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State v Roho [2006] PGNC 72; N4483 (24 August 2006)

N4483

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1665 OF 2005

THE STATE

V

SEBASTIAN SAHOTO ROHO

Buka: Cannings J
2006: 16, 22, 24 August

SENTENCE

CRIMINAL LAW – Criminal Code, Division V.2 (homicide etc) – Section 302 (manslaughter) – sentence on plea of guilty – no intention to do serious harm – sentence of 10 years.

A young man pleaded guilty to killing his mother by kicking her in the abdomen during a domestic dispute. She died of a ruptured spleen and other internal injuries. The offender said he did not mean to do serious harm. A pre-sentence report showed the offender was of good character prior to committing the offence. The people in the village, including his father (the deceased’s husband) did not want to see him spend a long time in prison.

Held:

(1) The starting point for sentencing for this sort of killing in a domestic setting is 8 to 12 years imprisonment.

(2) Mitigating factors are: single blow; only one offender; lack of intention to cause serious harm; the victim provoked the offender; deceased’s pre-existing condition; gave himself up; co-operated with police; pleaded guilty; expressed remorse; first offender; family and community not pushing for heavy sentence.

(3) Aggravating factors are: no intervening cause of death; a kick, rather than fist; vicious assault; offender solely responsible; not a youthful offender.
(4) A sentence of 10 years was imposed. The pre-sentence period in custody was deducted and six years of the sentence was suspended on conditions.

Cases cited

The following cases are cited in the judgment:

Anna Max Marangi v The State (2002) SC702
Manu Kovi v The State (2005) SC789
Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06

Abbreviations

The following abbreviations appear in the judgment:

ARB – Autonomous Region of Bougainville
CR – Criminal
DCJ – Deputy Chief Justice
J – Justice
N – National Court judgment
No – number
SC – Supreme Court judgment
SCRA – Supreme Court Criminal Appeal
v – versus

PLEA

A man pleaded guilty to manslaughter and the following reasons for sentence were given.

Counsel

R Luman for the State
P Kaluwin for the accused

INTRODUCTION

1. CANNINGS J: This is a decision on the sentence for a man who pleaded guilty to an unlawful killing (manslaughter) under Section 302 of the Criminal Code. He faced the following indictment:

Sebastian Sahoto Roho of Hanahan, Buka, Bougainville, stands charged that he on the 19th day of May 2005 at Tohatsi, Buka ... unlawfully killed Gloria Lega.

CONVICTION

2. The offender pleaded guilty to the following facts:

• The incident happened at midday.
  
• The offender was angry with the deceased, his mother, who had argued with his small sister and chased her.
  
• His sister fell down a cliff, injured her back and had difficulty getting up and walking.
  
• The offender confronted his mother, argued with her and kicked her on the abdomen.
  
• His mother walked away, but then fell down and died a few minutes later.
  
• He did not intend to kill or to inflict grievous bodily harm on her.
  
• But he assaulted her and it was his assault that led directly to her death.
  

3. I entered a provisional plea of guilty and then, after reading the District Court depositions, confirmed the plea and entered a conviction.

ANTECEDENTS

4. The offender has no prior convictions.

ALLOCUTUS

5. I administered the allocutus, ie the offender was given the opportunity to say what matters the court should take into account when deciding on punishment. A paraphrased summary of his response follows:

This incident developed from a family problem. It was an accident. I did not mean it. My mother did not expect me to do that to her. I was angry with her as she had argued with my sister, sworn at her and chased her down a cliff and my sister was injured. But my mother walked away. I followed my mother to the house. I meant to kick her on the backside but she turned around unexpectedly and I ended up kicking her on the side. I was not drunk. I told my father about it, then I went to my room and went to sleep. I am very sorry about what I have done. It is my first time to be in court. My family would like to see me go back to the village and help them in the village. I apologise again. I know I have done wrong before God and the law. Please have mercy on me and give me a good behaviour bond.

OTHER MATTERS OF FACT

6. As the offender has pleaded guilty, he is entitled to the benefit of the doubt on mitigating factors that are apparent from the depositions, the allocutus or matters raised by his defence counsel that are not contested by the prosecutor (Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06, Supreme Court, Jalina J, Mogish J, Cannings J). The rationale is that giving the benefit of the doubt provides an incentive for accused persons to plead guilty and is a benefit accorded to them for saving the State extra resources that would have been committed to the case if a trial were necessary.

Depositions

• The offender claimed in his police interview that his mother was suffering from a spleen problem before he kicked her.
  
• The offender made admissions to the police and co-operated fully.
  

Allocutus

• The deceased had mistreated her daughter (the offender’s sister) and this made the offender get angry with the deceased.
  
• He expressed remorse.
  

PRE-SENTENCE REPORT

7. The offender is aged 28 and is single. His father is still alive. He is the third born in a family of ten. He was educated to grade 6 and has never been formally employed.

8. To help me make a decision on the appropriate sentence I requested and received a pre-sentence report prepared by the senior ARB Welfare Officer, Ms Cecily Kekun. A summary of the report follows.

Sebastian Sahoto Roho
Age: 28-year-old male.

Background: he is from Kakum village, in the Tohatsi sub-district, Buka, ARB – raised in Kakum.

Marital status: Single.

Parents: Blaise Roho is his father (from Kakum). Gloria Lega (the deceased) was his mother (from Kiopan village).

Education: grade 5 at Tohatsi Primary School.

Work: never formally employed.

Health: OK.

Plans: wants to return to the village, stay with brothers and sisters, build a new house, plant cocoa and coconut trees.

Family/community attitude to crime – three persons were interviewed:

The offender’s father, Blaise Roho, stated that the offender is a hard working person, well behaved prior to commission of offence – his late wife used to use abusive language against the children – wants his son to spend only a few years in jail as he did not intend to kill his mother – his son is not a threat to the community – he wants his son back in the village to help care for the other children.

The paramount chief of Halia, Herman Haliuhu, is responsible for Kakum village and regards the offender as an obedient and hard working person – agrees that the offender should be punished and maybe serve one year in jail and then be subject to a community work order.

The offender’s aunty, Loretta Crusoe, is the offender’s aunty and the deceased’s sister – lives at Kiopan village – the offender often visits her – regards the offender as a hard working person – accepts that the offender did not intend to kill his mother – is concerned that sending the offender to jail might make him angry and be rejected by his people.

Recommendation: might be a suitable candidate for probation supervision.

SUBMISSIONS BY DEFENCE COUNSEL

9. Mr Kaluwin highlighted the following mitigating factors: the offender pleaded guilty; he expressed remorse; he did not use weapons; there was de facto provocation; the deceased had a pre-existing medical condition making her susceptible to injuries; the incident erupted when both the deceased and the offender were under emotional stress; the deceased was not treating her children properly.

10. He referred to the Supreme Court’s decision in Anna Max Marangi v The State (2002) SC702, Jalina J, Injia J, Sawong J. A woman pleaded guilty to the manslaughter of a woman who she suspected was having an affair with her husband. The court reviewed the sentencing guidelines for uncontested manslaughter cases in a domestic setting and suggested that the following categories be used:

• application of force in an uncalculated manner, of a single blow, kick or punch on any part of the deceased’s body: 3 to 7 years imprisonment;
  
• repeated application of vicious force, with or without an instrument or weapon, eg repeated kicks or punches applied to the head or chest with intention to wound or cause grievous bodily harm, or single or multiple knife wounds on a vulnerable part of the body, with other aggravating factors: 8 to 12 years imprisonment;
  
• application of direct force in a calculated manner with a weapon such as a knife, bushknife or axe: 13 to 16 years.
  

11. Mr Kaluwin submitted that the case fits into the first Marangi category and accordingly the penalty should be 3 to 7 years imprisonment. However, he acknowledged that in the more recent case of Manu Kovi v The State (2005) SC789 (Injia DCJ, Lenalia J, Lay J) the Supreme Court reviewed sentencing guidelines for all manslaughter cases. He submitted that the present case falls into the first category of Manu Kovi’s case.

SUBMISSIONS BY THE STATE

12. Mr Luman, for the State, agreed that the case falls into the first category of Manu Kovi’s case and accordingly the sentence should be in the range of 8 to 12 years. The overriding consideration is that a life has been lost, which is irreplaceable.

DECISION MAKING PROCESS

13. To determine the appropriate penalty I will adopt the following decision making process:

• step 1: what is the maximum penalty?
  
• step 2: what is a proper starting point?
  
• step 3: what should the head sentence be?
  
• step 4: should the pre-sentence period in custody be deducted from the term of imprisonment?
  
• step 5: should all or part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

14. Section 302 (manslaughter) of the Criminal Code states:

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

Penalty: Subject to Section 19, imprisonment for life.

15. The maximum penalty is therefore life imprisonment. The court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code.

STEP 2: WHAT IS A PROPER STARTING POINT?

16. From time to time the Supreme Court gives sentencing guidelines in the course of deciding criminal appeals or reviews. These guidelines are often expressed in terms of a ‘starting point’ or ‘starting range’ for various types of cases. The National Court then applies those starting points in the course of looking at each case on its merits and identifying the aggravating and mitigating circumstances. The actual sentence imposed can be above, below or the same as the starting point depending on whether the aggravating factors outweigh the mitigating factors (resulting in a sentence above the starting point); the mitigating factors outweigh the aggravating factors (resulting in a sentence below the starting point); or the mitigating and aggravating factors are balanced (resulting in the starting point being the sentence).

17. In Manu Kovi’s case the Supreme Court suggested that manslaughter convictions could be put in four categories of increasing seriousness, as shown in table 1.

TABLE 1: SENTENCING GUIDELINES FOR MANSLAUGHTER DERIVED FROM SUPREME COURT’S DECISION IN MANU KOVI’S CASE

18. I agree with both counsel that the present case falls within category No 1 of Manu Kovi, which gives rise to starting point of 8 to 12 years.

STEP 3: WHAT IS THE HEAD SENTENCE?

19. There are a number of considerations to take into account in deciding on the head sentence. I have listed them below as a series of questions. An affirmative (yes) answer is regarded as a mitigating factor. A negative (no) answer is an aggravating factor. A neutral answer will be a neutral factor. The more mitigating factors there are, the more likely the head sentence will be reduced below the starting point. The more aggravating factors present, the more likely the head sentence will be above or at the starting point.

20. Three sorts of considerations are listed. Numbers 1 to 8 focus on the circumstances of the incident. Numbers 9 to 13 focus on what the offender has done since the incident and how he has conducted himself. Numbers 14 to 16 look at the personal circumstances of the offender and give an opportunity to take into account any other factors not previously considered.

21. The relevant considerations are:

1. Did the attack on the deceased consist of just a single blow? Yes.
   
2. Was just one person involved in the attack? Yes.
   
3. Was there some intervening cause of death, =eg did the death not result directly from the assault due to death being caused by an object when the deceased fell down? No.
   
4. Was the deceased injured by only a fist? No – it was a kick to the deceased’s abdomen.
   
5. Did the offender not set out to hurt anyone? Yes – it was in a sense an accident.
   
6. Did the deceased or any other person provoke the offender in ‘the non-legal sense’, eg did the deceased abuse or assault the offender? Yes – the deceased had argued with and abused the offender’s sister, then ignored his sister’s injuries when she fell down the cliff.
   
7. Did the deceased have a pre-existing condition making her susceptible to serious or fatal injury by a moderate blow, eg did the deceased have a thin skull or enlarged spleen? Yes – she had a problem with her spleen.
   
8. Can the assault on the deceased be classed as ‘not vicious’? No.
   
1. Did the offender play a relatively minor role in the attack? No.
10. Did the offender give herself up after the incident? Yes.
    
11. Did the offender cooperate with the police in their investigations? Yes.
    
12. Has the offender done anything tangible towards repairing his wrong, eg offering compensation to the family of the deceased, engaging in a peace and reconciliation ceremony, personally or publicly apologising for what he did? Neutral – a reconciliation process has started.
    
13. Has the offender pleaded guilty? Yes.
    
14. Has the offender genuinely expressed remorse? Yes.
    
15. Is this her first offence? Yes.
    
16. Can the offender be regarded as a youthful offender or are his personal circumstances such that they should mitigate the sentence? No.
    
17. Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence? Yes – his father (the husband of the deceased), other members of his family and the paramount chief responsible for the offender’s village are not seeking a heavy sentence. The offender was not regarded as a trouble-maker before the incident. He was highly thought of as a hard-working village man.
    

22. To recap, mitigating factors are:

• No 1 – single blow;
• No 2 – only one offender;
• No 5 – lack of intention to cause serious harm;
• No 6 – the victim provoked the offender;
• No 7 – deceased’s pre-existing condition;
• No 10 – gave himself up;
• No 11 – co-operated with police;
• No 13 – pleaded guilty;
• No 14 – expressed remorse;
• No 15 – first offender;
• No 17 – family and community not pushing for heavy sentence.
  

23. Aggravating factors are:

• No 3 – no intervening cause of death;
• No 4 – a kick, rather than fist;
• No 8 – vicious assault;
• No 9 – offender solely responsible;
• No 16 – not a youthful offender.
  

24. No 12, extent of reconciliation, is a neutral factor.

25. After weighing all these factors and bearing in mind that there are eleven mitigating factors compared to six aggravating factors, the head sentence should be below the starting point. I impose a head sentence of 10 years imprisonment.

STEP 4: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

26. The offender has spent 7 weeks and 1 week in custody in connexion with this offence and it is proper that that period be deducted from the total sentence. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment the whole of the pre-sentence period in custody, as shown in table 2.

TABLE 2: CALCULATION OF FINAL SENTENCE

STEP 5: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

27. This is not an appropriate case in which to suspend the entire sentence. A life has been lost. A man has killed his own mother. He must spend a considerable time in jail.

28. However, in view of the mitigating factors that have been identified – in particular the guilty plea and the attitude of the offender’s family and community – I will suspend six years of the sentence, on the following conditions:

1. must within three months after release from custody participate in a peace and reconciliation ceremony in accordance with custom;
   
2. must reside at Kakum village and nowhere else except with the written approval of the National Court;
   
3. must not leave Bougainville without the written approval of the National Court;
   
4. must perform at least six hours unpaid community work each week at the nearest Catholic Church under the supervision of the Parish Priest;
   
5. must attend the Catholic Church every Sunday for service and worship and assist the church in its community activities under the supervision of the Parish Priest;
   
6. must report to the senior Correctional Service officer at Buka Police Station every government payweek Friday between 9.00 am and 3.00 pm and sign the register;
   
7. must not consume alcohol or drugs;
   
8. must keep the peace and be of good behaviour;
   
9. must have a satisfactory probation report submitted to the National Court Registry at Kimbe every three months after the date of imposition of sentence;
   
10. the person responsible for filing the probation report will be the ARB senior welfare officer;
    
11. if the offender breaches any one or more of the above conditions, he shall be brought before the National Court to show cause why he should not be detained in custody to serve the rest of the sentence.
    

SENTENCE

29. Sebastian Sahoto Roho, having been convicted of the crime of manslaughter, is sentenced as follows:

Sentenced accordingly.
_______________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the accused