SC789
Avia Aihi v The State (No 3) [1982] PNGLR 92
Kairi v The State (2006) PGSC 8; SC831
Tapea Kwapena v The State [1978] PNGLR 316
Aquila v Independent State of Papua New Guinea [2020] PGSC 113; SC2023
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
Public Prosecutor v Hale [1998] PGSC 26; SC564

Counsel:

S. Kuku & M. Tamate, for the State
F. Bomal, for the Defendant

SENTENCE

2^nd September 2024

1. MIVIRI J: Omai Bobby of Kapuna village, Kikori District, Gulf Province appears to be sentenced for Manslaughter of Alex Gusi after pleading guilty to the Indictment pursuant to section 302 of the Code.
   
2. He was arraigned that on the 13^th June 2022 between 5.00pm to 7.00pm the Accused was consuming alcohol beside the drain along Cobon Street Gordons in the National Capital District with three others, a Damien, Manu, the deceased and a woman. She was lying naked on the ground whilst the four men were sitting around her. The deceased Alex Gusi and the Accused argued over accused taking the woman home. It developed into a physical fight between them. The Accused pushed the deceased with force causing him to fall and hit his head against the concrete drain surface. This hit on the head caused the deceased to fracture his skull resulting in internal bleeding leading to his death. The Accused unlawfully caused the death of the deceased contrary to section 302 of the Manslaughter of the Criminal Code Act.
   
3. That section 302 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. He pleaded guilty confirming the facts set out above. This is what the Supreme Court saw in Lialu v The State [1990] PNGLR 487 where the appellant had hit the deceased with one punch, and he fell backwards onto the hard bitumen surface where four and half years was substituted for seven years in 1990. This is 2024 and the offence is prevalent as ever. Here is a case of a drunken condition of both the prisoner and the deceased that has landed in the death of the deceased, over who was to take the woman naked there with them home. I have been urged by the State that the prisoner was trying to save the woman naked there. There is no evidence to this effect in the file that has been tendered into court. This submission would hold water if there was evidence to stand from. I do not take that submission in determining this sentence without the evidence.
   
5. On the other hand, the defence have not pushed this fact but have simply urged at the lower end of in the vicinity of eight (8) to twelve (12) years following Kovi v The State [2005] PGSC 34; SC789 (31 May 2005). It is not a planned offence. It was during a drunken argument over a woman that both men were drinking with. Each thought that she would go along with him. The force used was minimal but because of the drunken condition of the deceased it led as it did to injuries that he sustained because of falling backwards. It is death that has unnecessary occurred. He is a first offender aged 24 years by the presentence report that has been filed as of the 23^rd August 2024. He does not demonstrate educational qualification over and above grade 2 Hohola Demonstration School. He has brief work history in 2018 with a company XYZ Construction Company for 1 year 6 months. After loss of that employment, he worked informally earning K400 to K 500 to sustain his family. He is married with a son age not disclosed presumably determining from his age very young. Of the SDA Christian faith, he has no prior convictions known to the law. He has pleaded guilty and expresses remorse for the offence.
   
6. Manslaughter by its penalty provision emphasizes section 35 the right to life under the Constitution. It is a basic right in the Constitution so the unlawful taking of a life as here will draw the maximum of life imprisonment for the offence. That will be so if it is the worst case of its kind: Avia Aihi v The State (No 3) [1982] PNGLR 92. In my view it is a serious offence of manslaughter but not the worst. It is a culmination of an action between two drunken over a single woman so a proportionate term would be determinate term of years balanced out with facts and circumstances. A proportionate sentence will be the aggregate after consideration of all mitigating, aggravating, and any extenuating circumstances. He was not acting in self-defence of another within law similar as Kairi v The State [2006] PGSC 8; SC831 (28 April 2006). He demonstrates no justification either in fact or law for his actions against the deceased. It cannot be likened to the deceased as having any weapon that he was using in a menacing manner against the prisoner to justify the attack by the prisoner on the deceased. No evidence has come to light within the realm of Tapea Kwapena v The State [1978] PNGLR 316. Prisoner was acting during self-preservation on the threat that was issued by the deceased. This is not what the facts here disclose to warrant what the prisoner did.
   
7. It is not a case of compensation paid for the wrong. But even then, it would not cut down some time because of that fact: Aquila v Independent State of Papua New Guinea [2020] PGSC 113; SC2023 (29 October 2020). Because by law, the Criminal Compensation Act is a maximum of K5000 and not more. Here the payment exceeds that amount. And it does not mean that the prisoners will now have some of the time due in law for the crime reduced. The haves will pay their way out of jail, the have nots will go to jail. There are no two sets of laws one for the former and the other for the latter. Therefore, the payment of compensation at the highest is levelling the relationship between the offending and grieved no more no less.
   
8. The life of a fellow human being must be accorded respect by some time spent in custody. And coupled with all set out above the facts and circumstances posed individually: Lawrence Simbe vs. The State [1994] PNGLR 38, do not warrant and entail a non-custodial 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).
   
9. 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. This is a push that landed the head leading to death but would not be likened to 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. That would be tipping the scale in seriousness comparably here. It is relevant to underline that "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).
   
10. 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 of a custodial term at the lower end of Manu Kovi (supra). The presentence or probation report does not contain material that outweigh to impose a non-custodial term: Public Prosecutor v Hale [1998] PGSC 26; SC564 (27 August 1998).
    
11. I consider that 8 years IHL is appropriate, and I impose that upon the prisoner for the crime of Manslaughter committed on the 13^th June 2022. Time spent in remand awaiting is deducted and he will serve the balance in Jail.
    

Sentenced accordingly.

Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Defendant