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Lialu v The State [1990] PNGLR 487 (30 November 1990)

Papua New Guinea Law Reports - 1990

[1990] PNGLR 487 - Rex Lialu v The State 

[1990] PNGLR 487

SC401

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REX LIALU

V

THE STATE

Waigani

Kapi DCJ Hinchliffe Jalina JJ

30 July 1990

30 November 1990

CRIMINAL LAW - Sentence - Proper approach - By Supreme Court on appeal - Use of guidelines - Sentencing tariffs from other jurisdictions - Use of.

CRIMINAL LAW - Sentence - Manslaughter - Relevant considerations - Appropriateness of tariffs - Approach of Supreme Court - One punch - Victim dying from head injuries sustained in fall - Sentence of four and a half years substituted for six and a half years.

Held

(1)      The proper approach to sentencing is to have regard to the aggregate effect of all the relevant considerations and then to determine the appropriate penalty for the particular offence.

(2)      On appeal against sentence the Supreme Court:

(a)      must review the exercise of sentencing discretion within the context of the circumstances in the particular case;

(b)      may fix guidelines for sentences in respect of different categories of the same offence but without fixing actual sentences in those categories;

Belawa v The State [1988-89] PNGLR 496 at 505, approved;

The State v Polin Pochalon Lopai [1988-89] PNGLR 48, disapproved,

(c)      should not adopt sentencing tariffs from any other jurisdiction without establishing the relevance and applicability of that tariff to the circumstances of Papua New Guinea.

Aubuka v The State [1987] PNGLR 267 at 268, considered.

(3)      In sentencing for manslaughter:

(a)      the court must have careful regard to the circumstances of death and the way in which death was actually caused;

R v Phillips (1985) 7 Cr App R(S) 235 at 237, adopted and applied;

Norris v The State [1979] PNGLR 605 at 611, 618, considered,

(b)      the following matters may be relevant to the nature of the act causing death:

(i)       the nature and frequency of any attack or assault;

(ii)      whether the injury which caused the death arose directly from an attack or assault or was caused by, for example, falling on an object;

(iii)     whether the injury was caused by the person or by a weapon;

(iv)     whether there was deliberate intention to harm;

(v)      whether there was provocation in the non-legal sense;

(vi)     whether the deceased had a thin skull, and

(vii)    whether the deceased had an enlarged spleen.

(4)      Accordingly, in circumstances where death resulted from head injuries caused by falling onto a bitumen surface following one punch to the head motivated by the use of suggestive words to the wife of the accused, a penalty of four and a half years should be substituted for a penalty of six and a half years.

The State v Rex Lilu [1988-89] PNGLR 449, varied.

Cases Cited

Acting Public Prosecutor v Nitak Mangilonde Taganis [1982] PNGLR 299.

Aubuku v The State [1987] PNGLR 267.

Belawa v The State [1988-89] PNGLR 496.

Gimble v The State [1988-89] PNGLR 271.

Karo Gamoga v The State [1981] PNGLR 443.

Kesino Apo v The State [1988] PNGLR 182.

Kondan Kale v The State (Supreme Court, Judgment No SC 250, 8 June 1983, unreported).

Manu v The State (Supreme Court, 27 May 1985, unreported).

Norris v The State [1979] PNGLR 605.

Peter Naibiri and Kutoi Soti Apea v The State (Supreme Court, Judgment No SC 137, 25 October 1978, unreported).

Public Prosecutor v Kwalimu Goina (Supreme Court, Judgment No SC 230, 27 July 1982, unreported).

R v Barrick (1985) 81 Cr App R 78.

R v Billam [1986] WLR 349; (1986) 8 Cr App R(S) 48.

R v Collin (1986) 9 Cr App R(S) 305.

R v Geddes [1936] NSWStRp 35; (1936) 36 SR (NSW) 554.

R v Hudson (1979) 1 Cr App R(S) 130.

R v Hughes (1988) 10 Cr App R(S) 169.

R v Phillips (1985) 7 Cr App R(S) 235.

R v Ruby (1986) 9 Cr App R(S) 305.

R v Stuart and Wilhams (1979) 1 Cr App R(S) 228.

R v Taylor (1986) 8 Cr App R(S) 450.

R v Whitmore (1988) 11 Cr App R(S) 288.

State, The v Kipling Ture (National Court, Judgment No N912, 6 September 1990, Willis J, unreported).

State, The v Michael Saragum (unnumbered judgment dated October 1988).

State, The v Polin Pochalon Lopai [1988-89] PNGLR 48.

State, The v Ted Abiari (unnumbered judgment dated 20 April 1989).

State, The v Rex Lilu [1988-89] PNGLR 449.

Appeal

This was an appeal against severity of sentence on conviction for manslaughter.

Counsel

E Barati, for the appellant.

S Madana, for the respondent.

30 November 1990

KAPI DCJ: This is an appeal against the severity of sentence of six and a half years imposed by the National Court: see The State v Rex Lilu [1988-89] PNGLR 449.

The appellant was found guilty of manslaughter after a trial. The appellant and his wife met the deceased at the junction of Lahara Avenue and Bisini Parade next to the Papuan Rugby League Ground about midnight of 13 January 1989 into the early hours of 14 January 1989. Both men are said to have taken alcohol prior to meeting at the junction. It is clear from the evidence that the deceased said something to the wife of the appellant but it is not clear what was said. The appellant gave evidence at the trial of what was alleged to have been said by the deceased, but this was rejected by the trial judge. However, an argument developed as a result, and the appellant punched the deceased once on his back. The evidence is not clear as to exactly what part of the back of the deceased was punched. The evidence shows that the deceased fell backwards and hit the ground. It is not clear whether the injury to the back of the head was caused directly by the punch or by falling on the ground. In view of the uncertainty, I have reached a conclusion favourable to the appellant and that is that the injury was caused by falling backwards onto the ground.

During the trial, the appellant raised the defence of provocation but this was rejected by the trial judge. The appellant alleged that the deceased said some insulting words to the appellant’s wife which provoked him to assault the deceased. The trial judge rejected the defence on two bases. First, the trial judge concluded that the insulting words were not uttered by the deceased. Secondly, even if the insulting words were uttered by the deceased, the trial judge came to the conclusion that the appellant on his own evidence was not angry and was not thinking of doing anything to the deceased.

For the purposes of reviewing the sentence on appeal, the Court has to proceed on the basis that there were no insulting words said by the deceased and that the appellant was not very angry. However, it can be inferred that the deceased initially said something which started the argument which subsequently developed into a fight.

Both counsel have submitted that over the last 10 years or so in this jurisdiction, there has not been a Supreme Court case in which the Court has fixed the appropriate level of sentencing for manslaughter cases. This submission is not correct as the Supreme Court had occasion to consider the penalty in manslaughter cases in Norris v The State [1979] PNGLR 605.

The exercise of the sentencing discretion must be guided by proper principles. These include the characteristics of the offence or the offender which may aggravate or mitigate the seriousness of the crime taken together with all other relevant considerations. In this regard, it is desirable that the courts must be consistent in the application of these principles. These principles of sentence do not necessarily resolve the difficult task of fixing a particular term of sentence for any one particular case. The reason is clear and it has been pointed out in previous cases that there is no mathematical or scientific formula for arriving at a particular specific sentence from the general principles. An attempt to apply a mathematical calculation was rejected by this Court in Acting Public Prosecutor v Nitak Mangilonde Taganis [1982] PNGLR 299. In that case I said (at 303):

“This raises the question of proper approach to sentencing. In practice most judges take into account the aggregate effect of all the relevant facts, mitigation factors and principles when coming to a term of sentence. There is no mathematical formula for determining the actual length of sentence. In determining the term of sentence in this way, the experience and the good judgment of the judge is a big factor. A judge who is comparatively less experienced can get a lot of assistance from the range of sentences customarily imposed by the court for the particular offence.”

The trial judge made reference to a number of National Court cases which form the basis of the sentence in this case. The trial judge in particular made reference to the case of The State v Michael Saragum (unnumbered judgment, dated October 1988) in which the Chief Justice imposed a sentence of five years for manslaughter where the accused had punched his wife in the stomach, puncturing her spleen and causing her death. The trial judge also made reference to an unpublished judgment of the Chief Justice, The State v Ted Abiari (unnumbered judgment, dated 20 April 1989), in which the Chief Justice made reference to The State v Michael Saragum and observed that previously Saragum would have received three years but the appropriate sentence should be five years now. It is clear from this that the Chief Justice felt that this type of case previously attracted a sentence of three years imprisonment but he concluded that it should be five years. What is involved in this decision is the principle which must guide the courts in increasing sentences for a particular kind of crime. To simply substitute one period of sentence for another is basically the wrong approach. First, as I have pointed out before, there is no mathematical way of fixing a sentence and so there is a danger in arbitrarily substituting one period for another. It is now a well-established principle of sentencing that the fact that a different judge may impose a different sentence in the same circumstances is not a proper basis for the court of appeal to interfere with a sentence imposed by the trial judge. That, in my view, is a sound principle which must be adhered to: see Pratt J in Karo Gamoga v The State [1981] PNGLR 443 at 458. However, it has been established in this jurisdiction that where there is a need to increase sentences for a particular class of offences, there are well-established principles under which this may be done. It has been held that if there is an increase or there is prevalence of this type of offence, the court would increase the sentence in this class of offences, but not without a warning. In respect of crimes of violence, the Supreme Court in Public Prosecutor v Kwalimu Goina (Supreme Court, Judgment No SC 230, 27 July 1982, unreported) said:

“We are mindful of the increase in crimes of violence and the undisputed public concern about such offences. Such conduct will be met by firmness on the part of the courts and we give warning that sentences will increase substantially.”

It has also been established that, where such an increase in sentence is justified, the increase should not be by leaps, but by a gradual increase: see Andrew J in Kondan Kale v The State (Supreme Court, Judgment No SC 250 8 June 1983, unreported).

The trial judge then made reference to the Supreme Court case of Gimble v The State [1988-89] PNGLR 271 in which the Supreme Court laid down guidelines on sentences to be imposed on offenders for different kinds of robberies. The trial judge then concluded:

“I consider that relative to these sentences for offences against a person but not resulting in death and against property, the sentences for manslaughter have been far too lenient and low.”

The trial judge also makes comparison with the sentences imposed for rape and he concluded:

“I therefore agree entirely with the views of Bredmeyer J in The State v Polin Pochalon Lopai [1988-89] PNGLR 48, where his Honour held that:

‘Sentences for manslaughter should be slightly higher than for rape as death is a more serious consequence than the trauma of rape. A range of sentences from five years for a plea of guilty, six years for conviction following a plea of not guilty going up to ten years in a case with aggravated features is appropriate for manslaughter’.”

In making these comparisons, the point is made that there is a need to take into account that, in manslaughter cases, there is the element of death, whereas in the case of robbery or rape, death is not involved. Death is, of course, a significant element of the offence of manslaughter. However, that does not necessarily mean that every manslaughter case should receive a higher penalty than robbery or rape. If that principle was accepted, then all manslaughter cases would get a higher penalty than offences of robbery or rape on the basis that death is present in manslaughter cases.

The principle that an offence which has the element of death should receive a higher penalty than an offence which does not have such an element is inconsistent with what the Supreme Court said in Peter Naibiri and Kutoi Soti Apea v The State (Supreme Court, Judgment No SC 137, 25 October 1978, unreported) an attempted murder case. It was submitted in that case that an attempted murder was less serious than the offence of murder because of the absence of death. The court said:

“The crime of attempting to murder, in so far as it involves the specific (though unsuccessful) intent to kill — may be regarded as potentially more serious than that of murder and many cases of manslaughter, which involves intents to do less serious things, but produce, without intending, death.”

In my view, it is erroneous to take the range of sentences for the offences of rape and robbery and use that to determine the actual range of sentences for manslaughter. The punishable acts are completely different in each of the offences. In my view, therefore, it is a misleading guide for the purposes of determining a range of sentences for manslaughter cases. The acts which constitute the offences of robbery and rape in many instances are very serious. Manslaughter is committed in a huge variety of circumstances. Very often death is an unfortunate result, such as the rupture of a diseased, enlarged spleen, fracture of a thin skull, or a person falling on to an object as a result of being drunk rather caused by the impact of a minor assault. In such cases, the court may view the act of the offender differently from punishable acts in other offences.

Further, the sentencing guidelines set out by Bredmeyer J in The State v Polin Pochalon Lopai are not only based on an erroneous basis which I have dealt with, but in themselves, are arbitrary and leave no room for any manslaughter case to receive a sentence of less than five years for a plea of guilty. With respect, this effectively rewrites the sentencing discretion given by s 19 of the Criminal Code (Ch No 262) and is more likely to lead to error in determining the actual sentence.

The question to be determined is what is the proper or appropriate sentence for the particular circumstances of this case? There is a Supreme Court case dealing with manslaughter, the case of Norris v The State [1979] PNGLR 605. This was a plea of guilty to manslaughter. The appellant caused the death of his de facto wife by blows to her head or face which caused extensive brain haemorrhages. These injuries were caused directly by the assaults. A sentence of five years and three months was reduced to four years. Raine Dep CJ said (at 611-612):

“In my opinion it is, although I would not reduce the sentence awarded by a great deal. I say this because this was a bad assault on the deceased. This is not one of those unfortunate cases where one angry blow has tragic consequences. There were a number of blows and it is perfectly clear that the appellant, furious at the believed misbehaviour of the deceased, attacked her in quite a vicious way.”

Counsel for the appellant relied heavily on the English Court of Appeal cases to guide this Court in determining the appropriate sentence. All the English cases relied upon are post-1975 and are therefore not binding on this Court.

In R v Hudson (1979) 1 Cr App R(S) 130, the appellant was involved in a brawl in a hotel where he and others had been drinking. In the course of the brawl the appellant and the deceased came in contact with each other. In the moments that followed, the deceased fell down and suffered head injuries from which he subsequently died. The appellant was convicted of manslaughter. Shaw LJ, who delivered the judgment of the Court, said:

“In our judgment the jury by finding the appellant guilty of manslaughter, but not guilty of murder, must be taken to have accepted the less violent of the two alternative versions of the struggle between the appellant and the deceased. This being so, the appellant should properly be sentenced on the basis that Mr Sulton met his death from the fist, rather than being directly killed by a brutal assault.”

A sentence of seven years imprisonment was quashed and a term of three years substituted.

In the case of R v Stuart and Wilhams (1979) 1 Cr App R(S) 228, the appellants were involved in a fight with the deceased on a landing outside a flat. The deceased, after being pushed by one of the appellants, fell down some steps and struck his head on a concrete floor. The deceased was left lying unconscious with a fractured skull on the concrete floor until morning, when he was found and taken to the hospital. The deceased died a fortnight later.

Each was convicted of manslaughter and received a sentence of four years. On appeal, the sentence was reduced to two years.

In the case of R v Phillips (1985) 7 Cr App R(S) 235, the appellant had a dispute with the victim with whom he had been drinking. The appellant then attacked him with his fists, striking a number of blows to the face. The deceased fell to the ground, and was then taken to hospital where he subsequently died of a severe cerebral injury. He was convicted of manslaughter and sentenced to seven years imprisonment. Lord Justice Watkins in handing down the judgment of the Court said (at 237):

“The offence of manslaughter is, unhappily, one which is committed quite frequently in a huge variety of circumstances. The court has to pay very careful regard to the circumstances of death, and especially to the way the death was actually caused, in coming to a conclusion as to what punishment a defendant should receive for whatever it was he did towards bringing that about. In the experience of this Court in cases of manslaughter where the cause of the death has been a punch which has felled the victim so that he has struck his head upon a pavement and cracked his skull, a sentence in the region of 12 months imprisonment, and sometimes no imprisonment at all, is usually considered to be a proper sentence. We have no doubt at all the judge was right not to regard this type of manslaughter as the least serious of its kind; in other words, he was clearly right to pass a sentence of immediate imprisonment. That is primarily because there was no reason whatsoever, as has been said, why this assault by the appellant should ever have been made. What is more, it was carried out with some ferocity, albeit by the use of fists. But it was by no means so serious as to take it into the realm of punishment for manslaughter to which the judge elevated it. A sentence of seven years is usually passed for a very grave case of manslaughter of a very different kind. We turn therefore to look at the kind of sentence which, in our judgment, would have been realistic in this case.

It is not right to leave out of account the propensity of this appellant to behave violently even though death came to his victim largely on this occasion by misfortune. But even when that is taken into account it seems to us that the sentence imposed was by a very considerable degree too long.”

The sentence of seven years was quashed and reduced to two years.

In R v Collin (1986) 9 Cr App R(S) 305, the appellant went out drinking with his workmates. They visited several public houses before finally ending up at one called the “Amersham Arms”. The deceased, in another group, also arrived at the same public house and both groups continued drinking until closing time. By this time everyone had had a great deal to drink.

Later the two groups met at a nearby bus stop and the appellant and the deceased had an exchange of words. A fight developed.

The deceased died from a single stab wound, some four inches deep which penetrated his heart. The appellant pleaded guilty to a charge of manslaughter. The Court of Appeal endorsed the remarks of the trial judge (at 88):

“In passing sentence, the learned judge made observations:

‘It is perfectly clear in this case to my mind that you did not deliberately set out that evening with the intention to cause anybody any harm. It is clear now that you are entitled to credit for your plea of guilty and furthermore, I can take into account the fact that you are to all intents and purposes a young man of good character.

All these matters work in your favour, but this case is a yet further illustration of the danger and the menace and growing social evil, the evil that people will go about armed with offensive weapons ... This matter would never have arisen, the unfortunate man would not have died nor would you be there now if you had not carried that weapon. The public, Parliament, the Courts and everybody else are becoming more and more concerned at the growth of this habit of carrying these weapons about — the streets, and some time it must stop.’ ”

The Court reduced a sentence of nine years to seven years.

In R v Taylor (1986) 8 Cr App R(S) 450, the appellant and his friend, the deceased, had been out drinking in the evening at a public house and later at a nightclub.

At the club a quarrel began between the two of them where a minor scuffle ensued in which punches were exchanged. After this incident the appellant attempted to leave the scene of the scuffle. The deceased however, insisted on joining him in the taxi and got out with the appellant at the appellant’s house.

At the appellant’s home, the deceased then attacked the appellant, pulling his hair, and some blows were exchanged. The deceased fell to the ground and the appellant kicked him three times on the head: one of the kicks was established as the cause of death. He was found guilty of manslaughter and sentenced to six years imprisonment. Appeal against the severity of this sentence was dismissed as the court found that the deceased was kicked with a boot and it was a bad case of manslaughter.

In R v Ruby (1986) 9 Cr App R(S) 305, a crowd of youths, most of whom were drunk, started a fight outside a nightclub. The appellant pushed the deceased and he fell. He also kicked the deceased on the head. The deceased suffered a haemorrhage from a fractured skull. The trial judge concluded that the fracture of the skull was caused by a “half-hearted kick”. However, the deceased’s skull was found to be thin.

He was convicted of manslaughter and sentenced to five years imprisonment. The court reduced the sentence to three years imprisonment.

In R v Hughes (1988) 10 Cr App R(S) 169, the deceased was returning at night from a working men’s club when the appellant met him by chance on the way.

It seemed there were some differences between the appellant and the deceased’s son. This led to an altercation during the course of which violence errupted. In the ensuing struggle the appellant struck the victim a blow on the eye which caused him to fall to the ground. As he fell to the ground, he struck his head and suffered brain damage, from which he died. The Court of Appeal reduced a sentence of three years to two years.

In R v Whitmore (1988) 11 Cr App R(S) 288, the appellant cooked some bacon for himself and the deceased to eat during work break. An argument developed over the distribution of the bacon. The deceased leant over the table and took the bacon. As he turned away the appellant stabbed him in the back of the armpit with a kitchen knife which he was using to cut bread at that time. The stab wound severed the deceased’s main artery and caused his death. The court said (at 290):

“In our view this case falls at the upper end of the scale of offences of this type. Such provocation, in the non-legal sense of that term, as there was, was minimal. The appellant’s ready use of a kitchen knife over a trivial argument, with the fatal consequences that is had, must be treated with severity. Such knifing incidents are all too common. Those who take deadly weapons in their hands to use upon others, whatever their intent, must appreciate the serious risk that they take with other people’s lives, and that they will be severely punished by the court.”

Sentence of seven years imprisonment was confirmed.

In considering the English cases, I note that the Supreme Court has already adopted the persuasive authorities of the English Court of Appeal in not only adopting the principles of sentence but also the range of sentences.

In Aubuku v The State [1987] PNGLR 267 at 268, the Court, in making reference to R v Billam (1986) 1 WLR 349, said:

“We think that those principles are not only right and worthy to be followed but that the tariff of sentences expressed there for the different kinds of rape in England are the kinds of penalties needed in Papua New Guinea at this time. We believe that rape is a very prevalent offence in Papua New Guinea and women in this country view rape with abhorrence.”

In this passage, the Supreme Court adopted two things. First, it adopted the principles of sentence in rape cases. I have no difficulty with the application of those principles.

Secondly, tariff of sentences in England was adopted. As a matter of general principle, it is questionable whether the courts in Papua New Guinea should simply adopt a tariff of sentences in England. The tariff of sentence should reflect the values, the aspirations and the circumstances in Papua New Guinea. In many classes of offences, the circumstances would differ and this should be reflected in the tariff of sentences. Depending on the circumstances and facts of each case, sentences in Papua New Guinea may be more or less than the tariff in England. No tariff of sentences should be adopted from any other jurisdiction without enquiring into the applicability of the tariff to the circumstances of Papua New Guinea.

Further, the Supreme Court adopted the approach of the English Court of Appeal in Billam’s case, in which the Court of Appeal categorised different kinds of rape and prescribed the penalty for each category. In other words, the Court of Appeal not only dealt with the sentence in the particular case on appeal but prescribed the sentence for other categories of rape: see also Gimble v The State [1988-89] PNGLR 271.

The primary role of the Supreme Court is to review the exercise of discretion by the trial judge within the context of all the circumstances in the particular case. In the course of dealing with the case, the court will deal with general principles. These become the guiding principles to be applied in other cases. In this regard the Supreme Court plays a vital role in laying down guidelines for the lower courts.

With respect, I would not encourage the Supreme Court or any other court to prescribe term of sentences for other categories of the same offence. First of all, the court does not have all the facts or considerations in order to come to the final sentence. Such an approach would enable the Supreme Court to prescribe a term of sentence on some considerations only and without all the other relevant considerations. This is likely to lead to error. An example of this approach is apparent in the decision of Bredmeyer J in The State v Polin Pochalon Lopai in which his Honour was concerned with prescribing the penalty for two categories of manslaughter; those on plea of guilty and those found guilty after a trial. He concluded that a plea of guilty should receive no less than five years. That is no different to the minimum penalty legislation which has been abolished by the Parliament. That clearly is the wrong approach. There would be many cases which would fall below five years. The Parliament had those cases in mind under s 19 of the Code. Such a case is the case of The State v Kipling Ture (National Court, Judgment No N912, dated 6 September 1990, Ellis J, unreported) in which the trial judge reached the conclusion that the circumstances of the particular case were exceptional and imposed a sentence of 18 months and suspended the whole of the term of imprisonment.

A sentence in a particular case which is reviewed by the Supreme Court would provide guidance for determining terms of punishment for other categories of the same offence. The Supreme Court would be entitled to set guidelines in respect of different categories of the same offence without having to prescribe the actual sentence. In this regard I prefer the approach by the majority decision in Belawa v The State [1988-89] PNGLR 496. The majority opinion written by Barnett J adopted only the principles without any prescribed penalty for each of the different categories: at 505 of the judgment, the following passage from R v Barrick (1985) 81 Cr App R 78, was cited:

“The following are some of the matters to which the Court will no doubt wish to pay regard in determining what the proper level of sentence should be: (i) the quality and degree of trust reposed in the offender including his rank; (ii) the period over which the fraud or the thefts have been perpetrated; (iii) the use to which the money or property dishonestly taken was put; (iv) the effect upon the victim; (v) the impact of the offences on the public and public confidence; (vi) the effect upon fellow-employees or partners; (vii) the effect on the offender himself; (viii) his own history; (ix) those matters of mitigation special to himself such as illness; being placed under great strain by excessive responsibility or the like; where, as happens, there has been a long delay, say over two years, between his being confronted with his dishonesty by his professional body or the police and the start of his trial; finally, any help given by him to the police.”

His Honour then applied this to all the considerations of the case and reached the conclusion that two years was the appropriate penalty. This sentence approved by the Supreme Court would set the level of punishment for this offence. Courts in other cases can either impose a higher penalty or a lower penalty depending on whether the facts are more serious or less serious than in this case. In my view this is a better approach than allowing the Supreme Court to prescribe penalties for other categories of the same offence.

In considering the penalty for manslaughter cases, I adopt the words of Watkins LJ in R v Phillips (1985) 7 Cr App R(S) 235 at 237:

“The Court has to pay very careful regard to the circumstances of death, and especially to the way the death was actually caused, in coming to a conclusion as to what punishment a defendant should receive for whatever it was he did towards bringing that about.”

I consider that this approach of sentence is inherent in the decision of the Supreme Court in Norris v The State [1979] PNGLR 605. The Deputy Chief Justice Raine was having regard to the way death was caused when he said (at 611-612):

“I say this because this was a bad assault on the deceased. This is not one of those unfortunate cases where one angry blow has tragic consequences. There were a number of blows and it is perfectly clear that the appellant, furious at the believed misbehaviour of the deceased, attacked her in quite a vicious way.”

In the same case, Wilson J directed his mind to the same issue (at 618):

“... it must be said that the accused viciously assaulted the deceased. The appellant is not entitled to the leniency that may be shown to those who commit the crime of manslaughter in a sudden or momentary outburst.”

The English cases are only helpful in so far as they display the approach of the court in relation to the circumstances of death, especially the manner in which death was caused. It would appear from the Supreme Court case of Norris v The State and the English cases that a death caused by a simple fist-punch would appear to be at a lower range of sentence whereas death caused by a vicious attack or caused by a weapon would attract a higher range of sentence. There are so many different circumstances which would attract different lengths of punishment. In considering the nature of the act of the offender in causing death, the following matters should be taken into account:

(i)       the nature and frequency of the attack or assault on the deceased.

(ii)      did the injury which caused death arise directly from the assault or was the injury caused by an object when the deceased subsequently fell?

(iii)     was death caused by a fist or weapon?

(iv)     did the offender deliberately set out to hurt anyone?

(v)      was there any provocation in the non-legal sense?

(vi)     did the deceased have a thin skull?

(vii)    did the deceased have an enlarged spleen?

This list is not exhaustive.

Applying these principles to this case, I find that the appellant met up with the deceased by chance and the whole argument was started by the deceased uttering some words to the appellant’s wife. I also find that this was not a vicious attack. The attack on the deceased in Norris’s case was more serious. However, I do bear in mind that the appellant proceeded to punch the deceased, despite attempts by the police to stop him. The injury, as I have concluded earlier, did not arise directly from the punch but from subsequently falling to the ground. He was drunk at the time.

Consistent with the approach of sentencing I have outlined in my judgment, I took the liberty to consult the statistics on manslaughter cases in the last 15 years, which are contained in the Judges’ Annual Report to the Parliament. Sentences range from a good behaviour bond to 10 years imprisonment. This is a reflection of the wide variety of circumstances in which manslaughter is committed.

I have examined cases in the last 18 months in which the deceased have been assaulted and died as a result. I have consulted a very helpful summary of cases dealt with by all the judges, which was compiled by Woods J. I find them to be accurate and helpful for the present task. These are more relevant than other categories such as spleen-death cases. The present case does not involve spleen death. Two categories of cases have emerged. There have been cases in which the deceased was assaulted by an object or dangerous weapon such as a knife, an axe or an arrow. Punishment by various judges ranged from four to six and a half years imprisonment. A number of cases, in which the deceased was kicked, have been considered more serious than those indirectly causing death by falling on top of an object. One such case received a sentence of seven years.

The second category of cases deals with death caused by assault without a weapon, or a non-vicious attack. They have attracted a range of suspended sentences up to five years.

I have reached the conclusion that the present level of sentences in this category of manslaughter cases has reached an acceptable level of sentencing.

I consider that six and a half years is excessive in the circumstances. Considering the fact that this was a trial, the appropriate penalty would be four and a half years IHL. I would quash the sentence and substitute four and a half years. From this would be deducted four months served awaiting trial. The actual sentence of four years two months would run from the commencement of the November sittings of the Court at Waigani in 1989.

HINCHLIFFE J: I have had the opportunity of reading the judgment of the Deputy Chief Justice and I agree generally with what he has said.

Over the last eight years there have been warnings that sentences will increase in relation to crimes of violence. Back in 1982 the Supreme Court, in Public Prosecutor v Kwalimu Goina (Supreme Court, Judgment No SC 230, 27 July 1982, unreported) said:

“We are mindful of the increase in crimes of violence and the widespread public concern about such offences. Such conduct will be met by firmness on the part of the courts and we give warning that sentences will increase substantially.”

It seems that sentences did increase from thereon because in 1985 in the Supreme Court decision of Manu v The State (Supreme Court, 27 May 1985, unreported) Pratt J with whom Woods J and Los J agreed, said in relation to a manslaughter appeal:

“Whilst it is true that the sentences of the court are gradually increasing, it is also true that the courts should not engage in leaps and bounds. The authorities are clear enough that where there is to be an increase in sentencing, it should proceed in a gradual fashion.”

In that matter a sentence of nine years imprisonment was reduced to six years imprisonment. The killing was caused through a vicious assault with a weapon.

I agree with the Deputy Chief Justice when he stated that over the last 18 months sentences for manslaughter, where no weapon has been used in a non-vicious attack (excluding spleen deaths and death by kicking), have ranged from a suspended sentence up to five years imprisonment.

That clearly places the sentence of six years six months in imprisonment this case outside the range. There was no weapon used and death occurred when the deceased fell to the roadway soon after receiving one punch to the back of his body. That is a 30 per cent increase on top of the five years and to my mind that is excessive. A 30 per cent increase could not be described as proceeding “in a gradual fashion”.

Kearney J said, in Norris v The State [1979] PNGLR 605 (at 612-613):

“So the question in practice on a sentence appeal is usually this — has the appellant shown that an error occurred which has the effect of vitiating the trial judge’s discretion on sentencing? Such an error may be indentifiable: thus, the trial judge may have made a mistake as to the facts; or acted on a wrong principle of law; or taken into account matters which he should not have taken into account; or failed to take into account matters which he should have taken into account; or clearly given not enough weight or too much weight to a matter he properly took into account. There will also be vitiating error if upon the proved facts and making the fullest allowance for the advantaged position of the trial judge, the sentence is obviously (and not merely arguably) excessive, although no identifiable error can be shown; for, if a sentence is out of reasonable proportion to the circumstances of the crime, even though no particular error can be identified, this Court will infer that some error must have occurred in the exercise of the sentencing discretion.”

That is a classic statement of the relevant principles on considering an appeal against sentence. As I have said, I am of the view that the sentence of the trial judge was excessive. But I am also of the view and therefore in disagreement with the Deputy Chief Justice, that the present levels of sentence in manslaughter cases may not have reached an acceptable level. There is still, as was so back in 1982, a “widespread public concern about such offences”. Violence is on the increase and innocent people are being killed quite regularly. Members of the public are looking towards the courts to be more severe when sentencing violent offenders, hoping that tougher sentences may be a deterrent to others. To that extent I am not satisfied that manslaughter sentences have reached an acceptable level. It may well be that the time has come for a hardening in the policy of the courts when sentencing for this offence. There has developed a tendency to give inadequate weight to the legislative policy which fixes life imprisonment as the statutory maximum for this offence. That tendency needs correction. The statutory maximum of life imprisonment places manslaughter amongst the most serious of the offences dealt with in the Criminal Code (Ch No 262).

I would grant leave to appeal and allow the appeal. I would impose a sentence of four years six months imprisonment in lieu of the sentence of six years and six months imprisonment imposed by the learned trial judge.

JALINA J: I have read the judgment of the Deputy Chief Justice and agree with his reasons and observations. I only wish to add that whilst I appreciate that to take someone else’s life, whether it be through wilful murder, murder or manslaughter (unlawful killing), is very serious as is evident from the life penalty which the legislature has seen fit to prescribe for such crimes, the legislature has also, by making the life penalty for manslaughter subject to s 19 of the Criminal Code (Ch No 262), given the court a discretion as to the type of punishment it should actually impose. In the exercise of such discretion the practice of the court has been to impose a term of years. The number of years imposed would depend on the circumstances of a particular case. The difficult position in which the court is placed in determining the appropriate penalty is illustrated in R v Geddes [1936] NSWStRp 35; (1936) 36 SR (NSW) 554 where the Court of Criminal Appeal considered an appeal on the grounds of inadequacy of sentence of one year for manslaughter. In that case the prisoner’s wife had been living with another man (later the deceased) and the prisoner, who was attached to her, had hoped that she would return to him. The prisoner, a companion, the prisoner’s wife and her mother had spent a social evening together and the wife told the prisoner that she was going to stay with the other man because her children, of whom the other man was, to the prisoner’s knowledge, the father, were there. All four of them left together to go to the other man’s house. On the way, the prisoner’s wife taunted him, saying that he was a coward and dared not to go on. It was in these circumstances that the prisoner went to the other man’s house, went in, and committed the assault. He had no weapon, and the other man was a powerful man. There was no direct evidence as to how the assault was committed, but the injuries to the other man’s head and ribs were so severe and so numerous that, having regard to the fact that the prisoner was apparently uninjured, the sandshoes being stained with blood, the court drew an inference that the man was kicked to death. He probably, in the first instance, intended to give the deceased a thrashing, but, influenced by rage and drink, he lost control of himself and inflicted the brutal injuries of which the other man died. The prisoner was a man of good character and had not had a reputation for violence. The sentence was increased to three years imprisonment with hard labour. In his remarks on the factors to be taken into account on sentencing, Jordan CJ, with Bavin J concurring, had this to say (at 555-556):

“Upon what principles, then, should the Court proceed in determining whether a sentence is inadequate? I think that they are the same as are applicable when the more frequently occurring question arises of whether it is excessive. This throws one back upon a preliminary question as to the general principles upon which punishment should be meted out to offenders. In the nature of things there is no precise measure, except in the few cases in which the law prescribes one penalty and one penalty only. In all others, the judge must, of necessity, be guided by the facts proved in evidence in the particular case. The maximum penalty may, in some cases, afford some slight assistance, as providing some guide to the relative seriousness with which the offence is regarded in the community; but in many cases, and the present is one of them, it affords none. The function of the criminal law being the protection of the community from crime, the judge should impose such punishment as, having regard to all the proved circumstances of the particular case, seems, at the same time, to accord with the general moral sense of the community in relation to such a crime committed in such circumstances, and to be likely to be a sufficient deterrent both to the prisoner and to others. When the facts are such as to incline the judge to leniency, the prisoner’s record may be a strong factor in inducing him to act, or not to act, upon this inclination. Considerations as broad as these are, however, of little or no value in any given case. It is obviously a class of problem in solving which is easier to see when a wrong principle has been applied than to lay down rules for solving particular cases, and in which the only golden rule is that there is no golden rule.

The position of the judge is analogous to that of a civil jury who are called upon to award damages for a breach of contract, or a tort, in relation to goods which have no market value, and for the assessment of the value of which no generally accepted measure exists. The jury must do the best they can; and so must the judge. In applying considerations as general as these, it is necessarily not often that it can be said, with reasonable confidence, that the sentence imposed was wrong. If it appears that the wrong principle has been applied, the Court must, of necessity, treat the question of the sentence as being at large, although, even in such a case, the attitude and report of the judge, who alone has had the opportunity of coming to grips with the evidence at first hand, may be, and ordinarily would be, of great importance. If no wrong principle has been applied, the position is somewhat analogous to that which arises when, in a case in which no definite measure of damage exists, it is contended, before a Court of Appeal, that damages awarded by the jury are inadequate or excessive. It has been said that, in such a case, the rough rule is that the verdict should be set aside if the Court cannot find any reasonable proportion between the amount awarded and the loss sustained.”

There is therefore no specific rule as to the actual penalty to be imposed unless of course the legislature has prescribed one penalty only. In the circumstances of this case I consider that, except for the fact that a life has been lost, which was unfortunate, the sentence imposed by the learned trial judge was, with respect, not warranted by the evidence. The appellant did not use anything more than his fist. He did not even kick the deceased. He did not stab the deceased with a knife as did happen in Kesino Apo v The State [1988] PNGLR 182 where the Supreme Court confirmed the sentence of six years for manslaughter. Whilst I would have taken persistence by a person in fighting after the arrival of the policeman as an aggravating factor as it would go towards showing a blatant disregard for the law (through the presence of the policeman) by such person particularly at this time when this country is facing a decline in respect for the law by some members of our communities, I do not propose to treat it as an aggravating factor in the circumstances of this case for reasons I have given above. I therefore consider the sentence of six and a half years imposed by the learned trial judge to be manifestly excessive and as such I would allow the appeal, quash the sentence and substitute for it four and a half years imprisonment in hard labour.

Appeal allowed

Sentence of four and a half years IHL substituted

Lawyer for the appellant: Public Solicitor.

Lawyer for the respondent: Public Prosecutor.