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State v Kailomo [2007] PGNC 212; N5023 (13 July 2007)

N5023

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR NO 597 OF 2005


THE STATE


V


JOHN BUKU KAILOMO


Kimbe: Cannings J
2007: 17 May, 3, 13 July


CRIMINAL LAW – sentencing – manslaughter – sentence after trial – killing of wife by bashing – sentence of 15 years


A man was found guilty after trial of the manslaughter of his wife. He assaulted her during the course of a domestic dispute and she died of a ruptured spleen.


Held:


(1) The starting point for sentencing for this sort of killing in a domestic setting is 8 to 12 years imprisonment.

(2) Mitigating factors are: single blow; only one offender; no weapon; co-operated with police; first offender; co-operated with the Court.

(3) Aggravating factors are: no intervening cause of death; intention to do serious harm; no provocation; deceased had no pre-existing condition; vicious assault; offender solely responsible; did not give himself up; no reconciliation; did not plead guilty; no remorse.

(4) The aggravating factors outweighed the mitigating factors and warranted a sentence above the starting point. A sentence of 15 years was imposed. The pre-sentence period in custody was deducted and none of the sentence was suspended.

Cases cited


The following cases are cited in the judgment:


Manu Kovi v The State (2005) SC789
The State v Alphonse Kaparo and John Loangesa CR 1636-1637/2006, 21.03.07
The State v Daniel R Walus (2005) N2802
The State v Elizabeth Gul CR 375/2005, 09.05.05
The State v Hiliong Gunaing (2005) N2803
The State v Jacklyn Boni CR 786/2005, 08.09.05
The State v John Buku Kailomo, CR No 597 of 2004, 17.05.07, unreported
The State v John Loangesa CR 301/2000, 21.03.07
The State v Joseph Dion CR 71/2001, 20.05.05
The State v Kalimet Tovut CR 968/2004, 20.12.05
The State v Kila Peter (2006) N3018
The State v Lien Kaingi CR 1119/2006, 19.12.06
The State v Mark Kanupio, Balwin Kining, Peter Pasikio, Steven Lipilas and Paul Nowor (2005) N2800
The State v Mas Judah Binas CR 957/2004, 27.03.07
The State v Timothy Mawe CR 1455/2003, 20.05.05


SENTENCE


This was a judgment on sentence for manslaughter.


Counsel


F Popeu, for the State
O Oiveka, for the offender


13th July, 2007


1. CANNINGS J: This is a decision on sentence for a man convicted after trial of the manslaughter of his wife. The offender, John Buku Kailomo, killed his wife, Alphonsa Galewi, by assaulting her during a domestic dispute, rupturing her spleen. At the time of her death Alphonsa was aged 23. John was 27. They had been married for three or four years and had one child, a boy. They were living at Banaule village, near Hoskins, West New Britain. They were brought up there. The incident happened on the evening of Wednesday 2 February 2005. Further details of the circumstances in which the offence was committed are set out in the written judgment on verdict (The State v John Buku Kailomo, CR No 597 of 2004, 17.05.07).


ANTECEDENTS


2. The offender has no prior convictions.


ALLOCUTUS


3. I administered the allocutus, ie the offender was given the opportunity to say what matters the court should take into account when deciding on punishment. A paraphrased summary of his response follows:


I have already paid K2,000.00 compensation plus shell money and a pig. I have been present at all callovers and signed the bail register every Friday. I am a villager and I have two blocks of oil palm and coconuts to look after. I have one child. Please put me on probation.


PRE-SENTENCE REPORT


4. I received a pre-sentence report from the Community Corrections and Rehabilitation Service, which is summarised below.


JOHN BUKU KAILOMO: 27-year-old male.


Residence: Banaule village, near Hoskins.


Family background: parents are from WNB – both died when he was young, offender raised by his brother, Rochus Kailomo – offender youngest in family of eight children – born and raised at Banaule.


Marital status: now single.


Education: grade 6, Mai Primary.


Employment: never been employed in formal sector.


Health: good.


Financial status: self-supporting, earns income from sale of cash crops.


Plans: return to the village, obtain custody of his son (from his in-laws), build a new house (his house was destroyed by the deceased's relatives), tend to his blocks, raise his son in the village.


Victim's family's attitude: they have not reconciled with the offender – still concerned that he has not admitted what he did – they do not accept that he has paid compensation – the cash, shell money and pig was just sori moni; funeral expenses rather than real compensation – they do not want the offender released back into the community.


Offender's family attitude: His brother Rochus (his adoptive father) is supportive and wants the offender given a non-custodial sentence.


Attitude of community: prior to the offence his behavioural record in the local community was fair – not a known troublemaker, though can be a nuisance when drunk.


Assessment: not a threat to the community but there has been no reconciliation with the deceased's relatives.


Recommendation: the offender is a suitable but not a strong candidate for probation in view of the seriousness of the offence and the absence of peace and reconciliation with the deceased's relatives.


SUBMISSIONS BY DEFENCE COUNSEL


5. Mr Oiveka stressed that the case was far from falling in the worst category of manslaughter. No weapons were used and in relative terms it was not a vicious or repeated assault. Mr Oiveka also submitted that the court should take into account as a mitigating factor that the offender is now a widower and he will suffer the most from the crime that has been committed. I find that submission difficult to accept. The offender is a widower because of his own actions. In a homicide case I do not see how this can be a mitigating factor.


SUBMISSIONS BY THE STATE


6. Mr Popeu, for the State, agreed that the case falls within the least serious category of manslaughter and that the head sentence shall be in the range of 10 to 12 years imprisonment.


DECISION MAKING PROCESS


7. To determine the appropriate penalty I will adopt the following decision making process:


STEP 1: WHAT IS THE MAXIMUM PENALTY?


8. Section 302 (manslaughter) of the Criminal Code states:


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.


9. The maximum penalty is therefore life imprisonment. The court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code.


STEP 2: WHAT IS A PROPER STARTING POINT?


10. In Manu Kovi v The State (2005) SC789 the Supreme Court suggested that manslaughter convictions could be put in four categories of increasing seriousness, as shown in table 1.


TABLE 1: SENTENCING GUIDELINES FOR MANSLAUGHTER DERIVED FROM THE SUPREME COURT'S DECISION IN MANU KOVI'S CASE


No
Description
Details
Tariff
1
Plea – ordinary cases – mitigating factors – no aggravating factors.
No weapons used – offender emotionally under stress – de facto provocation – killing in domestic setting – killing follows straight after argument – minimal force used – victim had pre-existing disease that caused or accelerated death, eg enlarged spleen cases.
8-12 years
2
Trial or plea – mitigating factors with aggravating factors.
Use of offensive weapon, eg knife, on vulnerable parts of body – vicious attack – multiple injuries – some deliberate intention to harm – some pre-planning.
13-16 years
3
Trial or plea – special aggravating factors – mitigating factors reduced in weight or rendered insignificant by gravity of offence.
Dangerous or offensive weapon used, eg gun, axe – vicious and planned attack – deliberate intention to harm – little or no regard for sanctity of human life.
17-25 years
4
Worst case – trial or plea – special aggravating factors – no extenuating circumstances – no mitigating factors, or mitigating factors rendered completely insignificant by gravity of offence.
Some element of viciousness and brutality – some pre-planning and pre-meditation – killing of harmless, innocent person – complete disregard for human life.
Life imprisonment

11. This case involved a killing in a domestic setting with no weapons used. I agree with both counsel who suggested that the case falls within category 1. Therefore the starting point is 8 to 12 years imprisonment. A sentence can nevertheless fall outside that range if there is a large number of mitigating or aggravating factors that outweigh other considerations.


STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED RECENTLY IN WEST NEW BRITAIN FOR EQUIVALENT OFFENCES?


12. Before I fix a sentence, I will consider other manslaughter sentences I have imposed in West New Britain.


NATIONAL COURT SENTENCES FOR MANSLAUGHTER, 2005-2007


No
Case
Details
Sentence
1
The State v Hiliong Gunaing (2005) N2803
Guilty plea – stab wound causing death of wife – Laleki settlement, Kimbe – offender in his mid- 40s – allegations of wife's infidelity.
15 years
2
The State v Mark Kanupio, Balwin Kining, Peter Pasikio, Steven Lipilas and Paul Nowor (2005) N2800
Guilty plea – mob attack – Kandrian, WNB – various sentences – degree of participation – in company with 4 others – knives and sticks and stones used – election-related killing.
15 years,
7 years,
4 years,
4 years,
3 years
3
The State v Daniel R Walus (2005) N2802
Guilty plea – domestic setting – Gaongo VOP, Kimbe – offender punched and kicked the deceased, a female, a number of times – deceased was offender's in-law – ruptured spleen causing death.
18 years
4
The State v Jacklyn Boni CR 786/2005, 08.09.05
Guilty plea – domestic setting – Buvussi, Kimbe – juvenile offender hit deceased with a stick, rupturing his spleen – deceased was offender's husband – argument over a small domestic item.
8 years
5
The State v Elizabeth Gul CR 375/2005, 09.05.05
Guilty plea – domestic argument – Mosa, Kimbe – offender was being assaulted by the husband and his sister – offender stabbed husband on his leg – prisoner claimed husband was being unfaithful.
10 years

6
The State v Joseph Dion CR 71/2001, 20.05.05
Trial – offender had fight with his wife on the back of a moving vehicle – Salelebu, Central Nakanai area – she fell off the vehicle and was killed upon hitting the road.
10 years
7
The State v Timothy Mawe CR 1455/2003, 20.05.05
Trial – offender was prosecuting an unlawful purpose, making a homemade gun – Buvussi, Kimbe – discharged the weapon killing the deceased.
10 years
8
The State v Kalimet Tovut CR 968/2004, 20.12.05
Guilty plea – argument between cousins – Sarakolok, Kimbe – offender punched the deceased to the ground, kicked him in abdomen – ruptured spleen causing death.
10 years
9
The State v Kila Peter (2006) N3018
Guilty plea – fatal stab wound to the back causing death of husband – Mosa, Kimbe – young mother – offender walked 2 km in middle of night and waited for victim – husband was with another woman.
12 years
10
The State v Lien Kaingi CR 1119/2006, 19.12.06
Guilty plea – family dispute – Barema, near Bialla – offender suspected her sister was having an affair with her husband – offender stabbed her sister.
10 years
11
The State v John Loangesa CR 301/2000, 21.03.07
Guilty plea – domestic dispute – Kisiluvi, central Nakanai – offender assaulted his wife while drunk – during assault, he kicked her in the stomach – an element of de facto provocation.
12 years
12
The State v Alphonse Kaparo and John Loangesa CR 1636-1637/2006, 21.03.07
Guilty plea – family dispute – two men punched and kicked their brother-in-law – two-against-one fight.
12 years
13
The State v Mas Judah Binas CR 957/2004, 27.03.07
Trial – offender became angry with his cousin-brother who was drunk, on the road – stabbed him once.
13 years

STEP 4: WHAT IS THE HEAD SENTENCE?


13. There are a number of considerations to take into account in deciding on the head sentence. I have listed them below as a series of questions. An affirmative (yes) answer is regarded as a mitigating factor. A negative (no) answer is an aggravating factor. A neutral answer will be a neutral factor. The more mitigating factors there are, the more likely the head sentence will be reduced below the starting point. The more aggravating factors present, the more likely the head sentence will be above or at the starting point. Three sorts of considerations are listed. Numbers 1 to 8 focus on the circumstances of the incident. Numbers 9 to 13 focus on what the offender has done since the incident and how he has conducted himself. Numbers 14 to 16 look at the personal circumstances of the offender and give an opportunity to take into account any other factors not previously considered.


14. The relevant considerations are:


  1. Did the attack on the deceased consist of just a single blow? Yes.
  2. Was just one person involved in the attack? Yes.
  3. Was there some intervening cause of death, eg did the death not result directly from the assault? No.
  4. Was no weapon used? Yes.
  5. Did the offender not intend to do serious harm? No.
  6. Did the deceased or any other person provoke the offender in 'the non-legal sense'? No.
  7. Did the deceased have a pre-existing condition making her susceptible to serious or fatal injury by a moderate blow, eg did the deceased have an enlarged spleen? No. There was evidence that the deceased was feeling unwell before the offender assaulted her, but she was not seriously unwell.
  8. Can the assault on the deceased be classed as 'not vicious'? No.
  9. Did the offender play a relatively minor role in the attack? No.
  10. Did the offender give himself up after the incident? No.
  11. Did the offender co-operate with the police in their investigations? Yes.
  12. Has the offender done anything tangible towards repairing his wrong, eg offering compensation to the family of the deceased, engaging in a peace and reconciliation ceremony, personally or publicly apologising for what he did? No. There is no agreement on whether the money that was paid was compensation or just a contribution to the funeral expenses. Most importantly, there has been no reconciliation with the deceased's family.
  13. Has the offender pleaded guilty? No.
  14. Has the offender genuinely expressed remorse? No.
  15. Is this his first offence? Yes.
  16. Can the offender be regarded as a youthful offender or are his personal circumstances such that they should mitigate the sentence? Neutral.
  17. Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence? Yes, he has co-operated with the court.

15. After weighing all these factors, comparing this case with the other recent manslaughter cases in West New Britain and bearing in mind that there are ten aggravating factors compared to six mitigating factors, the head sentence should be above the starting point. I impose a head sentence of 15 years imprisonment.


STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?


16. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment the whole of the pre-sentence period in custody, which is five months.


STEP 6: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?


17. The lack of reconciliation with the deceased's relatives and the failure of the offender to express genuine remorse for his actions mean that suspension of any part of the sentence is not warranted.


SENTENCE


18. John Buku Kailomo, having been convicted of the crime of manslaughter, is sentenced as follows:


Length of sentence imposed
15 years
Pre-sentence period to be deducted
5 months
Resultant length of sentence to be served
14 years, 7 months
Amount of sentence suspended
Nil
Time to be served in custody
14 years, 7 months

Sentenced accordingly.
__________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender

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