N5963

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 999 OF 2013

THE STATE

V

DALTON PILOTA
Respondent

Alotau: Toliken, J.
2014: 21 July, 11th September, 07th November
2015: 20th February

CRIMINAL LAW – Sentence – Manslaughter – Plea – Guilty – Killing in Domestic setting – Single kick on the buttock – Ruptured Spleen – Mitigating factors outweigh aggravating factors – Head sentence of 11 years less time in custody – 2 years suspended on condition – Criminal Code Ch. 262, s 302.

Cases Cited:

Thress Kumbamong –v- The State (2008) SC 1017
Joe Giamur -v- The State (2007) SC 884 
Saperus Yalibakut –v- The State (2006) SC 890
Manu Kovi –v- The State (2005) SC789
Rex Lialu –v- The State [1990] PNGLR 487 
 Avia Ahia –v- The State [1983] PNGLR 92
 Golu Golu –v- The State [1979] PNGLR 653 
The State –v- Anton (2012) N4828
The State –v- Kududu (2010) N4108
The State –v- Dubun (2010) N4109
The State –v- Rex Lialu [1988-1989] PNGLR 449

Counsel:

R. Auka and H. Roalakona, for the State.
P. Palek, for the Prisoner.

SENTENCE

20th February, 2015

1.	TOLIKEN, J: Dalton Pilota, on Friday the 24th of February 2013, between 6pm. and 7pm. at Mwadauna Village, Esa'ala, Milne Bay Province your wife Henrietta Dalton (now deceased) swore at you after you had earlier assaulted her that afternoon. You were with your friends when she swore at you. You got so angry that you went into the bedroom where she was and pulled her out into the living room and you started to assault her. After the assault she found it difficult to breath and died shortly after.

2.	On the 21st of July 2014 the State charged you with one count of manslaughter under Section 302 of the Criminal Code for killing your wife Henrietta Dalton. You pleaded guilty to the charge and I confirmed your plea based on the facts I have outlined above.

3.	The offence of manslaughter carries a maximum penalty of life imprisonment subject to the Court's discretion to impose a lesser sentence under Section 19 of the Criminal Code.

4.	But while the maximum penalty is life imprisonment it has been long established in this jurisdiction that the maximum penalty is only imposed on the worst instances of a particular offence. Furthermore sentences depend very much on the merit and circumstances of each particular case. (Golu Golu –v- The State [1979] PNGLR 653; Avia Ahia –v- The State [1983] PNGLR 92).

5.	So at the outset my task therefore is to determine an appropriate sentence for you. And I must start by deciding whether the circumstances of your case justify the imposition of the maximum penalty of life imprisonment. If it is not, then I must impose a sentence that befits the circumstances of your case.

6.	But before we go into that let me say something about what we know about you, your address to the Court on sentence, submissions from your lawyer and the State and the subjective circumstances of your case. Also I need to consider what the Courts have said about this type of offence, and what types of sentences that have been imposed in cases similar to yours.

7.	You are 27 years old and come from Mwadauna Village in the Esa'ala District of Milne Bay Province. You come from a family of 5 siblings of which you're the first born. Your parents are still alive and you are a member of the United Church. You attended Bwaunada Primary School and only went as far as Grade 8. You were formally employed as an engineer in a small workboat. Having killed your wife you are now a widower with a child. This is your first offence.

8.	When asked to say something to the Court on the sentence you admitted committing this offence. You apologised for breaking the law of the country and for having sinned against God. You confessed to killing your own wife and you regretted the suffering you have caused to your only child as a result. You said that what you did was disgraceful to your community. You apologised for your offence and asked for mercy. You asked for a non-custodian sentence so that you can compensate your deceased wife's people and raise your child.

9.	Mr. Palek your lawyer submitted that your case is not a worst case that should attract the maximum penalty of life imprisonment. He said that an appropriate sentence for you should be 4 – 8 years. This is because of your level of education, your previous good character, your early plea of guilty and your lack of prior convictions. He said you co-operated with the police, expressed remorse and that you were provoked in the non-legal sense when your wife insulted you by referring to you as "paia rais" and for you to skin your banana, an obvious reference to your genitals.

10.	Your lawyer referred me to the case of Manu Kovi –v- The State (2005) SC789, the leading case on sentencing tariffs for homicide offences and says that your sentence should be 4-8 years. In Manu Kovi the Supreme Court laid down 4 categories of sentencing tariffs for each homicide offence on a graduating scale from the lowest to the maximum provided by law. I will come to this in detail further down in this judgment. Counsel also cited several cases which he said could assist me in arriving at an appropriate sentence.

11.	Counsel also appraised the Court on certain details of your case which were gleaned from the material in the depositions. I will also comment on these a little later. He also urged me to then suspend your sentence fully with conditions which should include compensation.

12.	Mr. Auka for the State submitted that the circumstances of your case call for a sentence between 10-12 years. He submitted that a young mother had lost her life yet again as a result high level of violence when trying to solve disputes.

13.	Mr. Auka submitted that there was some intention on your part to harm your deceased wife when you kicked and punched her but accepts that you were provoked in the non-legal sense. Counsel also cited several cases to the Court and I will refer only to those that are relevant to your case later.

14.	Manslaughter is less serious than murder and wilful murder but it is still a very serious offence. While it does not involve the intention to kill someone or cause him grievous bodily harm, it does attract the maximum penalty of life imprisonment. And this is because life is precious and those who take life must not expect to be spared inappropriate penalty.

15.	It has been suggested that sentences for manslaughter should be higher than those for armed robbery or rape which incidentally also carry the maximum penalty of life imprisonment (see The State –v- Rex Lialu [1988 - 1989] PNGLR 449 at p.452 per Amet J. (as he then was). This is because life is precious and once lost cannot be restored.

16.	The courts acknowledge that the offence may be committed under different circumstances. For instance some deaths arise from single blows to one part of the body, some the result of assaults with weapons (dangerous or otherwise) some by missiles hurled at the deceased and so on and so forth. In Rex Lialu –v- The State [1990] PNGLR 487 the Supreme Court provided some guidelines on what should be taken into account when considering sentence. These include;

(a)	the nature and frequency of the attack or assault on the deceased.
(b)	whether the injury that caused the death arose directly from the assault it was caused by an object when the deceased subsequently fell.
(c)	whether the death was caused by a fist or weapon
(d)	whether the offender deliberately set out to hurt anyone
(e)	whether there was provocation in the non-legal sense
(f)	whether the deceased had a pre-existing condition rendering him or her susceptible to fatal injury by a moderate blow such as when the deceased had an enlarged spleen or a thin skull.

17.	In Manu Kovi (supra.) the Supreme Court categorized the circumstances under which manslaughter may be committed and provided a sentencing range for each category. These are -

Category 1:	On a plea of guilty in an ordinary case where there are mitigating factors but no aggravating factors, no weapon used, the victim is emotional and under stress and offers provocation in the non-legal sense, such as in killings in domestic settings and killings follows immediately after an argument or where there is little or no preparation, minimal force is used, the victim had a pre-existing condition that accelerated or caused the death such as in a spleen case - a sentence in the range of 8 - 12 years.

Category 2:	On a plea or trial, whether there are mitigating and aggravating factors, where an offensive weapon is used on vulnerable parts of the body or the attack is vicious, there are multiple injuries, there is some intention to harm and there is pre-planning – a sentence on the range of 13 – 16 years.

Category 3:	On a trial or plea, when there are special aggravating factors and mitigating factors are reduced in weight or rendered insignificant by the gravity of the offence, and a dangerous weapon such as an axe or a gun is used, the attacked is vicious and planned, there is deliberate intention to harm and little or no regard to the safety of human life - a sentence in the range of 17 - 25 years.

Category 4:	On plea or trial, where there are special aggravating factors, no extenuating circumstances, no mitigating factors or mitigating factors are rendered completely insignificant by the gravity of the offence, and where there is some element of viciousness and brutality, some pre-planning and pre-meditated killing of an innocent and harmless person with complete disregard for human life - life imprisonment.

18.	The sentencing ranges suggested here in my opinion should be taken as starting points from within which the actual head sentences will be fixed. But while Mann Kovi is now the leading authority on sentences for homicide offences, it does not remove the trial court's sentencing discretion under section 19 of the Code which can only be fettered by legislation. (Thress Kumbamong –v- The State (2008) SC 1017) So what are the circumstances of your case?

19.	The facts put to you on arraignment are very scanty and do not provide sufficient detail to assist me in arriving at a sentence that the justice of the case demands. Hence, I must have recourse to the committal depositions to fully appreciate the circumstances under which you committed this offence.

20.	The depositions show that on that fateful night, your wife the deceased and another lady Wesleyan Nidia, were telling stories in your bedroom while you and other boys including your brother Frank Pilota, were listening to music and telling stories outside in the living room. It appears that your music was too loud and this angered your wife who called out "paiarais" which is a derogatory word implying that someone is an immoral person and often used to describe prostitutes. You reacted angrily to this insult and you went in and grabbed the deceased by her two legs and dragged her out to the living room. There you slapped her twice on both cheeks and then you kicked her once on her buttocks. The deceased fell down but got up and went into the room crying. Moments later she was heard panting or breathing heavily and died soon after. Health Worker checked the deceased in the morning and confirmed that she was dead.

21.	Sr. Opina Allan who attended to the deceased body observed in her Medical Report that:

"The cause of death is not visible, however, the following cannot be ruled out:

•	Direct blow to the neck
•	Direct blow to her spleen
•	Direct blow in the spinal cord ending up with a sudden stop from the respiratory and circulatory systems. (sic)

It is reasonable to assume therefore that the deceased died from a ruptured spleen.

22.	In your Record of Interview you said that apart from calling you "paiarais" the deceased also told you to skin your banana or penis. The State did not challenge this so I accept that the deceased also uttered those words and this made you angry. I take this into account in your favour. (Saperus Yalibakut –v- The State (2006) SC 890).

23.	These facts therefore - without much debate clearly - brings your case under Category 1 of the Manu Kovi tariffs. Hence, we should be looking at a sentence between 8 - 12 years. Furthermore your offence does not fall under the worst category of manslaughter. What then should be an appropriate sentence for you?

24.	The following factors are in your favour as mitigating your offence.

1.	You pleaded guilty early to your charge.
2.	You are a first time offender. 
3.	You co-operated with the police.
4.	The deceased died most probably from a ruptured spleen caused by a single kick to her buttock or lumber region. Though I do find that you did slap her twice on her cheeks this may not have been the direct cause of death.
5.	You did not use any lethal weapon.
6.	You were of previous good character and you seem to have good standing in your community. Those interviewed for your Pre-Sentence Report which included the local Ward Member Mr. Tom Michael, Village Magistrate Davies Michael, Peace Officer Mr. Moiwa Aidan and Church Pastor Pastor Daison Mainam all spoke highly of you and are willing to ensure that you complied with any conditions imposed by the Court.
7.	The deceased most probably died from a ruptured spleen pre-existing condition.
8.	You were also provoked in the non-legal sense when the deceased called you "paia rais" and for you to skin your penis in the hearing of those who were with you. I find this to be a significant extenuating factor.
9.	I also find that you did not exhibit a strong intention to harm the deceased.
10.	I find also that there is no evidence to show that your assault on the deceased was vicious or brutal.
11.	Reconciliation between your relatives and the deceased's relatives has started and your people are preparing to pay compensation.

25.	Against you I, however, find the following aggravating factors:

1.	Manslaughter and other homicide offences are very prevalent.
2.	You assaulted a woman, a member of the weaker sex, who more often than not, are not able to defend themselves adequately from male assailants.

26.	To assist me further in determining a fair and just sentence for you I have also to consider what other judges have imposed in similar circumstances and particularly in spleen cases recently.

27.	In Joe Giamur -v- The State (2007) SC 884, the appellant appealed against his sentence of 7 years for the manslaughter of his wife. He had killed his wife in a domestic fight using his fist. The Medical Report showed that she died from a ruptured spleen. The appellant was also drunk when he committed the offence. The Supreme Court found that the trial judge departed from the prevailing sentencing principles and failed to explain way he did so. The sentence was then increased to 14 years.

28.	The State –v- Dubun (2010) N4109. The offender pleaded guilty to killing his wife by kicking her on her buttock and side of her body during a domestic argument. The deceased died from a ruptured spleen. His mitigating factors included his plea of guilty, no prior convictions, expression of genuine remorse and that he had sought reconciliation with the deceased's relatives. He was sentenced to 12 years imprisonment of which 3 years were suspended with conditions.

29.	The State –v- Kududu (2010) N4108. There the offender had argued with his wife. He retaliated by hitting her with his open hand 3 times on her back rupturing her spleen. She died soon afterwards. He pleaded guilty to manslaughter. Mitigating factors were that the fatal assault on the deceased was spontaneous and not a planned incident, the offender surrendered to the police, pleaded guilty, had no prior convictions, paid some compensations (though this was seemed inadequate) and expressed genuine remorse. Against him, however, the offence was aggravated by the fact that this was a case of multiple blows on a vulnerable part of the body and it was an assault by man on a woman. The prisoner was sentenced to 12 years.

30.	The State –v- Anton (2012) N4828. There the prisoner was convicted after trial for the manslaughter of another woman whom she killed in the course of a fight between the offender and the deceased's mother. The deceased came in to help her mother. The offender struck the deceased on her side with a piece of bamboo. The deceased died instantly from a ruptured spleen. The offender was sentenced to 10 years imprisonment. Three years were suspended due to a good Pre-Sentence Report which showed that the deceased's relatives were willing to reconcile with the offender.

31.	We can see that the few cases I have considered or cited, which were all spleen cases, attracted sentences of between 10 – 14 years. Most of these were spleen deaths in domestic settings.

32.	The circumstances of those cases are very similar to yours particularly Dubun and Kududu. So weighing your mitigating factors against your aggravating factors (the mitigating factors far outweighing the factors against you) and comparing the circumstances of your case with those cases I have considered above, it seems fair, reasonable and just that you should receive a sentence in the same range. 

33.	You must, however, not be under any illusion that you will have to serve a pretty long sentence. I say this because there seems to be a generally held view by you and members of your community that because your relatives have started the process of reconciling with your deceased wife's relatives, you should somehow escape incarceration. As this court has said over and over again life is precious and those who deny this God-given gift from others by unlawfully and often prematurely taking life should be given their just dessert. Remorse, compensation and reconciliation while relevant in mitigation cannot bring back life.

34.	You took away the precious life of your young wife and mother of your young child in an instant of uncontrolled anger. Your child will grow up not knowing his mother, and of course, for a good part of his early childhood, not knowing you as well. What could have turned out to be a happy family was shattered and brought to an abrupt end on that night of February 2013.

35.	Your lawyer suggested that I should consider a sentence of 4 - 8 years. I reject that suggestion outright because to accede to his call would be to treat life as if it was cheap, and, that is why you will have to spend a good part of your life in goal.

36.	Be that as it may, because your mitigating factors and your extenuating factor outweigh your aggravating factors, I fix your sentence at 11 years imprisonment. From this I deduct 1 year and 10 months for the period you have been in custody since your arrest to now. You will serve the balance of 9 years and 2 months. But should any of this be suspended?

37.	You have a very comprehensive and favourable Pre-Sentence Report. Your community leaders are willing to support you and help you to comply with any conditions that the Court may set. Your relatives have also set into motion reconciliation efforts with the deceased's relatives and are prepared to proceed with paying compensation. And this therefore meets the pre-requisites for a suspension.

38.	I shall therefore suspend 2 years of the balance of your sentence on the following conditions:

1.	You will enter into probation for a period of 5 years

2.	Upon your release from Giligili Corrective Institution after serving 7 years and 2 months you will immediately contact the Senior Provincial Probation Officer.

3.	You will during the period of your probation reside at your village Mwadauna, Esa'ala District, Milne Bay Province.

4.	You will not reside elsewhere or leave the Milne Bay Province without the permission of the National Court.

5.	You will not consume any form of intoxicating liquor or sell, buy or otherwise deal with any liquor whether legitimate or illicit and you will not consume any drugs.

6.	You will be of good behaviour and keep the peace.

7.	The Senior Probation Officer shall furnish to the National Court in Alotau a satisfactory report every six (6) months after your release.

8.	Should you breach any condition of your probation order you will be arrested and brought before the National Court to show cause why you should not be imprisoned to serve the balance of your suspended sentence.

Ordered accordingly
_____________________________________________________________________

Public Prosecutor: Lawyer for State
Public Solicitor: Lawyer for Prisoner