State v Loangesa [2007] PGNC 166; N3187 (21 March 2007)

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CRIMINAL LAW – Criminal Code, Division V.2 (homicide etc) – Section 302 (manslaughter) – sentence on plea of guilty – killing of wife in domestic dispute – sentence of 12 years.

A young man pleaded guilty to killing his wife by assaulting her while he was drunk. He used no weapons and there was an element of de facto provocation in that the deceased argued with and swore at the accused and assaulted him with a stick before he struck back. Her assault upon him, however, was insufficient to provide a defence of legal provocation or self-defence.

(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: only one offender; de facto provocation; gave himself up; co-operated with police; compensation and reconciliation; pleaded guilty; expressed remorse; first offender; suffered damage to eyesight when beaten up by Police upon arrest.

(3) Aggravating factors are: more than one blow; no intervening cause of death; not just a fist; intention to do serious harm; deceased had no pre-existing condition; vicious assault; offender solely responsible.

(4) A sentence of 12 years was imposed. The pre-sentence period in custody was deducted and two years of the sentence was suspended due to payment of substantial compensation and reconciliation with the deceased’s relatives.

Manu Kovi v The State (2005) SC789
Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06
The State v Daniel R Walus (2005) N2802
The State v Elizabeth Gul CR 375/2005, 09.05.05
The State v Hiliong Gunaing (2005) N2803
The State v Jacklyn Boni CR 786/2005, 08.09.05
The State v Joseph Dion CR 71/2001, 20.05.05
The State v Kalimet Tovut CR 968/2004, 20.12.05
The State v Kila Peter (2006) N3018
The State v Lien Kaingi CR 1119/2006, 19.12.06
The State v Mark Kanupio, Balwin Kining, Peter Pasikio, Steven Lipilas and Paul Nowor (2005) N2800
The State v Timothy Mawe CR 1455/2003, 20.05.05

An accused pleaded guilty to manslaughter and the following reasons for sentence were given.

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

- On 16 July 1999 he was at his village, Kisiluvi, in the Silanga area of WNB. He was at Andrew Weipuna’s house, drinking alcohol with two friends.

- His wife, Matilda Mumuna, came to the place where he was drinking and started arguing with him about money, claiming that he had misused the family’s money. She threw a stick at him.

- The offender jumped down from the house and started assaulting her. During the course of the assault he kicked her in the stomach.

- She walked away and went to the front of their house where she fell down and died shortly afterwards.

- A medical report shows that she died of liver injuries and internal bleeding caused by the accused’s assault on her.

- The accused caused the death of the deceased without lawful excuse or justification.

I entered a provisional plea of guilty and then, after reading the District Court depositions, confirmed the plea and entered a conviction for manslaughter under Section 302 of the Criminal Code.

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.

I was not supposed to do this but I have already done it and I am sorry. This death occurred because my wife swore at me in front of my in-laws. She embarrassed me. For example, she said "Yu no spak long bia, yu spak long kanwara bilong ol meri yu paoul" [you are not drunk with beer, you are drunk with vaginal fluid from those ladies that you go around with]. She suspected that I was going around with young girls in the village. I told her to shut up and go to the house but she got a stick and swung it at me. I fell down and then got up and kicked her. She went to the house and 20 minutes later I was told that she had died.

I am very sorry I have lost my wife. I say sorry to her parents and to the community at Silanga. I apologise to the National Court and to God. I have showed my remorse by paying compensation to her relatives. The police assaulted me when I was arrested and my eyes are permanently damaged. I ask for mercy from the court.

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 plea) 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.

- the deceased hit the offender on the forehead with the stick before he retaliated;

To help me make a decision on the appropriate sentence and determine whether any of it should be suspended I requested and received a pre-sentence report under Section 13(2) of the Probation Act for the prisoner. The report, prepared by the Kimbe office of the Community Corrections and Rehabilitation Service, is summarised below.

Family background: parents are from village – two sisters and four brothers – parents are deceased.

Apology/reconciliation/compensation: has paid compensation in cash or kind to the value of K15,000.00 to deceased’s relatives.

Victim’s attitude: brother of deceased is satisfied with compensation – there will be no more trouble.

Mr Oiveka highlighted the following matters: he pleaded guilty; first offender; admissions to police; non-legal provocation; substantial compensation paid.

Mr Popeu, for the State, submitted that the compensation of K15,000.00, though substantial, is no substitute for a custodial sentence. A sentence of 12-15 years would be appropriate.

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

- step 3: what other sentences have been imposed recently in West New Britain for equivalent offences?

- step 5: should the pre-sentence period in custody be deducted from the term of imprisonment?

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

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.

In Manu Kovi v The State (2005) SC789 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 THE SUPREME COURT’S DECISION IN MANU KOVI’S CASE

No	Description	Details	Tariff
1	Plea – ordinary cases – mitigating factors – no aggravating factors.	No weapons used – offender emotionally under stress – de facto provocation – killing in domestic setting – killing follows straight after argument – minimal force used – victim had pre-existing disease that caused or accelerated death, eg enlarged spleen cases.	8-12 years
2	Trial or plea – mitigating factors with aggravating factors.	Use of offensive weapon, eg knife, on vulnerable parts of body – vicious attack – multiple injuries – some deliberate intention to harm – some pre-planning.	13-16 years
3	Trial or plea – special aggravating factors – mitigating factors reduced in weight or rendered insignificant by gravity of offence.	Dangerous or offensive weapon used, eg gun, axe – vicious and planned attack – deliberate intention to harm – little or no regard for sanctity of human life.	17-25 years
4	Worst case – trial or plea – special aggravating factors – no extenuating circumstances – no mitigating factors, or mitigating factors rendered completely insignificant by gravity of offence.	Some element of viciousness and brutality – some pre-planning and pre-meditation – killing of harmless, innocent person – complete disregard for human life.	Life imprisonment

The present case has both mitigating and aggravating factors present and death was not caused by an offensive weapon. It falls within category No 1 of Manu Kovi, which gives rise to a starting point of 8 to 12 years.

STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED RECENTLY IN WEST NEW BRITAIN FOR EQUIVALENT OFFENCES?

Before I fix a sentence, I will consider other manslaughter sentences I have imposed recently in West New Britain.

TABLE 2: NATIONAL COURT SENTENCES FOR MANSLAUGHTER, WEST NEW BRITAIN, CANNINGS J, 2005-2006

No	Case	Details	Sentence
1	The State v Hiliong Gunaing (2005) N2803	Guilty plea – stab wound causing death of wife – Laleki settlement, Kimbe – offender in his mid- 40s – allegations of wife’s infidelity.	15 years
2	The State v Mark Kanupio, Balwin Kining, Peter Pasikio, Steven Lipilas and Paul Nowor (2005) N2800	Guilty plea – mob attack – Kandrian, WNB – various sentences – degree of participation – in company with 4 others – knives and sticks and stones used – election-related killing.	15 years, 7 years, 4 years, 4 years, 3 years
3	The State v Daniel R Walus (2005) N2802	Guilty plea – domestic setting – Gaongo VOP, Kimbe – offender punched and kicked the deceased, a female, a number of times – deceased was offender’s in-law – ruptured spleen causing death.	18 years
4	The State v Jacklyn Boni CR 786/2005, 08.09.05	Guilty plea – domestic setting – Buvussi, Kimbe – juvenile offender hit deceased with a stick, rupturing his spleen – deceased was offender’s husband – argument over a small domestic item.	8 years
5	The State v Elizabeth Gul CR 375/2005, 09.05.05	Guilty plea – domestic argument – Mosa, Kimbe – offender was being assaulted by the husband and his sister – offender stabbed husband on his leg – prisoner claimed husband was being unfaithful.	10 years
6	The State v Joseph Dion CR 71/2001, 20.05.05	Trial – offender had fight with his wife on the back of a moving vehicle – Salelebu, Central Nakanai area – she fell off the vehicle and was killed upon hitting the road.	10 years
7	The State v Timothy Mawe CR 1455/2003, 20.05.05	Trial – offender was prosecuting an unlawful purpose, making a homemade gun – Buvussi, Kimbe – discharged the weapon killing the deceased – charged with murder – alternative verdict of manslaughter entered.	10 years
8	The State v Kalimet Tovut CR 968/2004, 20.12.05	Guilty plea – argument between cousins – Sarakolok, Kimbe – offender punched the deceased to the ground, kicked him in abdomen – ruptured spleen causing death.	10 years

9	The State v Kila Peter (2006) N3018	Guilty plea – fatal stab wound to the back causing death of husband – Mosa, Kimbe – young mother – offender walked 2 km in middle of night and waited for victim – husband was with another woman.	12 years
10	The State v Lien Kaingi CR 1119/2006, 19.12.06	Guilty plea – family dispute – Barema, near Bialla – offender suspected her sister was having an affair with her husband – offender stabbed her sister.	10 years

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.

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.

1. Did the attack on the deceased consist of just a single blow? No, the offender struck the deceased on more than one occasion.

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.

5. Did the offender not intend to do serious harm? No. Once any person kicks another person in the stomach an intention to do serious harm is to be presumed.

6. Did the deceased or any other person provoke the offender in ‘the non-legal sense’? Yes, the deceased was angry with the offender, struck him with a stick, swore at him and shamed him in the presence of her relatives. This is not an excuse for what he did but it is a mitigating factor.

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? No.

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? Yes. He has paid substantial compensation and to a large extent reconciled with the deceased’s relatives. This does not excuse him from criminal liability but it is a mitigating factor.

16. Can the offender be regarded as a youthful offender or are his personal circumstances such that they should mitigate the sentence? Neutral.

17. Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence? Yes. The offender claims that he was beaten up by the police following his arrest and as a result of that beating he has suffered some permanent damage to his eyesight.

After weighing all these factors, comparing this case with the other recent manslaughter cases in West New Britain and bearing in mind that there are nine mitigating factors compared to seven aggravating factors, the head sentence should remain within the starting point range of eight to twelve years imprisonment. However, the sentence should be at the top of the range as it involved a vicious assault by a man against his wife. I impose a head sentence of 12 years imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

The offender was in custody in connexion with this offence for a period of one year, two months. 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 3.

Because of the substantial compensation and the reconciliation with the deceased’s relatives recorded in the pre-sentence report I will suspend two years of the sentence on conditions.

2. must reside at Malasi OPS and nowhere else except with the written approval of the National Court;

4. must perform at least six hours unpaid community work each week at the Catholic Church;

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 Bialla District Court every Monday between 9.00 am and 3.00 pm and sign the register;

9. must have a satisfactory probation report submitted to the National Court Registry at Kimbe every three months after the date of release from custody;

10. 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 re-detained in custody to serve the rest of the sentence.

John Loangesa, having been convicted of the crime of manslaughter, is sentenced as follows:

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused

Length of sentence imposed	12 years
Pre-sentence period to be deducted	1 year, 2 months
Resultant length of sentence to be served	10 years, 10 months

Length of sentence imposed	12 years
Pre-sentence period to be deducted	1 year, 2 months
Resultant length of sentence to be served	10 years, 10 months
Amount of sentence suspended	2 years
Time to be served in custody	8 years, 10 months

National Court of Papua New Guinea

State v Loangesa [2007] PGNC 166; N3187 (21 March 2007)