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State v Andrew [2017] PGNC 315; N6988 (30 October 2017)

N6988

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1197 OF 2017

THE STATE

V

LERESY YONDEN ANDREW
Porgera: Auka AJ
2017: 20^th June & 30^th October

CRIMINAL LAW – Sentence – Manslaughter – Accused Stumbled over fire place where kettle containing hot water – Accused tipped the kettle – hot water poured over the victim and burnt the body of deceased’s child- Severe burns- Plea of guilty – Mitigating and Aggravating factors considered – Sentencing principles – Not a worst type case – Partly suspended sentence appropriate -Term of 6 years imposed and partly suspended Criminal Code Act Sections 302 & 19.

Case Cited:
Goli Golu v The State (1979) PNGLR 653
Kesino Apo v The State [1988] PNGLR 182
Kesino Apo v The State [1988-89] PNGLR 186
Manu Kovi v The State (2005) SC 789
Public Prosecutor v William Bruce Tardew (1986) PNGLR 91
Rex Lialu v The State [1990] PNGLR 487
The State v Giro (1997) N1661
Ure Hane v The State [1984] PNGLR 105

Counsel:
Ms. Rebecca Korelyo, for the State
Mr Jeffrey Kolowe, for the Accused

DECISION ON SENTENCE

30^th October, 2017
1. AUKA AJ: The accused pleaded guilty to one count of Manslaughter Contrary to Section 302 of the Criminal Code.

2. The brief facts of the case were that the accused Leresey Yonden Andrew was the second wife of one Andrew Andapuna and resided at Karik Village, Porgera in the Enga Province. On Monday 19^th day of December, 2016 in the morning between the hours of 9 and 11 am, Andrew Andapuna’s first wife Rachael Andrew the biological mother of the victim child Resery Andrew, a 9 months old male child, left the house to do her laundry at a nearby river. She left the victim sleeping in the house. Whilst the deceased was alone sleeping in the house, the accused entered the house and stumbled over the fireplace where a kettle with hot water was boiling. When the accused tipped the kettle, hot water poured over to where the child was sleeping and burned the deceased child’s skin. The accused then took the child without telling anyone as to what happened, and took him to Paiam Hospital, Porgera. The child’s grandmother Andapuna Andope also went with the accused. Unfortunately the child died from the burns he had received on his body, most particularly his skin.

3. The Court depositions which were handed up in Court did not include a Medical Report to show the cause of victim’s death. However there were 3 photographs in the depositions which clearly showed severe burns on the victim’s face, abdomen area, his hips and legs. There is no dispute that the victim died from the burns on his skin.

4. On her statement on allocatus, the accused said sorry to the Court for coming to preside over the case. She said sorry to the parents of the victim. She also said sorry to her own parents. She said if Court imposes the punishment she requested to serve the term of punishment outside of prison.

5. In relation to accused’s personal particulars, Mr Kolowe submitted that the accused is 21 years old and is the third wife of Andrew Andapuna who is the father of deceased child. She is the third born in the family of five (5) children. Her parents are still alive. She has a three months old child. She has no formal education and is a member of the S.D.A church.

6. On his address on sentence, Mr Kolowe submitted and urged the court to consider in accused’s favour the following mitigating factors:

1. She pleaded guilty and saved Court’s time and resources;
2. She co-operated with Police in the record of interview and admitted the offence;
3. She pleaded guilty at her earliest opportunity;
4. She had expressed genuine remorse to the court and to the parents of the victim;
5. That there was no intention to cause injury to the deceased’s child;
6. That she merely tipped over the kettle with hot water and it poured over to where the deceased was sleeping and burned his skin;
7. That she took the child to the hospital but he died on the same

Day.

8. That she spent 4 months in custody before the court released her on bail.
   

7. Mr Kolowe referred the court to the often cited case of Manu Kovi v The State (2005) SC 789 and said that this case falls under category one which attract sentences between 8 to 12 years. He submitted that a term of 3 to 5 years is appropriate and that the sentence be further suspended with conditions.

8. Ms Koralyo of Counsel for the State submitted that the court should consider the following aggravating factors against the accused when considering the appropriate sentence;

1. A young life was lost and his future shortened.
2. The entire family is in great grief on the Loss of the child;
3. The Court to consider the victim Impact statement handed up in court by the biological father and mother which shows that they are in great grief and wants the accused to be given custodial sentence as her punishment.
4. That although not a worst type of case, it is still a serious case in that a human life was lost.
5. The parents of the deceased are left ever wondering why the incident have happened in such a manner and both have psychological and emotional scars which they say will remain in their lives.
6. The offence is a prevalent offence.
   

9. Ms Koralyo also referred the court to the case of Manu Kovi v The State (supra) and submitted that the case falls under first category which attracts sentences between 8 to 12 years. She submitted that in view of the aggravating factors the appropriate sentence is 8 years imprisonment which should be served in jail.

10. The maximum penalty prescribed by law for the offence of Manslaughter under S.302 of the Criminal Code is life imprisonment. The Court has discretion to impose a term of years pursuant to S.19 of the Code. I agree with submissions by both counsels that this case falls under first category in Manu Kovi’s case (supra).

11. On authority of Goli Golu v The State [1979] PNGLR 653 and Ure Hane v The State [1984] PNGLR 105, the maximum penalty should be reserved for the worst type of case. In my view, the accused case is not a worst type of manslaughter case.

12. In Rex Lialu v The State [1990] PNGLR 487, the Supreme Court said that, the proper approach to sentencing in Manslaughter cases is to have regard to all the aggregate effect of all relevant consideration and then determine an appropriate penalty. The aggregate effect come from several considerations which the court must consider by carefully examining the circumstances of each case and how the death was caused.

13. By authority of the above case, the court must consider factors such as the nature and frequency of the attack. The court must consider whether the injuries were caused by the direct hit or did the victim fell on any object. The court must also consider whether the injuries were caused by the accused bare hand or did he use any weapon.

14. And the court must consider whether there was any intention to deliberately harm the victim? In the circumstances of the instant case, I find that there was no intention. The accused tipped the kettle which had boiling water in it and the hot water splashed over the deceased’s body and burnt his skin. Was there any provocation in the non-legal sense? I would say No there was no provocation.

15. Crimes of violence are very prevalent throughout our country and as such deterrence sentences are called for. All communities in this country are experiencing a high level of violent crimes affecting our country’s quest for progress in terms of solving disputes in more amicable manner as provided by law.

16. The National Court has repeatedly warned that the sentences for Manslaughter cases must reflect the serious view which the Parliament took over the loss of a human life when it fixed the maximum penalty at life imprisonment.

17. For the above reasons, a starting point on sentence for manslaughter case should be a custodial as a means of protecting human life. The State v Rex Lialu [1988-89] PNGLR 449, Kesino Apo v The State [1988] PNGLR 182 at p184.

18. By authority of Rex Lialu v The State (supra) the relevant considerations to determine the appropriate sentence in the present case are that the accused tipped the kettle with boiling hot water and injured the victim on a vulnerable part of his body and caused injury from which he died. There was no intention to harm the victim. There was no provocation for the accused to act the way she acted.

19. Having said what I have said, I take into accused’s favour her plea of guilty to his serious charge. I also take into account in her favour all that she said on allocatus. I have also considered counsels submissions on mitigation and aggravation. I consider that a sentence of six (6) years imprisonment should be imposed. Accordingly, I impose six (6) years imprisonment against the accused. The time already spent in custody awaiting trial shall be deducted.

20. The next issue for determination is whether the sentence be wholly or partially suspended.

21. In Public Prosecutor v William Bruce Tardew [1986] PNGLR 91, the court held that suspension of part of a sentence under s.19 (6) is, or maybe, appropriate if it will promote the personal deterrence, reformation or rehabilitation of the offender.

22. The accused in this case have admitted committing the offence from the beginning and expressed genuine remorse in Court. She could have raised the defence of accident but she did not do that, and was prepared to take responsibility for her action. Her conduct after the commission of the offence and all the events leading up to her guilty plea and conviction has prompted me to give special consideration and accommodation in the sentence.

23. I consider that a young woman like the accused in this case who also has an infant child do not require lengthy imprisonment term but correction and rehabilitation outside the prison system. I give serious and appropriate consideration to what I have stated above and I consider that this is an appropriate case to suspend part of the sentence.

24. I therefore suspend 4 years from the sentence on condition that the accused will enter into her own recognizance to be of good behaviour for the period of 4 years. The balance of 1 year 8 months yet to serve.

I order that Accused’s bail money be refunded.

A Warrant shall be issued in those terms.

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