N2446

PAPUA NEW GUINEA

[In the National Court of Justice]

CR 282 of 2003

THE STATE

-V-

ROBIN DONUMB

Mt. Hagen: Jalina J
2003: 25 and 27 February.

Criminal Law – Unlawful killing – Sentence – Sentence for unlawful killing with dangerous weapons should be higher than unlawful killing from rupture of spleen through single kick or punch – Criminal Code s.302.

Cases cited:
The State –v- Titus Wambun, Unreported Judgment, N2311
The State –v- Samuel Benimo, Unreported Judgment, N2203
The State –v- Clara John Gabriel, Unreported Judgment in CR 292/03 dated 25th February, 2003.

Counsel:
J. Kesan for the State,
P. Kumo for the Prisoner.

27th February, 2003

SENTENCE

JALINA J: This prisoner has pleaded guilty to unlawfully killing one Andrew Mek Donumb at Korolka Village in the Western Highlands Province on 27th December 2002. He had apparently become upset and angered with the deceased and the deceased’s wife after they took back a son he had adopted from them under custom because he did not have a child of his own from his wife. He had in fact paid a pig and some money in accordance with their custom for the child.

Before he proceeded to the deceased’s house the prisoner told people that he had problems with the deceased and that he was going to solve it that day. He then went and attacked the deceased with a bushknife and then returned to the market and showed people at the market the bushknife with blood stains on it. He left the deceased after chopping him on the left knee. The deceased died from loss of blood.

The medical report revealed the following injuries through the single cut to the left knee:

(1)	Left lateral epicondyle completely separated by a clean cut.
(2)	Severed head of the left gastrocemics – both lateral and medial head.
(3)	Severed popliteal artery and vein.
(4)	Severed nerve common peroneal.
(5)	Severed tendons of the biceps fessoris.

The prisoner has told the Court through his lawyer that after he arrived the deceased attacked him first and then he pulled the deceased’s knife away and cut the deceased with his (the deceased’s) own bushknife. 

From the evidence of Monitha Andrew the wife of the deceased that her husband was on his way to Bilu market after having his bath coupled with the fact that the prisoner refused to tell the police during the record of interview as to what may have happened prior to the attack by him upon the deceased, I am of the opinion that the prisoner’s story about a fight between him and the deceased prior to him disarming the deceased and chopping the deceased with the deceased’s own bushknife is a statement whereby the prisoner is looking for some justification. This is consistent with his failure to tell people at the market after he returned about what happened when he cut the deceased. He only told people at the market and his second wife Marie also told people at the market about the prisoner killing the deceased and nothing else; not even about a fight between the prisoner and the deceased were mentioned. 

The maximum penalty for manslaughter is life imprisonment under s.302 of the Code subject to the Court’s discretion to impose a lesser sentence under s.19 of the Code. Sentences for manslaughter used to be up to 10 years but due the prevalence of this offence which involves an element of lack of respect for human life, the courts have imposed sentenced of between 12 and 16 years. I have imposed a sentence of 20 years in The State –v- Titus Wambun Unreported National Court judgment N2311 dated 20th November 2002 in Lae on the prisoner for unlawfully killing an off duty policeman with a pistol. 

In recent times I have expressed the view that manslaughter sentences where dangerous weapons are used must be higher than those that involve rupture of the spleen from a single punch or kick to the abdominal area. See The State –v- Samuel Beremio Unreported National Court Judgement N2203 dated 18th April 2002 and The State –v- Clara John Gabriel CR 292/03 who I sentenced here in Mt. Hagen to 10 years imprisonment this week for killing a co-wife by a single stab with a kitchen knife to the deceased’s neck. This case falls under the same category because a dangerous weapon, namely a bushknife has been used. 

In all the circumstances of this case bearing in mind the mitigating factors such as his lack of prior convictions, his expressions of remorse, his plea of guilty, provocation in the non-legal sense in regard to the adopted son having been taken back by the deceased after the prisoner had paid for the customary adoption, I consider that non-custodial sentence which he had requested during his statement on the allocutus is not appropriate. I have also taken into account the payment of compensation and I consider it inappropriate for purposes of the Criminal Law (Compensation) Act. The offence is too serious for me to impose a non-custodial sentence. The sentence I consider appropriate in all the circumstances is a period of 12 years imprisonment in hard labour which I so impose. I deduct from that sentence the 2 months 3 weeks he has been in custody which leaves 11 years 9 months and 1 week IHL.
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Lawyer for the State:		Public Prosecutor
Lawyer for the Prisoner:	Public Solicitor