N6617
PAPUA NEW GUINEA
	 [IN THE NATIONAL COURT OF JUSTICE]	

CR No. 1531 OF 2015

THE STATE

V

SIMON MOSES

Madang : Cannings J
2016:6, 7, 9, 10 December &
2017: 3 February 

CRIMINAL LAW – sentence – manslaughter – Criminal Code, Section 302 – guilty plea – offender killed his baby child – negligent swinging of bilum in which baby was placed, causing baby’s head to hit hard object. 

The offender pleaded guilty to the manslaughter of his baby child. The baby was in hospital and the offender assumed the task of swinging the baby, which was in a bilum, to relax the child. He negligently swung the bilum with too much force, causing the baby’s head to hit a hard metal object. The baby died instantly due to intra-cranial bleeding. This is the judgment on sentence.

Held:

(1)	The maximum penalty for manslaughter is life imprisonment. The starting point for sentencing for this sort of killing (no weapons used) is eight to twelve years imprisonment (Manu Kovi v The State (2005) SC789 guidelines applied).

(2)	Mitigating factors: the offender acted alone; death arose due to negligence rather than a deliberate act; he pleaded guilty; he has expressed remorse; he is a first-time offender. 

(3)	Aggravating factor: high degree of negligence.

(4)	A sentence of 10 years imprisonment was imposed. The pre-sentence period in custody was deducted and no part 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 Turuk Willie CR 446/2010, 15.09.11

SENTENCE

This was a judgment on sentence for manslaughter.

Counsel:

F K Popeu, for the State
J Morog, for the Offender

03rd February, 2017

1.	CANNINGS J:  This is a decision on sentence for a man who pleaded guilty to the manslaughter of his baby child, aged seven months and three weeks. The baby, a girl called Clency Simon, was born on 29 November 2014 to a close relative of the offender’s wife. The offender and his wife adopted the baby, who was sick and taken to Modilon General Hospital for treatment. Between 8 and 9 pm on 22 July 2015 the offender assumed the task of swinging the baby, who was in a bilum, to relax her. He negligently swung the bilum with too much force, causing the baby’s head to hit a hard metal part of the hospital bed. The baby died instantly due to intra-cranial bleeding. 

ANTECEDENTS

2.	The offender has no prior convictions.

ALLOCUTUS

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

I am very sorry for what I have done. I ask for 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). However the offender made no admissions when interviewed by the Police and the witness statements suggest that the circumstances of the death are more serious than what the offender has pleaded guilty to. The allegations in the witness statements will be ignored. I cannot find any mitigating factors in the material referred to. 

PRE-SENTENCE REPORT

5.	Personal details of Simon Moses

Age			:	26
Origin		:	Gaigil village, North Ambenob LLG area 
Upbringing		:	village
Marital status       :	married with two children (other than the deceased)
Family                  :	parents alive and in village, first-born of five children, one sister has died, leaving him with two brothers and one sister
Education		:	no formal education
Employment	:	nil
Occupation		:	villager 
Health		:	OK

6.	Attitudes of his wife or other family members to the offender, after commission of the offence, were not reported on.

SUBMISSIONS BY DEFENCE COUNSEL

7.	Mr Morog submitted that a sentence of eight years would be appropriate. He submitted that this is in line with category 1 of the Manu Kovi v The State (2005) SC789 guidelines on sentencing as no offensive weapon was used.

SUBMISSIONS BY THE STATE

8.	Mr Popeu did not take issue with the categorisation of the case under the Kovi guidelines. However he submitted that the sentence should be ten years to reflect the gravity of the offence as a very young child had her life terminated prematurely.

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.	The maximum penalty under Section 302 (manslaughter) of the Criminal Code 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?

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 the following table.

SENTENCING GUIDELINES FOR MANSLAUGHTER FROM 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 is an example of death caused by a negligent, not a deliberate act, and no weapons were used. The starting point is eight to twelve years imprisonment.

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

13.	As this was a case of criminal negligence, I refer, for precedent purposes, to the case outlined in the table below. 

SENTENCE FOR MANSLAUGHTER INVOLVING DEATH CAUSED BY NEGLIGENCE AS DISTINCT FROM DELIBERATE ACTION OF OFFENDER
No	Case	Details	Sentence	
1	The State v Turuk Willie
CR 446/2010, 15.09.11, Madang
	Guilty plea – the offender was in the bush near his village, hunting pigs – he fired indiscriminately from his spear gun into a bush, when he saw leaves rustling – he shot and killed the deceased who was having consensual sex in the bush. 

Mitigating factors:  it was a spontaneous incident, almost an accident; no intention to harm deceased; offender reported the matter to the village committee;  early admissions;
co-operated with the police; pleaded guilty;
expressed remorse; first-time offender;
good community record.	10 years
(no suspension)	

STEP 4: WHAT IS THE HEAD SENTENCE?

14.	Mitigating factors are:

•	 the offender acted alone; 
•	 death arose due to negligence rather than a deliberate act; 
•	 he pleaded guilty; 
•	 he has expressed remorse; 
•	 he is a first-time offender. 

15.	The aggravating factor is:

•	 high degree of negligence.

16.	As there are more mitigating factors than the aggravating factor, I impose a sentence within the starting-point range, the same sentence as in Turuk Willie: ten years imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

17.	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 one year, six months, one week. 

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

18.	The pre-sentence report does not warrant any suspension and no one has come forward to support the offender’s bid for suspension. Therefore there is no suspension.

SENTENCE

19.	Simon Moses, 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, 1 week	
Resultant length of sentence to be served	8 years, 5 months, 3 weeks	
Amount of sentence suspended	Nil 	
Time to be served in custody	8 years, 5 months, 3 weeks	
Place of custody	Beon Correctional Institution	

Sentenced accordingly,
_____________________________________________________________
Public Prosecutor : Lawyer for the State
Public Solicitor    : Lawyer for the Offender