N5270

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 862 of 2011

THE STATE

V

PAUL KALU

Lihir: Batari, J
2011: 15, 21 September

CRIMINAL LAW– Sentence – Manslaughter – Accused assaulted victim on abdomen resulting in spleen rupture – Spleen death –State of spleen – Whether spleen enlarged – No evidence of – Benefit of doubt - Manslaughter unlawful assault – Plea - Early plea - Value of – Mitigation – Factors of – Conduct of prisoner subsequent to the offence – Compensation – Payment of – Customary punitive effect - Proof of required - Sentencing principles applied - Sentence of 7 years appropriate.

PRACTICE AND PROCEDURE – Sentence – Compensation – Payment of – Evidence of customary punitive effect of compensation – Onus on accused or counsel to adduce evidence under s. 2 of Customary Recognition Act Ch 19 and on balance of probability. 

Facts

The offender and the deceased had a fight at a function at which alcohol was consumed. The offender punched the deceased in the head; the deceased fell down, then the offender kicked him in the ribs. The deceased died from a ruptured spleen. There was an early plea of ‘guilty’ and payment of compensation of K 2000, 10 fathoms of shell money and payment of the funeral and related expenses. Elements of provocation not amounting to a legal defence were present.

Held

1. In a spleen death, in the absence of medical evidence on the condition of the spleen, it will be inferred that the spleen was enlarged, at [4];

2. An accused person who relies on payment of customary compensation as a mitigating factor on sentence, bears the onus of proving as a matter of fact, the existence of such a custom, at [10];

3. The ceremonial payment of traditional shell money in New Island is proof of the prisoner taking full responsibility for his criminal act and suggestive of customary retributive sanction against the offender’s conduct, at [12];

4. The value to be given to a plea of guilty depends on a number of factors namely, but not exhaustive to:

1) seriousness of the offence;

2) circumstances of aggravation;

3) factors in mitigation;

4) young age or advanced age of offender;

how soon it is taken after committal

 at [19];

5. Value may still be given to a late plea if the delay is caused by infrequent sittings of the National Court, lack of opportunity to seek legal advice, change of representation or the result of plea-bargaining, at [20];

6. The prisoner is sentenced to 7 years imprisonment less time spent in custody.

Cases Cited:

Papua New Guinea Cases

Acting Public Prosecutor v. John Airi SC 214,
Anna Max Marangi v The State SC 702.
Antap Yala v The State (SCR 69/96) 
Jack Tanga v The State [1999] SC602 
Manu Kovi v The State (2005) SC789
R. v. Tsarangaon Kagobo [1965-66] PNGLR 123
Rex Lialu v The State [1990] PNGLR 487   
The State v Bluey Hanua (1997) N1625
The State v Win Thomas (un-numbered National Court Judgment) CR No. 837 of 1994
The State v. Mathew Marut [1979] PNGLR 1814

Overseas Cases Cited 

R. v. Pickett (1986) 2 QR 441
R. v Phillips [1985] 7 CR App R (S) 235

Counsel

L. Rangan, for the State
M. Yawip, for the Accused

SENTENCE

21 September, 2011

1.	BATARI J: OVERVIEW: Paul Kalu (the prisoner) is presented before the Court for sentence following his unlawful killing conviction. He punched and kicked the deceased on his abdomen resulting in rupture of the spleen and subsequent death.

BACKGROUND

2.	On 19 September, 2010 Paul Kalu attended a feast at Kinami village, Lihir Island, New Ireland Province. Alcohol was consumed into the night and to the time of the incident. An altercation between Paul and Bernard Atim (deceased) resulted in exchange of punches. Paul punched Bernard on the head and after Bernard fell, he kicked him on the left rib area. Bernard died shortly after the assault.

3.	The medical findings from a summary of the post mortem compiled by a Dr. Mellie Samson of Lihir Medical Centre attributed the cause of death to severe internal bleeding from a ruptured spleen. The injury was noted as, “a rugged tear across the hilum of the spleen where the blood vessels are attached...” A Post Mortem Report that was to follow is not on the Court file. And there is no indication whether such a report has been made available.

4.	The final report is of essence as it may clarify the spleen condition. It will confirm whether or not the spleen was normal at the time of the offence and hence, the extent and seriousness of the attack. For instance, it may be reasonably inferred from rupture of a normal spleen that, the injury was a direct result of a heavy trauma or blow to the spleen area. In the absence of that clarification, the offender has the benefit of doubt and it will be inferred that the spleen was enlarged.

PRISONER’S BACKGROUND & CIRCUMSTANCES

5.	Paul is aged 24 years and married with a 3 year old daughter. He completed grade 8 at Lakuplien Primary School and is a member of the Catholic Church. Aside from his unblemished past and personal particulars in the Police Antecedent Report, there is nothing else that might be exceptional from his personal background. This is the prisoner’s first conviction.

6.	The lack of prior conviction is suggestive of prior good conduct. This also has support from his behaviour since the offence. He surrendered to the police and consistent with that, he made early admissions in the record of interview. His guilty plea in open court was also consistent with his actions following the commission of the offence. The prisoner’s expression of remorse is consistent with his other personal conduct and attributes since the commission of the offence. For that reason also, I accept him to be genuine in his expression of remorse.

7.	The expression of remorse is consistent with and supported by payment of compensation of K2,000 in cash and 10 fathoms of ‘mis’shell money. His family also paid funeral and related expenses to the relatives of the deceased. Mr Yawip submitted that the total amount of compensation and assistance to the deceased’s relatives in cash or kind amounted to K6,000 to K7,000.

Compensation 

8.	The significance of compensation payment and its effect as a customary sanction is not clarified. Defence counsel has a duty to assist in calling evidence on that aspect so that the court is fully appraised of any customary punitive effect that may be associated with payment of compensation following an unlawful killing.

9.	Under s. 2 of the Customs Recognition Act (Ch.19) proof of the existence and nature of custom in relation to a matter, and its application in or relevance to any particular circumstances, shall be ascertained as if they were matters of fact. If no direct evidence is called, the court may be referred to books, treatises, reports or other works of reference, or statements by Local Government Councils or committees of Local Government Councils (whether published or not). The court may accept any matter or thing stated in such works as evidence on the question.

10.	The Supreme Court in Acting Public Prosecutor v Nitak Mangilonde Taganis of Tampitanis [1982] PNGLR 299 (Kidu CJ, Kapi DCJ, Pratt J) has also given a clear direction that, customary compensation is a matter that may be taken into account on sentencing in homicide cases, where such payment is considered relevant to sentence. An accused person who relies on payment of customary compensation as a mitigating factor on sentence bears the onus of proving as a matter of fact, the existence of such a custom. In deciding this issue the court is not bound by strict legal procedure or technical rules of evidence. But it is sufficient in my view for the Court to be satisfied on the balance of probability the existence of custom.

11.	In the absence of that proof of custom in this case, it is open to conclude that, the payment of compensation did nothing more than appease grieving relatives of the deceased. The effect of restoring peace and harmony may also follow.

12.	However, the customary compensation component of traditional shell money commonly known as “mis” gives an insight into the significance and solemnity of that ceremony. It is proof of the prisoner taking full responsibility for his criminal act. It is also suggestive of customary retributive sanction against the offender’s conduct. The strong customary practices in this part of the New Guinea Islands region are well known. For instance, it is possibly the only place on earth that a traditional sanction commonly referred to as, “gorgor” had been used, recognised and accepted by the multi-national mining giant on Lihir Island as a “stay” and consequently a temporary shutdown of mining operations on the island.

13.	Indeed Mr Lukara Rangan of Counsel for the State commendably assisted with his local knowledge, that “mis” shell money payment like, “tambu” shell-money in his Tolai society, is a highly treasured and priced medium of exchange, which payment alone has deeper social implications and acceptance than cash payment.

14.	I am satisfied that customary compensation for an unlawful killing is an integral part of the cultural practice of Lihir islanders and that; it has punitive implications when imposed for payment. I will consider the payment of compensation together with the other expenditures following the killing as a relevant factor in sentencing the offender.

Plea 

15.	Counsel, Mr Yawip submitted that the plea of guilty ought to weigh heavily in the prisoner’s favour because of the savings of time and costs to the State in conducting a trial to prove his guilt. This incident happened in full view of others and had he contested his innocence the State and the Court would have been put to unnecessary costs hence; he would not have been entitled to favourable treatment that is open to those who pleaded guilty.

16.	I agree that, the fact of a plea of guilty ought to result in some discount in practical terms. The final outcome in the sentence imposed ought to reflect the merit of pleading guilty. That effect can be an incentive in itself to plead guilty. Too, any suspicion that, a reference to taking into accounts a plea of guilty is mere verbiage is allayed by what is apparent in the sentencing result.

17.	The plea must however be genuine and made at the earliest possible opportunity. In The State v Win Picinon Thomas (un-numbered National Court Judgment) CR No. 837 of 1994 Los J considered that:

"… an honest plea of guilty must be taken into account in an apparent fashion so that the prisoner must know that his guilty plea has been well appreciated and take into account by the Courts. This would also encourage other people who genuinely want to plead guilty must do so knowing that it will help them in their punishment."

18.	In The State v Bluey Hanua (1997) N1625 it was similarly stated, that with the increasing length, complexity and costly criminal trials at public expenses, it is considered important that, guilty persons when charged with offences be encouraged to enter honest pleas of guilty at the earliest possible time. (See R. v. Pickett (1986) 2 QR 441). The incentive must of course come from what is apparent on the final sentence of the Court.

19.	The value to be given to a plea of guilty in my view depends on a number of factors namely, but not exhaustive to:

1)	seriousness of the offence;
2)	circumstances of aggravation;
3)	factors in mitigation;
4)	young age or advanced age of offender;
5)	how soon it is taken after committal. 

20.	The significance of an early plea is the opportunity the prisoner would have missed in having to serve the penalty early. Besides, a plea at the earliest opportunity adds to consistency of the offender’s mitigating behaviour and penitence since the commission of the offence. It has been long recognised that a guilty plea may demonstrate and support remorse and contrition. See, Public Prosecutor v Tom Ake [1978] PNGLR, 469; Kalabus v The State [1988] PNGLR 193.

21.	This is not to say a belated plea have little or no value. For variety of reasons including but not limited to infrequent sittings of the National Court, lack of opportunity to seek or obtain legal advice, change of representation or as a result of plea bargaining, it may not be possible to enter an early plea.

22.	Where the case is unnecessarily protracted by mere election to test the State’s case despite overwhelming evidence, the weight to be given to a belated plea in my view, is lessened. Similarly, a plea of guilty to serious crimes of unlawful killings and other crimes of violence committed in circumstances of aggravation itself will have little or no weight and more so if the plea is not supported by special or exceptional mitigating factors like old age or very young age or due to ill health.

23.	In this case, the timing of the prisoner’s plea is not crucial. He was committed to stand trial by Lihir District Court on 13 December, 2010. This is the first sitting of the National Court in Lihir after his committal. His plea of guilty deserves credit on sentence supported by other factors from his personal circumstances and from the offence I will now refer to.

Circumstances of Killing 

24.	The prisoner assaulted the deceased following an argument. He then punched him and kicked him after he fell. Both men had been drinking. The fact of intoxication no doubt contributed to or even hastened the animosity between the two men. Intoxication is not an excuse. It however contributed to and explains an extreme behaviour not otherwise expected of a person in his normal self.

25.	I also accept that, elements of provocation not amounting to a legal defence were present. They explain the offender’s behaviour other than excuse it. The offender said he was unaware the deceased had a spleen case. Even so, he must take the victim as he found him. His case falls into the category of accidental killing for the purpose of sentencing.

26.	These factors from the offence together with Paul’s good background, his cooperation with the police, expression of remorse and payment of compensation add support for the guilty plea.

Manslaughter Sentencing – Principles Applied 

27.	The maximum sentence for manslaughter killing is life imprisonment. It is not mandatory because of s.19 of the Criminal Code. Section 19 sets out different sentencing options the court can use in the particular circumstances of a case, beside the prescribed maximum for the particular offence. The Court must be guided by settled principles, usually from case precedents on sentencing a particular offence in the exercise of its sentencing discretion.

28.	 The guidelines to be followed in determining the penalty for different categories of manslaughter killings has been set by the Supreme Court in Rex Lialu v The State [1990] PNGLR 487. The range of sentences prescribed in that case has however been revisited by the Supreme Court in a number of cases since because of the prevalence and the rising trend of violent deaths that are at times committed in appalling and unacceptable circumstances. See, Jack Tanga v The State (1999) SC602, Antap Yala v The State (SCR 69/96); Anna Max Marangi v The State (2002) SC 702.

29.	It is also now well settled that, sentences for manslaughter will normally be lower than sentences for murder and wilful murder. However, taking life imprisonment as the maximum penalty for manslaughter, there are those cases that will warrant a term of imprisonment within the category of murder killings. In Anna Max Marangi v The State (supra) the Supreme Court suggested guidelines for three types of manslaughter killings as follows:

“The first consists of cases in which force is used accidentally or in any uncalculated manner, such as a single blow, punches or kicks on any part of the deceased body. This also includes cases in which death is caused by an acceleration of a pre-existing disease or condition leading to death. These kinds of killings attract sentences between three (3) years and seven (7) years.

The second are cases that involve repeated application of vicious force, with or without the use of an instrument or weapon, such as repeated kicks and punches applied to the head or chest with deliberate intention to wound or cause bodily harm. Deaths caused by a single or multiple knife stab wounds applied to the head, neck, chest or abdomen or an any other vulnerable part of the body, even if there is no other special aggravating factors, come under this category. This category attracts sentences between 8 and 12 years.

The third and final involve cases in which there is direct application of force in a calculated manner, on the body using a weapon such as a knife, bush knife or axe causing serious bodily injuries, such as piercing vital organs or severing vital parts of the body. Deaths caused by chopping the neck, legs and arms with an axe or bush knife are examples of this kind of killings. This includes death caused by single or multiple knife stab wounds on the head, face, neck, chest or the abdomen if accompanied by other special aggravating factors may also fall under this category. These kinds of killings attract sentences between 13 and 16 years.”

30.	In Manu Kovi v The State (2005) SC789 the Supreme Court used the four categories in Anna Max Marangi’s case as a guide to recommend that:

“1. In an uncontested case, with ordinary mitigating factors and no aggravating factors, a starting point of 7 years up to 12 years. A sentence below 7 years should be rarely imposed except in exceptional cases where there are special mitigating factors.

2. In a contested or uncontested case, with mitigating factors and aggravating factors, a starting point of 13 - 16 years.

3. In a contested or uncontested case, with special aggravating factors and mitigating factors whose weight is reduced or rendered insignificant by the gravity of the offence, 17 - 25 years.

4. In contested and uncontested case with special aggravating factors - Life imprisonment for the worst cases. The presence of mitigating factors is rendered insignificant by the gravity of the offence. These are cases which involve viciousness, some pre-planning, use of a weapon and complete disregard for human life”.

31.	The case of Manu Kovi v The State does not necessarily do away with the sentencing guide in Anna Max Maragi v The State. The sentencing principles in that case remain good law; though, the suggested range in Manu Kovi is the preferred approach to adopt, as it is more recent.

32.	It is now common acceptance that the sentence imposed by the Court is determined by the circumstances of death or the nature of the killing and the way in which death was actually caused in each case: R. v Phillips [1985] 7 CR App R (S) 235. For a brutal and deliberate killing, a higher term of imprisonment somewhere around the maximum of life imprisonment or in the worst case, life imprisonment (or death penalty for wilful murder) is appropriate. A killing that did not result from deliberation, planning, cruelty, but had an element of incidental, accident, stupidity or negligence will attract a lower term of imprisonment.

33.	This killing falls into the category of negligence killing. I have referred to some comparable sentences that favour the lower end of the sentencing scale for this type of killing. I consider that this kind of manslaughter, commonly referred to as spleen killing, deserves a firm gaol sentence. I consider also that other factors co-exist in mitigating the seriousness of the offence. This is the prisoner’s first conviction. It falls into the first category of Marangi v The State (supra) where the range of 3 to 7 years is prescribed. In Manu Kovi v The State, the suggested sentence range is 7 to 12 years. The Court was also mindful that, a sentence below 7 years may be justified in exceptional cases where there are special mitigating factors.

34.	There is no question that the prisoner must be punished with a term of imprisonment calculated to sufficiently serve both the deterrent and retributive aspects of sentencing. He has asked for suspended sentence or probation. I have considered that request and have reached the conclusion that neither of those sentencing options is supported by good reason. In all the circumstances, a sentence of 7 years is appropriate.

35.	The prisoner is sentenced to 7 years imprisonment with hard labour. That term is reduced by 12 months, 3 weeks being the time spent in custody. He will serve the balance of 5 years and 11 months IHL.

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