N4319

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1547 0F 2010

THE STATE

V

JOHN YEON BEKERAM

Madang: Cannings J
2011: 2, 16, 22 June

SENTENCE

CRIMINAL LAW – sentence – manslaughter – Criminal Code, Section 302 – trial – offender assaulted wife – domestic dispute – sentence of 14 years.

A man was convicted after trial of the manslaughter of his wife. He became angry with her and assaulted her, and she died shortly afterwards from the injuries he inflicted on her.

Held:

(1)	The starting point for sentencing for this sort of manslaughter (convicted after trial, vicious assault) is 13 to 16 years imprisonment.

(2)	Mitigating factors were: sole attacker; co-operated with police; some remorse; first-time offender.

(3)	Aggravating factors were: directly killed deceased; vicious assault.

(4)	A sentence of 14 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
Public Prosecutor v Don Hale (1998) SC564
The State v Albert Kududu (2010) N4108
The State v Christopher Dubun (2010) N4109
The State v John Buku Kailomo CR 597/2005, 13.07.07
The State v John Yeon Bekeram (2011) N4298
The State v Michael Jim Gorogoro CR 105/2006, 22.02.08
The State v Steven Ruben (2008) N3941

SENTENCE

This was a judgment on sentence for manslaughter.

Counsel

S Collins, for the State
A Turi, for the offender

22 June, 2011

1. CANNINGS J: This is a decision on sentence for a middle-aged man, John Yeon Bekeram, who has been convicted after trial of the manslaughter of his wife, Tapita John. The offence was committed at Girigiri village, where they lived, in the Middle Ramu District of Madang Province between 5.00 and 6.00 pm on 8 August 2010. The offender was not happy with his wife as she had been away from home for a week. When she returned he assaulted her. She died later that night from the injuries he inflicted on her. There was no direct evidence of what happened and no post-mortem report. However, having assessed the circumstantial evidence and admissions in his record of interview, the Court found it proven beyond reasonable doubt that he killed the deceased and that he did so without lawful justification or excuse. He was therefore convicted of manslaughter under Section 302 of the Criminal Code. Further details of the circumstances in which the offence was committed are set out in verdict judgment, The State v John Yeon Bekeram (2011) N4298.

ANTECEDENTS

2. The offender has no prior convictions.

ALLOCUTUS

3. The offender was given the opportunity to address the court. He said:

I apologise in the eyes of the Court and to God. I apologise to the State and to my lawyer and all the people in the courtroom who are here to observe my case. I apologise to the complainant. I have six children to care for and they are all under the age of seven years. I have plantations of cocoa, coffee and vanilla and pigs and chickens to look after. I am the first-born in my family, so there are many people dependent on me. I come from a very remote area. We have no road or airstrip near the village. I have only a grade 4 education. I have been a lay preacher with the Anglican Church and a Village Court Peace Officer for 16 years. This is my first time to appear in court. I had no intention of causing the death of my wife. I was just trying to educate her but somehow she died after a couple of hours. I admitted to what happened. I have already paid compensation of K2,000.00 and three pigs; and I had paid bride-price. I ask the court to consider all of these things so that I might be shown mercy and given a non-custodial sentence.

PRE-SENTENCE REPORT

4. The court was presented with a report prepared by the Madang office of the Community Based Corrections Service.

Personal details of John Yeon Bekeram

Age			:	36
Origin		:	Girigiri village, Middle Ramu, Madang
Upbringing		:	Girigiri village, Middle Ramu, Madang
Marital status	:	Two wives (including deceased), six children
Family		:	Mother alive, father died in 2009, 7 siblings
Education		:	Grade 4
Employment	:	No formal employment
Occupation		:	Villager farmer
Health		:	Sound
Religion		:	Anglican

Other aspects of the offender's life

5. The offender says that he is a well known and respected member of his village and local community. He was living with his two wives and six children and his mother at the time of the offence, in a stable, domestic setting. His deceased wife was the mother of two of his children and the surviving wife is the mother of the other four. Despite there being no corroboration of these claims the report concludes that he is suitable for probation.

SUBMISSIONS BY DEFENCE COUNSEL

6. Ms Turi submitted that a sentence in the range of 8 to 12 years would be appropriate. She submitted that this is in line with category 1 of the Manu Kovi guidelines on sentencing as no offensive weapon was used and death followed a domestic argument (Manu Kovi v The State (2005) SC789). The offender also has a favourable pre-sentence report.

SUBMISSIONS BY THE STATE

7. Mr Collins submitted that it was a borderline category 1/2 case under the Kovi guidelines. No weapons were used and it was a spontaneous incident. He pointed out, however, that the evidence supported the categorisation of the death as the result of a unilateral assault rather than the result of an argument or fight between two people. He submitted that a sentence of at least 12 years imprisonment is warranted.

DECISION MAKING PROCESS

8. 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?

9. 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.

10. 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?

11. 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 the following table.

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	

12. I do not agree that this is a category 1 case. Though it was a killing that occurred in a domestic setting, straight after an argument and no weapons were used, the conviction followed a trial. It did not result from a guilty plea. Though no offensive weapon was involved and there is no evidence of a deliberate intention to harm the deceased or any pre-planning, it was a vicious attack by a man upon one of his wives and it followed a not guilty plea. The case falls within category 2, so the starting point is 13 to 16 years imprisonment.

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

13. I refer, first, to four recent Madang cases in which men pleaded guilty to manslaughter. In each case the victim was the wife of the offender and death followed an argument in a domestic setting:

•	The State v Steven Ruben (2008) N3941: the offender threw pawpaws at the victim, killing her by rupturing her spleen. The sentence was 10 years imprisonment.

•	The State v Michael Jim Gorogoro, CR 105/2006, 22.02.08: the offender stabbed his wife with a screwdriver. Because of the use of the screwdriver as a weapon and other aggravating factors this was a more serious manslaughter case than Ruben. The sentence was 13 years imprisonment.

•	The State v Albert Kududu (2010) N4108: the offender hit his wife three times on her back with an open hand, which ruptured her spleen and caused her death soon afterwards. The sentence was 12 years imprisonment.

•	The State v Christopher Dubun (2010) N4109: the offender kicked his wife on the buttocks and on the sides of her body. She died shortly afterwards due to a ruptured spleen. The sentence was 12 years imprisonment.

14. Next, I refer to a Kimbe case, The State v John Buku Kailomo CR 597/2005, 13.07.07, in which the offender, who assaulted his wife in a domestic dispute and killed her by rupturing her spleen, was convicted after trial of manslaughter and sentenced to 15 years imprisonment.

STEP 4: WHAT IS THE HEAD SENTENCE?

15. Mitigating factors are:

•	the offender was the sole attacker;
•	he co-operated with the police during the investigation of the incident and made admissions in his police interview;
•	he has expressed remorse;
•	he is a first-time offender.

16. Aggravating factors are:

•	he directly killed deceased;
•	it was a vicious assault.

17. In weighing all these factors I consider that the strength of neither the mitigating factors nor the aggravating factors is sufficient to drive the sentence below or above the starting point range. Comparing the circumstances of the death in this case with the circumstances prevailing in the four Madang cases referred to above (that resulted in sentences ranging from 10 to 13 years imprisonment), it cannot be said that this is a more serious case than any of them. However, the court must take into account that the offender took the matter to trial. That is not an aggravating factor as the offender was quite entitled to plead not guilty and put the State to proof the allegations. However, it is something that must inevitably be reflected in the total head sentence, as it was in the Kimbe case, Kailomo, where the sentence was 15 years. The appropriate sentence in this case is 14 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 ten months.

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

19. This is sadly yet another tragic case of domestic violence. A woman's life has been lost, needlessly and viciously. Two children have been denied the love and care of their biological mother. As I have said in other similar cases, it is not appropriate to fully suspend a sentence when a man unlawfully kills his wife. What about a partially suspended sentence? If the offender has pleaded guilty and a pre-sentence report is favourable and provides evidence of reconciliation between the offender and the deceased's relatives, a partial suspension can be appropriate. Here, the offender took the matter to trial and, though the pre-sentence report is favourable in that the offender is considered suitable for probation, I cannot see any basis for that recommendation. None of the deceased's relatives have been interviewed, so the court does not know their attitude to the offender. There is no corroboration of any of the good things that are said about him. He could have been given the benefit of the doubt on them if he pleaded guilty, but he took the matter to trial. I am conscious of the fact that he comes from a remote area. But it is in Madang Province. It is not in another part of the country. The deceased's father was here for the trial and he gave evidence and he could have been contacted when he was here and someone could have talked to him about what should happen in the event that his daughter's husband was convicted. The incident happened more than ten months ago. The people back in the village must surely know that the offender has been brought to Madang to be dealt with in court, so it is reasonable to expect that the offender's relatives or the deceased's relatives would have found their way here or found a way of conveying information to the court or to the police or to the offender's lawyers or to his church or to Community Based Corrections if they were seriously interested in helping him out. The Supreme Court has stated in cases such as Public Prosecutor v Don Hale (1998) SC564 that a sentencing Judge should only consider suspending a sentence if there exists a favourable pre-sentence report or some other evidence showing that the community in which the offender will serve the non-custodial part of his sentence is ready and willing to support him. None of that material is before the court here, so there is no good reason to suspend any part of the sentence.

SENTENCE

20. John Yeon Bekeram, having been convicted of one count of manslaughter contrary to Section 302 of the Criminal Code, is sentenced as follows:

Length of sentence imposed	14 years	
Pre-sentence period to be deducted	10 months	
Resultant length of sentence to be served	13 years, 2 months	
Amount of sentence suspended	Nil	
Time to be served in custody	13 years, 2 months	
Place of custody	Beon Correctional Institution	

Sentenced accordingly.
___________________________

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