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Tapi v The State [2000] PGSC 2; SC635 (30 March 2000)

Unreported Supreme Court Decisions

SC635

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SCA 61 OF 1999
JOHN KAPIL TAPI
APPELLANT
THE STATE
RESPONDENT

Mount Hagen

Kapi DCJ Injia Sawong JJ
27 March 2000
30 March 2000

CRIMINAL LAW - Sentence - Manslaughter - Plea - Killing of Wife - 16 years - Principles and range of sentences for manslaughter discussed - Appeal dismissed - Criminal Code (Ch 292), S302.

Cases Cited

Rex Lialu v The State [1990] PNGLR 487

Antap Yala v The State Unreported judgment of the Supreme Court SCR 69/96, dated 31 May 1996

Jack Tanga v The State Unreported judgment No. SC 602 dated 19 April 1999.

Counsel

Appellant in Person

K Umpake for the Respondent

30 March 2000

KAPI DCJ INJIA SAWONG JJ: This is an appeal by the appellant in person, against sentence only. He was convicted and sentenced to sixteen (16) years imprisonment for unlawfully killing his wife contrary to S.302 of the Criminal Code (Ch. 262). That sentence was imposed upon him by the National Court in Mt. Hagen on 19 August 1999 after the Appellant pleaded guilty to the charge.

The short facts were that the deceased was married to the appellant. They had been living in the Appellants’ village. Prior to 5th April 1999, the deceased left the appellant and went back to her village. And so on 5th April 1999, the appellant armed with a bush knife went searching for her and her relatives intending to cause some harm to them. When he arrived at the deceased’s village he hid himself to avoid being seen by the deceased or her relatives. He waited until it was dark and then went and waited outside the house of the deceased’s mother. He waited for some time waiting in ambush and when the deceased came out of the said house he cut her on the hand with the bush knife nearly severing the hand. She fell down and he then cut her a second time on the neck. She died from a massive loss of blood as a direct result of the cuts she sustained.

We now turn to the submissions made in respect of each ground of the Appeal. We deal with grounds 2 and 3 first. The appellant submits that the trial judge erred in either not taking into consideration or giving sufficient weight to the facts that quite a substantial amount of compensation had been paid and that he had surrendered.

Mr Umpake submitted that these two grounds have no merit as the trial judge did infact take those two factors into consideration and gave whatever weight to them.

We accept Mr Umpake’s submission. The trial judge did say inter alia, that because compensation had been paid and that the appellant had pleaded guilty, he was not going to impose the maximum sentence of life imprisonment. We find that there are no merits in these two grounds and we dismiss them.

In ground (1), the Appellant complains that the sentence of 16 years imprisonment is excessive. In relation to this ground the main argument advanced was that the trial judge was influenced by the false allegation of past criminal conduct of the appellant in the Statement of Ted Alan.

He also says that he killed the deceased because of domestic problem between him and her, that he had paid bride price, the deceased’s conduct in leaving him and returning to her relatives, of sleeping in another mans house and he followed his customs by taking her life. He also submitted that the sentence he received was excessive in view of the current range of sentence for manslaughter cases.

Mr Umpake submitted that the sentence was not excessive. He submitted that the sentence would have been higher but for the mitigating factors in favour of the appellant. It was his submission that because this was a pre meditated killing and the way it was carried out, we should not disturb the sentence.

The maximum sentence prescribed by S 302 of the Code, is subject to S. 19 of the Code, life imprisonment. The legislature has considered that the unlawful killing of another person to be so serious as to warrant, is an appropriate circumstances, the imposition of a penal servitude for life. This does not mean that in every unlawful killing case, the maximum sentence or a very high sentence will be imposed, because each case will have to be determined on its own facts and merits.

The proper approach to be applied in determining the appropriate sentence in manslaughter cases are as set out by the Supreme Court in Rex Lialu v The State [1990] PNGLR 487. It is not necessary to state those here.

We are aware that the highest sentence in a manslaughter case confirmed by the Supreme Court is Jack Tanga v The State, Unreported Supreme Court judgment number SC 602, delivered on 19 April 1999 at Lae in which the Court confirmed a sentence of twelve (12) years imprisonment. In that case appellant caused his wife’s death by repeatedly beating her up. The brief facts were that the appellant who was drunk, argued with the deceased over his uncle. During the course of the argument the appellant chased her down a river, caught her and proceeded to repeatedly punch and kick her all over her body. As a result she was rendered unconscious. As she laid on the ground unconscious, he mocked her and then lifted her up and carried her down the river and laid her on the ground. When she regained consciousness, he repeatedly punched and kicked her until she could not move. During the entire incident she was unarmed. The deceased died from multiple causes, such as loss of blood from a ruptured spleen, head injuries and hepatic trauma, all directly resulting from the appellants kicks and punches. In the National Court he pleaded guilty and was sentenced to twelve (12) years imprisonment. He appealed to the Supreme Court on the grounds that the sentences was excessive. The Supreme Court dismissed the appeal and confirmed the sentence. In that case the Supreme Court referred briefly to previous decisions in unlawful killing cases and adopted what the Supreme Court said in Antap Yala v The State, Unreported Supreme Court judgment No. SCRA 69/96 dated 31st May 1996, where the Court said:

“The maximum punishment for the offence of manslaughter is life imprisonment. Whilst sentences for manslaughter will normally be lower then sentences for murder and willful murder, there are those cases which will justify the imposition of heavier punishment. The present killing is a serious kind of killing which called for a heavier punishment but of course mitigated by the presence of mitigating factors.”

In that case the appellant pleaded guilty to unlawfully killing his wife by chopping off his wife’s head with an axe. He was convicted and sentenced to ten (10) years imprisonment. On appeal the Supreme Court dismissed the appeal and confirmed the sentence.

We adopt what the Supreme Court said in Jack Tanga’s case at p3 of its judgment:

“The sentence in any given case will of course depend on its own peculiar facts. We are unable to prescribe any particular range of sentences for this offence as it is all too difficult to fix any range of sentences with some degree of precision. However, we would suggest that in an unintentional killing case which is uncontested, whatever the extenuating and mitigating circumstances may be, the application of vicious force, with or without the use of a weapon, causing serious bodily injury resulting in death may attract sentences between 10 years and above and in some cases, even life imprisonment. Such stern punishment should reflect the seriousness and prevalence of this offence throughout the country which this Court and the National Court has emphasised time and time again.”

In the present case, we agree with the trial judge, as urged upon as by Counsel for the respondent, that this was a very serious killing in that the appellant, armed with a bush knife deliberately set out to harm the deceased or any of her relatives. There was therefore some form of pre meditation involved. Furthermore, when he arrived at her house, he waited in ambush for the deceased. When she came out he cut her repeatedly with a dangerous weapon. She was unarmed.

Whilst we accept that the sentence falls into the top range of sentences for manslaughter cases, handed down by the National Court at this point in time, we are of the opinion that the sentence is not excessive in the circumstances of this case. The appellant has not demonstrated any error on the part of the trial judge in the exercise of his sentencing discretion.

Accordingly, we dismiss the Appeal and confirm the sentence.

Appellant in Person.

Lawyer for the State: State Prosecutor