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State v Gabriel [2021] PGNC 197; N8953 (16 July 2021)

N8953

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 301 of 2021

THE STATE

-v-

STEVEN GABRIEL

Lae: Kangwia J.
2021: 21^st May & 16^th July

CRIMINAL LAW – Manslaughter – Domestic violence – death from ruptured spleen - No offensive weapons used – first-time offender who pleaded guilty – payment of substantial compensation treated as special mitigating factor. Sentenced to 10 years with deductions and suspensions.

Cases Cited

State v Paul Kalu (2011) N5270
Manu Kovi v The State (2005) SC789
State v Ruben Bamatu (2008) N3941
State v Daniel Roland Walus (2005) N2802
State v Christopher Dubun (2010) N4109
State v Lucas Yovura (2003) N2366
State v Taulaola Pakai (2020) N4215

Counsel
P. Matana, for the State
G. Peu, for the Accused

16^th July, 2021

1. KANGWIA J: Steven Gabriel was convicted on his guilty plea to one count of manslaughter under s 302 of the Criminal Code Act. He appears for sentencing.

2. The brief facts are that on 28 August 2020, after consuming alcohol with friends the prisoner and his wife went home. At around 10 pm neighbours heard the deceased crying while the prisoner assaulted her. The deceased was found dead the next day.

3. The medical report showed that the deceased died around 2 am of 29 August 2020. The report also showed that the deceased died from massive blood loss due to a ruptured spleen caused by a blunt force trauma.

4. The prisoner is now 39 years old and married with one child. He has no prior convictions.

5. On his allocatus the prisoner said:

“The incident happened. I ask for mercy. I don’t know where my kids are. We settled and made peace already. Police arrested me and I’m in Court. I seek the mercy of the Court with a suitable sentence. I say sorry. I ask for the settlement document to be allowed in Court for consideration.”

6. On his behalf Ms Peu submitted that a head sentence of 06 years was appropriate. The prisoner pleaded guilty as a first-time offender. No offensive weapons were used. Death arose in a domestic violence situation without any intention to kill. The prisoner also expressed remorse and what he uttered in allocatus should be treated as genuine remorse.

7. The pre-sentence report was favourable to the prisoner which the Court could adopt.

8. Court’s attention was directed to the case of the State v Paul Kalu (2011) N5270 as a possible guide in sentencing. In that case the prisoner who punched and kicked the victim in a drunken brawl thereby rupturing the spleen causing death, was given a 7-year head sentence.

9. On behalf of the State Ms Patana sought a custodial sentence of 12 to 15 years imprisonment. It was submitted that the offence involved premature termination of a life; even though no offensive weapons were used, throwing of objects at the deceased showed a strong intention to harm. The deceased sustained a ruptured spleen and died. There was no regard for human life and the offence was prevalent.

10. After highlighting the sentencing guidelines in the Manu Kovi v the State (2005) SC 789 Ms Patana referred the Court to other cases as possible guides.

11. In the State v Ruben Bamatu (2008) N3941 the prisoner threw a pawpaw at his wife which landed on the deceased left side of her stomach.

12. It resulted in a ruptured spleen from which the wife died. On a guilty plea for manslaughter the prisoner was sentenced to 12 years with deductions.

13. In the State v Daniel Roland Walus (2005) N2802 on a guilty plea to manslaughter the offender was sentenced to 18 years with deductions. The offender kicked and punched the deceased. Even though offensive weapons were not used the attack was vicious.

14. In the State v Christopher Dubun (2010) N4109 on a guilty plea to manslaughter for kicking the deceased resulting in death from a ruptured spleen was sentenced to 12 years with deductions.

15. The PSR suggested that a partial sentence with probation orders be imposed. The report confirmed that cash and food items valued at K10,000. 00 was paid to the victim’s relatives as compensation. The payment was confirmed by community leader Betty Mike when interviewed.

16. The law on manslaughter is created and the penalty prescribed under s 302 of the Criminal Code Act in the following terms:

302 Manslaughter

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.

17. Manslaughter is a very serious offence for which the prescribed maximum penalty is imprisonment for life.

18. Life Imprisonment is the maximum penalty prescribed primarily because a life is lost. Once a life is lost there is no chance of return. However, the law also permits discretion in sentencing by operation of s. 19 of the Criminal Code. The sentencing practice that the maximum prescribed is reserved for the worst category of an offence applies her.

19. The death occurred out of a domestic violence situation. It may be referred to as what is colloquially termed as “wife beating”. No weapons were used. It was alcohol related between husband and wife. Domestic violence deaths are prevalent in this country. High sentences are not having any deterrent effect on domestic violence. It is apparent that the present case is one of those that have not had deterrent effect from high sentences imposed by the Courts.

20. The prisoner is a first-time offender who entered an early guilty plea to a very serious offence. He expressed remorse in his allocatus. There is no dispute that some customary compensation was paid. The PSR confirms it. It operates as a special mitigating factor.

21. What aggravates the offence is that a death was caused, and it involved the application of force resulting in a ruptured spleen.

22. There was an element of intention to do grievous bodily harm present. The offence is prevalent in this country and a lot of lives are unnecessarily lost. Sentences must reflect preservation and protection of life in obedience to the guarantee and mandate under s 35 of the Constitution.

23. Courts have time and again placed great importance on the sanctity of life and the need to impose adequate sentences on those offenders who cause a death or are involved in any way to the loss of a life.

24. Taking sanctity of life as the paramount consideration in sentencing, a custodial sentence is preferable. However, it should not interfere with the sentencing discretion of the Court. The exercise of Courts discretion to impose any non-custodial sentence should be in rare cases.

25. The facts and circumstances of the present case do not warrant the maximum prescribed penalty for manslaughter. A life was unnecessarily lost through the actions of the prisoner. Had the prisoner exercised restraint the mother of his children would not have lost her life.

26. On the welfare of his children raised in allocatus, Courts have maintained that an offender should have considered the welfare of families before committing an offence.

27. In the State v Lucas Yovura (2003) N2366 the court held that:

“...it is a bit too late to talk about an offender’s background including the needs of his family concerns once he is ... guilty according to law ... his background and concerns should have little weight against the need to impose a sentence.

28. In the State v Taulaola Pakai (2020) N4215 the Court said:

“An offender should consider his family obligations and commitments first before he goes out and commits an offence. A plea for leniency to avoid the suffering of one’s family should have little to no weight when an appropriate sentence is being considered.”

29. Those sentiments are adopted as relevant in the present case. The prisoner’s family concerns shall have no bearing in his sentencing.
30. He caused an unwanted burden on himself, his children, his in-laws and other extended family members.

31. The depositions show that the deceased was 28 years old when she died. The prisoner was 35 years old then. Assuming that the life expectancy for males and females in this country to be 70 years, the prisoner still has 35 years or more left to live. The deceased however lost 42 years or more of life expectancy prematurely.

32. To arrive at an appropriate sentence, it is considered that the sentencing guidelines in Manu Kovi v The State (2005) SC 789 is appropriate. The present case falls into the first category in Manu Kovi which suggested a sentence range of 8 to 12 years.

33. Given his early guilty plea as a first-time offender who genuinely expressed remorse by payment of substantial compensation, he is entitled to some leniency.

34. Even though payment of compensation is not a substitute for imprisonment in sentencing it is considered as a special mitigating factor worth considering in favour of the prisoner.

35. Under the circumstances of the case, it is deemed that 10 years is an appropriate sentence. The prisoner is sentence to 10 years.

36. From the 10 years, 04 years is years is suspended on account of his early guilty plea and in respect of the special mitigating factor present. The period spent in pre-trial custody is deemed as one year which shall be deducted from the 6 years remaining .

37. The balance of the sentence of 05 years is wholly suspended on the following conditions;

1. The prisoner shall be placed on probation supervision for two years.
2. He shall deposit a sum of K2, 000. 00 cash as surety for the probation period.
3. He shall be of general good behaviour during the probation period.
4. He shall comply with all directions issued by the probation service.
5. In default of any of the conditions the surety shall stand forfeited and the prisoner shall serve the balance of 05 years suspended sentence at CIS Buimo.

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