N4317
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 975 0F 2008

THE STATE

V

MELCHIOR GUNAN

Madang: Cannings J
2011: 3 May, 6, 22 June

SENTENCE

CRIMINAL LAW – sentence – manslaughter – Criminal Code, Section 302 – guilty plea – offender assaulted wife, breaking her neck and rupturing her spleen – domestic dispute – sentence of 12 years.

A man pleaded guilty to manslaughter. He argued with his wife, assaulted her and ruptured her spleen and fractured her neck.

Held:

(1)	The starting point for sentencing for this sort of manslaughter (guilty plea, no weapons used, domestic setting) is 8 to 12 years imprisonment.

(2)	Mitigating factors were: sole attacker; surrendered to police; some compensation (bel kol) paid; reconciliation and forgiveness; pleaded guilty; some remorse; first-time offender.

(3)	Aggravating factors were: directly killed deceased; vicious attack; multiple injuries.

(4)	A sentence of 12 years was imposed. The pre-sentence period in custody was deducted and four 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 Albert Kududu (2010) N4108
The State v Christopher Dubun (2010) N4109
The State v Michael Jim Gorogoro, CR 105/2006, 22.02.08
The State v Steven Ruben (2008) N3941

PLEA

The offender pleaded guilty to manslaughter and the following reasons for sentence were given.

Counsel

P Kaluwin & S Collins, for the State
D Joseph, for the offender

22 June, 2011

1. CANNINGS J: This is a decision on sentence for a middle-aged man who pleaded guilty to the manslaughter of his wife. The offence was committed between 2.00 and 3.00 am on 14 December 2007 at Kananam village in the Alexishafen area of Madang Province where the offender, Melchior Gunan, lived with his wife, Barbara Kali Gunan. He argued with her and this led to him assaulting her and injuring her badly. She suffered a ruptured spleen and a fractured neck and died almost instantly. It is accepted that the offender unlawfully killed the deceased, without any intention to kill her or inflict grievous bodily harm. He has been convicted of manslaughter under Section 302 of the Criminal Code.

ANTECEDENTS

2. The offender has no prior convictions.

ALLOCUTUS

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

I apologise in the eyes of the Court and to God. I thank the court for its time in dealing with my case. I say sorry to the deceased and to her family for what I did. I ask for mercy. Please consider me for a non-custodial sentence. I have six children to care for. I have reconciled. They do not want to see me imprisoned. They want me to be given a non-custodial sentence so that I can complete payment of compensation.

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 that he sought assistance for his wife immediately after realising the seriousness of her condition, he surrendered to the police, he has paid some compensation (bel kol), he has to a large extent reconciled with the deceased's relatives and they have expressed forgiveness and their desire not see him imprisoned.

PRE-SENTENCE REPORT

5. The court was presented with a report prepared by the Madang office of the Community Based Corrections Service.

Personal details of Melchior Gunan

Age			:	32
Origin		:	Kananam village, Alexishafen, Madang
Upbringing		:	Kananam village, Alexishafen, Madang
Marital status	:	Two wives (including deceased), six children
Family		:	Both parents alive, 7 siblings
Education		:	Grade 8, Universal Basic Education, St Michael's
Secondary, Brahman, Madang, 1 year Talidig
Vocational Training Centre, Sumkar, Madang
Employment	:	RD Tuna Canners Ltd
Occupation		:	Quality product controller
Health		:	Sound
Religion		:	Lutheran

Other aspects of the offender's life

6. The offender said he will need time to reconcile with the relatives of his late wife as with his current salary he cannot afford to pay the K10,000.00 compensation that has been demanded by them. Both his family and family members of the deceased prefer a less severe punishment to allow him the opportunity to give parental care to his children and meet the compensation demand. Similar sentiments were also expressed by Mr Simon Kubak Deb, Bel Village Court Magistrate, who is at the forefront of resolving the compensation issue between the families.

SUBMISSIONS BY DEFENCE COUNSEL

7. Mr Joseph submitted that a sentence in the range of 8 to 12 years would be appropriate. He submitted that this is in line with category 1 of the Manu Kovi guidelines on sentencing as no offensive weapon was used (Manu Kovi v The State (2005) SC789). The offender also has a favourable pre-sentence report.

SUBMISSIONS BY THE STATE

8. Mr Collins did not take issue with the categorisation of the case under the Kovi guidelines. He pointed out, however, that the offender had not admitted anything during the police investigation and although he pleaded guilty it was not an early plea. It was also a particularly serious incident. The injuries were protracted and severe – it is not only a spleen injury but also a broken neck. He submitted that a sentence of at least 12 years imprisonment is warranted.

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 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?

10. 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.

11. 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?

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. 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 RECENTLY FOR EQUIVALENT OFFENCES?

14. I refer to four recent Madang cases in which men pleaded guilty to manslaughter. In each case the victim was the wife of the offender and death followed an argument in a domestic setting:

•	The State v Steven Ruben (2008) N3941: the offender threw pawpaws at the victim, killing her by rupturing her spleen. The sentence was 10 years imprisonment.

•	The State v Michael Jim Gorogoro, CR 105/2006, 22.02.08: the offender stabbed his wife with a screwdriver. 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.

•	The State v Albert Kududu (2010) N4108: the offender hit his wife three times on her back with an open hand, which ruptured her spleen and caused her death soon afterwards. The sentence was 12 years imprisonment.

•	The State v Christopher Dubun (2010) N4109: the offender kicked his wife on the buttocks and on the sides of her body. She died shortly afterwards due to a ruptured spleen. The sentence was 12 years imprisonment.

STEP 4: WHAT IS THE HEAD SENTENCE?

15. Mitigating factors are:

•	the offender was the sole attacker;
•	he sought assistance for his wife immediately after realising the seriousness of her condition;
•	he surrendered to police;
•	he has already paid some compensation (bel kol);
•	he has to a large extent reconciled with the deceased's relatives and they have expressed forgiveness and their desire not see him imprisoned; 
•	he pleaded guilty;
•	he has expressed remorse;
•	he is a first-time offender.

16. Aggravating factors are:

•	he directly killed deceased;
•	it was a vicious assault, causing multiple injuries;
•	deceased had no susceptible condition.

17. In weighing all these factors I consider that in the absence of the reconciliation and forgiveness and the stated desire of the deceased's relatives not to see the offender face a lengthy sentence, this would be a case that would warrant a sentence above the starting point. This was a very serious case of wife beating. The nature of the injuries suffered by the deceased demonstrates that this was a particularly vicious assault. However, because of the presence of reconciliation and forgiveness I will impose a sentence the same as that imposed in the two most similar precedents referred to earlier (Kududu and Dubun): 12 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 six months, two weeks.

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

19. This is sadly yet another tragic case of domestic violence. A young woman's life has been lost, needlessly and viciously. It is not appropriate to fully suspend a sentence in this sort of case. Even though the deceased's relatives are supportive of a fully suspended sentence, I consider that if the court were to give effect to that desire – or 'request' – it would be 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. However, because the offender has a fundamentally sound pre-sentence report and a good record of co-operating with the court, and because his remorse is genuine and he has genuinely attempted reconciliation with his deceased wife's relatives, I will suspend four 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 participate in a reconciliation ceremony with the deceased's relatives, supervised and witnessed by the Village Court and the Probation Office, within six months after the date of release from custody, and at the reconciliation ceremony:

•	he must give K5,000.00 cash + foodstuffs to the deceased's relatives;

•	the deceased's family must contribute 10 chickens + foodstuffs;

and, within one week after the reconciliation ceremony, the Probation Office shall provide a report of the reconciliation ceremony to the National Court in Madang;

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

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

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

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

7	must not consume alcohol or drugs;

8	must keep the peace and be of good behaviour;

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

10	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

20. Melchior Gunan, having been convicted of one count of manslaughter contrary to Section 302 of the Criminal Code, is sentenced as follows:

Length of sentence imposed	12 years	
Pre-sentence period to be deducted	6 months, 2 weeks	
Resultant length of sentence to be served	11 years, 5 months, 2 weeks	
Amount of sentence suspended	4 years	
Time to be served in custody	7 years, 5 months, 2 weeks	
Place of custody	Beon Correctional Institution	

Sentenced accordingly.

_______________________
Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyers for the offender