The National – Wednesday, July 6, 2011
ON May 31, 2005, the Supreme Court delivered a judgment which not only dealt with the appeal of Manu Kovi but also set out guidelines for the sentencing of people charged with wilful murder or manslaughter.
That judgment was intended to provide guidance to judges of the National Court when they consider what sentence should be imposed in such cases.
The judgment also provided guidance to both prosecution and defence lawyers.
For example, it enabled defence lawyers to give their clients what the sentence was likely to be if they were found guilty or if they pleaded guilty.
However, the judgment, in what is commonly referred to as Manu Kovi’s case, can and should also be used to prevent crime by warning people, before a person is killed, what punishment would be imposed if they committed a crime which caused someone to die.
Unfortunately, there are many people in Papua New Guinea who are unable to read.
It is to be hoped that those who can, particularly village elders and other leaders, will help by telling them what is set out in this article so that the message contained in the judgment in Manu Kovi’s case might help to deter people from committing crimes which result in a loss of life.
A criminal charge of wilful murder, murder or manslaughter may be commenced against one or more people (the accused) when a person is killed (the victim).
Wilful murder is when the accused intentionally kills a victim.
A charge of murder most commonly arises when the accused kills the victim but only intended to hurt, not kill, the victim.
Murder can also arise when the victim is killed by the accused while he or she is committing another crime.
Manslaughter covers other cases where the victim is unlawfully killed.
The guidelines set out by the Supreme Court in Manu Kovi’s case for sentencing people who have been found guilty or who have pleaded guilty to a charge of wilful murder, murder or manslaughter.
Those guidelines set out four categories of conduct with category 4 being the most serious.
The table, at top right, shows the sentencing range, ie, the term of imprisonment, suggested by the Supreme Court for each category and each offence.
Those who wish to read either the judgment in Manu Kovi’s case or the table which summarises what was said in that judgment can find it on the internet by going to www.paclii.org.vu, selecting Supreme Court cases for PNG and then finding the case under K for Kovi (many other judgments are available on that website).
However, what determines the category may be summarised as follows.
First, category 1 is only applicable when the accused pleads guilty. Hence, anyone who is found guilty after a trial can expect to be sentenced under either category 2, 3 or 4.
Secondly, category 2 usually applies when a weapon, such as a knife, is used.
Category 3 usually applies when a dangerous or offensive weapon, such as a gun or an axe, is used.
Category 4 cases usually involve a complete disregard for human life.
Another way to describe these four categories is to say that a category 1 case will have mitigating factors but no aggravating factors.
Cases falling within category 2 will have mitigating factors and aggravating factors.
Category 3 cases usually have special aggravating factors and the effect of any mitigating factors will be either less significant or insignificant because of the seriousness of the conduct.
A category 4 case will have special aggravating factors, no circumstances that explain the conduct and either no mitigating factors or the mitigating factors will be of little significance because of the conduct of the offender.
From the table, it is possible to predict what sentence will be imposed in common situations.
First, consider a husband who strikes his wife on her body with either his fist or his foot.
If, as is likely, she has an enlarged spleen as a result of having had malaria, then such blows (or even one such blow) may rupture her spleen and, if that happens, she is likely to bleed to death.
Even if the husband pleads guilty to charge of manslaughter, then, he can expect to be sent to prison for not less than eight years.
Next, consider an offender who strikes the victim on the head with a bush knife.
If the victim dies, then, the case is likely to be treated as, at least, a category 2 case and a sentence in the range of 16 years is likely; perhaps, more if the charge is murder; perhaps, less if the charge is manslaughter.
Those who take part in tribal fighting in which a gun or an axe is used can expect a sentence in the region of 20 years or more.
Further, as indicated previously, a person who helps someone else or who joins a group of people may be charged with the same offence as the main offender.
While a lesser sentence might be imposed on a person who plays a lesser role, the court can impose the same sentence on those who assist or join the main offender.
It is important to note that a plea of guilty is a significant mitigating factor which may be expected to result in a shorter term of imprisonment.
If a person falsely claims that he or she was not present when the offence was committed (ie raises an alibi defence) then they run the risk that they will be charged with giving false evidence (called perjury) and punished for that in addition to the punishment for the crime that was committed.