N2269

PAPUA NEW GUINEA

[In the National Court of Justice]

CR 105 OF 2002

THE STATE

-V-

BRIAN KASIRA

POPONDETTA	:	JALINA, J.
8TH & 18TH APRIL 2002

Criminal Law – Unlawful killing – Sentence – Death from ruptured spleen – Guilty plea – First offender – Prevalence of violence against women – Custodial sentence appropriate – Criminal Code s.302 

Counsel:
Ms. M. Boni for the State
Mr. P. N’dranoh for the Prisoner

18th April 2002

JALINA, J. You have pleaded guilty to unlawfully killing your wife the late Glenda Baturu during a domestic argument at Naukanene Village, Afore in the Oro Province on 5th November 2001. The deceased was your second wife.

The argument you had with the deceased was over your first wife being unable to sleep the previous night. During the argument you became angry and first of all hit the deceased twice over her head with a piece of bamboo. You then kicked her two times in her abdominal area. She collapsed and died about 15 minutes later.

The Medical Report shows that the deceased died from internal haemorrhage from her ruptured spleen. The spleen was no doubt ruptured from the kicks applied by you to her abdominal area.

The maximum penalty for manslaughter is life imprisonment under s.302 of the Criminal Code, subject to the Courts discretion to impose a lesser sentence under s.19 of the Code. Such lesser sentence has been by term of years the length of which depending upon the peculiar circumstances of each case. However, both the National Court and the Supreme Court have expressed that manslaughter is a serious crime because of loss of life. In The State –v- Rex Lialu [1988-89] PNGLR 449, Amet J (as he then was said at 452:

"I consider that our sentences for manslaughter must reflect the serious view that the legislature took over loss of human life in fixing the maximum sentence as life imprisonment. This is also a reflection of the community’s view against unwanton killings. I repeat my view that sentences for manslaughter must be relatively higher than sentences for rape and robbery to reflect the sanctity of the life given by God which no man has the right to take or deprive prematurely. A life has been taken which cannot be restored, quite unlike rape and robbery."

Not withstanding my support for the reduction of the sentence in Rex Lialu –v- The State [1990] PNGLR 487 which was occasioned by the circumstances in which that particular manslaughter was committed, what Amet J (as he then was) has stated above is still good law in so far as sanctity of human life is concerned and the seriousness with which Parliament considered when it prescribed the penalty of life imprisonment for manslaughter.

In 1996 the Supreme Court comprising Amet CJ, Salika and Injia JJ said in Antap Yala –v- The State, Unreported SCR 69/96:

"The maximum punishment for the offence of manslaughter is life imprisonment. Whilst sentences for manslaughter would normally be lower than sentence for murder and wilful murder, there are those cases that will justify the imposition of heavy punishment and even the maximum punishment…. The sentence in any given case will of course depend on its own peculiar facts. We are unable to prescribe any particular range of sentences for this offence, as it is all too difficult to fix any range of sentences with some degree of precession. However, we would suggest that in an unintentional killing case which is uncontested, whatever the extenuating and mitigating circumstances may be, the application of vicious force, with or without the use of a weapon, causing serious bodily injury resulting in death may attract sentences between 10 years and above and in some cases, even life imprisonment. The National Court has been far too lenient in the past in relation to men who are belting their wives. And in some instances wives belting their husbands. So let (us) warn everyone right now that the sentences are going to go up."
 
In The State –v Steven Kenny [1999] Unreported N1881, Kirriwom J said the following in dealing with domestic violence that resulted in a spleen death. The accused was subsequently charged with manslaughter.

"Men who physically assault their wives or women generally must realise by now that spleen related deaths are common and frequent where men indiscriminately batter their women-folk without the slightest regard for their health and life. Resorting to physical violence to resolve one’s anger is not the right behaviour of decent and respectable men. Men who expect respect and support from their women must earn that respect by their conduct deserving of praise and dignity. The prisoner simply lost his control and as the consequence an innocent life is lost. Counsel for the prisoner referred to the case of Rex Lialu –v- The State [1990] PNGLR 487. I must say categorically that Rex Lialu is out of date and in view of the prevalence and rising trend of violent deaths in totally unacceptable circumstances, reliance on this authority is no longer of any force or effect. That was a time when a sentence of six years and a half years was held to be excessive on appeal and reduced to four and a half years imprisonment. Constant reliance on Rex Lialu gives clear impression that sentences for manslaughter fall within the category of four (4) years. But the tide has changed.

Manslaughter cases with no aggravating circumstances can now attract up to 6 or 7 years imprisonment on a plea or more on trial. Where there are aggravating circumstances and on a plea matter the prisoner should expect nothing less than 8 years." 

As Rex Lialu was decided some 12 years ago, I with respect agree with the views expressed by Kirriwom J. Thus, in line with the seriousness with which Parliament viewed this crime of manslaughter and the Court’s concern at the prevalence of it (crime of manslaughter), the Supreme Court in Jack Tanga –v- The State [1999] Unreported SC602 and John Tapil –v- The State [2000] Unreported SC635 upheld the sentence of 12 years and 16 years respectively for manslaughter.

You have given a very long statement on the allocutus during which you sought leniency on the basis of your involvement in the project in your village in conjunction with a non-governmental organisation where you have become an indispensable member, your concern for your children, reconciliation between your relatives and the deceased’s relatives and the intention by the relatives of the deceased to withdraw the case, being a T.B patient at the Corrective Institution at Biru among other things.

Your lawyer has also sought leniency on the basis of you being a first offender, you pleaded guilty, expressed remorse, the presence of de facto provocation, reconciliation between your relatives and the deceased’s relatives and that you have very young children to care for.

In deciding the sentence I should impose, I have taken into account what you have said on your allocutus as well as what your lawyer has raised in mitigation. But I should make it clear to you that the matters you raised during the allocutus such as the welfare of the project with NGO and your concern for your children were matters that should have been on your mind and therefore become a restraint towards assaulting your wife. Many people do not stand for one moment to think about the adverse effect their imprisonment may have on their jobs and their families before they commit serious crimes.

With regard to your concern that this matter was going to be settled in the village, let me make it clear to you and the public at large that when a serious offence such as murder, rape or robbery is committed, it is a matter that the State through the police and the Public Prosecutor has an interest in because the State has laws which prohibit such actions. It no longer becomes a matter for the village people to settle and forget about. Papua New Guineans are no longer living in the days when tribal laws governed relationship between peoples and tribes. At the present time, until our laws are changed, the police make a decision whether to lay a charge or not after a complaint is brought to it and an arrest is made. If the police charge a person for an indictable offence and it is committed for trial in the National Court, then the Public Prosecutor has the general power to decide whether to proceed against an accused person or not.

So in your case, considering the case law I have referred to earlier which effectively decided that the offence of manslaughter is serious and the court must give effect to the intention of Parliament in treating it seriously when punishing offenders coupled with the prevalence of the offence of manslaughter through husbands assaulting their wives, I am of the opinion that the appropriate sentence should be 10 years imprisonment in hard labour which I so impose. I deduct from that sentence the 5 months and 2 weeks you have been in custody which leaves 9 years, 6 months and 2 weeks in hard labour.
____________________________________________________________________
Lawyer for the State:		Public Prosecutor
Lawyer for the Prisoner:	Public Solicitor