N9404

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 237 OF 2021

THE STATE

V.

BATAM PANTAGALA

Kokopo: Suelip AJ
2021: 1st, 8th & 23rd September

CRIMINAL LAW – sentence – co-accused – initially charged for murder – found guilty of alternative charge of manslaughter – s.302 Criminal Code – loss of life – cause of death – raptured spleen – mitigating outweighs aggravating factors – payment of funeral expenses – favourable presentence report – demand for more compensation – good relationship between families – noncustodial sentence with conditions

Cases Cited

Goli Golu v The State [1979] PNGLR 653
State v Kalimet Tovut [2005] N4964
Manu Kovi v The State (2005) SC789
State v. Alphonse Kaparo & John Loangesa [2007] N3189

Counsel

T Kametan, for the State
S Pitep, for the Offender

SENTENCE

23rd September, 2021

1.	SUELIP AJ:	On 6 August 2021, you, Batam Pantagala, and your co-accused, Job Joel were indicted for murder pursuant to section 300(1)(a) of the Criminal Code Act. After trial, your co-accused was found not guilty and therefore discharged while you were found guilty on the lesser charge of manslaughter pursuant to section 302 of the Criminal Code. 

2.	Submissions on sentence were heard on 8 September 2021 and this is my ruling on sentence.

3.	The facts are these. On 19 June 2020 between 3 and 4pm at Nakukur village, Duke of York Island, you were at your block of land. You share a boundary with the block of land of Likot Laur, now deceased. At the said time and place, you saw the deceased working his block planting new cocoa seedlings, so you approached him. You accused him of stealing dry coconuts and cocoa from your block and you started beating him up. You punched him and hit him on his neck, his left and right ribs/abdomen area with sticks and stones. The deceased suffered bruises and abrasions on his body. He died due to a raptured spleen. 

The offence

4.	The offence of manslaughter is found under Section 302 of the Criminal Code and it provides: 

	302. Manslaughter 

A person who unlawfully kills another under such circumstances as not to constitute wilful murder, murder and infanticide is guilty of manslaughter. 

Penalty: Subject to Section 19, imprisonment for life. 

Your personal particulars

5.	A pre-sentence report prepared by Probation Officer, Miriam Ronald shows that you are 26 years old from Nakukur village, Duke of York, Kokopo, East New Britain Province. You are the third child out of 6 children in your family. Your father is deceased. Your mother is believed to be in her late 60s. The brother and sister before you are employed whilst the one after you is currently looking for a job. Your elder siblings take care of most of your family needs. In fact, your brother paid your bail. Your two younger siblings are attending primary education. As for you, you have completed school at grade 12 and you intend to enrol at Mapex Training College and undertake an electrical course. You are currently raising your school fees from selling copra.  

Allocutus

6.	You apologised to God, this Court and to the family of the deceased for the wrong you have done. You said you did not know that the deceased had a condition. You begged the Court for mercy and to give you probation. You said if the relatives of the deceased want compensation, you are willing to pay more compensation. You said your family paid the funeral expenses of the deceased. 

Mitigating factors

7.	In your favor, the mitigating factors are: 

(i)	you had no intention to kill the deceased, a relative.
(ii)	you are a first-time offender with no prior conviction.
(iii)	there was de facto provocation when you saw the victim stealing coconuts from your block.
	(iv)	you cooperated with the police. 
	(v)	you expressed genuine remorse
	(vi)	your family made some payment towards funeral expenses.
	(vii)	you were found guilty of manslaughter, not murder.

Aggravating factors

8.	Against you, the aggravating factors peculiar to your case are: -

(i)	a life has been lost. 
	(ii)	you assaulted the deceased on various parts of his body. 
(iii)	the offence is prevalent in the society. 

Your submission 

9.	On your behalf, your counsel submits that the maximum penalty must be reserved for worst type case as held in the homicide case of Goli Golu v The State [1979] PNGLR 653. She says that this is not the worst type case and therefore should not attract the maximum penalty.

10.	Your counsel cited some cases in support of your submission. The case similar to yours is the case of State v Kalimet Tovut [2005] N4964. In that case, the deceased was drunk and argued with the prisoner. The prisoner then punched him, and he fell. Thereafter, the prisoner continued to kick him which caused his spleen to rapture, causing his death. He was sentenced to 10 years imprisonment with no suspension unless applied for later.

11.	Your counsel says your case falls within category one (1) of the sentencing guidelines for manslaughter in Manu Kovi v The State (2005) SC789 where the sentencing tariff is for 8-12 years. Your counsel submits that the circumstances and the mitigating factors in your case warrants a head sentence of 9 years minus the time spent in custody pursuant to section 3(2) of the Criminal Justice (Sentence) Act 1986.

State’s submission

12.	On the other hand, the State submits that the offence of manslaughter is very serious and is prevalent in our society, hence it calls for deterrence sentences. The State referred to several comparable cases and the most relevant one is the case of State v. Alphonse Kaparo & John Loangesa [2007] N3189 where the co-accused pleaded guilty to manslaughter. They had punched and kicked their brother-in-law. No weapons were used but the attack was vicious. They were sentenced to 12 years minus presentence time and 2 years were suspended since compensation and reconciliation had commenced. 

13.	The State says in your case, the offence is aggravated by the fact that a life has been lost and can never be replaced. The State submits that your case has factors in both category 1 and 2 of the manslaughter offences and these factors attract a sentence within 8 to 12 years and 13 to 16 years. The State therefore submits that the most appropriate sentence for you is 12 years imprisonment. 

Sentence

14.	The maximum penalty for the offence is imprisonment for life, subject to Section 19 of the Criminal Code. As it is, this is not a worse type case and so a lesser penalty will be imposed.

15.	The mitigating factors outweigh the aggravating factors. However, the mitigating factor that stands out for you is that you did not intend to kill the deceased. Further, you were angry because the deceased stole your coconuts from your block. You also expressed genuine remorse and your family contributed a substantial amount of money to the funeral costs of the deceased, despite the amount being disputed by the maternal uncle of the deceased. 

16.	Your pre-sentence report is favorable to you and it recommends your suitability for probation. Your maternal aunt, church pastor and Village Court magistrate speak highly of you. They say you are a good person and do not have any bad records. Only the maternal uncle of the deceased disputes the amount contributed by your family to the funeral expenses of the deceased. He also demands K5,000 to be paid within 2 months and for a proper reconciliation to take place between your family and the family of the deceased. 

17.	Your counsel says the difference in the amount your family paid, and the amount indicated by the family of the deceased is the costs of logistics which the family of the deceased said was provided by the police and Kokopo District. Your counsel says these costs were met by your family. I accept your explanation as state agencies and its resources are scarce and are not always readily available when such emergencies arise. Nevertheless, the fact remains that a life was lost, and nothing can bring it back. 

18.	Having considered all submissions by both counsels, I consider the appropriate penalty for you for the charge of manslaughter is a sentence of 8 years. You were in custody for 5 months from 20 June 2020 until you were released on bail on 25 November 2020. This term will be deducted from 8 years. 

19.	I also considered your family’s contribution to the funeral expenses of the deceased to show your remorse and given your good reputation in the community with your faithful compliance to your bail conditions. Above all, the presentence report is favorable to you. For these reasons, I suspend 3 years from your sentence. The balance is wholly suspended, and you are placed on probation for 2 years on the following conditions: -

(i)	you will pay K3000 cash and 300 fathoms of shell money to the family of the deceased in a reconciliation ceremony which is to take place within 6 months from today.

(ii)	Your bail monies of K1000 will be refunded to you and will go towards your compensation payment.

(iii)	you will enter into your own recognizance and promise to keep the peace and be of good behavior. 

(iv)	you will do 100 hours of unpaid community or church work during your probation period to be supervised by your ward member and church pastor. 

(v)	you will attend your church every Saturday.

(vi)	you will reside at Nakukur village, Duke of York, Kokopo District, East New Britain Province and nowhere else during your probation period.
(vii)	you will not commit another or similar offence.

(viii)	you will not consume alcohol or drugs.

(ix)	if you breach any of these conditions, you will be brought before this Court to show cause as to why you should not serve the remainder of your sentence in prison. 

Orders

20.	The Orders of the Court are: 

(i)	You are sentenced to 8 years imprisonment. 

(ii)	A period 5 months is deducted for time you have spent in custody.

(iii)	3 years is suspended.

(iv)	You are placed on probation for 2 years.

(v)	The balance of your sentence is wholly suspended with conditions.

________________________________________________________________
Public Prosecutor:	Lawyers for State
Public Solicitor: 	Lawyers for Offender