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State v Ruben [2008] PGNC 263; N3941 (22 February 2008)

N3941


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR NO 843 0F 2007


THE STATE


V


STEVEN RUBEN


Madang: Cannings J
2008: 13, 22 February


SENTENCE


CRIMINAL LAW – sentence – manslaughter – Criminal Code, Section 302 – guilty plea – offender threw pawpaws at his wife, rupturing her spleen – domestic dispute – sentence of 10 years.


A man pleaded guilty to manslaughter. He killed his wife by throwing pawpaws at her in the course of a domestic dispute.


Held:


(1) The starting point for sentencing for this sort of manslaughter (no use of offensive weapon) is 8 to 12 years imprisonment.

(2) A sentence of 10 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
Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06
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 920/2005, 24.08.07
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 Sebastian Sahoto Roho CR 1665/2005, 24.08.06
The State v Timothy Mawe CR 1455/2003, 20.05.05


Abbreviations


The following abbreviations appear in the judgment:


CR – Criminal
J – Justice
km – kilometre
N – National Court judgment
No – number
SC – Supreme Court judgment
SCRA – Supreme Court Criminal Appeal
v – versus
VOP – village oil palm
WNB – West New Britain


SENTENCE


This was a judgment on sentence for manslaughter.


Counsel


J Wala, for the State
D Joseph, for the offender


22 February, 2008


1. CANNINGS J: This is a decision on sentence for a man who pleaded guilty to one count of manslaughter arising from the following facts.


2. The offender, Steven Ruben, was with his family at Walium village. Between 12 midnight and 1.00 am on 3 April 2007 he had an argument with his wife. He was not happy that he had not slept under a mosquito net and as a result he had been bitten by mosquitoes. In the course of the argument, he reached for two unripened paw paws and threw them at her. The second one struck her on the left side of her stomach and ruptured her spleen and she died.


3. I entered a provisional plea of guilty and then, after reading the District Court depositions, confirmed the plea and entered a conviction for manslaughter under Section 302 of the Criminal Code.


ANTECEDENTS


4. The offender has no prior convictions.


ALLOCUTUS


5. 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. He said:


I did not mean to throw the pawpaw at her stomach. I was shocked when she died. I am very sorry for what happened. I apologise to my wife's family and my children and to the court. My family has paid K1,000.00 to my wife's family, plus a bale of rice and other foodstuff. I have seven children to care for, as well as coffee, cocoa and vanilla gardens. I ask for mercy. If I am to stay in prison, please send me to Buimo.


OTHER MATTERS OF FACT


6. As the offender has pleaded guilty he will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06).


7. He surrendered to and co-operated with the police.


8. The other mitigating factor is that some compensation has been exchanged.


PERSONAL PARTICULARS


9. The offender is aged in his 60s. with children. He has no formal education or employment record. He is a subsistence farmer.


SUBMISSIONS BY DEFENCE COUNSEL


10. Mr Joseph submitted that a sentence in the range of 8 to 12 years would be appropriate.


SUBMISSIONS BY THE STATE


11. Mr Wala conceded that a sentence in the range of 8 to 12 years would be appropriate.


DECISION MAKING PROCESS


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


STEP 1: WHAT IS THE MAXIMUM PENALTY?


13. 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.


14. 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?


15. 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

16. There are both mitigating and aggravating factors present and death was not caused by an offensive weapon. The starting point is therefore 8 to 12 years.


STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED RECENTLY FOR EQUIVALENT OFFENCES?


17. Before I fix a sentence, I will consider other manslaughter sentences I have handed down. These cases are shown in table 2.


TABLE 2: SENTENCES FOR MANSLAUGHTER
2005-2007, CANNINGS J


No
Case
Details
Sentence
1
The State v Hiliong Gunaing (2005) N2803, Kimbe
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, Kimbe
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, Kimbe
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, Kimbe
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, Kimbe
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, Kimbe
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, Kimbe
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, Kimbe
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, Kimbe
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 Sebastian Sahoto Roho CR 1665/2005, 24.08.06, Buka
Guilty plea – young man kicked his mother in abdomen, rupturing her spleen – domestic dispute – family did not want offender given a lengthy sentence.
10 years
11
The State v Lien Kaingi CR 1119/2006, 19.12.06, Kimbe
Guilty plea – family dispute – Barema, near Bialla – offender suspected her sister was having an affair with her husband – offender stabbed her sister.
10 years
12
The State v John Loangesa CR 301/2000, 21.03.07, Bialla
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
13
The State v Alphonse Kaparo and John Loangesa CR 1636-1637/2006, 21.03.07,
Bialla
Guilty plea – family dispute – two men punched and kicked their brother-in-law – two-against-one fight.
12 years,
12 years
14
The State v Mas Judah Binas CR 957/2004, 27.03.07, Kimbe
Trial – offender became angry with his cousin-brother who was drunk, on the road – stabbed him once.
13 years
15
The State v John Buku Kailomo CR 920/2005, 24.08.07, Kimbe
Trial – man assaulted his wife during a domestic dispute – she died of a ruptured spleen.
15 years

STEP 4: WHAT IS THE HEAD SENTENCE?


18. Mitigating factors are:


19. Aggravating factors are:


20. In weighing all these factors I place great weight on the guilty plea, the full co-operation the offender gave the police and the unusual nature of the death. After comparing this case to the other manslaughter cases I have dealt with, I impose a head sentence of 10 years imprisonment.


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


21. Yes. 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 ten months, two weeks, five days.


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


22. No. Given all the circumstances in which this tragic event took place this is not an appropriate case in which a proportion of the sentence should be suspended.


SENTENCE


23. Steven Ruben, having been convicted of one count of manslaughter, is sentenced as follows:


Length of sentence imposed
10 years
Pre-sentence period to be deducted
10 months, 2 weeks, 5 days
Resultant length of sentence to be served
9 years, 1 month, 1 week, 2 days
Amount of sentence suspended
Nil
Time to be served in custody
9 years, 1 month, 1 week, 2 days
Place of custody
Buimo, to where the offender is to be transferred within one month after date of sentence.

Sentenced accordingly.
___________________________


Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyer for the offender


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