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State v Sapri [2008] PGNC 328; N3434 (19 August 2008)

N3434

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 465 0F 2008

THE STATE

MICHAEL LANGAN SAPRI

Kimbe: Cannings J

2008: 11, 24 July,
19 August

SENTENCE

CRIMINAL LAW – sentence – manslaughter – Criminal Code, Section 302 – guilty plea – offender kicked his wife during domestic dispute, rupturing her spleen – sentence of 12 years.

A man pleaded guilty to manslaughter. He killed his wife by kicking her in the abdomen 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 12 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 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 Kila Peter (2006) N3018
The State v Michael Jim Gorogoro, CR 105/2006, 22.02.08
The State v Steven Ruben CR 843/2007, 22.02.08

Abbreviations

The following abbreviations appear in the judgment:

CR – Criminal case reference
J – Justice
N – National Court judgment
No – number
SC – Supreme Court judgment
SCRA – Supreme Court Criminal Appeal
v – versus

SENTENCE

This was a judgment on sentence for manslaughter.

Counsel

F Popeu, for the State
E Geita, for the offender

19 August, 2008

1. CANNINGS J: Michael Langan Sapri is a 44-year-old man from Yombun village in the Kandrian area of West New Britain. On 30 December 2007 he had an argument with his wife, Faith Amsiling, aged 32. He kicked her in the abdomen and she died soon afterwards. He has pleaded guilty to manslaughter.

2. The incident occurred at 9 o’clock in the morning when Michael and Faith were sitting down together. He put his hand in his basket, expecting to find betel nut there, but there was none. Then the argument started. He claims that she abused him when he complained: when he asked her where he was going to get some, she replied that he could chew his testicles. That, of course, is not a defence, though it might be considered a mitigating factor as it explains, to some extent, why he was angry. But the fact is, Michael kicked Faith on her left side, she suffered a ruptured spleen. He killed her without any lawful justification or excuse. It was an unlawful killing and he has been convicted of manslaughter.

ANTECEDENTS

3. The offender has no prior convictions.

ALLOCUTUS

4. When 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 kill my wife. I got up in the morning and looked for the betel nut that I had left in my basket. When I asked her about it she said bad words to me, in front of my in-laws and sisters. What she said was not right, under our custom. I kicked her only once. When she fell I helped take her to Pilio Health Centre. She was given medicine but it was too late.

OTHER MATTERS OF FACT

5. 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). In that regard, I will take into account that:

The deceased, to some extent, provoked him.
He tried to help her after he assaulted her.
He co-operated with the police.
He has paid some compensation to his wife’s relatives (K500.00, one pig and shell money).

PRE-SENTENCE REPORT

6. A pre-sentence report prepared by the Kimbe branch of the Community Based Corrections Service shows that Michael Sapri has six children. He has no formal education and little formal employment. He has a small block and earns money from the sale of cocoa and copra. He has been brought up in the Kandrian area and plans to stay there.

7. He is an active member of the Anglican Church and has a good record in the local community. The report concludes that he needs counselling and rehabilitation. He is assessed as “low risk”, which I take to mean that he would not be a threat to the community if some part of his sentence were to be suspended.

SUBMISSIONS BY DEFENCE COUNSEL

8. Mr Geita submitted that a sentence of about eight years would be appropriate, as no weapon was used and there was an element of de facto provocation.

SUBMISSIONS BY THE STATE

9. Mr Popeu submitted that a sentence of eight years would be too low, as domestic killings are prevalent. Comparing this case with other manslaughter sentences handed down in recent times should result in a sentence of 12 years.

DECISION MAKING PROCESS

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

step 1: what is the maximum penalty?
step 2: what is a proper starting point?
step 3: what sentences have been imposed for equivalent offences?
step 4: what is the head sentence?
step 5: should the pre-sentence period in custody be deducted?
step 6: should all or part of the sentence be suspended?

STEP 1: WHAT IS THE MAXIMUM PENALTY?

11. Under Section 302 (manslaughter) of the Criminal Code the maximum penalty is 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?

12. 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

13. In this case 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?

Before I fix a sentence, I will consider manslaughter sentences I have handed down, where the offender has killed his or her spouse. These cases are shown in table 2.

TABLE 2: SENTENCES FOR MANSLAUGHTER OF SPOUSE

No	Case	Details	Sentence
1	The State v Hiliong Gunaing (2005) N2803, Kimbe	Guilty plea – stab wound causing death of wife – Laleki settlement, Kimbe – allegations of wife’s infidelity.	15 years
2	The State v Jacklyn Boni CR 786/2005, 08.09.05, Kimbe	Guilty plea – juvenile offender hit deceased with stick, rupturing his spleen – argument over a small domestic matter.	8 years
3	The State v Elizabeth Gul CR 375/2005, 09.05.05, Kimbe	Guilty plea – offender was being assaulted by the husband and his sister – offender stabbed husband on his leg, claiming that he was being unfaithful.	10 years
4	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, causing her to fall from vehicle and die upon hitting road.	10 years
5	The State v Kila Peter (2006) N3018, Kimbe	Guilty plea – stab wound to the back causing death of husband – offender walked 2 km in middle of night and waited for husband who was with another woman.	12 years
6	The State v John Loangesa CR 301/2000, 21.03.07, Bialla	Guilty plea – offender assaulted his wife while drunk, kicking her in stomach – an element of de facto provocation.	12 years
7	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
8	The State v Steven Ruben CR 843/2007, 22.02.08, Madang	Guilty plea – offender assaulted his wife by throwing paw paws at her during domestic dispute, killing her by rupturing her spleen	10 years
9	The State v Michael Jim Gorogoro, CR 105/2006, 22.02.08, Madang	Guilty plea – offender had argument with his wife over a family problem – she ran away, he followed her, then stabbed her once with a screwdriver, inflicting a fatal wound.	13 years

STEP 4: WHAT IS THE HEAD SENTENCE?

15. Mitigating factors are:

some provocation – but I do not place much weight on this factor;
sole attacker;
death caused by a single blow;
the offender showed some compassion by helping to take his wife to a clinic for treatment;
cooperated with police;
some compensation paid;
pleaded guilty;
expressed some remorse;
first-time offender;
a good community record.

16. Aggravating factors are:

directly killed deceased;
no intervening cause of death;
deceased had no susceptible condition (no evidence, for example, that she had an enlarged spleen).

17. In weighing all these factors I place great weight on the guilty plea and the full co-operation the offender gave the police. However, I agree with Mr Popeu’s submission that the sentence of eight years contended for by Mr Geita would be too lenient. After comparing this case to the other manslaughter cases I have dealt with, I impose a head sentence of 12 years imprisonment.

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

18. 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 six months, six days.

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

19. No. Given all the circumstances in which this tragic event took place this is not an appropriate case in which any part of the sentence should be suspended. Though there has been some compensation paid it seems a fairly small amount and there is no evidence of reconciliation with the deceased’s relatives. The pre-sentence report is not adverse to the offender but contains no strong recommendation for a non-custodial sentence.

SENTENCE

20. Michael Langan Sapri, having been convicted of one count of manslaughter, is sentenced as follows:

Length of sentence imposed	12 years
Pre-sentence period to be deducted	6 months, 6 days
Resultant length of sentence to be served	11 years, 5 months, 3 weeks, 1 day
Amount of sentence suspended	Nil
Time to be served in custody	11 years, 5 months, 3 weeks, 1 day
Place of custody	Lakiemata Correctional Institution

Sentenced accordingly.

___________________________

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

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