N3728

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1237 OF 2001

THE STATE

V

LAWRENCE GIOBUN

Buka: Cannings J
2009: 12, 14, 18 August

SENTENCE

CRIMINAL LAW – sentence – manslaughter, Criminal Code, Section 302 – male offender punched victim once in the face during an argument – guilty plea – sentence of 10 years.

The offender pleaded guilty to manslaughter. He punched the victim, an old man, once in the face during an argument over an unpaid debt. The victim died five days later.

Held:

(1) The starting point for sentencing for this sort of manslaughter (no offensive weapon, killing the result of an argument) is 8 to 12 years imprisonment.

(2) Mitigating factors are: sole attacker; death caused by a single blow; no weapon used; it was an ‘indirect’ killing; de facto provocation; cooperated with police; compensation paid; pleaded guilty; expressed some remorse; first-time offender; good pre-sentence report; chiefs and community do not support a heavy sentence.

(3) Aggravating factors are: the deceased was an old man and therefore vulnerable to the sort of assault inflicted on him; offender broke bail.

(4) A sentence of 10 years was imposed. The pre-sentence period in custody was deducted and six years of the sentence was suspended with strict conditions to be applied owing to a good pre-sentence report.

Cases cited

The following cases are cited in the judgment:

Manu Kovi v The State (2005) SC789
Saperus Yalibakut v The State (2006) SC890
The State v Eugene Bokoar CR No 863 of 2007, 24.10.07
The State v Lawrence Matau (2008) (unreported)
The State v Sebastian Roho CR No 1665 of 2006, 24.08.06

SENTENCE

This was a judgment on sentence for manslaughter.

Counsel

F Popeu, for the State
P Kaluwin, for the offender

18 August, 2009 

1. CANNINGS J: This is the sentence for a 45-year-old Beikut man, Lawrence Giobun, who has pleaded guilty to one count of manslaughter. The offence was committed at 3.00 pm on 23 October 1999 at Beikut village. The offender was under the influence of liquor. He went to the house of the deceased, Cletus Rangei, who was an old man. He had an argument with Cletus’s in-law, Osimau Thomas, over money he said was owed to him for work he had done building a permanent house. Cletus came in to the argument and was supporting Osimau. In the course of the argument the offender approached Cletus and punched him once in the face, causing him to fall. Cletus bled heavily from the nose and was taken to Buka General Hospital where he died five days later from the injury inflicted by the offender. There was no lawful justification or excuse for what the offender did. It was an unlawful killing.

2. A conviction has been entered under Section 302 of the Criminal Code.

ANTECEDENTS

3. The offender has no prior convictions.

ALLOCUTUS

4. The offender was given the opportunity to address the court. He said:

This is my first time to stand before a court and I now say sorry for what I have done. I have reconciled with the deceased’s people in the village. Both sides are living together without tension. I ask the court for mercy and probation. I am married with nine children. Three are in high school, three are in primary school and I am the only person financially supporting them. I am a peace officer in the village.

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 (2006) SC890).

6. Two matters are significant. First, he made admissions when he was interviewed by the police in May 2001. Secondly, his claim that he had reconciled with the deceased’s people was not challenged.

PRE-SENTENCE REPORT

7. Lawrence Giobun is 45 years old. He resides in his village, Beikut, with his wife of 24 years and nine children and his mother. Family relationships are stable and all family members are dependent on him. He has a grade 8 education. He has had limited formal employment. His source of income is the sale of copra. His health is OK. He is an active member of the Catholic Church. The report contains verification of the reconciliation that he claimed had occurred. The local Chiefs are strongly supportive of a non-custodial sentence. He is a well respected member of the local community, despite having committed this serious offence.

8. The report concludes that he is suitable for probation.

SUBMISSIONS BY DEFENCE COUNSEL

9. Mr Kaluwin submitted that the court should put considerable weight on the guilty plea and the fact that the offender made early admissions. A low-range sentence is warranted as no offensive weapon was involved and it was the deceased who started the chain of events that led to his death by getting involved in an argument that did not concern him. A sentence of five to eight years should be imposed, all of which should be suspended in light of the wilful murder case, The State v Lawrence Matau (unreported) decided last year in Buka by Kandakasi J, in which a fully suspended sentence was imposed after the Court took into account the attitude of the Chiefs and community expectations about what the sentence should be and the provisions of the Bougainville Constitution dealing with reconciliation through peaceful means and promote community-based sentencing options.

SUBMISSIONS BY THE STATE

10. Mr Popeu acknowledged that the guilty plea and the offender’s lack of prior convictions were mitigating factors but stressed that a life had been lost. No significance should be attached to the long period – almost ten years – since the offence was committed. A head sentence of 8 to 12 years should be imposed and there should be a custodial component to show that life is sacred.

DECISION MAKING PROCESS

11. 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?

12. 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?

13. 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	

14. In this case there are both mitigating and aggravating factors present and death was not caused by an offensive weapon and was the result of an argument. The starting point is therefore 8 to 12 years.

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

15. There are two manslaughter cases I have dealt with recently in Buka that provide useful precedents.

16. In The State v Sebastian Roho CR No 1665 of 2006, 24.08.06 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. He was sentenced to 10 years imprisonment, six years of which was suspended.

17. In The State v Eugene Bokoar CR No 863 of 2007, 24.10.07 a young man pleaded guilty to manslaughter. He was amongst a group of friends consuming alcohol near a shoreline. His group got involved in a fight with another group of men. In the course of the fight the offender hit the deceased with stones, disabled him and pushed him into the sea. The deceased died due to a head injury inflicted by the offender and inhalation of sea water. He was sentenced to 12 years imprisonment with no suspension.

STEP 4: WHAT IS THE HEAD SENTENCE?

18. Mitigating factors are:

- sole attacker;

- death caused by a single blow;

- no weapon used;

- it was an ‘indirect’ killing as death did not occur until five days later;

- some element of de facto provocation;

- cooperated with police;

- some compensation paid;

- pleaded guilty;

- expressed some remorse;

- first-time offender;

- good pre-sentence report;

- chiefs and community do not support a heavy sentence.

19. Aggravating factors are:

- the deceased was an old man and therefore vulnerable to the sort of assault inflicted on him;

- he broke his bail and a warrant of arrest had to be issued, resulting in the case taking many years to be resolved.

20. There are more mitigating factors than aggravating factors but I cannot agree with the defence counsel’s submission that a sentence of only five to eight years should be imposed. I agree with Mr Popeu’s submission that the court and the community must not lose sight of the fact that a life has been lost for no good reason. Life is indeed sacred and low sentences for homicide cases can devalue the sacredness of human life. After comparing this case to the other manslaughter cases referred to, 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?

21. 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 1 year, 6 months.

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

22. The pre-sentence report is favourable and warrants a partial suspension. It would not be appropriate to suspend the whole sentence for the reasons highlighted by Mr Popeu. Such sentences can devalue human life. I am conscious of the special needs and aspirations of the Bougainville People expressed through their Constitution and I am sure that those matters played a crucial role in the imposition of a wholly suspended sentence in Lawrence Matau’s case. I am not bound to follow the approach in that case, however and no compelling reason has been provided for applying it to this case.

23. I will suspend six years of the sentence on the following conditions:

(a) must not be released from custody without an order of the National Court;

(b) must within two months after release from custody participate in a reconciliation ceremony in the terms proposed in the pre-sentence report, supervised by the local Chiefs and witnessed by the Senior Probation Officer for Bougainville;

(c) must reside at Beikut or some other place nominated by the National Court and nowhere else except with the written approval of the National Court;

(d) must not leave Bougainville without the written approval of the National Court;

(e) must perform at least six hours unpaid community work each week at a place to be determined by the National Court, in consultation with the Community Based Corrections Service;

(f) must attend the Catholic Church every week for service and worship and assist the church in its community activities;

(g) must report to the senior Probation Officer at Buka every six months;

(h) must not consume alcohol or drugs;

(i) must keep the peace and be of good behaviour and must not cause any trouble for, or harass, the victim’s family;

(j) must have a satisfactory probation report submitted to the National Court Registry at Buka every six months after the date of sentence;

(k) 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

24. Lawrence Giobun, having been convicted of one count of manslaughter contrary to Section 302 of the Criminal Code, is sentenced as follows:

Length of sentence imposed	10 years	
Pre-sentence period to be deducted	1 year, 6 months	
Resultant length of sentence to be served	8 years, 6 months	
Amount of sentence suspended	6 years	
Time to be served in custody	2 years, 6 months	
Place of custody	Buka Police Lock-Up, from where he must be transferred within 30 days after the date of sentence to Kerevat Correctional Institution	

Sentenced accordingly.

__________________________

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