N4109

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NO 148 OF 2009

THE STATE

V

CHRISTOPHER DUBUN

Madang: Cannings J
2010: 4 February, 22 March, 22 April

CRIMINAL LAW – sentencing – manslaughter, Criminal Code, Section 302 – sentence after guilty plea – offender killed wife by kicking her, rupturing spleen – sentence of 12 years.

The offender killed his wife by kicking her in the course of a domestic argument. He kicked her on the buttocks and the side of her body. He pleaded guilty to manslaughter.

Held:

(1)	The starting point for sentencing for this sort of killing (killing in domestic setting, straight after argument, no weapons used) is 8 to 12 years imprisonment.

(2)	There were a number of mitigating factors, including the guilty plea, the offender had no prior convictions, he has expressed genuine remorse and sought genuine reconciliation with the deceased's relatives.

(3)	A sentence of 12 years imprisonment 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
Saperus Yalibakut v The State (2006) SC890
The State v Michael Jim Gorogoro, CR 105/2006, 22.02.08
The State v Steven Ruben CR 843/2007, 22.02.08
The State v Vincent Matana Laore and 3 Others CR No 915 of 2005, 24.04.08

SENTENCE

This was a judgment on sentence for manslaughter.

Counsel

A Kupmain, for the State
A Meten, for the offender

22 April, 2010

1. CANNINGS J: This is a decision on sentence for a 40-year-old Madang Province man, Christopher Dubun, who has pleaded guilty to the manslaughter of his wife, Jane Badei, also from Madang. She argued with him over domestic matters in their home at Sokaka village in Sumkar District at 9.00 am on 25 September 2008. He responded by assaulting her. He kicked her on the buttocks and on the sides of her body. She died shortly afterwards due to a ruptured spleen.

ANTECEDENTS

2. The offender has no prior convictions.

ALLOCUTUS

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

I decided to plead guilty as this is a very serious matter and I need to take responsibility for what I did. I am very sorry about what happened. I had no intention of causing my wife's death. I was very shocked when it happened. I never did anything like this before to my wife. I really loved my wife and her loss has been a great burden to me and our children. I am very sorry for what happened. Whatever resources I have I will use to reconcile with my wife's relatives. I want to rebuild the relationship I once had with them.

I have pleaded guilty and I respect the court and ask for its mercy. I believe that because I am willing to take responsibility for what I did God will have mercy on me and help me rebuild my future life.

I have already spent about K20,000.00 in regard to this matter. The first K10,000.00 was spent on bel kol and funeral expenses, the other K10,000.00 was compensation. I still have another K10,000.00 to pay.

I reiterate that I take full responsibility for my actions. I am employed as an overseer at the Works Department. I have three boys from my marriage, aged 2, 5 and 6 years. They are my responsibility. I repeat that I am really, truly sorry. I seek the mercy of the court.

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 (2006) SC890). In that regard, I will take into account the following matters:

•	He made full admissions to the police when interviewed.
•	He has co-operated well with the police and the court.

PRE-SENTENCE REPORT

5. I received a pre-sentence report from the Community Corrections and Rehabilitation Service. Christopher Dubun is from Sokaka village in the Sumkar District. He is the first-born in a family of four. His parents are deceased. Family relationships are strong. He has a close relationship with his uncle, Robert Nadip, who has assisted him a lot in the process of reconciliation with his wife's relatives.

6. Christopher has a grade 12 education, having graduated from Sogeri National High School in 1986. He has been employed for some time at the Department of Works, Madang. His health is sound. He does not smoke, drink alcohol or chew betel nut. The report confirms what Christopher said in his allocutus about compensation and reconciliation. He has no bad record in the community.

SUBMISSIONS BY DEFENCE COUNSEL

7. Mrs Meten submitted that the case fell within the first (least serious) category of the guidelines given by the Supreme Court in the case of Manu Kovi v The State (2005) SC789 and therefore the sentence should be in the range of 8 to 12 years. Because of the strength of the mitigating factors (eg the guilty plea, a first-time offender, de facto provocation, genuine remorse), the court should consider suspending the balance of the sentence. Mrs Meten also suggested that the deceased may have had an enlarged spleen, making her vulnerable to this sort of assault.

SUBMISSIONS BY THE STATE

8. Mr Kupmain, for the State, refuted the submission that this was a case of de facto provocation. Whatever the deceased said to the offender, he is an educated man and should have been able to control his temper. Nevertheless Mr Kupmain agreed that this is a category 1 case according to the Kovi guidelines, warranting a sentence of 10 to 12 years.

DECISION MAKING PROCESS

9. 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 other sentences have been imposed for similar offences?
•	step 4: what should the head sentence be?
•	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?

10. The maximum penalty for manslaughter under Section 302 of the Criminal Code is life imprisonment. The National 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. I agree with both counsel that this is a category 1 case: as it was a killing that occurred in a domestic setting, straight after an argument, and no weapons were used. The starting point is 8 to 12 years imprisonment.

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

13. I refer to two different Madang cases which have similarities to this case. In The State v Steven Ruben CR 843/2007, 22.02.08, the offender pleaded guilty to unlawfully killing his wife in a domestic dispute. He assaulted her by throwing pawpaws at her, killing her by rupturing her spleen. The sentence was 10 years imprisonment. In The State v Michael Jim Gorogoro, CR 105/2006, 22.02.08, the offender pleaded guilty to unlawfully killing his wife by stabbing her with a screwdriver. The assault followed a domestic dispute. Because of the use of the screwdriver as a weapon and other aggravating factors this was a more serious manslaughter case than Ruben. The sentence was 13 years imprisonment.

STEP 4: WHAT IS THE HEAD SENTENCE?

14. I refer to the list of sentencing considerations set out in The State v Vincent Matana Laore and 3 Others CR No 915 of 2005, 24.04.08 and highlight the following mitigating and aggravating factors.

15. Mitigating factors:

•	It was a spontaneous, not planned, incident.
•	The offender made early admissions to the police.
•	The offender has no prior convictions.
•	Genuine efforts have been made to reconcile with the deceased's relatives and pay compensation in accordance with custom.
•	He has expressed genuine remorse.
•	He pleaded guilty. 

16. I reject the defence counsel's submission that the deceased provided provocation by arguing with her husband. Nothing is known about the argument. There is no evidence that the deceased said anything particularly cruel or offensive during the course of the argument. I also reject the argument that the deceased had a pre-existing enlarged spleen. There is insufficient evidence of that.

17. Aggravating factors:

•	It was a case of multiple blows being inflicted on vulnerable parts of the body.
•	It was an assault by a man upon his wife, exhibiting a shocking betrayal of trust.

18. I reject the defence counsel's submission that a sentence as low as eight years is warranted. That sort of sentence should be reserved for a case where an offender has inflicted a single, sharp blow with a part of the body, such as a fist, and the death can almost be described as accidental. This offender has said that he had no intention of killing his wife; and this is probably a true statement. But it was not a case of death by accident. Death was caused by intentional acts of violence by a man against a person who he was supposed to love, nurture and protect. He lost his temper, and he had a duty to his wife to control his temper, whether he was an educated man or not. After weighing all these factors, comparing this case with others, particularly the cases of Steven Ruben and Michael Jim Gorogoro the head sentence should be at the top of the starting point range. 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?

19. Yes. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the head sentence, 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?

20. This is sadly yet another tragic case of domestic violence. A young woman's life has been lost, needlessly and viciously. The offender has said he wants to take full responsibility for what he did. I consider that the best way to give effect to that sentiment is for him to accept that he must spend a considerable time in jail. I reject the defence counsel's submission that the balance of the sentence should be suspended. As I have said in other cases, to impose a fully suspended sentence would have the effect of cheapening the value of human life. The offender must be imprisoned. Only by imposing a prison term will the court be able to signify the gravity of the offence.

21. That said, because he has a fundamentally sound pre-sentence report and a good record of co-operating with the police and the court, and because his remorse is genuine and he has genuinely attempted reconciliation with his deceased wife's relatives, I will suspend three years of the sentence on the following conditions:

1	must within three days after release from custody report to the Probation Office in Madang;

2	must reside at a place to be nominated by the National Court and nowhere else except with the written approval of the National Court;

3	must not leave his home province without the written approval of the National Court;

4	must perform at least six hours unpaid community work in accordance with a program approved by the National Court;

5	must attend church every weekend for service and worship and assist the church in its community activities;

6	must not consume alcohol or drugs;

7	must keep the peace and be of good behaviour;

8	must have a satisfactory probation report submitted to the National Court Registry at Madang every six months after the date of release from custody;

9	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.

SENTENCE

22. Christopher Dubun, having been convicted of one count of manslaughter under Section 302 of the Criminal Code, is sentenced as follows:

Length of sentence imposed	12 years	
Pre-sentence period to be deducted	3 months	
Resultant length of sentence to be served	11 years, 9 months	
Amount of sentence suspended	3 years	
Time to be served in custody	8 years, 9 months	
Place of custody	Beon Correctional Institution	

Sentenced accordingly.

_________________________
Public Prosecutor: Lawyer for the State 
Public Solicitor: Lawyer for the Offender