N7836
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 892 OF 2017

THE STATE
V
RAYMOND LOTE

Alotau:  Toliken, J
2018:   13 June, 13 July, 10 August,
20 November
2019:    08 March

CRIMINAL LAW – Sentence after plea – Manslaughter – Prisoner stabs brother in-law (deceased) on stomach – Frustration over deceased’s continuous non-support of wife and children – Not a worst case – Significant mitigating factors outweigh aggravating factors – Principle in Kesino Apo v The State applicable to affines – Appropriate sentence – 14 years less time in custody – Suspension – Appropriate case for some suspension – 5 years suspended on condition – Criminal Code Ch.262, s 302.
      					       
Cases Cited:

Avia Aihi v The State (No.3) [1983] PNGLR 92
Goli Golu v The  State [1979] PNGLR 653
Kesino Apo v The State [1988] PNGLR 182 
Lawrence Simbe v The State [1994] PNGLR 38)
Manu Kovi v The State (2005) SC 789
Saperus Yalibakut v The State (2006) SC 890
The State v Paina (2015) N5867 
The State v Tavari (2014) N5619
The State v Rurua (2014) N5617
The State v Peter Tokau (2008) N5462The State v Koni Gabriel; CR 440 of 2014 (Unreported and unnumbered judgment dated 22nd May 2017)
Ure Hane v The State [1984] PNGLR 105

Counsel:

J Apo, for the State
N Wallis, for the prisoner

JUDGMENT ON SENTENCE
 08th March, 2019
1.	TOLIKEN, J: 	The prisoner Raymond Lote initially pleaded guilty to an indictment dated 13th June 2018 charging him with one count of murder pursuant to Section 300(1)(a) Criminal Code Ch. 262.  This was, however, reduced to manslaughter under Section 302 of the Code later the original plea for murder was vacated as a consequence of plea bargaining. 

BACKGROUND

2.	When the matter returned on 13th July 2018 for allocutus and submissions on sentence, he however, advised the Court that he was not ready as he had an issue to sort out with his lawyer Mr. Walis. The matter was then adjourned to 08th August 2018, and on that date the prisoner advised the Court that he was not guilty for murder but for manslaughter because he had assisted the deceased and provided zoom to take him to the hospital within 15 minutes, but it took the HEO 1 ½ hours before he attended to the deceased. 

3.	I advised the prisoner that what he was telling the Court were things that can be taken into account on sentence. I also explained the meaning of offence of manslaughter to the prisoner and he said that he in fact did not mean to kill or cause grievous bodily harm to the deceased. His lawyer Mr. Wallis confirmed, that, that was indeed his instructions which were put across to the State, but the State in its discretion charged him for murder. 

4.	I advised the parties that I may have to vacate the plea. Mr. Apo for the State advised the Court, the State’s position had been clearly put to the defence that they will indict for murder which they did, but since the accused has taken a position then a trial should proceed on the charge of murder. Counsel, however, asked for the matter to be adjourned to allow him to seek further instructions. I did not make a formal ruling then to vacate the plea. The matter was then adjourned to 10th August 2018 for Mr. Apo to advise the Court what position they will take. 
 
5.	On 10th of August 2018 Mr. Apo advised (the court) that the State will proceed with the charge of murder. I then formally vacated the plea and adjourned the matter to the next call-over on 03rd September 2018 for mention. I also disqualified myself from further hearing the matter and directed that it be tried before another judge. The matter was then adjournment to the October call-over. 

6.	On 20th November 2018 the State called the matter and advised the Court that they had reconsidered their position and had decided to proceed on the lower charge of manslaughter. Leave was sought and granted to amend the indictment by substituting the charge of murder with that of manslaughter and that the prisoner be arraigned on the same facts put to him on the initial charge.  
  
7.	The prisoner pleaded guilty to the unlawful killing of Manoa Francis on 26th January 2017 at Sariba Island, Samarai-Murua District, Milne Bay Province.  

BRIEF FACTS
 
8.	The brief supporting facts are these; on 26th January 2017, towards the evening of that day, the prisoner’s sister, Fatima Lote had prepared the family dinner and served a plate of food for her husband, the deceased.
The prisoner had a dislike for the deceased for not assisting him on some work and so got angry when he saw his sister serve food to the deceased. He picked up a knife and attacked the deceased and stabbed him in the stomach.
 
9.	Seeing that her husband was injured and bleeding from his stomach Fatima assisted him by taking him to the Samarai Island Health Centre for medical assistance. By then it was well past midnight and going towards the early hours of the next day.

10.	The Health Extension Officer at Samarai could not do much and recommended that the deceased be taken to the Alotau General Hospital. But before he could be taken to Alotau, the deceased started to have seizures and passed away early that morning.

THE OFFENCE

11.	The offence of manslaughter carries a maximum penalty of life imprisonment, but as is trite, the maximum penalty may only be imposed in the worst types of offending for any offence. Each case must also be treated on an individual basis according to its own facts and circumstance so that the offender’s punishment fits the crime. (Goli Golu v The  State [1979] PNGLR 653; Avia Aihi v The State (No.3) [1983] PNGLR 92); Ure Hane v The State [1984] PNGLR 105; Lawrence Simbe v The State [1994] PNGLR 38)

ISSUE

12.	The issue for me then is to decide what an appropriate sentence for the prisoner ought to be.

13.	At the outset I must say that this is not a worst type of manslaughter. Hence it should not attract the maximum penalty. 

ANTECEDENTS

14.	The prisoner is young man of 24 years of age. He was 23 when he committed the offence. He comes from Mugaya village on Sariba Island, Samarai-Murua District, Milne Bay Province. He is single and is the last born in a family of 6 siblings. Both his parents are still alive. He is a Roman Catholic and was educated up to Grade 10 at Hagita Catholic Secondary School. He is a first time offender. He has been in pre-trial detention for 1 year 10 months and 10 days.

15.	On his plea in mitigation the prisoner pleaded for mercy. He asked to be placed on good behaviour or probation. He apologised for breaking the law and for wasting the Court’s time. He apologised to the Province, his District and Community and to his victim for taking his life. He apologised to the deceased’s relatives for the trouble he caused them.  And he also apologised to his family for bringing disrepute to them and to his parent’s reputation.  

16.	The prisoner said he did not mean to kill the deceased, but acted out of frustration because the deceased had never supported his three children whom he had with his (prisoner’s) sister. He never provided any support to their mother during confinement and after the birth of each child. Support for the children had been left entirely to the prisoner and his parents and despite numerous pleas from the prisoner and his family for him to do so he never did. Further he was not around physically with his wife and children as he lived all this time at his own village.   The prisoner therefore pleaded for leniency and asked for a non custodial sentence. 

SUBMISSIONS

17.	Mr. Wallis of counsel for the prisoner submitted that this is not a worst case. It would, counsel submitted, fall within the upper end of category 1 and the lower end of category 2 of the Manu Kovi tariffs (Manu Kovi v The State (2005) SC 789). And given the good mitigating factors an appropriate sentence for the prisoner ought to be 9 – 13 years, a portion of which may then be suspended. 

18.	The prisoner’s Pre-sentence Report shows that the prisoner’s relatives have paid customary compensation to the deceased’s relatives, the monetary value of which was K13,602.00. This consisted of garden food, store goods, pigs and traditional money (bagi). Village leaders, which included the Village Court Magistrate and Peace officer, a Youth Leader and Church Elder had vouched for the prisoner’s good character. The author of the Report recommends a partial custodial sentence.   

19.	Mr. Apo on the other hand submitted on behalf of the State that, the circumstances of the case warrant a sentence within Category 2 of Manu Kovi (16 – 20 years). And while the offence is aggravated by the use of an offensive weapon, a strong intention to cause grievous bodily harm and the prevalence of the offence, counsel conceded that the prisoner has some good mitigating factors and that there are at  least a couple of extenuating factors, these being the existing discord between the prisoner and the deceased which was brought about by the deceased’s continuous failure to support his children which was exacerbated on the evening of the date in question when the prisoner’s sister fed her husband the deceased and left nothing for the prisoner. 

20.	Mr. Apo further submitted that the killing of a brother-in-law is self-inflicting and the principle in Kesino Apo v The State [1988] PNGLR 182 should therefore apply here. 

21.	Counsel therefore submitted that an appropriate sentence ought to be 16 – 20 years and since the prisoner has a very impressive character reference and a favourable presentence report (PSR) some suspension may be considered. 

OBJECTIVE SERIOUSNESS/CULPABILITY

22.	Viewed objectively this is not a worst case of murder and therefore should not attract the maximum penalty. There was, however, use of an offensive weapon and infliction of serious injury on the deceased but there was no strong intention to cause grievous bodily harm. Hence I assess culpability to be pretty low. Considered against the Manu Kovi tariffs a starting point of 16 years will be appropriate. So what then should be an appropriate head sentence?  

23.	 In arriving at an appropriate head sentence, I find the following to mitigate the offence –

•	The prisoner pleaded guilty to the offence
•	He is a first time offender
•	He has expressed remorse and offered to reconcile with the deceased’s family.
•	A customary compensation to the monetary value of K13,602.00 was paid to the deceased’s relative. 
•	The killing was self-inflicting in that the deceased was the prisoner’s brother-in-law, the father of his sister’s children. (Kesino Apo principle applied) 
•	There was some non-legal provocation
•	The offending was extenuated by the long standing family discord brought about by the deceased’s persistent and continuous neglect of his children. (Saperus Yalibakut v The State (2006) SC 890)
•	There was no pre-planning.
•	He acted alone
•	He assisted by supplying zoom to take the deceased to the Health Centre
•	He is a youthful offender. 

24.	Against him though are the following aggravating factors –

•	The prisoner used an offensive weapon
•	This is a very prevalent offence.
 
25.	As we can see the prisoner’s mitigating factors are significant and outweigh his aggravating factors. This was an unfortunate case and despite the fact that the killing was totally unnecessary, the festering discord between the prisoner and the deceased over the latter’s failure to support his children weighed heavily on the prisoner. He was left to support his sister’s children and despite everybody’s best effort to get the deceased to take his fatherly responsibilities seriously, it is obvious that he never did. And so when the prisoner arrived home hungry, on the evening in question, and found the deceased being fed by his wife, the prisoner snapped, lost his cool and attacked the deceased stabbing him in the stomach.

26.	The prisoner was well within his right to be angry with the deceased. The deceased did not support his three children and had the audacity to come to the wife for food that evening – food that he did not put on the table for his family. With vent up frustration and anger, the prisoner reacted angrily as anyone would in such a situation, but he went beyond what was necessary and ended up killing the father of his nephews and his sister’s husband. 

27.	And in doing so, he brought more burdens on himself, because the loss of his sister’s husband is self-inflicting. He was angry about the deceased failure to support his family, but now that he has caused his death, he has lost all the support for his sister and nephew/nieces which the deceased would have provided and over which he had been so concerned about. I agree therefore with Mr. Apo the principle in Kesino Apo can be extended to affines such as brothers or sisters in law. 

28.	The circumstances of this case bear some similarity to the matter of The State v Koni Gabriel; CR 440 of 2014 (Unreported and unnumbered judgment dated 22nd May 2017). There the offender killed his own cousin brother after the deceased, had come home drunk and was singing and disturbing the family. The offender arrived home from work and called over to the deceased to stop and swore at him. The deceased swore back at him and the offender challenged the deceased to a fist fight and walked over to the deceased house. He noticed the deceased holding a stone and a spear and told him to drop the weapons and the deceased did. The offender punched the deceased down to the ground and as the deceased lay on the ground he hit him on the stomach twice and once on the back with an aluminium pipe. The deceased was taken to the Alotau General Hospital but died later from his injuries. 

29.	Like the instant case, I found that the offender was a first time offender, was provoked in the non-legal sense and that the killing was self-inflicting as the offender would now have to fend for his aunt as the deceased was her only son. The case was, however, aggravated by a concerted effort by the offender and his family members, oddly enough, including the deceased’s mother to defeat the course of justice by perjuring themselves in court, coupled with the fact that there was a strong intention on the part of the offender to cause grievous bodily harm.

30.	I sentenced the offender there to 16 years imprisonment less time in custody which was 4 years and 4 months leaving a resultant sentence of 10 years and 8 months. I then ordered that the offender serve 4 years of that and suspended the balance on condition.

31.	Other cases with similar circumstance are: The State v Peter Tokau (2008) N5462 (per Cannings J): The offender there pleaded guilty to the murder of his father-in-law. He arrived home drunk and finding that his wife and child were not at home he went looking for them at her parent’s house. Finding her there, he insulted her and tried to hit her, but she stepped behind her father for protection and he punched his father-in-law to the ground. He then took out a knife and stabbed the father-in-law repeatedly on the collar bone area, in the abdomen and on the back. The offender was sentenced to 22 years.

32.	The State v Paina (2015) N5867 (Cannings J): There the offender was convicted after trial for the murder of the deceased who had been stealing betel nuts from him over some time. The offender cut the deceased once, inflicting a fatal wound in the posterior chest area, resulting in the death of the deceased. The court there took into account that it was not a premeditated attack, there was a strong element of de facto provocation due to the deceased stealing the offender's betel nut, the offender was a first time offender and some compensation had been paid. However, the attack was vicious and out of proportion to what the deceased had done to the offender and the use of an offensive and lethal weapon. He was sentenced to 16 years imprisonment less time in custody. None of the resultant was suspended. 

33.	The State v Tavari (2014) N5619, the offender pleaded guilty to murdering his brother. He and other family members were at their family home on Loupom Island, Central Province, when his mother asked him and others to cook. He was not happy about this so he went out of the house with a busk knife and hit his mother on the back with the flat side of the knife. He then turned to his brother who was scrapping coconuts in the kitchen and cut him twice on the head. The deceased was rushed to the local Health Centre but died there due to heavy loss of blood. The offender had no prior convictions, had pleaded guilty, there was no pre-planning and of course he killed his own brother. However, I found that there was a strong intention to cause grievous bodily harm and was not provoked in any way by the deceased. There I sentenced the offender to 15 years imprisonment. 

34.	In The State v Rurua (2014) N 5617: The offender there pleaded guilty to murdering his own kid brother. He had returned home drunk and attacked his mother with a bush knife. His father tried to remove the bush knife from him but he was too strong and attacked his father also. As he was attacking his parents all his siblings ran away except the youngest who was sleeping on a mat.  Leaving his parents the offender turned to his brother as he lay sleeping and swung his bush knife at him. As he swung the knife a second time his parents fled for their safety. 

35.	They returned the next day to find the child lying dead where the offender had attacked him. There was no medical report but the offender admitted in his record of interview that he had cut off his brother’s neck a fact confirmed by his mother who said that the neck was almost cut off. He also inflicted deep wounds on the deceased’s shoulder and left elbow and cut off his left knee cap. Though the offender pleaded guilty and was a first time as well as a youthful offender and did not pre-plan to attack the deceased, the attack was vicious and there was a very strong intention to cause grievous bodily harm, he used an offensive weapon and he was also drunk.  I sentenced the offender to 17 years imprisonment.

36.	Comparing this case with those cited above, I find that it is not as serious. And as I said earlier the prisoner’s culpability was pretty low, hence due to his significant mitigating factor coupled with a couple of extenuating factors, I would think that an appropriate sentence ought to be 14 years. I therefore sentence the prisoner to 14 years imprisonment less the time spent in custody which is 2 years and 25 days. That should leave a resultant sentence of 11 years 11 months and 5 days. Should any part of this be suspended?

37.	The prisoner has a favourable PSR and at least four reputable village leaders have vouched for his good character. The State agreed that this was an appropriate case in which the Court can exercise its discretion and suspend a portion of the sentence. 

38.	I agreed that it indeed is, however, there is too much killing in this province. Whilst I agree that this is an unfortunate case, the taking of precious human life cannot be condoned let alone passed over with over-indulgent clemency. If the prisoner is to be given a suspension, it will only be a small proportion of his sentence because to do otherwise would be to engender in the minds of people in his community and the public at large that taking a human life is no big deal and one can take life with impunity. 

39.	That being said I suspend five years from the prisoner’s resultant sentence upon which he will enter into a period of probation for five years on condition that upon his release he shall:

1.	Reconcile personally with the deceased’s relative and pay them further customary compensation and reconcile personally with them within 3 months;
2.	He shall refrain from consuming or dealing with any form of intoxicating liquor or hallucinating drugs such as marijuana.

40.	The balance of his resultant sentence shall be served at Giligili Corrective Institution. That is the sentence of the Court. The prisoner may appeal to the Supreme Court within 40 days if he is not happy with his sentence.

Ordered accordingly.
________________________________________________________________
P Kaluwin, Public Prosecutor: Lawyer for the State	
L B Mamu. Public Solicitor: Lawyer for the Prisoner