State v John [2010] PGNC 130; N4116 (24 August 2010)

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CRIMINAL LAW – sentencing – manslaughter, Criminal Code, Section 302 – sentence after guilty plea – offender killed his mother by punching her, rupturing her spleen – sentence of 12 years.

The offender killed his mother by punching her in the abdomen, without warning. She died six days later. He pleaded guilty to manslaughter.

Manu Kovi v The State (2005) SC789
Saperus Yalibakut v The State (2006) SC890
The State v Albert Kududu CR 972/2008, 22.4.10
The State v Christopher Dubun CR 148/2009, 22.04.10
The State v Sebastian Roho [2006] PGNC 72
The State v Vincent Matana Laore and 3 Others CR No 915 of 2005, 24.04.08

1. CANNINGS J: This is a decision on sentence for a 28-year-old Chimbu man, Kunduk Nime John, who has pleaded guilty to the manslaughter of his mother, Maria Daka, also from Chimbu. There was an incident at Assas Market, in the Ramu area of Madang Province, close to where they lived on the night of Monday 22 September 2008. The deceased was selling food at the roadside in the company of other women when the offender approached and without warning hit her on the mouth and punched her in the abdomen, the effect being that her spleen was ruptured. She died six days later.

2. The offender did not intend to kill his mother or to cause her grievous bodily harm. However, he has been convicted of manslaughter as the court has accepted that he killed her unlawfully, without lawful justification or excuse.

I apologise to the Court and to God for what I have done but there was a reason that I was angry with my mother. My biological father died some years ago and left me a big block of land. My mother remarried and my stepfather was trying to take the land from me. His son supported him and so did my mother. They told me to leave the land and treated me like I was a stupid person, so I got angry and slapped her. I knew I had done wrong so I took her to the health centre for treatment and they told me she was OK. The next day I slaughtered a pig worth K500.00 for her and gave her K80.00 cash. This was witnessed by the community. She was supposed to be OK but my stepfather took her to his sister's place at Gusap and I do not know what happened there but somehow she died after a few days. I ask for mercy and a non-custodial sentence.

5. As the offender has pleaded guilty he will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State (2006) SC890). In that regard, I will take into account the following matters:

6. I received a pre-sentence report from the Community Corrections and Rehabilitation Service. Kunduk Nime John is from the Gembogl area of Chimbu Province but was born and raised at Assas, where the incident occurred. He is the first-born in a family of two. His father died in 1986 and his mother remarried and had three children from that marriage. Kunduk is married with three children and has a stable marriage.

7. Kunduk has a grade 3 education. He has never been formally employed. He is a subsistence farmer. His health is sound. The report confirms what he said in his allocutus about payment of bel kol. Part of the family who are supporting him are planning a reconciliation between him, his stepfather, and his stepfather's children during Christmas this year. He has a good record in the local community. The report concludes that he is not considered a danger to the community and that he is suitable for probation.

8. Ms Pinggah submitted that the case fell within the first (least serious) category of the guidelines given by the Supreme Court in the case of Manu Kovi v The State (2005) SC789 and therefore the sentence should be in the range of 8 to 12 years. Because of the strength of the mitigating factors (eg the guilty plea, a first-time offender, de facto provocation provided by the actions of the stepfather, genuine remorse, concerns about the welfare of the offender's children), the court should consider a sentence at the bottom of the available range. Ms Pinggah referred to a Bougainville case, The State v Sebastian Roho [2006] PGNC 72, in which a young man was sentenced to ten years imprisonment for the manslaughter of his mother; and submitted that there were stronger mitigating factors in the present case, warranting a sentence of eight years imprisonment, part of which should be suspended.

9. Mr Kupmain, for the State, agreed that this is a category 1 case according to the Kovi guidelines, warranting a sentence of 10 to 12 years.

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

11. The maximum penalty for manslaughter under Section 302 of the Criminal Code is life imprisonment. The National Court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code.

12. In Manu Kovi v The State (2005) SC789 the Supreme Court suggested that manslaughter convictions could be put in four categories of increasing seriousness, as shown in the following table.

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

No	Description	Details	Tariff
1	Plea – ordinary cases – mitigating factors – no aggravating factors.	No weapons used – offender emotionally under stress – de facto provocation – killing in domestic setting – killing follows straight after argument – minimal force used – victim had pre-existing disease that caused or accelerated death, eg enlarged spleen cases.	8-12 years
2	Trial or plea – mitigating factors with aggravating factors.	Use of offensive weapon, eg knife, on vulnerable parts of body – vicious attack – multiple injuries – some deliberate intention to harm – some pre-planning.	13-16 years
3	Trial or plea – special aggravating factors – mitigating factors reduced in weight or rendered insignificant by gravity of offence.	Dangerous or offensive weapon used, eg gun, axe – vicious and planned attack – deliberate intention to harm – little or no regard for sanctity of human life.	17-25 years
4	Worst case – trial or plea – special aggravating factors – no extenuating circumstances – no mitigating factors, or mitigating factors rendered completely insignificant by gravity of offence.	Some element of viciousness and brutality – some pre-planning and pre-meditation – killing of harmless, innocent person – complete disregard for human life.	Life imprisonment

13. I agree with both counsel that this is a category 1 case as it was a killing that occurred in a domestic setting and no weapons were used. The starting point is 8 to 12 years imprisonment.

14. Roho's case, referred to by Ms Pinggah, is certainly a relevant precedent. The offender was angry with the deceased, his mother, who had argued with his small sister and chased her. His sister fell down a cliff, injured her back and had difficulty getting up and walking. The offender confronted his mother, argued with her and kicked her on the abdomen. His mother walked away, but then fell down and died a few minutes later. In imposing a sentence of ten years a strong mitigating factor was the attitude of the offender's family. They understood that he would have to serve some time in prison but informed the court that they did not want to see him given a long sentence. They wanted him back in the village so that they could continue the process of reconciliation.

15. Two recent Madang cases also have similarities to this case. In The State v Albert Kududu CR 972/2008, 22.4.10, the offender pleaded guilty to unlawfully killing his wife in a domestic dispute. He assaulted her by hitting her three times on her back with an open hand, killing her by rupturing her spleen. The sentence was 12 years imprisonment. In The State v Christopher Dubun CR 148/2009, 22.04.10, the offender pleaded guilty to unlawfully killing his wife by kicking her on the buttocks and the side of the body. The assault took place in the course of a domestic dispute. The sentence was 12 years imprisonment.

16. I refer to the list of sentencing considerations set out in The State v Vincent Matana Laore and 3 Others CR No 915 of 2005, 24.04.08 and highlight the following mitigating and aggravating factors.

19. I reject the defence counsel's submission that a sentence as low as eight years is warranted. That sort of sentence should be reserved for a case where an offender has inflicted a single, sharp blow with a part of the body, such as a fist, and the death can almost be described as accidental. Death was caused by intentional acts of violence by a man against a person who he was supposed to love, nurture and protect. He gave a reason for what he did. There is no reason to doubt his honesty about why he was angry. It might have been a good reason to be angry but it was not a good reason to attack his mother. After weighing all these factors, comparing this case with Roho's case and the others referred to, the head sentence should be at the top of the starting point range. This case is more serious than Roho as in this case the level of reconciliation and forgiveness is not as high as in Roho. I impose a head sentence of 12 years imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

20. Yes. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the head sentence, the whole of the pre-sentence period in custody, which is one year, five months.

21. This is sadly yet another tragic case of family violence. As I have said in other cases, to impose a fully suspended sentence would have the effect of cheapening the value of human life. The offender must be imprisoned. Only by imposing a prison term will the court be able to signify the gravity of the offence.

22. That said, because he has a fundamentally sound pre-sentence report and a good record of co-operating with the police and the court, and because his remorse is genuine and he is genuinely attempting reconciliation with his family, I will suspend three years of the sentence on the following conditions:

1. must within three days after release from custody report to the Probation Office in Madang;

2. must reside at a place to be nominated by the National Court and nowhere else except with the written approval of the National Court;

3. must not leave Madang Province without the written approval of the National Court;

4. must perform at least six hours unpaid community work in accordance with a program approved by the National Court;

5. must attend church every weekend for service and worship and assist the church in its community activities;

8. must have a satisfactory probation report submitted to the National Court Registry at Madang every six months after the date of release from custody;

9. if the offender breaches any one or more of the above conditions, he shall be brought before the National Court to show cause why he should not be re-detained in custody to serve the rest of the sentence.

23. Kunduk Nime John, having been convicted of one count of manslaughter under Section 302 of the Criminal Code, is sentenced as follows:

Length of sentence imposed	12 years
Pre-sentence period to be deducted	1 year, 5 months
Resultant length of sentence to be served	10 years, 7 months
Amount of sentence suspended	3 years
Time to be served in custody	7 years, 7 months
Place of custody	Beon Correctional Institution

_________________________
Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyers for the offender

National Court of Papua New Guinea

State v John [2010] PGNC 130; N4116 (24 August 2010)