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State v Arimin [2007] PGNC 129; CR 290 of 2007 (28 March 2007)

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 290 OF 2007

THE STATE

V

MICHAEL GITARUKIN ARIMIN OF GIAR VILLAGE,
BOGIA, MADANG PROVINCE
Accused

Madang: Davani .J
2007: 20, 23, 26
& 28 March

Counsel
J. Wala, for the State
F. Turi, for the Accused

SENTENCE

28 March, 2007

1. DAVANI .J: The accused pleaded guilty to one (1) count of unlawful killing, charge laid pursuant to s. 302 of the Criminal Code Act (‘CCA’). This section reads;

"302. Manslaughter

A person who unlawfully kills another under such circumstances as not to constitute wilful murder, murder or infanticide is guilty of manslaughter.

Penalty: Subject to Section 19, imprisonment for life."

State’s allegations

2. The facts which the accused pleaded guilty to are that on 29 August, 2006 at Giar village, the accused had an argument with his late wife Stephanie Arimi (‘Deceased’). This was because he suspected that she was having an affair. He then proceeded to assault her at the garden house by punching her after which he used a stick to hit the deceased on her head, face and other parts of her body. The injuries sustained by the deceased were swelling, lacerations and a ruptured spleen which subsequently caused her death.

3. The accused agreed that after beating his wife, he left her at the garden house, took their children and proceeded to the village. The deceased got up to follow, but fell down again and died.

4. He said when he left her she was still alive and did not know that she had died, until much later. He agreed that he did not set out to kill the deceased but beat her, only because he was angry with her.

Evidence and the law

5. Rex Lialu v the State [1990] PNGLR 487, sets the guidelines for sentencing in manslaughter cases. These are;

1. The court must have careful regard to the circumstances of death and the way in which death was actually caused;

2. That these matters may be relevant to the assault;

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.

6. But Anna Max Marangi v the State (2002) SC 702, then replaced the principles in Rex. Lialu (supra). The Supreme Court held that the current range of sentences for uncontested manslaughter cases in a domestic setting, range from 4 years to 16 years imprisonment. It also referred to 3 main categories of manslaughter cases being;

1. cases in which force is used in an uncalculating manner such as a single blow, punches or kicks on any part of the deceased's body. This also includes cases in which death is caused by an acceleration of a pre-existing disease or a condition leading to death. These kinds of killing attract sentences between 3 and 7 years.

2. Cases where there is repeated application of vicious force, with or without the use of an instrument or weapon, such as repeated kicks and punches applied to the head or chest with intent to wound or cause bodily harm. Deaths caused by a single or multiple knife stab wounds applied to the head, neck, chest or abdomen or on any other vulnerable part of the body, even if there is no other special aggravating factors, coming under this category. This category attracts sentences between 8 and 12 years.

3. Cases where direct force in a calculated manner is applied on the deceased's body using a weapon such as a knife, bush knife or axe causing serious bodily injuries, such as piercing vital organs or severing vital parts of the body. This includes deaths caused by the chopping legs, neck and arms with an axe or bush knife. Deaths caused by single or multiple knife stab wounds on the head, face, neck, chest or the abdomen if accompanied by other special aggravating factors may also fall under this category. These kinds of killing attract sentences between 13 and 16 years.

7. The prisoner's case falls within the first category but sentence of 3 to 6 years has been held by the Supreme Court to be too lenient. Which means I will have to look to similarly decided cases, for guidance. These are;

1. John Kapil Tapi v the State (2000) SC 635 (Kapi DCJ, Injia .J, Sawong .J dated 30 March 2000)

The appellant appealed against sentence after he was sentenced to 16 years imprisonment on a guilty plea for unlawfully killing his wife contrary to s. 302 of the CCA.

8. The facts were that the appellant went searching for his wife and her relatives intending to cause them some harm. He hid then waited to ambush them. When his wife came out of the house, he cut her on the hand, nearly severing it. She fell down, then he cut her a second time on the neck. She died from massive blood loss from the cuts sustained.

9. The court held that 16 years was a fair sentence because of the manner in which the appellant set out to kill the deceased.

10. The Supreme Court also relied on Antap Yala v the State (1996) SCR 69 of 1996 which said;

"The maximum punishment for the offence of manslaughter is life imprisonment. Whilst sentences for manslaughter may normally be lower than sentences for murder and wilful murder, there are those cases which will justify the imposition of heavier punishment. The present killing is a serious kind of killing which called for a heavier punishment but of course mitigated by the presence of mitigating factors".

11. The Supreme Court also referred to Jack Tanga v the State [1999] PNGLR 216.

12. In that case, the Supreme Court confirmed a sentence of 12 years after the appellant caused his wife’s death by repeatedly punching and kicking her. She died as a result of a ruptured spleen, head injuries and hepatic trauma, all from the beatings she received. On appeal that the sentence was excessive, the Supreme Court dismissed it. The Supreme Court said at p. 3 of that judgment;

"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 sentence with some degree of precision. However, we would suggest that in an unintentional killing case which is uncontested, whatever the extenuating and mitigating factors maybe, the application of vicious force, with or without the use of a weapon, causing serious 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 emphasized time and time again."

13. Having said that I must balance both the aggravating and mitigating factors. The accused is a first time offender. He pleaded guilty and saved the court a lot of time and he expressed remorse. This must be balanced against the aggravating factors which are the accused’s severe beating of the deceased. The Medical report from the Bogia Health Centre dated 29 August, 2006, examination conducted by Karoi Komac, Health Extension Officer, describes the deceased’s injuries as;

"General – contused wounds and bruises and lacerations.

Head – Laceration at the back 4 x 2 deep, swollen face.

Abdomen – distended abdomen

Limbs – Laceration of the foot ® and fractured (L) humerus. Laceration (sic) the ear and bleeding from the ear and nose.

Diagnosis – Died before arrival

– Ruptured spleen

– Hypodemic (sic) shock".

14. It is apparent that the beatings sustained by the deceased were severe. And these far outweigh the mitigating factors.

15. The beatings in this case are more severe than those sustained by the deceased in State v June Lavin (2004) N2607 dated 6 May 2004, where Sevua .J on a guilty plea, sentenced the accused to 10 years in hard labour. In that case, the accused killed his wife by slapping her once then kicking her once in the side over a quarrel over sardines.

16. I have also heard from Peter Ariyami, counsellor of the Yauma LLG. He gave evidence of customary compensation being paid on 8 September, 2006 to the deceased’s relatives. This compensation included cash money, pigs, store goods and traditional wealth which would amount to approximately K2,000. It is law that compensation will not go towards reduction of sentence but will be considered as a mitigating factor. This I have considered together with aggravating factors and find that notwithstanding, the aggravating factors far outweigh what was given to the deceased’s relatives.

17. Although accused asked for a non-custodial sentence, this case does not warrant such a sentence but that the accused must be incarcerated.

18. No doubt sentence to be imposed must be between 10 years and life imprisonment. Considering all factors, I consider a sentence of 12 years to be fair under the circumstances. I share similar sentiments as my brother Sevua .J in June Lavin (supra) that wives are not there to be used as items for husbands to vent their frustrations upon. Wives should be treated with the same respect and care that she gives to her husband. A death from beatings received must be punished by society in this case, a prison sentence.

19. This court sentences the accused to a term of twelve (12) years to be reduced by time spent in custody awaiting trial of nine (9) months. The accused shall serve the reduced term of ten (10) years and three (3) months in hard labour.

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused