[1999] PNGLR 216

PAPUA NEW GUINEA

[supreme court of justice]

JACK TANGA

V

THE STATE

lae: jalina, injia, kirriwom jj
23, 24 February; 19 April 1999

Criminal Law – Appeal Against Sentence - Manslaughter - Plea - Killing of wife - 12 years imprisonment - Principles and range of sentences for manslaughter discussed - Criminal Code Act (Ch. 262), Section 302.

Facts

This is an appeal against sentence only. The appellant was sentenced to 12 years imprisonment for unlawfully killing his wife contrary to s 302 of the Criminal Code Act Ch 262. The appellant had pleaded guilty to the charge.

Held

1.	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’s life under any circumstances. The approach to be adopted in determining the punishment in a particular case is set out by the Supreme Court in Rex Lialu v The State [1990] PNGLR 487; and that is to have regard to the aggregate effect of all the relevant considerations, factors which aggravate or mitigate the seriousness of the offence, and then to determine the appropriate penalty for that particular offence.

2.	It is submitted by the appellant that the sentence of 12 years is excessive in that it is equivalent to a murder sentence. He submits manslaughter sentences in similar fact situations imposed by the National Court have ranged between 9 months - 3 years and in some cases 3 years - 6 years imprisonment.

This argument is indicative of a common fallacious assumption held by accused person, as evident in some cases which have come before the Supreme Court, that manslaughter sentences on a guilty plea attract sentences of between a good behaviour bond to 3 years and up to 6 years only and any sentences beyond 6 years is a murder sentence and is therefore excessive.

3.	The maximum punishment for the offence of manslaughter is life imprisonment. Whilst sentences for manslaughter will normally be lower than sentence for murder and wilful murder, there are those cases, which will justify the imposition of heavy punishment and even the maximum punishment. Therefore, the sentence in any given case has to very much depend on its peculiar facts: Antap Yala v The State (Unreported Supreme Court judgement by Amet CJ, Salika and Injia JJ delivered on May 31 1996, Mount Hagen) applied.

4.	Appeal dismissed.

Papua New Guinea cases cited

Antap Yala v The State (1996) unreported Supreme Court judgment of Amet CJ, Salika & Injia JJ delivered at Mt. Hagen.
Rex Lialu v The State [1990] PNGLR 487.
The State v Maria Er [1998] PNGLR 26.
The State v James Make & Others [1998] PNGLR 61.

Counsel

Appellant in person.
R Auka, for respondent.

19 April 1999

By the court. This is an appeal by the appellant in person, against sentence only. He was sentenced to twelve (12) years imprisonment for unlawfully killing his own wife contrary to s 302 of the Criminal Code Ch 262. The sentence was imposed by the National Court in Lae on 4 August 1998 after the appellant pleaded guilty to the charge.

The short facts of the case are that on 13 January 1998, about 5p.m., the appellant, who was drunk, argued with the deceased over his uncle. In the course of the argument, he chased her down to a river, caught up with her, and repeatedly punched and kicked her all over her body and rendered her unconscious for a short while. Whilst she lay on the ground unconscious, he mocked her by raising his thumb up and said: "Oh, the lady is dead, not to worry." He then lifted her up and carried her further down the river and laid her down on the ground. When she regained consciousness, he pulled her hair and repeatedly punched and kicked her until she could not move. Shortly thereafter, she was later taken to hospital where she was pronounced dead on arrival. During the entire episode, the deceased was unarmed and did not fight back. She died from multiple causes namely, ruptured spleen in association with loss of blood, head injuries and hepatic trauma, all directly resulting from the accused’s kicks and punches.

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’s life under any circumstances. The approach to be adopted in determining the punishment in a particular case is set out by the Supreme Court in Rex Lialu v The State [1990] PNGLR 487; and that is to have regard to the aggregate effect of all the relevant considerations, factors which aggravate or mitigate the seriousness of the offence, and then to determine the appropriate penalty for that particular offence. Some of these relevant factors are set out in that judgment and need no repeating here.

It is submitted by the appellant that the sentence of 12 years is excessive in that it is equivalent to a murder sentence. He submits manslaughter sentences in similar fact situations imposed by the National Court have ranged between 9 months - 3 years and in some cases 3 years - 6 years imprisonment.

This argument is indicative of a common fallacious assumption held by accused person, as evident in some cases which have come before the Supreme Court, that manslaughter sentences on a guilty plea attract sentences of between a good behaviour bond to 3 years and up to 6 years only and any sentences beyond 6 years is a murder sentence and is therefore excessive.

Many sentences for manslaughter cases imposed by the National Court and in some cases confirmed on appeal by the Supreme Court have in fact ranged between 6 - 10 years: See The State v Maria Er [1998] PNGLR 26 and The State v James Make & Others [1998] PNGLR 61.

To our knowledge, the highest sentence in a manslaughter case confirmed on appeal by the Supreme Court is Antap Yala v The State (1996) unreported Supreme Court judgment of Amet CJ, Salika & Injia JJ delivered at Mt. Hagen in which the appellant caused his wife’s death by cutting her neck with a bush knife. We affirm what the Supreme Court in Antap Yala’s case said at p.2 - 3 of its judgment:

"The maximum punishment for the offence of manslaughter is life imprisonment. Whilst sentences for manslaughter will normally be lower than sentences for murder and wilful murder, there are those cases which will justify the imposition of heavy punishment and even the maximum punishment."

The sentence in any given case will of course depend on its own peculiar facts. We are unable to prescribe any particular range of sentences for this offence, as it is all too difficult to fix any range of sentences with some degree of precision. However, we would suggest that in an unintentional killing case which is uncontested, whatever the extenuating and mitigating circumstances may be, the application of vicious force, with or without the use of a weapon, causing serious bodily injury resulting in death may attract sentences between 10 years and above and in some cases, even life imprisonment. Such stern punishment should reflect the seriousness and prevalence of this offence throughout the country, which this Court and the National Court has emphasised time and time again. And so we echo the warning given by the trial judge in this case:

"It is about time that sentences started to increase in a large way in relation to domestic violence. The National Court (has) been far too lenient in the past in relation to men who are belting their wives. And in some instances wives belting their husbands. So let (us) warn everyone right now that the sentences are going to go up."

In relation to this particular killing, we agree with the trial judge, as pressed upon us by counsel for the respondent, that this was a very serious killing in that the appellant, as drunk as he was "literally bashed his wife to death". The trial judge considered the killing to be so serious that the various mitigating factors put before the trial judge did little to dissuade him from his resolve to impose a stern punishment. The appellant in his endeavour to demonstrate to us that the sentence is excessive repeats many of those mitigating factors before us. These include his villager status, record of no prior conviction, guilty plea, and his concern for the welfare of his family and property which he left behind. However, we are of the opinion that these and other mitigating factors were given due consideration and weight by the trial judge in arriving at the sentence.

Whilst we agree with the appellant that his sentence falls into the top range of sentences for manslaughter handed down by the National Court at this point in time, we do not think it is excessive in the circumstances of his case. We do not find any error on the part of the trial judge in the exercise of his sentencing discretion. For these reasons, we dismiss the appeal against sentence and confirm the sentence of 12 years imposed by the National Court.

Appellant in person.
Lawyer for the respondent: Public Prosecutor