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State v Tovut [2005] PGNC 196; N4964 (20 December 2005)

N4964

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 968 OF 2004

THE STATE

V

KALIMET TOVUT

Kimbe: Cannings J
2005: 12 October, 20 December

CRIMINAL LAW – Section 302 (manslaughter) – sentence on plea of guilty – sentencing guidelines.

The deceased was drunk and had an argument with the offender. They were cousin-brothers and good friends. The offender punched the deceased and he fell. The offender then kicked him and ruptured his spleen, causing him to die. The offender surrendered soon afterwards, then showed remorse by paying for the deceased's funeral and paying compensation to the deceased's widow and children.

Held:

(1) The sentencing guidelines for manslaughter cases for this sort of killing, involving a guilty plea, suggested a range of 8 to 12 years imprisonment.

(2) Strong aggravating factors included: infliction of multiple blows to different parts of the deceased's body; the kicking of the deceased on his side while he was on the ground and drunk; presence of an intention to do serious harm; the viciousness of the attack.

(3) Strong mitigating factors included: the existence of de facto provocation; the offender gave himself up to the police; he cooperated with the police; he submitted to mediation and paid more than K11,000.00 for funeral costs and compensation; he is a first offender; he pleaded guilty; he expressed genuine remorse.

(4) In the circumstances a sentence of 10 years imprisonment was appropriate. It is not appropriate at this stage to suspend any part of that term. However, 4 years may be suspended later upon application to the National Court.

Cases cited

The following cases are cited in the judgment:

Anna Max Marangi v The State (2002) SC702
Manu Kovi v The State (2005) SC789
The State v Aaron Lahu (2005) N2798
The State v Hiliong Gunaing (2005) N2803
The State v Mark Kanupio and Others (2005) N2800

PLEA

The accused pleaded guilty to a charge of manslaughter and the reasons for his sentence are given below.

Counsel

J Kesan, for the State
O Oiveka, for the accused

20 December, 2005

1. CANNINGS J: This is a decision on the sentence for a 36-year old man who pleaded guilty to the offence of unlawful killing, also known as manslaughter, committed against his cousin-brother. The incident giving rise to the charge took place at Sarakolok, near Kimbe, West New Britain, on Friday 14 May 2004. The offender punched and kicked his cousin-brother, causing him to suffer a ruptured spleen and die.

ANTECEDENTS

2. The offender has no prior convictions.

ALLOCUTUS

3. The offender stated:

I apologise for what I have done and to the family of Ronnie and to our relatives in the village. I did not mean to kill him but we had a fight and unfortunately, he died. It is my first time to be in trouble and I ask the court to consider that.

OTHER MATTERS OF FACT

4. Though the prisoner has pleaded guilty there are some issues of fact raised in the depositions and in the allocutus, which, if resolved in his favour, may be relevant to the sentence. In two recent Kimbe cases I have set out the principles to apply whenever there are significant issues of fact arising from the depositions or the allocutus that were not in the prosecutor's summary of the facts. Those cases are The State v Mark Kanupio and Others (2005) N2800, which deals with issues arising from the depositions, and The State v Aaron Lahu (2005) N2798, which deals with issues arising from the allocutus. The principles to apply are as follows:

• The effect of a plea of guilty is that an accused person admits to the elements of the offence and the facts that have been put to the accused.
  
• Once the court considers the depositions, accepts the plea and enters a conviction, the accused must then be given the benefit of any reasonable doubt on matters of penalty.
  
• If the judge detects any significant mitigating matters in the depositions or in the allocutus that were not put to the accused in the prosecutor's summary of the facts the judge should ascertain whether there is agreement between the prosecution and the defence on those matters.
  
• If there is agreement, the judge should work on what has been agreed to unless the claims made in the depositions or allocutus are so beyond the bounds of possibility as to be unbelievable.
  
• If there is a dispute between the parties about those matters, it would be appropriate for the court to take sworn evidence on them. The accused can be invited to give evidence, but cannot be forced into the witness box.
  
• If, however, the court does not take sworn evidence and there is no agreement between the parties as to the contentious matters, the court must act on the version of the facts which, within the bounds of possibility, is most favourable to the accused.
  

I now apply the above principles to the present case. I have detected the following mitigating factors from the depositions:

5. The offender owns a block at Sarakolok and has a caretaker in it. On the morning of the incident, the offender was looking for the deceased, Ronnie, as he had heard that Ronnie and his two sons had stoned his house on the block the previous night. He saw Ronnie's wife but she did not respond to him properly so he got cross and pushed over a small table. He saw Ronnie's son, Graham, and approached him but he ran away. Then someone told him that Ronnie was drunk and had chased his caretaker, Gobi. He found Ronnie and asked him why he had damaged his house the night before. However, Ronnie's only response was to walk towards him and say, "Fuck, fuck". He saw that Ronnie was drunk and ready to fight. Ronnie threw the first two punches but he blocked them. Then he threw two punches at Ronnie and he fell down. He kicked his side once and left him and went home. When he found out that Ronnie had died he surrendered to the Kimbe police. Ronnie was his cousin-brother. He was married to a Sepik woman. They had two children. They lived on his block. He was very upset with Ronnie. He did not want to kill him, just cause pain. The offender submitted to mediation within a month after the incident and has paid compensation.

RELEVANT LAW

6. 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.

7. I am satisfied that the elements of the offence of manslaughter were adequately set out in the indictment, that the offender was aware of their significance and that the summary of the facts pleaded to by the offender supported those elements. The offender is therefore liable to a penalty of imprisonment for life. 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.

SUBMISSIONS BY DEFENCE COUNSEL

8. Mr Oiveka referred to a number of mitigating factors. The offender 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 admitted to the police at the outset what he had done. It was an offence completely out of character. Ronnie had been 'taken in' by the offender after Ronnie had a falling out with his in-laws. The whole thing started over a trivial incident about a cup. There was provocation in the non-legal sense. The loss of Ronnie Kailai is a loss to the offender as well. He has already paid a lot of money for what happened.

SUBMISSIONS BY THE STATE

9. Mr Kesan, for the State, submitted that the offender was guilty of a serious offence. The court should not lose sight of the fact that a life has been lost and the maximum penalty for this offence is life imprisonment. Penalties for manslaughter have been on the increase. The sentencing guidelines for manslaughter laid down recently by the Supreme Court in Manu Kovi v The State (2005) SC789 should be applied. A sentence of at least 12 years should be imposed.

PRE-SENTENCE REPORT

10. To help me make a decision on the appropriate sentence I requested and received a pre-sentence report under Section 13(2) of the Probation Act in relation to the offender. The report was prepared by the Kimbe office of the Community Correction and Rehabilitation Service.

Of East New Britain heritage – raised at Sarakolok – aged 36, happily married with four children – educated to Grade 6 at Sarakolok – employed by SWT Company in Kimbe since 1999 – he owns a block in Sarakolok – in good health.

The offender has submitted to mediation. Accompanying the pre-sentence report was a mediation report by Sarakolok community leader, Daka Wagai: the offender has paid K11,252.81 to the deceased's widow for funeral and transport expenses, cash compensation etc; has attended further mediation in East New Britain; has offered a further K10,000.00 to the widow; however the deceased's relatives have requested K50,000.00 or purchase for them of a new oil palm block. The mediation panel consider that it would be a good idea for the deceased's widow to accept the K10,000.00 offered and let the law take its course.

The deceased's widow, Margaret Kailai, was interviewed. The deceased, Ronnie, and the offender, Kalimet, were very close. Kalimet had treated them well. The two had never fought before. However, she cannot accept that Kalimet killed Ronnie. She is concerned about the welfare of her three children. She is no longer prepared to accept more compensation. The offender's family and relatives are supportive.

The report suggests that a custodial sentence followed by a community-related one may assist in reconciling the family relationships strained by what has happened.

DECISION MAKING PROCESS

11. 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?

12. 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 offender, thus arriving at a head sentence.
  

13. For the last few years the leading case on sentencing guidelines for manslaughter committed in a domestic setting was 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:

(a) application of force in an uncalculated manner, of a single blow, kick or punch on any part of the deceased's body: 3 to 7 years imprisonment;

(b) 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;

(c) application of direct force in a calculated manner with a weapon such as a knife, bushknife or axe: 13 to 16 years.

14. Earlier this year the Supreme Court revisited the sentencing guidelines for wilful murder, murder and manslaughter in the case referred to by Mr Kesan, Manu Kovi v The State (2005) SC789. It was suggested that manslaughter convictions could be put in four categories of increasing seriousness, as shown in the table blow.

SENTENCING GUIDELINES FOR MANSLAUGHTER DERIVED FROM SUPREME COURT'S DECISION IN MANU KOVI'S CASE

15. The guidelines in Marangi and Kovi are not identical but in both decisions the court highlighted the increase in manslaughter sentences over the years and the need to consider each case on its merits. I consider that the offender's case falls within category (b) of Marangi, which would result in a sentencing range of 8 to 12 years. It falls within category 1 of Kovi and the same sentencing range applies: 8 to 12 years.

16. I will now set out the things to be taken into account when determining whether to increase or decrease the head sentence or leave it within the range of 8 to 12 years. I rely on my decision in a manslaughter case dealt with earlier this year in Kimbe: The State v Hiliong Gunaing (2005) N2803. A man suspected his wife of having an affair with another man. He followed her one night to the other man's house and found them there. He then chased her, she fell down and he stabbed her, inflicting a fatal wound. He pleaded guilty and was sentenced to 15 years imprisonment. 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 him 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?
    

17. The above considerations have been framed 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.

18. I apply the above considerations to the offender as follows:

1. No the offender inflicted multiple blows to different parts of the deceased's body.
   
2. Yes the offender was the only person involved in the attack.
   
3. No there was no other intervening cause of death.
   
4. No the deceased was injured by more than a fist. The offender kicked the deceased after the deceased had fallen to the ground. If he had punched him and left it at that, the deceased would have lived. It was the heavy blow to the side of his body, which cracked three ribs and ruptured his spleen that killed the deceased.
   
5. No it cannot be said that the offender did not intend to do serious harm. Once a person attacks another person by kicking them in their abdomen, it must be inferred that there was an intention to do serious harm. The offender has repeatedly said that he did not intend to kill the deceased. However, this seems a case of actions speaking louder than words.
   
6. Yes from the point of view of the offender, the deceased did a provocative thing by stoning his house the night before and then going out and getting drunk and swearing at him when he was approached. I am prepared to give the offender the benefit of the doubt on this issue. I have also taken account of the history of the offender apparently being kind to the deceased prior to the incident. They were cousin-brothers and the offender let the deceased and his family live on his block, after the deceased had been having problems with his in-laws. There was a considerable amount of de facto provocation, ie provocation that is real but which does not amount to 'legal' provocation as defined by the Criminal Code.
   
7. No there is no evidence that the deceased had a pre-existing condition making him susceptible to serious or fatal injury by a moderate blow.
   
8. No the attack on the deceased cannot be classed as 'not vicious'. Once he started kicking a man who was on the ground, drunk, it became a very vicious attack. The deceased was a soft target. The attack was not only vicious, it was cowardly.
   
9. No the offender's role in the attack was not minor. He was the only attacker.
   
10. Yes the offender gave himself up to the police.
    
11. Yes he cooperated with the police in their investigations.
    
12. Yes there is evidence he has done something tangible to repair or remedy his wrongs. He has submitted to mediation both within the Sarakolok community and at East New Britain, he and the deceased's home province. He has paid over K11,000.00.
    
13. Yes he pleaded guilty.
    
14. Yes the offender appears genuinely remorseful.
    
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 to mitigate the sentence.
    
17. No there are no other circumstances of the incident or the offender that warrant mitigation of the head sentence.
    

19. I regard consideration Nos 1, 4, 5 and 8 as serious aggravating factors. This attack was vicious and unnecessary. There are some weighty mitigating factors: those numbered 6, 10, 11, 12, 13, 14 and 15. The other considerations are those that are neutral (No 17) or those neither significantly aggravating (3, 9, 16) nor significantly mitigating (Nos 2 and 7). Taking all the above considerations into account and comparing this case with the sentences in the previous cases referred to, the head sentence is 10 years imprisonment.

STEP 2 – SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

20. The offence is too serious to warrant any immediate suspension of the sentence. Furthermore the deceased's widow does not appear interested in any more compensation at this stage. So none of the sentence will be suspended. I will nonetheless qualify the prison sentence by ordering that it can be suspended after the offender 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. A separate application would need to be made and there would have to be an updated report from the Community Corrections and Rehabilitation Service. The behaviour of the offender in gaol would also be a relevant consideration. The issue of further compensation could also be addressed. Proof of genuine steps towards peace and reconciliation between the offender and the relatives of the deceased would be viewed favourably.

SENTENCE

21. The Court makes the following order:

(1) Kalimet Tovut, having been convicted of the crime of unlawful killing, is sentenced to 10 years imprisonment in hard labour, 6 years of which must be served and the balance of 4 years of which 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) 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, if any, that the offender has already spent in relation to this offence.
  

Sentenced accordingly.
________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the accused