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Maiani v State [2023] PGSC 62; SC2404 (31 May 2023)

SC2404

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA NO. 17 OF 2021

OVIA MAIANI
Appellant

AND
THE STATE
Respondent

Waigani: Kandakasi DCJ, Berrigan and Tusais JJ
2023: 30^th May

CRIMINAL APPEAL – AGAINST SENTENCE – S 302, Criminal Code – Manslaughter – Vicious attack, with a bush knife, to the skull, back and hand of the deceased – Appeal against sentence of 20 years of imprisonment dismissed.

The appellant pleaded guilty and was convicted of the manslaughter of the deceased, Ka’are Arano. The appellant had been drinking with some friends when he returned to his village with his friend, Ure Onu. As they were walking home they saw the deceased together with a woman. The woman was married to one of the appellant’s relatives. When the appellant saw them standing together he shone a torch at them and ran towards the deceased saying, “It is you, this person only, is it?”. At this the appellant’s friend Ure Onu and the woman both ran away. The appellant then cut the deceased with a large bush knife. The deceased tried to run away but the appellant chased after him. The deceased fell over, at which point the appellant cut the deceased on his back whilst he was lying defenceless on the ground. The deceased got up and tried again to run away, but again the appellant again chased him down, this time attacking the deceased three times to the back of the skull with his bush knife, before he finally walked away, leaving the deceased lying on the ground. The deceased died of the injuries inflicted, including a fractured skull. The appellant appeals against his sentence of 20 years of imprisonment.

Held:

(1) There was no identifiable error on the part of the sentencing judge.

(2) Considering that the maximum penalty for manslaughter is life, and having regard to comparative cases, and noting the particularly aggravating circumstances present, the impact on the victim’s family and the wide discretion of the sentencing judge, the appellant has failed to demonstrate that the sentence imposed is out of all reasonable proportion to the crime committed and is manifestly excessive.

Appeal dismissed.

Cases Cited
William Norris v The State [1979] PNGLR 605
Lawrence Simbe v The State [1994] PNGLR 38
Manu Kovi v The State (2005) SC789
Rex Lialu v The State [1990] PNGLR 487

References Cited
Sections 19, 302 of the Criminal Code (Chapter 262)

Counsel
Mr N. Hukula, for the Appellant
Mr D. Kuvi, for the Respondent State

DECISION ON APPEAL

31^st May, 2023

1. BY THE COURT: The appellant pleaded guilty to the manslaughter of Ka’are Arano and was sentenced to 20 years of imprisonment. He appeals against sentence.
   
2. The appellant had been drinking with some friends when he returned to his village with his friend, Ure Onu. Whilst walking together they saw the deceased together with a woman. The woman was married to one of the appellant’s relatives. When the appellant saw them standing together he shone a torch at them and ran towards the deceased saying, “It is you, this person only, is it?”. At this the appellant’s friend Ure Onu and the woman both ran away. The appellant then cut the deceased with a large bush knife. The deceased tried to run away but the appellant chased after him and the deceased fell over, at which point the appellant cut the deceased on his back. The deceased got up and tried to run away again, but again the appellant chased him down, this time attacking the deceased three times to the back of his skull with the bush knife, before finally walking away, leaving the deceased lying on the ground.
   

Appeal

3. It is well established that an appellate court will not readily disturb the discretionary power of a sentencing judge. For it to do so it must be satisfied that the judge made an error that has the effect of vitiating the sentence. Such an error may be identifiable: a mistake as to the facts; an error of law; the taking into account of matters which should not be taken into account; or the failure to give appropriate weight to matters to be taken into account. Even where no identifiable error can be shown, a sentence may be set aside where it is obviously, but not merely arguably, out of all reasonable proportion to the circumstances of the case: William Norris v The State [1979] PNGLR 605 at 612 to 613.
   
4. The appellant initially contended that the learned trial judge failed to take into account or give sufficient weight to the fact that the appellant pleaded guilty and that there was no pre-planning on the part of the appellant, and that the mitigating factors therefore outweighed those in aggravation, and that the sentence was manifestly excessive.
   
5. During the course of submissions the appellant conceded that the learned sentencing judge took into account all relevant circumstances in determining sentence. Furthermore, that the sentencing judge was correct in finding that the conduct fell between categories two and three of Manu Kovi v The State (2005) SC789, and that the sentence was not manifestly excessive.
   

Consideration

6. This Court has repeatedly emphasised the need to deal sternly with crimes of violence.
   
7. Manslaughter, like all homicides, is one of the most serious offences found in the Criminal Code. The gravity with which it is regarded by the legislature is reflected in its maximum penalty of life imprisonment.
   
8. Like any case the sentence must be determined according to its own facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38; Manu Kovi. In a case of homicide, careful regard must be had to the circumstances of death: in Rex Lialu v The State [1990] PNGLR 487. Guidelines like those in Manu Kovi, whilst important in promoting consistency and fairness, are not prescriptive, and must not interfere with the sentencing discretion of the Court pursuant to s 19 of the Criminal Code. Furthermore, the guidelines in that case are now almost twenty years old and, as observed by the sentencing judge in this case, might well be regarded as outdated, particularly as such instances of senseless killing remain prevalent across the country.
   
9. Returning to the present case, we find that the learned sentencing judge took into account and gave sufficient weight to the few mitigating factors present, namely that the appellant pleaded guilty and was a first-time offender. The sentencing judge also took into account that there was some provocation in the non-legal sense present, in the context of village life, in that the appellant suspected that the appellant was persisting in an affair with his cousin’s wife. The sentencing judge observed, however, that those factors were far outweighed by the aggravating factors in this case.
   
10. We agree.
    
11. This was a brutal and relentless crime. The appellant ran towards the deceased and struck him with a large bush knife. When the deceased tried to escape, the appellant chased him down and struck him again whilst he was lying defenceless on the ground. When the deceased tried to run away in a final desperate attempt to save his life, the appellant again pursued him, and struck him a further three times across the back of his head, with such force that he fractured the skull and exposed the deceased’s brain. The extent of the injuries suffered by the deceased is apparent from the coroner’s report, which shows multiple fractures and a deep stab wound to the deceased’s left hand. A further stab wound measuring 5 cm x 1 cm x 6 cm was found on the deceased’s back. Three further wounds were found on the deceased’s skull which was fractured from the force of the blows. The wounds to the skull measured 6 cm x 1 cm, 11 cm x 1 cm x 1cm, and 15 cm x 2 cm x 1 cm.
    
12. The victim’s last moments must have been spent in sheer terror and hopelessness.
    
13. It should also not be forgotten that the impact of the offence on the deceased’s family has been grave. He was a 35 year old man, and a father to six young children who will now live without his financial and emotional support.
    
14. We find that there is no error on the face of the sentence. The trial judge took into account all relevant circumstances.
    
15. Considering that the maximum penalty for manslaughter is life, and having regard to comparative cases, and noting the particularly aggravating circumstances of this case, the impact on the victims’s family and the wide discretion of the sentencing judge, the appellant has failed to demonstrate that the sentence imposed is out of all reasonable proportion to the crime committed.
    
16. Indeed, we have given serious consideration to whether we should increase the penalty on this appeal in view of its particularly aggravating circumstances. The State did not appeal against sentence and does not seek an increase.
    
17. Ultimately, the question is not whether this Court would have imposed a different sentence to the sentencing judge but whether the sentence is obviously, and not merely arguably, out of all reasonable proportion to the circumstances of the case. We are not of that view and will therefore not interfere with the sentencing judge’s discretion. The appellant might perhaps consider himself fortunate.
    
18. We make the following orders:
    
    • (1) The appeal is dismissed.
    • (2) The sentence of 20 years of imprisonment imposed by the National Court is confirmed.

________________________________________________________________
Office of the Public Solicitor: Lawyer for the Appellant
Office of the Public Prosecutor: Lawyer for the Respondent