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State v Giru [1997] PGNC 145; N1661 (7 November 1997)

Unreported National Court Decisions

N1661

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR NO. 1194 OF 1997
THE STATE
-V-
FRANCIS GIRU

Kimbe

Batari AJ
5 November 1997
7 November 1997

CRIMINAL LAW - Sentence - Manslaughter - Accused hit deceased on hand with stick and deceased died from head injury - Killing of relative -One blow with stick - Customary relationship - Breach of - defacto provocation - Accused related to deceased - Plea of guilty - Four years appropriate.

Cases Cited

Rex Lialu v The State [1990] PNGLR, 487.

Annette Nawen Bulongal v The State (Un-numbered) dated 29 May, 1997.

Counsel

F. Gah, for the State

J. Kaumi, for the Accused

SENTENCE

7 November 1997

BATARI AJ: Francis Giru, you have pleaded guilty to the unlawful killing of one, Michael Hare at Gire Village at Talasea on 4 August, 1997. It is now my responsibility to sentence you.

On 4 August, three (3) months ago, you were at your home playing a flute when the deceased came by and swore at you. You naturally became upset over what he had said to you. This led to an altercation between the two of you. There was some indication your relatives intervened but the deceased persisted. He swung a stick at you and and missed. Having disarmed him, you struck him on his head with the same stick and he fell to the ground. He was taken to Bitokara Hospital where he later died. His death was attributed to increased inter cranial pressure from extradural haematoma due to extensive fracture of the skull. I infer this was caused by the impact from the blow to the head.

The crime of manslaughter or unlawful killing under s.302 of the Criminal Code is the lesser form of homicide killing under the Code. The maximum penalty prescribed is life imprisonment. This is because Parliament considered that the unlawful termination of God given life is most serious. Preservation of the individual life is also guaranteed under our National Constitution and no one has the right to kill or cause the death of another fellow-human being.

In this case, you face the prospect of being sentenced to life term. However, under s.19 of the Criminal Code, I may consider a lesser sentence as might be appropriate in the circumstances of your case and in particular under the category of manslaughter killings.

You are aged 18 years and single. Your parents were separated while you were still young and were raised by your father. Your upbringing appear to be normal and stable. You are educated and lived in the village with your mother at the time of this trouble. I consider that you are a first young offender and will take this into account on your sentence. You have pleaded guilty and this is in your favour because you have saved the Court and the State time and expense in proving your guilt on a trial.

I also consider your plea of guilty to be consistent with your early admissions to police and your co-operation following your arrest. I accept too that your conduct has been consistent with remorse.

Your relatives have also offered to pay compensation. However, the offer is not sufficient to convince me of the eventually. On the other hand, it indicated remorse to some extent and also supported your desire to restore peace and harmony between your families in the village. You will of course pay compensation at your own time, but I must still pass sentence on you to reflect the community’s disapproval of your conduct.

I accept that this is a killing of a relative and you no doubt would bear the burden for many years, if not for the rest of your life. I accept also that the blow to the deceased’s head was precipitated by his persisted aggression towards you. Earlier on, he had insulted you for no apparent reason while you were leisurely pre-occupied at your own premises. He was also under intoxicating liquor.

The deceased you said, was your own uncle. You might be his nephew. In my society, and I am sure, likewise in Talasea and throughout this Province and the nation, it is the custom for uncles and nephews to observe particular taboos, to maintain respect and support for each other. That special bond is breached or broken if an uncle insults by words or deeds, his nephew and vice versa. The recipient relative is deeply offended, shamed and angered. Sometimes this resulted in regretable violence. I think your case is partly explained in that way. I accept there were elements of de facto provocation. But, this does not excuse your conduct. It only explains it.

Manslaughter is committed under different circumstances, some considered more serious than others. Over the years, two possible categories have emerged - (i) where the assault which resulted in death involved a single punch. Normally, spleen killings fall into this category. For this suspended sentences up to four (4) years have been imposed. On the other category, where death resulted from use of an object or involved vicious attack, sentences of four (4) years to eight (8) years have been imposed by the Courts. In a recent Supreme Court of Annette Nawen Bulongal, v The State (Un-numbered Supreme Court judgment dated 29 May, 1997), the appellant hit an eighteen (18) month old child on the head with a stick of tapioca and the child died. She was sentenced to ten (10) years on a murder conviction. The murder conviction was quashed on appeal and a sentence of seven (7) years was imposed by the Supreme Court on the alternative verdict of manslaughter.

In another case, Rex Lialu v. The State [1990] PNGLR, 487 the appellant punched the deceased on the head once with his fist. Both men had been drinking at different places. The deceased fell backwards onto the ground and sustained injury to his head from which he died. The National Court convicted and sentenced him to six (6) years. On appeal, the Supreme Court reduced the sentence to four and half years on the grounds that the sentence was excessive.

When I consider the range of sentences for manslaughter being imposed by the Courts, it is fair to say the range is between suspended sentences and eight (8) years.

In this case, the medical report suggested a severe blow to the head, sufficient to cause extensive fracture of the skull. This also suggested determined blow to the head. A sentence of five (5) years is in my view appropriate. However, I consider that your case has mitigating factors in your favour. I also consider that sufficient weight must be given to your plea of guilty. I do not however consider that particulars of your case as presented before me warrant suspended sentence.

I sentence you to four (4) years imprisonment with hard labour. I deduct three (3) months you have spent in custody. You will serve three (3) years and nine (9) months.

Lawyer for the State: Public Prosecutor

Lawyer for the Accused: A/Public Solicitor