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Lopai, The State v [1989] PGNC 62; [1988-89] PNGLR 48 (21 February 1989)

Papua New Guinea Law Reports - 1988-89

[1988-89] PNGLR 48 - The State v Polin Pochalon Lopai�

[1988-89] PNGLR 48

N680

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

POLIN POCHALON LOPAI

Lorengau

Bredmeyer J

21 February 1989

CRIMINAL LAW - Sentence - Manslaughter - Spleen death - Consequences of offence relevant - Appropriate tariffs - Slightly higher than rape.

CRIMINAL LAW - Sentence - Manslaughter - Spleen death - Wife victim - One kick - Plea of guilty - Genuine contrition - Sentence of six years.

Held

N1>(1)����� In sentencing for manslaughter the court is entitled to take into account the seriousness of the intention behind the act or omission causing the death and the seriousness of the consequences.

N1>(2)����� Sentences for manslaughter should be slightly higher than those for rape, as death is a more serious consequence than the trauma of rape.

N1>(3)����� The following guidelines are to be taken as appropriate in sentencing for rape:

N2>(a)����� on a plea of guilty, a range of sentences from five years to 10 years in a case with aggravated features.

N2>(b)����� on a plea of not guilty, a range of sentences from six years to 10 years in a case with aggravated features.

N1>(4)����� Accordingly, on a plea of guilty to manslaughter of the accused�s wife (aged 24 years) by one kick which ruptured a normal spleen, where the accused showed genuine contrition, a sentence of six years was appropriate.

Cases Cited

John Aubuku v The State [1987] PNGLR 267.

Sentence on a Plea of Guilty

This was a judgment delivered in the course of sentencing a prisoner for manslaughter.

Counsel

C Inkisopo, for the accused.

C Russell, for the State.

21 February 1989

BREDMEYER J: I have to sentence the prisoner for the manslaughter of his wife when he kicked her and the kick ruptured her spleen.

Every form of punishment takes into account the intention behind the act or omission and the consequences, both the seriousness of the intention and the seriousness of the consequences. Thus, wounding with intent to do grievous bodily harm is more serious than wounding without that intent. Similarly with consequences: the more serious the consequences, the greater the punishment. If D stabs V with intent to do grievous bodily harm and V dies, the offence is murder; but if D stabs V with the same intent and V only suffers grievous bodily harm, the offence is grievous bodily harm with intent, which is less serious than murder.

So far I have been considering examples of different offences but the same principles are true of different examples within the same offence. Consider theft. Suppose D decides to steal a safe but he does not know how much is in it. His intention is to steal the safe and all the contents, however much that is. If the amount stolen happens to be K10,000, the punishment will be greater than if the sum stolen is K100. The same point � the greater the consequences of the criminal act the greater the punishment � can be illustrated by the offence of dangerous driving. If D is guilty of dangerous driving and V dies, the punishment will be greater than if V only suffered grievous bodily harm. If two people are killed as a result of that driving, then the punishment will be greater than if only one is killed. In those examples, the quality of the driving is the same but the punishment will increase with the seriousness of the consequences of that driving.

In the offence of this form of manslaughter, the intention is simply to do some harm falling short of grievous bodily harm, and if the only result of giving vent to that intention was a few bruises, the offence would be assault and a light punishment would suffice. But in manslaughter the consequences are grave: the victim has died. I want to look at it from the victim�s point of view and compare the offence with that of rape. If the victim was asked, �Would you prefer to be raped or killed?�, she would surely answer, �raped�. Rape is a very traumatic experience for the victim but she is still alive and she may get over it physically and emotionally. Similarly, look at it from the victim�s family�s point of view. Would you rather your wife, or daughter, or sister be raped or killed? The answer would surely be, �raped�. I believe the community regards manslaughter as more serious than rape.

The Supreme Court in John Aubuku v The State [1987] PNGLR 267 set a tariff for rape of five years in a contested case for a solo rape going up to 10 years (and sometimes more) for aggravated features. If I could add to that a reasonable discount for a plea of guilty, the tariff for rape established by that case is, say, four years for a plea of guilty, five years for a conviction in a contested case, in each case in a common solo rape, going up to 10 years for an aggravated rape. I believe that the tariff for manslaughter should be fixed slightly higher than for rape because death is a more serious consequence than the injury and trauma suffered in a rape. About 15 years ago, the �spleen death� kind of manslaughter attracted a sentence of around one year�s imprisonment. Now it is about three years. I believe that a suitable tariff for the �spleen death� type of manslaughter is five years for a plea of guilty, six years in a contested case, going up to 10 years or more in a case with features of aggravation.

Where does the present case fit on that suggested tariff scale? There are two special aggravating features. First, the victim wife had a normal-sized spleen. It was not enlarged by malaria, and hence not easy to rupture. As the doctor said in his report, the prisoner must have used �substantial force� to rupture it. Secondly, the victim was young and I believe that is relevant. She was aged 24. A person of her age, having survived the risk of death through sickness in the very early years, could be expected to live to, say, 65 years. Thus her life has been cut short by 40 years. Her death is thus more serious than if the victim was in her 60s or 70s with not so many years to live. I take into account the following matters in the prisoner�s favour. It is his first offence, he pleaded guilty, he is sorry for her death, and he is missing the children and worried about them. I think the appropriate sentence is six years. I deduct from that the five months already spent in custody. I thus sentence him to five years seven months.

I advise the prisoner that if he is not happy about this sentence, he may appeal to the Supreme Court but he must do so within 40 days.

Sentenced to six years in hard labour

Lawyer for the State: Public Prosecutor.

Lawyer for the prisoner: Public Solicitor.