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State v Tobby [2017] PGNC 340; N7013 (14 November 2017)

N7013

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 899 OF 2017

BETWEEN

STATE

V

MARSHALL TOBBY
Offender

Tari: Ipang, J
2017: 06^th September
7^th & 14^th November

CRIMINAL LAW- Sentence- Section 302 Criminal Code Act- Offender unlawfully killed his wife in a domestic setting.

CRIMINAL LAW- Sentence- Plea of guilty to the charge of manslaughter- Mitigating and aggravating factors taken in to account- Pre Sentence Report considered.

Cases cited:

Avia Aihi v The State (No.3) [1982] PNGLR 653
Goli Golu v The State [1979] PNGLR 533
Jack Tanga v State (1999) SC 602
Manu Kovi v The State (2005) SC 789
State v Serah Joe Wemin [2011] PGNC 216
Ure Hane v The State [1984] PNGLR 105

Overseas case:

R v Philips (1985) 7 Cr App R(s) 235

Counsel

R. Galama, for the State
L. Siminji, for the Prisoner

DECISION ON SENTENCE

14^th November, 2017

1 IPANG, J: The prisoner pleaded guilty on one (1) count of manslaughter on the 6^th of September and this is his decision on sentence. The facts as I found are these; on the 9^th December, 2016 at Pai Police Barracks here in Tari, the prisoner assaulted the deceased who was his wife and the mother of his two children. He further used a power cord to assault the deceased on the parts of her body repeatedly. She was taken to Tari Hospital but she died upon arrival.

2 The offence of manslaughter reads;

“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.”

3 The issue for this court to determine is; what would be the appropriate penalty to be imposed on the prisoner for the offence of manslaughter on which he has been convicted of?

4 In order to consider an appropriate penalty for the prisoner, it is the sentencing practice that each case must be determined upon its own sets of facts and circumstances. Furthermore, the maximum penalty is usually reserved for worst types of cases. See Goli Golu v The State [1979] PNGLR6533; Ure Hane v The State [1984] PNGLR 105 and Avia Aihi v The State (No.3) [1982) PNGLR 653

5 The antecedent report tendered by the State Prosecutor recorded nil prior convictions. In allocutus the prisoner apologised to the court, the police and the relatives of his deceased wife. He said when he passed out of Bomana Police Training College, his first posting was Tari. He said his wife and two children are everything to him. He told this court that his mother told him that witchcraft had caused his wife’s death. He said he has two daughters who are below the ages of 5 years old. He said he did not intend to cause the death of his wife.

6 From the submissions from both the Defence and the State, I found the following to be the mitigating and aggravating factors. In mitigation the following are the factors; the prisoner is a first time offender; he had no prior convictions; there was some form of provocation and that he pleaded guilty to the charge thus saving time and money for the State to put up a trial. The factors in aggravation are; there was a death or a loss of a life; use of offensive weapon, electrical power cord; deceased was assaulted on several parts of her body including the vital parts like ribs and the attack was vicious.

7 Mr. Siminji of counsel for the prisoner submitted that this instant case was a case of the deceased being assaulted by the prisoner predominantly with his hands. He said even though there is an allegation of an electric cord being used he submitted that the court should take it as an assault with the use of hands. He thus submitted that this was an assault after some arguments where the deceased was the aggressor. As per the sentencing guidelines in the case of Manu v Kovi (2005) SC789, Mr. Siminji submitted that this instant case should come under Category one (1) which should attract sentences ranging from 8 to 12 years. Sentences come under such category where no weapon was used; victim emotional under stress and de facto provocation e.g killings in domestic settings; killing follows immediately after argument; little or no preparation; minimal force used; victim with pre-existing diseases which caused or accelerated death e.g enlarged spleen cases.

8 From the Pre-Sentence Report presented to court, Mr. Siminji submitted that a substantial amount of compensation was paid to the deceased relatives. He submitted that this should be taken as a special mitigating factor. He said food stuff given to the deceased relatives were valued at K9, 670.00. An amount of K20, 000.00 was given together with the body here in Tari. Local member for Tari-Pori Hon. James Marape gave K11, 000.00, Francis Potape gave K8, 000.00, and Philip Undialu gave K3, 000.00. All these contributions were given to assist repatriate the body to the deceased home province. The Prisoner himself has not paid any compensation. The Defence counsel submitted that given the special and an unfortunate circumstance of this case, the court should consider imposing a sentence towards the lower end of the scale or range suggested in the Manu Kovi case (supra).

9 Mr. Galama for the State agreed with Mr. Siminji that for the instant case, the Category 1 in Manu Kovi case (supra) would apply. This will mean a sentence ranging from 8 to 12 years will be considered. The State counsel relied on the case of State v Serah Joe Wemin [2011] PGNC 216, N4661. In this case the prisoner pleaded guilty to one count of manslaughter or unlawful killing of her husband. The unlawful act involved stabbing once the deceased’s chest with a kitchen knife. The courts in sentencing took in to account the fact that they were both in a heated argument and were fighting. At that time of trial both were 22 and 21 years respectively. Prisoner being the first time offender, she was sentenced to 8 years imprisonment and part of the sentence was suspended with strong conditions. Mr. Siminji submitted that in Serah Joe Wemin case a stronger offensive weapon, a kitchen knife was used, however in the instant case it was a power cord that was used. Therefore, from what Mr. Siminji submitted a sentence imposed in this instant case should be a bit lower than in the Serah Joe Wemin case.

10 The State counsel submitted that the unlawful killing took place in a domestic setting, in a police barracks. An electrical cord was used, there was no motive to kill, there was vicious attack and death has ensued. The State further submitted that there was a loss of human life and therefore, there is a need for both a specific and general deterrence, a custodial sentence between the ranges of 8 to 10 years should be imposed as an appropriate sentence.

11 I have taken into consideration the submissions by the Defence counsel and the State counsel, the mitigating and the aggravating factors, the antecedent report and what the prisoner has said in his allocutus. I have considered the Pre-sentence Report and the amount of compensation that has been paid. However, because the deceased relatives are from Milne Bay Province they are not available and their views were not captured in the Pre-Sentence Report.

12 I have to remind myself that in considering sentence in a manslaughter case, I must have careful regard to the circumstances of the death and the way in which the death has occurred. Refer to R v Philips (1985) 7 Cr App R (s) 235 at p. 237. I took in to account for the purposes of this present case the death occurred as a result of the deceased being; assaulted with fists and power cord all over parts of her body including the vulnerable part of her body, her ribs and that the death arose as a direct result from these injuries sustained from the beatings. In the Supreme Court case of Jack Tanga v State (1999) SC 602, the Supreme Court Bench comprised of Jalina, Injia and Kirriwom, JJ held that;

“the offence of manslaughter is a serious offence. This is reflected by the maximum punishment which is life imprisonment. This reflects the value the society places on human life and its total condemnation of one person’s unlawful taking of another life under any circumstances. The approach to be adopted in determining the punishment is set out by the Supreme Court in Rex v The State (1990) PNGLR 487; and that is to have regard to the aggregate effect of the offence and then to determine the appropriate penalty for that particular offence.”

13 You did not think about what will happen to the future of your two kids when you started to beat their mother badly. You did not think one bit that you took the deceased away from her family in Mine Bay Province to come and be with you so that you can perform your duty as a police officer here in Tari. You let your anger ran over you. By the time you realise it was too late your wife has gone and gone for good. Being a police officer, you should know wife bashing is a crime. It is against the law. It is against the Bible. It is bad example for our children to beat their mother in front of them. For your part in commission of this crime you will receive a penalty which should serve as a lesson for you and will have deterrent effect on others who think it is just that easy to get up and start assaulting your wives in any domestic disputes instead of finding an appropriate means to solve or resolve such disputes.

14 Taking all the above factors in to consideration, I consider the appropriate starting head sentence for the prisoner would be 9 years. I deduct one year being for the pre-sentence period spent in custody. This will leave the balance of 8 years to be served. Taking in to account the prisoner’s early plea and the compensation paid, I deduct 2 years from the balance of 8 years, and the prisoner will now serve 6 years IHL. A Warrant of Commitment will be issued in this term.

Sentenced accordingly
________________________________________________________________
Public Prosecutor : Lawyer for the State
Public Solicitor : Lawyer for the Prisoner