[1999] PNGLR 468

PAPUA NEW GUINEA

[national court of justice]

The State

v

Paulus Non Pable

mount hagen: injia j
18 August 1998; 11 June 1999

Criminal Law – Evidence – Sentence - Manslaughter - Mitigating factor – Customary compensation - Payment of four (4) girls as part of compensation - Not a mitigating factor.

Facts

The accused pleaded guilty to unlawfully killing one Bar Kapil, contrary to s 302 of the Criminal Code Act Ch 262.

On 29 April 1998, the accused was gambling with the deceased and others at the remote Karap village, Jimi in the Western Highlands Province. In the course of the gambling, an argument occurred between the accused and the deceased over the accused’s 50 toea, which the deceased stole but refused to return. The accused proceeded to search his pocket but the deceased punched him. In retaliation, the accused hit the deceased on his left rib cage "a little bit hard". As a result the deceased died the same day. Medical report shows the cause of death was due to acute loss of blood from ruptured enlarged spleen.

Held

1.	I take into account in the accused’s favour compensation of K20,000 and 30 pigs paid by the accused’s relatives to the deceased’s relatives. I will not take into account the alleged inclusion of 4 girls as part of the compensation package because it is a custom which is repugnant to the general principles of humanity and out-lawed as being illegal and unconstitutional: see In re Miriam Willingal [1997] PNGLR 119. 

2.	The value of human life cannot be adequately compensated in money and pigs, which can do nothing to restore life lost. The accused still remains to be punished by this Court: see Rex Lialu v The State [1990] PNGLR 487.

3.	The accused was sentenced to 5 years imprisonment deducting the period of 1 year 2 months in pre-trial custody. He has to serve 3 years and 9 months in prison.

Papua New Guinea cases cited

State v Rex Lialu [1990] PNGLR 487.
Re Miriam Willingal [1997] PNGLR 119.
The State v James Make [1998] PNGLR 61.
The State v Maria Er [1998] PNGLR 26.

Counsel

J Kesan, for the State.
B Aipe, for the accused.

11th June, 1999

Injia j. The accused pleaded guilty to unlawfully killing one Bar Kapil, contrary to s 302 of the Criminal Code Act Ch 262.

The short facts of the case are that on 29 April 1998, the accused was gambling with the deceased and others at the remote Karap village, Jimi in the Western Highlands Province. In the course of the gambling, an argument occurred between the accused and the deceased over the accused’s 50 toea, which the deceased stole but refused to return it. The accused got up and searched his pocket but the deceased punched him. The accused got upset and "hit him on the (left) side (ribs).....a little bit hard." As a result the deceased died the same day. The medical report shows the cause of death as due to acute loss of blood from ruptured enlarged spleen.

On 18 August 1998, I adjourned this matter after hearing counsels’ submissions and directed the Probation Officer in Mt. Hagen to provide me with a report to enable me to consider the accused’s suitability for probation. I also directed the Probation Officer to investigate the defence counsel’s submission that four girls were paid as part of a customary compensation payment by the accused’s tribe to the deceased’s tribe. The matter was also widely reported in the two daily newspapers - Post Courier and National. I am now advised by both lawyers that the Probation Officer did not do his job because he did not have a vehicle to go to the accused’s village to interview people. In the circumstances, I intend to sentence him without that report.

I also understand a judicial inquiry I initiated under s 57 of the Constitution through the Registrar in Mt. Hagen, on the subject of the four girls being used as part of compensation has somewhat got side-tracked due to complications posed by relatives on both sides as well as the four girls involved. Whatever the true situation might be, although I will take into account in the accused’s favour compensation of K20,000 and 30 pigs paid by the accused’s relatives to the deceased’s relatives. I will not take into account the inclusion of 4 girls as part of the compensation package because it is a custom which is repugnant to the general principles of humanity and out-lawed as being illegal and unconstitutional: see In re Miriam Willingal [1997] PNGLR 119. I should also say that whilst I appreciate substantial compensation in pigs and money has been paid, the value of human life cannot be adequately compensated in money and pigs, which can do nothing to restore life lost. Therefore the accused still remains to be punished by this Court: see Rex Lialu v The State [1990] PNGLR 487.

I also take into account his young age (aged 17 years old), his village background, his stable family and home background, his education and church background, his co-operation with the police in surrendering himself and freely admitting the offence to police, his guilty plea and his no prior conviction record. I also bear in mind that the deceased had a part in this in that he took the accused’s 50t and caused the argument and punched him first.

The maximum punishment for manslaughter under s 302 is life imprisonment. This Court has imposed sentences for plea to manslaughter in the range of 1 - 12 years. Sentences for enlarged spleen cases falls within the range of 1 - 5 years for uncontested cases: The State v James Make & Others [1998] PNGLR 61, The State v Maria Er [1998] PNGLR 26.

Gambling is an illegal activity. People who gamble, get into arguments over money and fight and injure or kill someone should not expect the leniency of the Courts. The accused in this case hit the deceased in a vital area and he hit him hard causing the accused’s enlarged spleen to rupture and produce massive internal bleeding which eventually claimed his life. For this, the accused should be appropriately punished.

Taking into account the aggregate of all these factors, I consider that a sentence of 5 years is appropriate and impose the same. I deduct the period of 1 year 2 months in pre-trial custody. He has 3 years and 9 months more to serve.

Lawyer for the State: Public Prosecutor.
Lawyer for the accused: Public Solicitor.