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State v Walus [2005] PGNC 147; N2802 (25 February 2005)

N2802

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 427 OF 2003

THE STATE

V

DANIEL RONALD WALUS

KIMBE: CANNINGS J
22, 25 FEBRUARY 2005

SENTENCE

CRIMINAL LAW – indictable offence – Criminal Code, Division V.2 (homicide etc) – Section 302 (manslaughter) – sentence on plea of guilty – sentencing guidelines – offender punched and kicked his wife’s cousin-sister on several occasions, inflicting fatal blows – no other person involved in attack – no other intervening cause of death – intention to do serious harm – offender angry with the victim who immediately prior to the incident had altercation with offender’s wife – no evidence of pre-existing condition of deceased making her susceptible to injury – vicious attack – prisoner did not surrender to police – cooperated with police – no evidence of doing anything tangible to remedy the wrong – not clear whether prisoner genuinely remorseful – not a youthful offender – starting point for head sentence – identification of relevant considerations – application of relevant considerations – whether appropriate to suspend whole or part of sentence – need for properly documented pre-sentence report – sentence of 18 years –10 years must be served – balance of 8 years may be suspended on application to the National Court.

Cases cited:
Anna Max Marangi v The State (2002) SC702
Antap Yala v The State (1996) unreported SCR 69/96
Jack Tanga v The State (1999) SC602
John Kapil Tapi v The State (2000) SC635
Rex Lialu v The State [1990] PNGLR 487
The State v Hiliong Gunaing CR No 1198 of 2004, 25.02.05, unreported
The State v Mark Kanupio and Others CR Nos 238-242 of 2003, 25.02.05,
unreported

Counsel:
F Popeu for the State
O Oiveka for the accused

CANNINGS J:

INTRODUCTION

This is a decision on the sentence for a man who pleaded guilty to the offence of unlawful killing, also known as manslaughter, committed against his wife’s cousin-sister.

BACKGROUND

Incident

The incident giving rise to the charge took place at Ponini Oil Palm settlement, West New Britain, on the morning of 23 October 2002. It was alleged that the accused punched and kicked his wife’s cousin-sister, causing her death.

Indictment

On 22 February 2005 he was brought before the National Court and faced the following indictment:

Daniel Ronald Walus of Salimun, Namatanai, New Ireland Province, stands charged that he on the 23rd day of October 2002 at Ponini settlement in Papua New Guinea unlawfully killed Julie Palap.

The indictment was presented under Section 302 of the Criminal Code.

FACTS

Allegations

The following allegations were put to the accused for the purpose of obtaining a plea.

On the morning of 23 October 2002 the accused’s wife had an altercation with the deceased over harvesting of cocoa beans. The accused’s wife assaulted the deceased and the deceased swore at the accused’s wife. The accused’s wife reported the matter to him. The accused then walked from his house to the deceased’s house. The deceased was sitting on the steps of her house. The accused came up the steps and punched her on the side of her face. This caused her to fall down. He then punched her on each side of her stomach. He kicked her in the ribs, while she was still on the ground. The deceased then urinated, passed faeces and vomited. She died shortly afterwards. The medical report showed that she died from a broken neck and ruptured spleen. This showed that when the deceased had fallen from the steps, she broke her neck. By kicking her the accused had caused her spleen to rupture. The accused therefore caused her death.

Conviction

The accused pleaded guilty to those facts. I entered a provisional plea of guilty and then, after reading the District Court depositions, confirmed the plea and convicted the accused. He is now referred to as the prisoner.

ANTECEDENTS

The prisoner has no prior convictions.

ALLOCUTUS

I administered the allocutus, ie the prisoner was given the opportunity to say what matters the court should take into account when deciding on punishment. A paraphrased summary of his response follows:

This is my first time to be in trouble. I did not intend to kill that lady. After I was captured for this trouble I had properties which were burned down. I also have my wife and my child to look after. I say sorry to the law and to the court for what I have done. I ask for the court’s mercy by putting me on a good behaviour bond or probation.

SUBMISSIONS BY DEFENCE COUNSEL

Mitigating factors

Mr Oiveka referred to a number of mitigating factors. The prisoner pleaded guilty, saving the trouble and expense of a trial. He is a first time offender, never having been in trouble with the law before. He has been a person of good character. He has expressed remorse. He regrets what he did. There was provocation in a non-legal sense as the incident arose from a domestic argument on an oil palm settlement.

Personal particulars

The prisoner is married with one child. He is originally from Namatanai. He is educated to grade 9.

Overall

He referred to the Supreme Court’s decision in Anna Max Marangi v The State (2002) SC702, Jalina J, Injia J, Sawong J. A woman pleaded guilty to the manslaughter of a woman who she suspected was having an affair with her husband. The court reviewed the sentencing guidelines for uncontested manslaughter cases in a domestic setting and suggested that the following categories be used:

• application of force in an uncalculated manner, of a single blow, kick or punch on any apart of the deceased’s body: 3 to 7 years imprisonment;
  
• repeated application of vicious force, with or without an instrument or weapon, eg repeated kicks or punches applied to the head or chest with intention to wound or cause grievous bodily harm, or single or multiple knife wounds on a vulnerable part of the body, with other aggravating factors: 8 to 12 years imprisonment;
  
• application of direct force in a calculated manner with a weapon such as a knife, bushknife or axe: 13 to 16 years.
  

This case belongs to the first category, Mr Oiveka argued. Therefore the starting point for the head sentence is 3 to 7 years.

SUBMISSIONS BY THE STATE

Mr Popeu for the State submitted that the prisoner was guilty of a serious offence. The case fits into the second Marangi category. The incident took place in the presence of the deceased’s parents. That is an aggravating factor. Compensation cannot be taken into account as after the prisoner gave the deceased’s family K2,000.00, it was taken back.

RELEVANT LAW

The crime of manslaughter

Section 302 of the Criminal Code states:

A person who unlawfully kills another under such circumstances as not to constitute wilful murder, murder or infanticide is guilty of manslaughter.

Penalty: Subject to Section 19, imprisonment for life.

Maximum penalty

I am satisfied that the elements of the offence of manslaughter were adequately set out in the indictment, that the prisoner was aware of their significance and that the summary of the facts pleaded to by the prisoner supported those elements.

The prisoner is therefore liable to a penalty of imprisonment for life.

Discretion

That is the maximum penalty. The court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code. For example:

• a shorter term of imprisonment may be imposed (Section 19(1)(a)); or
  
• a fine up to K2,000.00 may be imposed instead of or in addition to a term of imprisonment and the prisoner can be imprisoned until the fine is paid (Sections 19(1)(b), 19(1)(c)); or
  
• the prisoner may be given a ‘good behaviour bond’ (Section 19(1)(d)); or
  
• the prisoner can be discharged and the sentence postponed (Section 19(1)(f)); or
  
• the court can suspend all or any portion of the sentence imposed, subject to conditions (Section 19(6)).
  

DECISION MAKING PROCESS

To determine the appropriate penalty I will adopt the following decision making process:

• step 1: what is the appropriate head sentence, in terms of years?
  
• step 2: should all or part of the sentence be suspended?
  
• step 3: if all or part of the sentence is suspended, what conditions should be imposed?
  

STEP 1 - WHAT IS THE APPROPRIATE HEAD SENTENCE?

Approach

In setting an appropriate head sentence I will take this approach:

• first I will identify an appropriate starting point;
  
• secondly I will set out the considerations that should be taken into account in deciding whether to impose a sentence equal to, lesser or greater than the starting point; and
  
• thirdly I will apply those considerations to the circumstances of the prisoner, thus arriving at a head sentence.
  

Starting point

I accept that the starting point for working out the head sentence should be identified by considering Marangi’s case. It was a case where the unlawful killing occurred in a domestic setting, ie there was a dispute of some sort between the offender and the deceased.

In Marangi the court noted that historically manslaughter cases occurring in the home tended to attract lower sentences. But that has changed, particularly since the Supreme Court’s decision in Antap Yala v The State (1996) unreported SCR 69/96, Amet CJ, Salika J, Injia J, where the view was strongly expressed that the National Court had been too lenient on sentencing for manslaughter in a domestic setting.

The present case, I consider, falls into the second category. I reject Mr Oiveka’s submission that it fits into the first category. This was not an uncalculated attack. The evidence suggests clearly that the prisoner went after the deceased, evidently in a fit of rage. He found her, then beat her to death with his fists and his feet. The second category deals with repeated application of vicious force, with or without a weapon (here it was without), eg repeated kicks or punches (here there was both).

This was a savage, violent attack by a man on a woman. It is fair to use the concept of a starting point and I will adopt the point which is in the top of the range, ie 12 years.

Relevant considerations

I will now set out the things I consider should be taken into account when determining whether to increase or decrease the head sentence or leave it at the starting point. In arriving at this list I have considered previous manslaughter cases decided by the Supreme Court, including Rex Lialu v The State [1990] PNGLR 487, Kapi DCJ, Hinchliffe J, Jalina J; Jack Tanga v The State (1999) SC602, Jalina J, Injia J, Kirriwom J; John Kapil Tapi v The State (2000) SC635, Kapi DCJ, Injia J, Sawong J; as well as Marangi and Yala. I have also considered two other manslaughter cases, each involving a plea of guilty, I have dealt with this month in Kimbe: The State v Mark Kanupio and Others CR Nos 238-242 of 2003, 25.02.05, unreported and The State v Hiliong Gunaing CR No 1198 of 2004, 25.02.05, unreported.

The relevant considerations are:

1. Did the attack on the deceased consist of just a single blow?
   
2. Was just one person involved in the attack?
   
3. Was there some intervening cause of death, ie did the death not result directly from the assault due to death being caused by an object when the deceased fell down?
   
4. Was the deceased injured by only a fist?
   
5. Did the offender not set out to hurt anyone?
   
6. Did the deceased or any other person provoke the offender in ‘the non-legal sense’, eg did the deceased abuse or assault the offender?
   
7. Did the deceased have a pre-existing condition making her susceptible to serious or fatal injury by a moderate blow, eg did the deceased have a thin skull or enlarged spleen?
   
8. Can the attack on the deceased be classed as ‘not vicious’?
   
9. Did the offender play a relatively minor role in the attack?
   
10. Did the offender give himself up after the incident?
    
11. Did the offender cooperate with the police in their investigations?
    
12. Has the offender done anything tangible towards repairing his wrong, eg offering compensation to the family of the deceased, engaging in a peace and reconciliation ceremony, personally or publicly apologising for what he did?
    
13. Has the offender pleaded guilty?
    
14. Has the offender genuinely expressed remorse?
    
15. Is this his first offence?
    
16. Can the offender be regarded as a youthful offender or are his personal circumstances such that they should mitigate the sentence?
    
17. Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence?
    

Rationale

The above considerations have been drafted so that an affirmative (yes) answer to any one can be regarded as a mitigating factor, a negative (no) answer will be an aggravating factor and a neutral answer will be a neutral factor. The more mitigating factors that are present, the more likely it is that the head sentence will be reduced. The more aggravating factors present, the more likely it is that the head sentence will be lifted above the starting point. However, sentencing is not an exact science. It is a discretionary process. When a factor is marked as mitigating or aggravating it does not mean necessarily that it is given the same weight as another mitigating or aggravating factor. Some mitigating factors may be ‘strongly mitigating’. Others may be ‘mildly mitigating’. The same goes for aggravating factors.

Another thing to note is that there are, in general, three sorts of considerations listed.

Numbers 1 to 9 focus on the circumstances of the incident that led to the death. All manslaughter cases are bad. The death that has occurred is invariably unnecessary and tragic. But the circumstances of each incident are different. Some are worse than others. These considerations are intended to capture the circumstances of the incident.

Numbers 10 to 14 focus on what the offender has done since the incident and how he has conducted himself.

Numbers 15 to 17 look at the personal circumstances of the offender and give an opportunity to take into account any other factors not previously considered. As pointed out by the Supreme Court in Lialu a list of considerations or sentencing criteria of this sort is not meant to be exhaustive.

Application of considerations

I apply the above considerations to each prisoner as follows

1. No they were not single blows.
   
2. Yes there was only the prisoner involved in the attack.
   
3. No there was no other intervening cause of death.
   
4. No the deceased was not injured by only a fist. Kicks were used as well.
   
5. No it cannot be said that the prisoner did not intend to do any harm. He clearly was angry and it could be said that he was entirely ‘out of control’. But I do not consider that his inability to control his actions can be regarded as a mitigating factor.
   
6. Yes from the point of view of the prisoner, the deceased did a provocative thing by arguing with his wife. But the offender’s response was so out of proportion to the purported act of provocation as to render the provocation nugatory.
   
7. It is not known whether the deceased had a pre-existing condition making her susceptible to serious or fatal injury by a moderate blow.
   
8. No the attack on the deceased cannot be classed as ‘not vicious’. It was a vicious attack. It was a man on a woman. Violent and vile. Sickening.
   
9. No the prisoner did not play a minor role in the attack. He was the sole attacker.
   
10. No the prisoner did not give himself up to the police.
    
11. Yes he cooperated with the police in their investigations.
    
12. No he has not done anything tangible and permanent to repair or remedy his wrongs. An attempt has been made to pay K2,000.00 but the money has been taken back.
    
13. Yes he pleaded guilty.
    
14. No the prisoner has not displayed genuine remorse. All he said in his allocutus was that he was sorry to the court. He gave no indication that he was deeply and genuinely sorry for what he had done or that he appreciated the gravity of his crime.
    
15. Yes this is his first offence.
    
16. No, he cannot be regarded as a youthful offender. He is a mature adult person who should have known better. There is nothing in his personal life that should mitigate the sentence.
    
17. No, there are no other circumstances of the incident or the offender that warrant mitigation of the head sentence. Other circumstances aggravate it: he killed this woman in the presence of her parents.
    

I regard consideration Nos 1, 4, 5, 8 and 9 and 14 as serious aggravating factors. This attack was extremely vicious, unnecessary and cowardly. It takes the case beyond the range suggested in Marangi. This is a case where elements of the crime of murder appear to exist. He has not been charged with murder. But it is a very serious manslaughter case and in the absence of mitigating factors, the head sentence I consider could have been 25 years imprisonment. That would have been above the suggested range in Marangi. But the court stated in Marangi that its categories were guidelines only and in an appropriate case the penalties could be higher.

There are some mitigating factors: those numbered 11, 13 and 15. He co-operated with the police and he pleaded guilty.

The other considerations I have not specifically mentioned here are those that are neutral (No 7) or those I think are neither significantly aggravating nor significantly mitigating (Nos 2, 3, 6, 10, 12, 16, 17).

Taking all the above considerations into account and comparing this case with the sentences in the previous cases referred to, the head sentence is 18 years imprisonment.

STEP 2 - SHOULD ALL OR PART OF THE HEAD SENTENCES BE SUSPENDED?

Request

This is a case where it did not seem appropriate to consider suspending part of the sentence, given the circumstances in which the offence was committed, particularly the violence. However, to help me make a decision on this issue I requested and received a pre-sentence report under Section 13(2) of the Probation Act in relation to the prisoner. The report was prepared by the Kimbe office of the Community Correction and Rehabilitation Service.

Report

According to the report the prisoner resides in a Stettin Bay Lumber Company (SBLC) house, near Kimbe. He is aged 28 and has a wife and child. They live with him. He is also accommodating seven other relatives, all children. He is happy with his living situation but will later consider returning to New Ireland. He lives close to his in-laws and they have a healthy relationship. He regularly contacts his family at home and they have assisted him with K2,000.00 to compensate the parents and relatives of the deceased. He views his marriage as a steady one. This was confirmed by his wife, who comes from Bundu, Morobe. She loves him and is committed to assist him in compensating the parents of the victim. She does not want him to be given a custodial sentence. If he is given a non-custodial sentence they can help each other find money to meet the amount of K15,000.00 demanded by the deceased’s family. His absence from the family is likely to create problems and she and their child will suffer.

The report leaves open the question of whether the prisoner is a suitable candidate for probation. This appears to be a reflection of the seriousness of the crime that was committed.

Assessment of report

I cannot find anything in the report to justify a non-custodial sentence. Clearly the deceased’s relatives are still very upset over the death of the deceased. This is an extreme and tragic case of violence in a domestic setting. I cannot be satisfied that the prisoner is not a danger to the community or a danger to those he lives with. Suspending the sentence immediately would tend to condone this sort of behaviour by men against women. In a civilised society brutal attacks of this nature upon defenceless women are unacceptable.

Qualified sentence

I will nonetheless qualify the prison sentence by ordering that it can be suspended, after the prisoner has served a minimum term of imprisonment, if before the expiration of the term prescribed, the National Court approves a post-release parole period with strict conditions attached.

The conditions that I envisage would be suitable are, for example, that the prisoner do some strictly controlled community work; that he submit to regular counselling with an officially recognised and reputable local church or other place of religious worship; that his movements be restricted; that he refrain from consuming drugs; that he be of impeccable behaviour. The issue of compensation could also be addressed. Proof of genuine steps towards peace and reconciliation between the prisoner and the relatives of the deceased would be viewed favourably.

The prisoner will be at liberty to, at any time, make an application to vary the sentence so as to suspend the remaining part of the term of imprisonment.

Step 3

Step 3 of the sentencing process, referred to above, will not be considered at this stage.

SENTENCE

The court makes the following order:

1. Daniel Ronald Walus, having been convicted of the crime of unlawful killing, is sentenced to 18 years imprisonment in hard labour, 10 years of which must be served and the balance of 8 years may be suspended by order of the National Court if and when an application for suspension is granted.
   

2 For the avoidance of doubt:

(a) the suspension of the above sentence will only come into effect if and when ordered by the National Court; and

(b) there shall be deducted from the term of imprisonment the period in custody that the prisoner has already spent in relation to this offence.

Sentenced accordingly.
__________________________________________________

Lawyers for the State : Public Prosecutor
Lawyers for the accused : Public Solicitor