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State v Remmie [1996] PGNC 55; N1503 (10 December 1996)

Unreported National Court Decisions

N1503

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR NO 768 OF 1996
THE STATE
v
RAMIGIUS REMMIE

Waigani

Batari AJ
10 December 1996

CRIMINAL LAW - Sentence - Appropriate consideration - Intention behind act causing death and the consequences.

CRIMINAL LAW - Sentence - Manslaughter - Proper approach - Use of rape as guideline - Not followed.

Cases Cited:

The State v Polun Pochalun Lopei [1988-89] PNGLR 48

Rex Lialu v The State [1990] PNGLR 487

Counsel:

L Maru for the State

M Kua for the Accused

SENTENCE

10 December 1996

BATARI AJ: I have to sentencepris prisoner following his conviction on the manslaughter of one Henry Olapo.

The circumstances of the killing have been traversed in my judgment followhe prisoners trial on the charge of murder. For the pthe purpossentencntence, I will state only briefly the facts which sustained the conviction on this alternate verdict of manslaughter.

On the night of 13 February, 1996 between 7.00 pm and 8.00 pe deceased Henry Olape was was lying down on his stomach on a flatform outside his flat at 4 Mile, Department of Works Compound. His two sons sat next to him eating their evening meals. Theoner came to where they they were and kicked the deceased in the mid-section area of his body twice with the safety boot he was wearing. The impact was just behe dthe deceased’s rie section. It caused used a constricoion of the left coronary which was already grossly narrowed. Aesult of the consion, sup, supply of oxygen to the heart muscle by blood was cut cut off. &#160s and the complete bloe blocking off of the right coronary result of the excitment triggered or accelerated the heart eart attack which led to the deceased’s death.

When I consider sentence, I must take inte into account the intention behind your act of kicking the deceased and the consequences. I must cor the seriousnesssness of the intention and the seriousness of the consequences. I have found tour intentioention was to de harm falling short of grievous bodily harm, but the result had been tragic: the victim haim has died. If you had not attacked the victim would die a natural death and you would have nove not carried any blame.

The crime of manslaughter is said to be pent and looking at the number of manslaughter cases the National Court has dealt with over over the last six years, one will aghat the the offence of manslaughter has been on the rise. In tse of The State v Polu Polun Pochalun Lopei [1988-89] PNGLRt was suggested that the sentences of manslaughter must have a higher starting point to otho other crimes of violence like rape and ry. Justice Bredmeyer,eyer, suggested a tariff for ‘spleen death’ type of manslaughter should be five years for a plea of guilty and six years and more in a contested case with features of aggravation.

I think the Honourable trial judge in making the observations on sentences was merely pointing out the loss of life from an unlawful act as being the most serious compared with rape. His Honour sted on that baat basis that the tariff for manslaughter should be higher than rape.

Both crimes of manslaughter and rape involve some form and degree of violence to the victim. Both ansidered most seriouerious offences to warrant the penal servitude of life imprisonment. Howevedo not think the tare tariff for manslaughter cases should xed by comparison to the range that might exist for rape sepe sentences. The two crimes are totally different in nature, conseq and are committed under uner unrelated and varying circumstances.

The proper approach to manslaughter sentencing is in my vie out in the Supreme Court case of Rex Lialu v The State [19e [1990] PNGLR 487. That is, the Coust have reve regard to the aggregate effect of all relevant considerations and then determine the appropriate penalty for the particular offence. In mansler cathe Court must must have careful regard to the circumsrcumstances of death and the way death was actually caused. (R v Phi#8217985) 7 Cr Appr App R (S) 235 at 237 adopted and applied).

There are a number ofer of matters which may be relevant to theumstances of death and the way in which death was actually caused. These are enumeratmerated in Rex Lialu’s case as:

i. &##60;& t60;nate e anr freq frequency of any attack or assault;

ii. 㺼&#whethehether the the injury which caused the death aros arose directly from an attack or assault or was caused by, for example, falling on an object;

iv. ;ټ whetherether therethere was deliberate intention to harm;

v. ; w60therethere was provocaovocation in the non-legal ;

vii. ټ&#whethe ethe ded haed hadnlarged spleen.

In this, the attack was unprovoked and there is no explanation for tfor the suhe sudden dden attacattack. You kithe deceased withlidthlid heathered safety wety workinorking boot. This caused the deceased excitement which triggered the constriction or further narrowi the grossly narrowed left coronary. The deceasedRd’s right coronary was completely blocked off which I think, also red from the ‘excitmenttment’ due to the sudden impact on his body. According to the medicidenvidence, any excitementd cause constriction of thef the left coronary. The deceased’sition tion was akin to someone who has a grossly enlargely n which may rupture simply by falling. In this case, ase, the excitment was caused by the kick to the deceased’s body.&#1ou contributed to his deathdeath as I have found from the evidence. kick to his body exacerbaterbated the heart attack which lethe deceased’s death.eath. Youtherefore criminally rely responsible for that death.

I take into account the follown the prisoner’s favo favour:

· & forst ce enth rith relativlatively good background;

· ҈& < < young marriedHavinHaving considered all your personrcumss andthe circumstances of your crime, I co I consider the appropriate sentence is four years imprisonment.

O

Orders:

1. ҈ C60; Convicted and nentetoed to four years imprisonment IHL.

2. ـ D ductenleven months for tfor time in cy.

Lawyer for the State: Public Proor