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State v Iaukake [2021] PGNC 675; N9955 (29 July 2021)

N9955

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 807 OF 2019

THE STATE

V

EDWARD IAUKAKE

Kerevat/Kokopo: Suelip AJ
2021: 8^th, 6^th, 24^th May & 29^th July

CRIMINAL LAW – Sentence – plea – manslaughter s. 302 Criminal Code – loss of life – prisoner unintentionally killed his infant child – sentence of 10 years – custody term deducted – 2 years suspended – balance to be served in prison.

Cases Cited

Goli Golu v. State [1979] PNGLR 653
Manu Kovi v. State (2005) SC789
State v. Nasinom Tonga (2019) CR No. 584
State v. Ambrose Talui (2020) N8542
State v. Danny Lambert (2020) CR No. 980 of 2011

Counsel

G Tugah, for the State
S Pitep, for the Prisoner

SENTENCE

29^th July, 2021

1. SUELIP AJ: On 8 April 2021, the prisoner pleaded guilty to a charge of manslaughter pursuant to section 302 of the Criminal Code.

2. This is now my ruling on sentence.

Facts

3. The facts of which the prisoner pleaded guilty to are these. On Wednesday, 31 October 2018 at around 4:00pm, the prisoner was with his wife namely Michaelyn Jacob and his one year old baby (deceased) at his block at Mamapit village, Lassul, Gazelle, East New Britain Province. At that time and place, he was having an argument with his wife whilst she was carrying their baby, namely Eddie Philip Iaukake (deceased). The prisoner got very angry and folded his fist and threw a punch at his wife. However, the punch landed on the right side of the baby’s head. The deceased started crying and his mother breast fed him and he went off to sleep. The infant (deceased) then died at around 3:00am in the early hours of the next day which is 1 November 2018. The body of the deceased was taken to Nonga General Hospital. He later voluntarily surrendered to the Police and was arrested and charged for unlawfully killing his own baby. His actions contravened Section 302 of the Criminal Code and he is charged with manslaughter.

Offence

4. Section 302 of the Criminal Code provides: -

302. Manslaughter

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

Penalty: Subject to Section 19, imprisonment for life.

5. The maximum penalty for the offence is imprisonment for life, subject to Section 19 of the Criminal Code.

Personal particulars

6. A pre-sentence report prepared by Probation Officer Noel Awagalas shows the prisoner is 32 years old of mixed parentage from Watam Island and Tavui No. 2 in the Rabaul District, East New Britain Province but currently resides with his family and parents at Vunamarita village in the Lassul area. The report says he has a brother and 2 sisters, and he has 3 children. It says he is educated only up to grade 2 and has since been unemployed. The report also says that he does subsistence farming and survives on the income from sales of vegetables. The report says he is of the Catholic faith.

Allocutus

7. During allocutus, he asked for the Court’s mercy and leniency. He said he is sorry to the Court and to God. He also expressed remorse to his wife and family for what he had done. He asked the Court to give him probation and good behaviour bond, so he can serve his time outside prison.

Submissions on sentence

8. The maximum penalty of life imprisonment must be reserved for worst type case. See Goli Golu v The State [1979] PNGLR 653.

9. Both counsels submit that this case falls within categories 1 and 2 of the sentencing guidelines for manslaughter in Manu Kovi v The State (2005) SC789 where the sentencing tariff is for 8-12 years, and 13-16 years, respectively.

10. Counsel for the prisoner argued that the appropriate starting point of sentence should be at the lower end of category 1 of Manu Kovi, which is at 9 years. She says that since the mitigating factors outweigh the aggravating factors, the proper head sentence is 8 years.

11. On the other hand, the State claims that a sentence of 8-12 years is warranted in the circumstances of this case as the offence of manslaughter is serious and prevalent in our society, hence it calls for both personal and general deterrence. Counsel for the Sate argued that a sentence between 8-12 years is appropriate.

12. In my recent decision in State v. Nasinom Tonga (2019) CR No. 584 of 2019, the prisoner pleaded guilty to manslaughter. In that case, the prisoner hit his nephew with a stick and the child went to sleep and died some hours later. I sentenced the prisoner to 10 years less pre-sentence term.

13. Another local case which I decided on is State v. Ambrose Talui (2020) N8542 where the prisoner pleaded guilty to manslaughter when he punched his wife on the head in a heated argument and she died thereafter. He was sentenced to 8 years imprisonment less pre-sentence term. I suspended balance of his term on strict conditions for reasons that he had young daughters and he paid some cash and shell money to his wife’s family, and he is willing to pay more.

14. I also decided on the local case of State v. Danny Lambert (2020) CR No. 980 of 2011 where the prisoner unintentionally threw a stone at the deceased and hit him at the back of his head, who later died. The prisoner meant to hit another person who assaulted his mother. I sentenced the prisoner to 10 years in prison but suspended half with conditions. More time was deducted for time already spent in custody and he is serving 4 years and 8 months in prison.

15. In this case, the mitigating factors are: -

(i) the prisoner pleaded guilty.

(ii) he had no intention to kill your child, the deceased.

(iii) first time offender.
(iv) he made admissions in your Record of Interview.
(v) he expressed remorse.

(iv) he voluntarily surrendered to the police and co-operated in their investigations.

16. Against him, the aggravating factors are: -

(i) a young and innocent life was lost.

(ii) he punched his infant child on the left side of the back of his head which is a vulnerable part of the body.
(iii) it is a killing in a domestic setting.
(iv) offence is prevalent in society

Sentence

17. This is not a worst type case and so the maximum penalty will not apply. However, in weighing all these factors, I place great weight on the guilty plea and that the prisoner never meant to kill the deceased. However, I also note in the pre-sentence report the views of his sister and ward member where, the sister says that the prisoner has a problem with drinking too much alcohol and taking illicit drugs. The prisoner also admitted in the report that he takes alcohol. For that, I consider a custodial sentence as appropriate for him to take more time away from alcohol or drugs abuse. I therefore impose a head sentence of 10 years.

18. Pursuant to 3(2) of the Criminal Justice (Sentence) Act 1986, I deduct pre-sentence custody time he has spent in custody. The prisoner has been in custody since 27 February 2019 and so that is a total of 2 years and 5 months. This period will be deducted.

19. As to whether I should suspend all or part of the head sentence, I am persuaded by the fact he never intended to kill his own child. He only meant to hurt his wife. Also, for the sake of his 3 living children, I will suspend a further 2 years from his head sentence.

20. From the pre-sentence report, the prisoner’s sister says that his wife has moved on with her life and has since remarried. I therefore do not see the utility in making an order for compensation, even if his family is willing to pay. The prisoner, on the other hand, will have to live with this guilt for the rest of his life.

Orders

21. The Orders of the Court are:

(i) He is sentenced to 10 years imprisonment.

(ii) A period of 2 years and 5 months is deducted for time he had spent in custody.

(iii) A further 2 years is suspended.

(iv) He will serve the balance of 5 years and 7 months in custody at Kerevat Correctional Institution.

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Public Prosecutor: Lawyers for State
Public Solicitor: Lawyers for Prisoner