N3433
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 742 0F 2008

THE STATE

V

HENSON POPONIL

Kimbe: Cannings J
2008: 11, 24 July, 
19 August

SENTENCE

CRIMINAL LAW – sentence – manslaughter – Criminal Code, Section 302 – guilty plea – offender threw a stone at his wife during an argument, rupturing her spleen – sentence of 13 years.

A man pleaded guilty to manslaughter. He killed his wife by throwing a stone at her abdomen in the course of a domestic dispute. 

Held:

(1)	The starting point for sentencing for this sort of manslaughter (use of offensive weapon) is 13 to 16 years imprisonment.

(2)	A sentence of 13 years was imposed. The pre-sentence period in custody was deducted and three years of the sentence was suspended.

Cases cited

The following cases are cited in the judgment:

Manu Kovi v The State (2005) SC789
The State v Hiliong Gunaing (2005) N2803
The State v Kila Peter (2006) N3018
The State v Michael Jim Gorogoro, CR 105/2006, 22.02.08
The State v Elizabeth Gul CR 375/2005, 09.05.05
The State v Joseph Dion CR 71/2001, 20.05.05
The State v Jacklyn Boni CR 786/2005, 08.09.05
Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06
The State v John Loangesa CR 301/2000, 21.03.07
The State v John Buku Kailomo CR 920/2005, 24.08.07
The State v Steven Ruben CR 843/2007, 22.02.08

Abbreviations

The following abbreviations appear in the judgment:
 
CR – Criminal case reference
J – Justice
K – kina
KBSA – Kimbe Bay Shipping Agencies
N – National Court judgment
No – number
SC – Supreme Court judgment
SCRA – Supreme Court Criminal Appeal
v – versus

SENTENCE

This was a judgment on sentence for manslaughter.

Counsel

F Popeu for the State
R Belli for the offender

19 August, 2008 

1.          CANNINGS J:    Henson Poponil is a 47-year-old East Sepik man, a motor mechanic by profession. On Sunday 18 May 2008 he overhauled the engine of a friend’s car, took the car on test drive, then his friend bought a carton of beer, which they consumed together at another friend’s house near the side of the Kimbe-Hoskins Highway. Henson’s wife, Helen Banaovo, came along and was not happy when she saw him drinking. The couple quarrelled and Henson picked up a stone and threw it at Helen, hitting her on the left side of her stomach. She fell and was rushed to Kimbe General Hospital, about five kilometres away, but was dead on arrival. She died of a ruptured spleen. 

2.          The incident occurred at 6 o’clock in the afternoon. Henson claims that Helen hit him first, with her bilum. He felt pain on his neck, this made him angry and he retaliated by shooting the stone at her. That, of course, is not a defence, though it might be considered a mitigating factor as it explains, to some extent, why he was angry. But the fact is, Henson killed his wife without lawful justification or excuse. It was an unlawful killing and he has been convicted of manslaughter. 

ANTECEDENTS

3.          The offender has no prior convictions.

ALLOCUTUS

4.          The offender was given the opportunity to say what matters the court should take into account when deciding on punishment. He said:

I apologise to the court for what I have done to my wife. She swung her bilum at me and that is how it started. I did not think it would turn out this way. I just picked up the stone and threw it at her. I have six kids to look after. When my wife was alive we used to work to pay for school fees for four of them. I am living on my mother-in-law’s block. She is old and it will be hard for her to look after the children. I was working with KBSA at the time and all my tools are still there. I was put into custody immediately after the incident and I have not had time to retrieve them. I ask the court to consider me for probation so I can look after my children. 

OTHER MATTERS OF FACT

5.          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). In that regard, I will take into account that:

•	The deceased, to some extent, provoked him.
•	He surrendered to the police and co-operated with them.
•	He has paid some compensation to his wife’s relatives (K3,000.00 cash plus payment of funeral expenses of K4,000.00).

PRE-SENTENCE REPORT

6.          A pre-sentence report prepared by the Kimbe branch of the Community Based Corrections Service confirms that Henson Poponil has six children. He moved to Kimbe 20 years ago and has no plans to leave West New Britain. He obtained his trade qualifications from Hayfield Vocational School in Maprik in 1983. He has had regular employment in Kimbe as a mechanic over a long period. At the time of the incident he was working with KBSA. His net fortnightly pay was K330.00. He supplemented this by helping out on his mother-in-law’s oil palm block at Morokea, just outside Kimbe. He and Helen and their children lived there with Helen’s mother. He is a member of the South Sea Evangelical Church and has a very good reputation in the Morokea community. 

7.          His mother-in-law, Kembu Raka, has forgiven him and is appreciative of what he has done to compensate her and her relatives. She is finding life very difficult, looking after the six children without a breadwinner providing regular income. She supports a non-custodial sentence. The report concludes that Henson Poponil is suitable for probation.

SUBMISSIONS BY DEFENCE COUNSEL

8.          Mr Belli submitted that a sentence of 13 years would be appropriate, as death was caused by a single blow and there was an element of de facto provocation. The court should consider giving a suspended sentence in view of the favourable pre-sentence report. 

SUBMISSIONS BY THE STATE

9.          Mr Popeu agreed that a sentence of 13 years would be appropriate but cautioned against suspending too great a proportion of the sentence as to do so would undermine its deterrent effect.

DECISION MAKING PROCESS

10.          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?

11.          Under Section 302 (manslaughter) of the Criminal Code the maximum penalty is 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?

12.          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	

13.          In this case there are both mitigating and aggravating factors present and death was caused by an offensive weapon, the stone. The starting point is therefore 13 to 16 years.

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

14.          Before I fix a sentence, I will consider manslaughter sentences I have handed down, where the offender has killed his or her spouse. These cases are shown in table 2.

TABLE 2: SENTENCES FOR MANSLAUGHTER OF SPOUSE

No	Case	Details	Sentence	
1	The State v Hiliong Gunaing (2005) N2803, Kimbe	Guilty plea – stab wound causing death of wife – Laleki settlement, Kimbe – allegations of wife’s infidelity.	15 years
	
2	The State v Jacklyn Boni CR 786/2005, 08.09.05, Kimbe	Guilty plea – juvenile offender hit deceased with stick, rupturing his spleen – argument over a small domestic matter.	8 years
	
3	The State v Elizabeth Gul CR 375/2005, 09.05.05, Kimbe
	Guilty plea – offender was being assaulted by the husband and his sister – offender stabbed husband on his leg, claiming that he was being unfaithful.	10 years
	
4	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, causing her to fall from vehicle and die upon hitting road.	10 years
	
5	The State v Kila Peter (2006) N3018, Kimbe	Guilty plea – stab wound to the back causing death of husband – offender walked 2 km in middle of night and waited for husband who was with another woman.	12 years
	
6	The State v John Loangesa CR 301/2000, 21.03.07, Bialla	Guilty plea – offender assaulted his wife while drunk, kicking her in stomach – an element of de facto provocation.	12 years
	
7	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
	
8	The State v Steven Ruben CR 843/2007, 22.02.08, Madang	Guilty plea – offender assaulted his wife by throwing paw paws at her during domestic dispute, killing her by rupturing her spleen	10 years
	
9	The State v Michael Jim Gorogoro, CR 105/2006, 22.02.08, Madang	Guilty plea – offender had argument with his wife over a family problem – she ran away, he followed her, then stabbed her once with a screwdriver, inflicting a fatal wound.	13 years

STEP 4: WHAT IS THE HEAD SENTENCE?

15.          Mitigating factors are:

•	some provocation – but I do not place much weight on this factor;
•	sole attacker;
•	death caused by a single blow;
•	the offender surrendered to the police;
•	cooperated with police;
•	some compensation paid;
•	pleaded guilty;
•	expressed some remorse;
•	first-time offender;
•	the deceased’s mother has expressed forgiveness;
•	a very good community record.

16.           Aggravating factors are:

•	directly killed deceased;
•	no intervening cause of death;
•	deceased had no susceptible condition (no evidence, for example, that she had an enlarged spleen).

17.          In weighing all these factors I place great weight on the guilty plea and the fact that the offender surrendered to and co-operated fully with the police. After comparing this case to the other manslaughter cases I have dealt with, I agree with both counsel that the appropriate head sentence is 13 years imprisonment.

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

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 three months.

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

The favourable pre-sentence report, showing that the offender has a good community record and that he has made a genuine attempt to reconcile with his wife’s mother and that she has accepted his good intentions and actually sympathises with him, means that there is a case for suspension of the sentence. But not all of it. Fully suspended sentences for homicide cases must be reserved for the most exceptional and unusual of cases. No one should lose sight of the fact that this man killed his wife, the very person he was meant to love, care for and protect. He has denied his children of their mother. He has made life very difficult for his mother-in-law and though she has, nobly, been prepared to forgive him, he has to be imprisoned for a sufficient period to mark the community’s condemnation of what happened. I agree with Mr Popeu that a sentence for a homicide offence must have some deterrent effect and that this purpose of sentencing will be defeated if fully suspended sentences are given.

I will suspend three years of the sentence, 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 the Province in which he resides 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 his Ward Councillor;
(d)	must attend his local Church every weekend for service and worship and submit to counselling;
(e)	must report to the Probation Office 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;
(h)	must have a satisfactory probation report submitted to the National Court Registry 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.

SENTENCE

Henson Poponil, having been convicted of one count of manslaughter, is sentenced as follows:

Length of sentence imposed	13 years	
Pre-sentence period to be deducted	3 months	
Resultant length of sentence to be served	12 years, 9 months	
Amount of sentence suspended	3 years	
Time to be served in custody	9 years, 9 months	
Place of custody	Lakiemata Correctional Institution	

Sentenced accordingly.
___________________________

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