N5493
PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NO 203 0F 2007

THE STATE

V

ISAAC ULUL

Madang: Cannings J
2007: 4, 8, 16 October

CRIMINAL LAW – sentence – manslaughter – Criminal Code, Section 302 – guilty plea – offender slashed his brother with a bushknife, killing him – domestic dispute – strong de facto provocation – sentence of 10 years; 4 years suspended on conditions.

A man pleaded guilty to manslaughter. He killed his brother by slashing him with a bush knife. There was strong de facto provocation.

Held:

(1)	The starting point for sentencing for this sort of manslaughter (presence of both mitigating and aggravating factors and death caused by offensive weapon (bushknife)) is 13 to 16 years imprisonment.

(2)	Mitigating factors are: sole attacker; de facto provocation; minor role in fight; surrendered to police; cooperated with police; some compensation paid; pleaded guilty; expressed remorse; first-time offender.

(3)	Aggravating factors are: directly killed deceased; no intervening cause of death; strong intention to harm; deceased had no susceptible condition.

(4)	A sentence of 10 years was imposed. The pre-sentence period in custody was deducted and four years of the sentence was suspended on conditions.

Cases cited

The following cases are cited in the judgment:

Manu Kovi v The State (2005) SC789
Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06
The State v Alphonse Kaparo and John Loangesa CR 1636-1637/2006, 21.03.07
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 John Buku Kailomo CR 920/2005, 24.08.07
The State v John Loangesa CR 301/2000, 21.03.07
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 Mas Judah Binas CR 957/2004, 27.03.07
The State v Sebastian Sahoto Roho CR 1665/2005, 24.08.06
The State v Timothy Mawe CR 1455/2003, 20.05.05
Tom Longman Yaul v The State (2005) SC803

SENTENCE

This was a judgment on sentence for manslaughter.

Counsel

M Ruarri, for the State
A Turi, for the offender

16th October, 2007

1. CANNINGS J: This is a decision on sentence for a man who pleaded guilty to one count of manslaughter arising from the following facts. Between 3 and 4 am on 1 October 2006 the offender, Isaac Ulul, was at his village, Garegud, when he heard that his son was drinking homebrew alcohol with his brother, Alex Malawa. Isaac went to see his son about that but when he got to the place where his son was drinking with his brother, his brother argued with him and assaulted him. Alex then went to a nearby house and got an axe and bushknife and attacked Isaac. Isaac went into hiding. It was still dark and Alex could not find him. So Alex went to Isaac's house and chased his wife and children away and damaged the house. Isaac then went to assist his family. Alex was still very aggressive and swung his bushknife at Isaac. Isaac by this stage was also armed and he cut Alex on the head inflicting a severe wound which caused Alex to lose a lot of blood and he died soon afterwards. Isaac inflicted multiple knife wounds on Alex. 

ANTECEDENTS

2. The offender has no prior convictions.

ALLOCUTUS

3. 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. He said:

The death of Alex has a reason. I know there is a law against drinking yawa, (homebrew) in this country. When I heard Alex was giving homebrew to my teenage son I just wanted to go and get my son. Alex got angry with me and fought with me. He threw punches at me and I told him I did not want to fight with him. Then he got a knife and an axe and I went to hide. He wanted to kill my family and he destroyed everything in my house. Then he came towards me and he told me that he would kill me. He did not hesitate. He went straight for me. When I saw that he was going to swing the axe at me, I swung my bushknife at him, intending to cut his arm. Somehow I cut his head. Alex was a criminal and a murderer and if I didn't stop him he would have killed me. When I found out that he had died, I felt sorry as he is my small brother. I am now worried about my family and my son's education was disrupted due to this incident.

OTHER MATTERS OF FACT

4. As the offender has pleaded guilty he will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06). This is a case in which there is very strong de facto provocation as explained in the facts to which the offender pleaded guilty and in his allocutus. I seriously considered not accepting the guilty plea in view of the strong suggestion that the offender was acting in self defence. However, after looking at the depositions and the nature and extent of the wounds the offender inflicted on the deceased, I decided to enter a conviction for manslaughter. Other mitigating factors are that the offender surrendered to the police and some compensation has been exchanged.

PERSONAL PARTICULARS

5. Isaac Ulul is 43 years old, married with children. He has no formal education or employment record.

SUBMISSIONS BY DEFENCE COUNSEL

6. Ms Turi highlighted that there was strong de facto provocation that the offender was a person of good character and he had expressed remorse. She submitted that the killing of a relative is in a sense a self inflicting punishment.

SUBMISSIONS BY THE STATE

7. Mr Ruarri submitted that it was a serious killing of a relative. It was a vicious killing and an unnecessary one. The sentence should be in the range of 16 to 20 years, he submitted.

DECISION MAKING PROCESS

8. 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 sentences have been imposed for equivalent offences?
•	step 4: what is the head sentence?
•	step 5: should the pre-sentence period in custody be deducted?
•	step 6: should all or part of the sentence be suspended?

STEP 1: WHAT IS THE MAXIMUM PENALTY?

9. 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.

10. 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?

11. 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	

12. There are both mitigating and aggravating factors present and death was caused by an offensive weapon (the bushknife). The starting point is therefore 13 to 16 years.

STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED RECENTLY FOR EQUIVALENT OFFENCES?

13. Before I fix a sentence, I will consider other manslaughter sentences I have handed down. These cases are shown in table 2.

TABLE 2: SENTENCES FOR MANSLAUGHTER
2005-2007, CANNINGS J

No	Case	Details	Sentence	
1	The State v Hiliong Gunaing (2005) N2803, Kimbe	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, Kimbe	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, Kimbe	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, Kimbe	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, Kimbe
	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, Kimbe	Trial – offender had fight with his wife on the back of a moving vehicle – Salelubu, Central Nakinai 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, Kimbe	Trial – offender was prosecuting an unlawful purpose, making a homemade gun – Buvussi, Kimbe – discharged the weapon killing the deceased.	10 years 
	
8	The State v Kalimet Tovut CR 968/2004, 20.12.05, Kimbe	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, Kimbe	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 Sebastian Sahoto Roho CR 1665/2005, 24.08.06, Buka	Guilty plea – young man kicked his mother in abdomen, rupturing her spleen – domestic dispute – family did not want offender given a lengthy sentence.	10 years 
	
11	The State v Lien Kaingi CR 1119/2006, 19.12.06, Kimbe	Guilty plea – family dispute – Barema, near Bialla – offender suspected her sister was having an affair with her husband – offender stabbed her sister.	10 years 
	
12	The State v John Loangesa CR 301/2000, 21.03.07, Bialla	Guilty plea – domestic dispute – Kisiluvi, central Nakanai – offender assaulted his wife while drunk – during assault, he kicked her in the stomach – an element of de facto provocation.	12 years 
	
13	The State v Alphonse Kaparo and John Loangesa CR 1636-1637/2006, 21.03.07,
Bialla	Guilty plea – family dispute – two men punched and kicked their brother-in-law – two-against-one fight.	12 years,
12 years
	
14	The State v Mas Judah Binas CR 957/2004, 27.03.07, Kimbe	Trial – offender became angry with his cousin-brother who was drunk, on the road – stabbed him once.	13 years 
	
15	The State v John Buku Kailomo CR 920/2005, 24.08.07, Kimbe	Trial – man assaulted his wife during a domestic dispute – she died of a ruptured spleen.	15 years 

STEP 4: WHAT IS THE HEAD SENTENCE?

14. 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. However, sentencing is not an exact science. It is a discretionary process. When a factor is marked as mitigating or aggravating it does not mean necessarily that it is given the same weight as another mitigating or aggravating factor. Some mitigating factors may be strongly mitigating. Others may be mildly mitigating. The same goes for aggravating factors. 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 17 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 offender not directly kill the deceased? No.

2	Was just one person involved in the attack? Yes.

3	Was there some intervening cause of death? No.

4	Did the offender not set out to hurt anyone? No.

5	Did the deceased or any other person provoke the offender in 'the non-legal sense'? Yes.

6	Did the deceased have a pre-existing condition making him susceptible to serious or fatal injury by a moderate blow? No.

7	Can the attack on the deceased be classed as 'not vicious'? Neutral. In the sense that the offender did not start the altercation with the deceased.

8	Can the death of the deceased be regarded as an unforeseeable consequence of the activity that the offender was involved in? Neutral. In the sense that it was a spur of the moment incident which the offender did not initiate.

9	Did the offender play a relatively minor role in the activity that led to the death? Yes, in the sense that the offender did not start the chain of events that led to the death of the deceased.

10	Did the offender give himself 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? Yes.

13	Did the offender plead guilty? Yes.

14	Has the offender genuinely expressed remorse? Yes.

15	Is this his first offence? Yes.

16	Can the offender be regarded as youthful 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? Neutral.

15. To recap, mitigating factors are:

•	No 2 – sole attacker;
•	No 5 – de facto provocation;
•	No 9 – minor role in fight;
•	No 10 – surrendered to police;
•	No 11 – cooperated with police;
•	No 12 – some compensation paid;
•	No 13 – pleaded guilty;
•	No 14 – expressed remorse;
•	No 15 – first-time offender.

16. Aggravating factors are:

•	No 1 – directly killed deceased;
•	No 3 – no intervening cause of death;
•	No 4 – strong intention to harm;
•	No 6 – deceased had no susceptible condition.

17. The other factors (7, 8, 16, 17) are neutral. In weighing all these factors (9 mitigating and 4 aggravating) I place great weight on the guilty plea, the full co-operation the offender gave the police and the strong element of de facto provocation. These factors pull the head sentence below the starting point range. After comparing this case to the other manslaughter cases I have dealt with, I impose a head sentence of 10 years imprisonment.

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

18. Yes. 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, which is four months.

STEP 6: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

19. Yes. Given all the circumstances in which this tragic event took place and especially considering that it was the conduct of the deceased that in many respects brought about his demise, this is an appropriate case in which a proportion of the sentence should be suspended. Four years of the sentence will be suspended on the following conditions:

(a)	must reside at a place notified to the Probation Office and nowhere else except with the written approval of the National Court;
(b)	must not leave Madang Province without the written approval of the National Court;
(c)	must perform at least six hours unpaid community work each week at a place notified to the Probation Office under the supervision of a reputable person;
(d)	must attend his local Church every weekend for service and worship and submit to counselling;
(e)	must report to the Probation Office at Madang on the first Monday of each month between 9.00 am and 3.00 pm;
(f)	must not consume alcohol or drugs;
(g)	must keep the peace and be of good behaviour and must not cause any trouble for, or harass, the victim and his family;
(h)	must have a satisfactory probation report submitted to the National Court Registry at Madang every three months after the date of sentence;
(i)	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.

20. The last condition is very important. If any of these conditions is breached, any person may report the matter to the police or to any person nominated to supervise the offender or to the Probation Office, any of whom may bring the matter to the attention of the National Court. The Court may then issue a warrant for arrest of the offender and he can be brought before the Court to show cause why he should not be sent to jail to serve the rest of his sentence. (See Tom Longman Yaul v The State (2005) SC803.)

SENTENCE

21. Isaac Ulul, having been convicted of one count of manslaughter, is sentenced as follows:

Length of sentence imposed	10 years	
Pre-sentence period to be deducted	4 months	
Resultant length of sentence to be served	9 years, 8 months	
Amount of sentence suspended	4 years	
Time to be served in custody	5 years, 8 months	

Sentenced accordingly.
________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender