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State v Ombe [1997] PGNC 153; N1660 (21 November 1997)

Unreported National Court Decisions

N1660

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR NO 1304 OF 1997
THE STATE
-VS-
LUCY OMBE

Kimbe

Batari AJ
21 November 1997

CRIMINAL LAW - Sentence - Manslaughter - Wife assaulted husband who had been drinking - Spleen death - Principles applied - Appropriate tarriffs - Suspended sentence - Appropriate of - Sentence of three years - Part suspended.

Cases Cited

Rex Lialu v The State [1990] PNGLR, 487.

Morris v The State [1979] PNGLR, 605.

R v Phillips (1985) 7 CR, App. s(5) 235.

Counsel

C. Sambua, for the State

J, Kaumi, for the accused

SENTENCE

21 November 1997

BATARI AJ: Lucy Ombe, you have pleaded guilty to the unlawful killing of your husband, Ombe Gebi, contrary to s.302 of the Criminal Code.

The brief facts of your charge were that, on 4 October 1997, your husband had been drinking when an argument between the two of you arose. This was around 4.00 pm at Numondo Plantation. You hit him several times on his stomach. After the fight, he vomited and died. The medical report showed he died from a ruptured spleen. Both lawyers had informed the Court upon consultation with the doctor that the condition of the spleen described as "Hackett's' Grade 4" was a gross enlargement and as such, a rupture could either be spontaneous or may result from mild to moderate force.

Manslaughter is the least of homicide killings. However, the penal servitude of life imprisonment show it is still a serious offence. Indeed this type of killing nearly always result from violence, some involving vicious attacks and use of objects to assault the victim.

It has not always been easy to pass sentence on this type of homicide killing because of the diversity of situations under which manslaughter is committed. A sentence may be deemed appropriate in the particular circumstances of a case but only upon careful regard to the relevant underlying factors and application of proper sentencing principles.

I adopt what was stated by L. J. Waktins in R v Philips (1985) 7 Cr. App. s(5) 235 at p. 237:-

The Court has to pay 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 would receive for whatever it was that he did towards brining that about."

This approach was apparent in the Supreme Court case of Rex Lialu v The State, [1990] PNGLR 487. In the earlier Supreme Court case of Norris v The State [1979] PNGLR, 605 the DCJ Raine was also directing his mind to the way death was caused when he said at p. 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 believe misbehaviour of the deceased, attacked her in quite a vicious way".

Similarly, Wilson, J in the same case stated at p.618:-

"It must be said that the accused viciously assaulted the deceased. The appellant is not entitled to leniency that may be shown to those who commit the crime of manslaughter in a sudden or momentary out-burst."

The case before me involved a wife assaulting her drunken husband resulting in his death. It is an unusual case because killings arising out of domestic violence nearly always involved death of the wife. Violence against women has been the domain of many public discussions, debates and Campaigns. One must bear in mind that the reverse, as in this case is also true and equally serious. The National Courts have in the past imposed strong punitive sentences in cases where a man had died or suffered life threatening injuries at the hands of their berated wives. A man, as do his wife, children and every individual is entitled to full protection from violence against him or her. The woman offender will expect to be punished in the same way as a male offender in crimes of violence.

The facts of this case showed the deceased had been drinking at Club in Kulungi Talasea and only stopped when the prisoner intervened to take him home. An argument developed and the prisoner punched him once on his stomach. The couple argued the second time and the prisoner punched the deceased again several times with her fist. He collapsed and died. The Post Mortem Report did not reveal any other abnormal findings besides the rupture of the spleen. I conclude from the Medical Report that the spleen would have ruptured by itself or by a mild to moderate direct impact due to the stage of its enlargement. I am not sure whether the deceased would have suffered any serious injury from the nature of the attack by the prisoner. The deceased had been drinking and perhaps incapacitated by the state of his drunkenness. The prisoner may have taken advantage of his situation. This made the assault on him serious, but not in the least vicious.

You are 40 years old. In my observation, you could be 10 years or more older. This is your first offence. You did not attend school nor were you employed. Your three (3) children have all grown up and have their own families.

You have pleaded guilty and had admitted your guilt from the beginning to the Police. Your conduct has been consistent with remorse which you openly expressed in Court. I accept that you are sorry for causing your husband's death. I also accept that you will bear the loss of your husband for many years and may be for the rest of your life. The death of your husband is indeed most unfortunate. But it remains that, you should not have assaulted him. When I considered your explanation, I accept that you felt insulted and humiliated by those demeaning verbal abuse from the deceased. I accept that you acted spontaneously to your husband's debasing insults and committed this offence in a momentary outburst.

The Supreme Court cases of Norris v The State (supra) and Rex Lialu v The State (supra) suggest a non-vicious assault or a simple fist punch would attract a sentence at the lower range from suspended sentences up to five (5) years. Spleen killing cases have been treated by the Courts over the years as falling within that category of manslaughter. The other category involved cases where death was caused by used of an object like a knife, axe, stone, arrow, spear, wood, etc and for this, a sentence of four (4) years up to eight (8) years have been imposed by the Courts.

I conclude that an imprisonment term is appropriate as a measure of personal and public deterrence for your conduct. You are not likely to re-offend and I do not consider you to be a person of violent nature. I accept that circumstances exist in your case to make suspension orders on your sentence.

You are sentenced to be imprisoned with light labour for a period of three (3) years. I deduct one (1) month for the time spent in custody. You will serve two (2) years and eleven (11) months. I suspend two (2) years and nine (9) months and place you on Good Behaviour Bond on your own recognisance for a period of two (2) years. Your date of release to serve your suspended sentence is 4 January, 1998.

Lawyer for the State: Public Prosecutor

Lawyer for the Accused: Habuka Lawyers