N6789

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1162 of 2014
BETWEEN:
THE STATE 

V

JACOB GEAM
Defendant
Popondetta:  Liosi, AJ
                                                 	     2017: 3rd May

CRIMINAL LAW – Manslaughter – S.302 & 19 Criminal Code – Guilty plea – Killing arising from non-payment of balance of bride price payment – Deceased drunk and had earlier threatened to kill the offender – Deceased broke and entered offender’s house – Offender speared him in the chest simultaneously with a spear – Sentenced to 8 years less time spent in custody and suspension.    

Cases Cited:

Anton Wanu v. State [2013] SC 1240
Avia Aihi v. State (No.3) [1982] PNGLR 92
Alphonse Polpolio & Jeffrey Baru (2006) CR 701 & 865 of 2006
Douglas Bira v. State SC Review 42 of 2013 unreported Judgment dated 31st October 2014 
Gimble v. The State [1988-89] PNGLR 271
Goli Golu v. State [1979] PNGLR 653
Manu Kovi v. State [2005] SC 789
Public Prosecutor v. Don Hale [1998] SC 564 
Rex Lilu v. The State [1990] PNGLR 487
Thress Kumbamong v. State (2008) SC 1017	
Ure Hane v. State [1984] PNGLR 105
 
Counsel: 

K. Umpake, for the State 
L. Mamu, for the Prisoner

3rd May, 2017
DECISION 
1.	LIOSI, AJ; On 3rd May 2017, I convicted the accused of 1 count of manslaughter of one Leo Toberi after he pleaded guilty. 

2.	On arraignment, the offender pleaded guilty to the following facts. Deceased is Leo Toberi. The offender is married to Leo’s sister. The offender had paid K600.00 part payment to the deceased for his wife the deceased sister being for bride price and had a balance of K300.00 yet to pay. Between 7 and 8 p.m. on the 29th August 2012 at Mamusi Village, the deceased went to the offender’s house drunk. He was armed with a bush knife. Upon seeing the offender, he became aggressive and threatened to kill the offender over the balance of K300.00 still owing on the bride price payment. In apprehension of being attacked, the offender picked up a spear and speared the deceased in his chest. The spear penetrated the deceased heart and he died shortly thereafter from loss of blood. 
3.	The offence of manslaughter pursuant to s.302 of the Criminal Code carries a maximum penalty of life imprisonment. However, the law also states that maximum penalty is normally reserved for the worst category cases. See Goli Golu and Ure Hane (supra). 
4.	You are a matured adult and married with 7 children. You are from Mamusi Village, Ijivatari District, in Oro Province. You are a subsistence farmer with no formal education and you are a follower of the Anglican faith. 
5.	On allocatus you said, “I got married to the deceased’s sister and he got married to my sister. I did not charge him for my sister but he charged me for his sister. Because I did not pay bride price, he continuously threatened and fought with me for not paying bride price. Eventually, I paid K600.00 cash and 5 pigs. He got the cash and 5 pigs. He then got drunk with that K600.00 and fought with me and tried to cut my neck. On the day in question, he got drunk and came in a vehicle which dropped him off. He then walked to his house, calling out saying, “I’m going to kill you”. He then came to my house and demanded me to give him K50.00. I told him I had no money so he went back. My wife got scared so she got our kids and ran away. I told him to go and stay in his house as he was drunk. However, he went and came back. The village people told me that he promised to kill me so they told me to stay inside the house. When he came back, he broke my house and came inside when I speared him. He then said “I am your in law, why are you trying to kill me”, but it was too late, I had already speared him. At that time there were only two of us”.
6.	Your counsel submits the deceased is your brother in law, whilst intoxicated he broke into your family home and charged at you over an incomplete bride price payment for his sister who is your wife. Earlier on he had threatened to kill you for not paying the full bride price. 
7.	In question and answer 34 of the Record of Interview, you had warned the deceased that he should not enter your premises if he was under the influence of alcohol. In questions and answers 37 you said he insisted and trespassed into your house with a bush knife which presented a real danger to your life. 
8.	Further, he had earlier uttered threatening words to kill you. You were put under apprehension of immediate danger. The facts clearly show, he forced open the door to gain entry into the house. You reacted on the spur of the moment by hurling the spear at him. Such facts he submits give rise to an extenuating circumstances. 
9.	Your lawyer further submits that in the case of Gimble -v- The State (supra) the Court also stated that a man has a duty to protect his home from invasion. The Supreme Court in the case of Supreme Court Review No.42 of 2013, Douglas Bira -v- The State endorsed that proposition. Consequently, in Anton Wanu -v- The State (Supra) a sentence of 16 years imposed by the trial Judge was reduced to 13 years when the trial Judge failed to account for the fact that he was protecting his house and family from harm. 
10.	In mitigation he submits you pleaded guilty, cooperated with the Police and you have no prior convictions. Given this, your case does not fall into the worst case category. He therefore submits that a sentence of 8 years is appropriate. 
11.	Finally, your lawyer submits that whilst there is no pre-sentence reports as required by Don Hale’s case (supra) the Court still has an unfettered discretion by s.19 which shouldn’t be violated by such a requirement. He submits that a sentence of 8 years is appropriate less the 3 years for pre-sentence custody and a suspension of the balance of the term of 5 years. 
12.	The States submits that whilst the deceased was a menace during the incident, the offender cannot be totally exonerated. He submits this offence is very prevalent in Popondetta and a life has been lost. He agrees that the case falls into the first category of Manu Kovi. He submits the nature of the killing is serious and there is no good ground to suspend any portion of the sentence. 
13.	The offence of manslaughter for which you have been charged is serious. That is why it carries a maximum penalty of life imprisonment. The need to respect the sanctity of life continues to be the main underlying reason why stiff penalties are provided under our laws for homicide cases. The Supreme Court case of Rex Lilu -v- The State set out following matters that are relevant considerations for determining an appropriate sentence. They include; 
a.	Nature and frequency of attack or assault on the victim.
b.	Whether the injury that caused death arose directly from the assault or from 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 the deceased.
e.	Whether there was provocation in a non-legal sense.
14.	I accept submissions by your counsel that you were under a great apprehension of been attacked in the manner the deceased broke and entered your house. I also note from your allocatus and the record of interview that you had earlier warned him not to come to your house whilst drunk. Furthermore, he has earlier on threatened to kill you. 
15.	On your allocatus you said you were married to his sister and he was married to your sister. So you were both in-laws to each other. I note that he demanded bride price for which you paid K600.00 and 5 pigs with the K300.00 balance still owing the subject of this incident. This in my view built up the momentum to the killing because you yourself never demanded compensation in return for your sister that he married. 
16.	Giving all this and your mitigating factors, I agree that your case falls into the first category of Manu Kovi. I also agree with counsels that an appropriate sentence would appear to fall at the lower end of category one of Manu Kovi which calls for 8 - 12 years sentence. Consequently, I sentence you to 8 years imprisonment in hard labour. 3 years of that is deducted for time you have already spent in custody pursuant to s.3 (2) of the Criminal Justice (sentence) Act 1986. 
17.	Should any of this be suspended? Whilst there is no pre-sentence report as required under Don Hale’s case (supra) I still have an unfettered discretion under S.19 of the Criminal Code to suspend a portion of the sentence. Considering the prevalence of this offence in this province and throughout the country. I will suspend 3 years of 5 years term effectively leaving you to serve 2 years at Biru Corrective Institution Service.   

Ruling accordingly

________________________________________________________________
The Public Prosecutor	:    Lawyer for the State 
The Public Solicitor	:    Lawyer for the Accused