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State v Gatana [2021] PGNC 579; N9406 (2 December 2021)

N9406

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 673 OF 2017

THE STATE

V.

JAMES GATANA

Kerevat/Kokopo: Suelip AJ
2021: 9^th, 26^th November & 2^nd December

CRIMINAL LAW – sentence – plea – manslaughter – s. 302 Criminal Code – loss of life – provocation – mitigating factors outweighs aggravating factors – favorable presentence report – sentence of 7 years – less presentence custody time – balance wholly suspended with some conditions

Cases Cited

Manu Kovi v. State [2005] SC789
State v. Ambrose Talui [2020] N8545
State v. Batam Pantagala CR No. 237 of 2021
State v. Paul Kalu [2011] N5270
State v. Tapolo Bernard [2019) N7842

Counsel

J Noma, for the State
S Pitep, for the Prisoner

SENTENCE

2^nd December, 2021

1. SUELIP AJ: On 9 November 2021 at Kerevat, you, James Gatana, of Lonahan village in the Autonomous Region of Bougainville, pleaded guilty to the charge of manslaughter, thus contravening section 302 of the. Criminal Code Act.
2. This is my decision on sentence.

3. The facts upon which you pleaded to and were convicted upon are these. You and the deceased, Len Jimmy are related by marriage as the deceased is married to your sister’s daughter. On 12 January 2017 at Birar, Kokopo, the deceased was arguing and fighting with his wife Jerehu at your resident. Upon realizing what was happening, you were mad at the deceased in that he did not respect for you by hitting your niece in front of you and at your house. You approached the deceased and assaulted him by punching him with your folded fist on his (deceased) right rib twice and you also slapped him once on the face. Immediately thereafter, the deceased felt great pain coming from where you had punched him and he held onto his ribs and asked the family members to take him to the hospital. He was admitted to the hospital but died the next day. The autopsy report revealed that deceased died from hypovolaemic shock due to splenic laceration and haemorrhage, and this is caused by blunt abdominal trauma consistent with a folded fist punch on the abdomen. You therefore caused the death of the deceased and as such, your actions contravened s.302 of the Criminal Code Act.

4. Section 302 of the Criminal Code Act 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.

5. The maximum penalty for the offence is imprisonment for life, subject to Section 19 of the Criminal Code Act.

6. The issue now is what is the appropriate sentence for you.

7. For purposes of sentencing, your personal particulars are these. You are 56 years old and married with 8 children of which 3 are males and 5 are females. Two of your children are in school in Buka while the rest are at school at Birar. Your elder daughter is now married. Your wife passed away in 2014. You all lived at your wife’s village at Birar in a 3-bedroom semi-permanent house. You are a subsistence farmer and own 2 hectares of land where you planted coconut, cocoa, and coffee trees for your income. Your younger children heavily depend on you. You are of the Baptist faith.

8. During allocutus, you said you were sorry for what you did and begged for forgiveness from God, the Court and from the family, relatives, and friends of the deceased. You said you are sorry from bottom of your heart and wish to seek the Court’s leniency to be placed on probation or be given good behavior bond so you can reconcile with the family of the deceased.

9. In your favor, the mitigating factors are these. You are a first-time offender and pleaded guilty, thus saving the Court’s time and resources. Further, you did not use any weapon. You also did not intend to kill the deceased who was assaulting your niece in front of you in your home. Hence, there was provocation. You also paid some compensation to the family of the deceased and you showed genuine remorse during allocutus.

10. Against you, the aggravating factors are these. The deceased died from your assault. Further, the killing occurred in a domestic setting where it is supposed to be a safe place. You also reacted violently towards the deceased. Lastly, this offence is prevalent in society.

11. Both counsels applied the sentencing guidelines in Manu Kovi v. State [2005] SC789 and agree that the circumstance of your case falls within category 1 of the manslaughter tariffs which is a sentence range of 8 to 12 years. They both also agree that the starting point for you is 8 years.

12. Your counsel referred to 2 local cases which I presided over. These are State v. Ambrose Talui [2020] N8545 and State v. Batam Pantagala CR No. 237 of 2021. In the former case, the prisoner had an argument with his wife and during the argument, the wife said some insulting words to the prisoner, who reacted by punching her. She fell and felt pain. She was rushed to the hospital but died. She did not have a pre-existing condition. I had sentenced the prisoner to 8 years imprisonment less time spent in custody. The balance of his sentence was wholly suspended with strict conditions plus an order for compensation payment to the family of the deceased. In the latter case, the offender argued and punched the deceased several times after he caught him stealing dry coconuts from his block on the Duke of York Islands. The deceased had an enlarged spleen which raptured and caused his death. Some compensation payment was done earlier and along with a favorable presentence report, I sentenced the offender to 8 years. Three years were suspended, and the balance wholly suspended with orders to pay more compensation and to comply with strict conditions.

13. In your case, your counsel says that the mitigating factors outweigh the aggravating factors, and a head sentence of 8 years is warranted in the circumstances of your case. She submits this Court has the power to deduct presentence custody time pursuant to section 3(2) of the Criminal Justice (Sentence) Act 1986. She also says that any suspension of sentence is at the discretion of the Court, but that discretion is only to be exercised on proper principles. She says a sentence may only be suspended if the presentence report is favorable to you and in your case, that report is very favorable to you and so she submits that the balance of your sentence should be wholly or partly suspended with conditions.

14. On the other hand, counsel for the State referred to several comparable cases but the most relevant ones are the local cases of State v. Paul Kalu [2011] N5270 and State v. Tapolo Bernard [2019) N7842. In the first case, the offender punched the deceased on the head and when he fell down, the offender kicked him in the ribs. The deceased died from a raptured spleen. There was some compensation paid earlier in cash and shell monies plus payment for funeral and related expenses. The offender was sentenced to 7 years less time spent in custody. The case is similar to yours. In the other case, the prisoner and his father had an argument at the home within inland Baining. The prisoner then picked up a rock and threw it at his father hitting him on the abdomen. His father fell down and cried in pain. He was taken to the hospital but died along the way. His medical report showed that he died of hemorrhagic shock due to raptured spleen. The offender was sentenced to 12 years with 2 years suspension and the balance to be served at Kerevat in hard labour.

15. Counsel for the State submits that although there are some mitigating factors, the aggravating factors outweighs the mitigating factors and hence, has tipped the scale of justice to greater sentence for purposes of your reformation and rehabilitation. He says, this is also to protect the public confidence in the justice system. He also says, this will have a deterring effect on the general public and to you, personal deterrence to not commit such an offence again. Counsel therefore submits that the starting point for you, which is in line with the sentencing guidelines in Manu Kovi, is 8 years imprisonment subject to this Court’s discretion under section 19 of the Criminal Code.

16. In the presentence report, the views of both your family and the family of the deceased were gauged. Your elder daughter Vincencia says you are good father who takes care of her siblings since her mother’s passing. She says her siblings are facing a hard life and are struggling. She wants the Court to give you a lenient sentence and place you on probation. She says she is willing to help you pay K2000 with 100 fathoms (K500) of shell monies as compensation to the family of the deceased.

17. As for the deceased, the views of his uncle, mother and aunty were taken. All these individuals say you are nice person whom they regard as a brother. They have forgiven you and want you to be placed on probation. They say your time already spent in prison of 4 years is enough punishment for you. The mother of the deceased says her son is to be blamed as nothing would have happened to him if only he apologized for what he did. She is the only family member of the deceased who wants you to pay more compensation. They also confirm receiving some compensation when they were given 9 pigs and 40 fathoms of shell monies while you were in prison.

18. Other members who have standing in your community were also interviewed. Your ward member at Birar, Lucas Kotvue speaks highly of you. He says you are a well-known person in the community, and you were appointed as a Law & Order committee member. You are also the chairman of the Elementary School and a member of the Board of Management of Birar Primary School. The Village Court Magistrate at Birar says you do not have any criminal background and you mediate problems in the community. He also blames the deceased for his actions and wants you to be placed on probation and for you to also pay compensation.

19. In the end, the report is favourable to you and recommends you for probation. It also recommends more compensation payment with tougher conditions to guide and control you to avoid reoffending.

Consideration

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

21. I consider that the mitigating factors outweigh the aggravating factors. The mitigating factor that stands out for you is that you did not intend to kill the deceased. You were angry because the deceased was arguing and fighting with your niece in front of you at your house. The other factor that also stands out for you is you showed real and genuine remorse during allocutus. Further, a considerable amount of compensation consisting of 9 pigs from your piggery and 40 fathoms of shell money which is equivalent to K200 in your wife’s tolai custom was already given to the family of the deceased. You say in the presentence report that the pigs are valued at K7200. That amount was not disputed.

22. Your pre-sentence report is favorable to you and it recommends your suitability for probation. Your elder daughter, the family of the deceased, your ward member and the village court magistrate all want you to be placed on probation. Only the mother of the deceased and the village court magistrate want you to pay more compensation.
23. Having heard all submissions, I consider the appropriate penalty for you for the charge of manslaughter is a sentence of 7 years. You were in custody for 4 years and 10½ months and so this period will be deducted from 7 years.

24. Further, I agree with the views of the family of the deceased that your time already spent in prison is sufficient punishment for you to realize your unlawful deed. I also consider that compensation payment already given to the family of the deceased truly shows your genuine remorse and that payment is sufficient. I will not order any more compensation to be paid. Further, because of your good reputation in the community with a favorable presentence report, it warrants the exercising of my discretion to suspend the balance of your sentence wholly with some conditions as follows:

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

(ii) you will attend your church every Sunday during your suspended sentence.

(iii) you will reside at Birar village, Bitapaka LLG, Kokopo District, East New Britain Province and nowhere else during your suspended sentence.

(iv) you will not commit another or similar offence.

(v) you will not consume alcohol or drugs.

(vi) 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

25. The Orders of the Court are:

(i) You are sentenced to 7 years imprisonment.

(ii) A period 4 years and 10½ months is deducted for time you have spent in custody.

(iii) The balance of your sentence is wholly suspended with conditions.
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Public Prosecutor: Lawyers for State
Public Solicitor: Lawyers for Prisoner