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State v Bolkun [1990] PGNC 34; N879 (16 May 1990)

Unreported National Court Decisions

N879

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
THE STATE
-V-
MICHAEL PERA BOLKUN

Kundiawa

Brunton J
14 May 1990
16 May 1990

CRIMINAL LAW - Manslaughter s302 Criminal Code - spleen killing of wife by husband - sentence The State v Polin Pochalon Lopai (1989) Unreported Judgement N680 applied - plea of guilty.

Sentence:

5 years in hard labour.

Cases Cited:

The State v Polin Pochalon Lopai (1987)

Unreported Judgement N680

The State v John Gapaiho (1990) unpublished judgement dated 9 March 1990 Brunton. J

Statutes:

Criminal Code s302

Counsel:

Counsel for the State: Mr Kesan

Counsel for the Defence: Mr K Kot

JUDGEMENT ON SENTENCE

BRUNTON J:

THE OFFENCE

The prisoner pleaded guilty to an indictment charging one count of manslaughter, contrary to s302 of the Criminal Code. The facts of the case were that on the 5th of October 1989 the prisoner had a domestic argument with his wife, Manamb Dekere, at the Kundiawa Malaria Compound. The argument was over food and house-keeping money. After an exchange of bitter words, the prisoner kicked Manumb Dekere in the ribs. She collapsed and vomitted. A neighbour threw water over her and dragged her into the house. There she stayed for sometime unattended until her two-month baby began to cry. The prisoner then went to examine his wife in order to get the baby fed. The victim was dead. A post-mortem revealed she had died from internal bleeding which resulted from a burst spleen. The death of Manumb Dekere, in my view, was a direct result of the kick administered by the prisoner.

THE PRISONER

The prisoner is twenty-nine years old. He completed his grade 10 education at Kerowagi High School in 1980. He has never had paid employment. He is from Kewamugle village near Kerowagi. There are three children of the marriage a seven year old male child, a four year old male child, and a two month old female child. The father of the prisoner is still living.

Mr Kot, for the prisoner, described to me how the family lived in conditions of urban-poverty. They lived with the wife’s relatives and there was little money to go around. Mr Kot told me that it was not uncommon for school- leavers in the Simbu Province to be unemployed, and that a few had been in a similar situation to the prisoner. Mr Kesan did not try to dispute these assertions from the bar-table. I know, as a matter of notoriety, that there is little development or paid employment in this densely populated province, and that there are University graduates looking for employment. Mr Kot described the situation of the prisoner living with his inlaws, in poverty, as an explosive situation.

There is a temptation to say, well, they should have gone back to the village, but that is a value-judgement that should not be made because there are not enough facts before the Court, and it is speculative. Mr Kot’s basic submission is sustainable, that the harsh condition under which the family lived were not conclusive to harmonious matrimonial relations, or as he put it “did not give the accused the right state of mind”.

In his allocutus the prisoner showed genuine remorse. He said “I am sorry for the death of my wife; I loved my wife and during our marriage we had three children, and as a result of my act my wife passed away and the three children are without a mother”. He was worried about his children because while he was in custody he did not know who was taking care of them. (I asked Mr Kot to ensure that a welfare officer visits the prisoner). He also drew attention to an attack that had been made upon the property of his line, by the line of his deceased wife. He asserted that up to K98,000 worth of damage had been done. There was no mention of compensation being paid, so it appears that the damage functioned socially as compensation.

THE LAW

The general principles of tariff set by Bredmeyer J in The State -v- Polin Pochalon Lopai (1989) Unreported Judgement N680 are now being followed by a number of National Court judges. I expressed the view that the principles in Lopu’s case should be confined to the facts of that case, which was the manslaughter of a woman by her husband, a spleen killing, arising from a domestic argument. The State v John Gapaiho (1990) unnumbered judgement 8, 9 March 1990. The starting point for a plea of guilty in a case like that before me now is five years imprisonment.

THE SENTENCE

Manumb Dekere was kicked by the prisoner once in a domestic argument. The prisoner has no prior convictions. It is unlikely he would offend again. He has shown remorse. He has three children who if I imprison him, will be without any parents for the duration of his imprisonment. Against all this a human being is dead, an individual vanished from the face of the earth, the children are without a mother, and a line is without a daughter and a sister.

The Constitution provides a guarantee for the Right to Life, so the Courts have to be assertive when there is an unlawful killing; put another way, unlawful killings, cannot go unmarked. This is particularly so in cases like this because although the Courts deal with spleen killings as individual cases, addressing the particular facts of each case and the circumstances of each offender in its peculiarity, the killing of wives and girl-friends form part of a wider pattern of oppressive acts by men against women, and by women who are controlled by men against other women. The domestic killings occupy an extreme position in a spectrum of violence, exploitation and oppression which women experience. At one end of the spectrum is child-abuse, indecent dealings, defilement of children, unlawful carnal knowledge, incest and child prostitution. The unlawful wounding, grievous bodily harm and the unlawful killings are also part of the same system of oppression. The magistrates’ courts deal with domestic violence in the form of common assault.

There is then a need for the Courts to emphasise the deterent and punitive aspects of sentencing when men kill their wives or girl-friends.

In this case there were no circumstances of aggravation. The killing was an impulsive act arising from the loss of control by the prisoner during an argument with his wife.

According to the principles in Polin Pochalon Lopai he should go to prison for five years. That is the sentence I impose. He has served 7 months in custody while on remand. He is to serve another 4 years and five months in prison.

Lawyer for the State: The Public Prosecutor

Lawyer for the Defence: The Public Solicitor