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State v Remmie [1996] PGNC 55; N1503 (10 December 1996)

Unreported National Court Decisions

N1503

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR NO 768 OF 1996
THE STATE
v
RAMIGIUS REMMIE

Waigani

Batari AJ
10 December 1996

CRIMINAL LAW - Sentence - Appropriate consideration - Intention behind act causing death and the consequences.

CRIMINAL LAW - Sentence - Manslaughter - Proper approach - Use of rape as guideline - Not followed.

Cases Cited:

The State v Polun Pochalun Lopei [1988-89] PNGLR 48

Rex Lialu v The State [1990] PNGLR 487

Counsel:

L Maru for the State

M Kua for the Accused

SENTENCE

10 December 1996

BATARI AJ: I have to sentence the prisoner following his conviction on the manslaughter of one Henry Olapo.

The circumstances of the killing have been traversed in my judgment following the prisoners trial on the charge of murder. For the purpose of sentence, I will state only briefly the facts which sustained the conviction on this alternate verdict of manslaughter.

On the night of 13 February, 1996 between 7.00 pm and 8.00 pm, the deceased Henry Olape was lying down on his stomach on a flatform outside his flat at 4 Mile, Department of Works Compound. His two sons sat next to him eating their evening meals. The prisoner came to where they were and kicked the deceased in the mid-section area of his body twice with the safety boot he was wearing. The impact was just below the deceased’s rib-cage section. It caused a constriction of the left coronary which was already grossly narrowed. As a result of the constriction, supply of oxygen to the heart muscle by blood was cut off. This and the complete blocking off of the right coronary as a result of the excitment triggered or accelerated the heart attack which led to the deceased’s death.

When I consider your sentence, I must take into account the intention behind your act of kicking the deceased and the consequences. I must consider the seriousness of the intention and the seriousness of the consequences. I have found that your intention was to do some harm falling short of grievous bodily harm, but the result had been tragic: the victim has died. If you had not attacked him, the victim would die a natural death and you would have not carried any blame.

The crime of manslaughter is said to be prevalent and looking at the number of manslaughter cases the National Court has dealt with over the last six years, one will agree that the offence of manslaughter has been on the rise. In the case of The State v Polun Pochalun Lopei [1988-89] PNGLR 48 it was suggested that the sentences of manslaughter must have a higher starting point to other crimes of violence like rape and robbery. Justice Bredmeyer, suggested a tariff for ‘spleen death’ type of manslaughter should be five years for a plea of guilty and six years and more in a contested case with features of aggravation.

I think the Honourable trial judge in making the observations on sentences was merely pointing out the loss of life from an unlawful act as being the most serious compared with rape. His Honour suggested on that basis that the tariff for manslaughter should be higher than rape.

Both crimes of manslaughter and rape involve some form and degree of violence to the victim. Both are considered most serious offences to warrant the penal servitude of life imprisonment. However, I do not think the tariff for manslaughter cases should be fixed by comparison to the range that might exist for rape sentences. The two crimes are totally different in nature, consequence and are committed under unrelated and varying circumstances.

The proper approach to manslaughter sentencing is in my view set out in the Supreme Court case of Rex Lialu v The State [1990] PNGLR 487. That is, the Court must have regard to the aggregate effect of all relevant considerations and then determine the appropriate penalty for the particular offence. In manslaughter cases, the Court must have careful regard to the circumstances of death and the way death was actually caused. (R v Phillip’s (1985) 7 Cr App R (S) 235 at 237 adopted and applied).

There are a number of matters which may be relevant to the circumstances of death and the way in which death was actually caused. These are enumerated in Rex Lialu’s case as:

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 thick skull; and

vii. whether the deceased had an enlarged spleen.

In this case, the attack was unprovoked and there is no explanation for the sudden attack. You kicked the deceased with a solid hard leathered safety working boot. This caused the deceased excitement which triggered the constriction or further narrowing of the grossly narrowed left coronary. The deceased’s right coronary was completely blocked off which I think, also resulted from the ‘excitment’ due to the sudden impact on his body. According to the medical evidence, any excitement would cause constriction of the left coronary. The deceased’s condition was akin to someone who has a grossly enlargely spleen which may rupture simply by falling. In this case, the excitment was caused by the kick to the deceased’s body. You contributed to his death as I have found from the evidence. Your kick to his body exacerbated the heart attack which led to the deceased’s death. You are therefore criminally responsible for that death.

I take into account the following in the prisoner’s favour:

· first offence with relatively good background;

· young married man.

Having considered all your personal circumstances and all the circumstances of your crime, I consider the appropriate sentence is four years imprisonment.

Orders:

1. Convicted and sentenced to four years imprisonment IHL.

2. Deduct eleven months for time spent in custody.

3. Prisoner to serve three years one month IHL.

Lawyer for the State: Public Prosecutor

Lawyer for the Accused: Joe Wal Lawyers