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State v Mambe [2014] PGNC 361; N6527 (11 November 2014)

N6527
PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 578 of 2011

THE STATE

V

MATHEW MAMBE

Bialla : Batari, J

2014 : 10 October, 11 November

CRIMINAL LAW – sentence – manslaughter – accused assaulted deceased with fists and legs – spleen death - massive splenic rupture from trauma – remorse – good background with no prior conviction – compensation – proof of – duty on defence to prove existence of custom – sentence of 10 years appropriate

CRIMINAL LAW – sentencing guide – manslaughter sentences - consistency of – maintenance of reasonable level of consistency to avoid manifestly excessive or inordinately low sentence.

Cases Cited:
Acting Public Prosecutor v Nitak Mangilonde Taganis [1982] PNGLR 299
Manu Kovi v The State (2005) SC789
The State v Rex Lialu [1988-89] PNGLR 449

Counsel:

D. Mark, for the State

D. Kari, for the Accused

SENTENCE

11 November, 2014

1. BATARI J: The Court returned a verdict of guilty and convicted you upon indictment charging one count of manslaughter. You last appeared in Court on 10 October, 2014. Today you are back in Court again to receive your sentence under s. 302 of the Criminal Code. The maximum penalty prescribed is life imprisonment.
   
2. Your offence was committed in this way. On the evening of 18 February, 2011 at Tiauru Oil Palm Settlement you confronted the deceased, Mogia Taya who had left his block with a friend to buy mobile phone units from a neighboring block. After a short altercation over complaints that you still owed the deceased K50.00, you assaulted him with your fists. After he fell and was lying on the ground, you kicked him on the side of his ribs. Mogia Taya died a week later from internal bleeding.
   
3. The medical report attributed death to hemorrhagic shock due to massive splenic rupture from trauma. In plain words, a heavy impact to the spleen area caused the spleen to rupture resulting in internal bleeding and eventual death. That trauma as I found on the evidence, was from the kick you applied to the rib area when you assaulted the deceased.
   
4. What you did was callous and cowardly. You did not give the deceased the opportunity to explain his side. But then, it was not a planned meeting over your grievance. The deceased was innocently present at the scene when you picked a fight with him under the cover of darkness and whilst inebriated. You kicked him hard and deliberately on his side. Medical evidence showed the impact resulted in massive rupture of the spleen.
   
5. The medical report did not say whether the spleen was normal or diseased. I think it is safe to infer from the delay in the time of death, the spleen was normal. Hence, it is reasonable to assume that you literally caused a normal spleen to rupture with a heavy blow to the spleen area. That is evidence of extreme use of force and a propensity towards violence.
   
6. Unlawful killings are one of the frequently committed crimes of violence. Because of the prevalence of the offence, sentences have gone up in an attempt to emphasize the punitive and general deterrence aspects of sentencing. In the often cited case of Manu Kovi v The State (2005) SC789, the Supreme Court suggested four categories of manslaughter killing and the sentencing ranges that should apply:
   
   • 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, e.g. enlarged spleen cases. 8-12 years
   • Trial or plea – mitigating factors with aggravating factors. Use of offensive weapon, e.g. knife, on vulnerable parts of body – vicious attack – multiple injuries – some deliberate intention to harm – some pre-planning. 13-16 years
   • Trial or plea – special aggravating factors – mitigating factors reduced in weight or rendered insignificant by gravity of offence. Dangerous or offensive weapon used, e.g. gun, axe – vicious and planned attack – deliberate intention to harm – little or no regard for sanctity of human life. 17-25 years.
   • 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
     
7. In this case, you pleaded not guilty and it was a violent attack with use of fists and leg, showing a deliberate intention to harm. The case is said to fall within category 2 with the starting range of 13 to 16 years imprisonment.
   
8. This sentencing guide is intended to assist the exercise of judicial discretion in sentencing under s. 19 of the Criminal Code. The guide is not mandatory. The Court has discretion to impose a sentence below or over the suggested starting points as the particular facts of each case may warrant. It is equally important that a reasonable level of consistency is maintained so that the sentence is not manifestly excessive or inordinately low. In all cases, it is trite that the sentence imposed is proportionate to the offence, in all the circumstances of a particular case.
   
9. You have expressed remorse. Although you did not plead guilty, your payment of compensation prior to trial and your offer to pay further compensation indication to some extent, remorse and contrition. So, when you said you are sorry, following your guilty verdict and conviction, it carried some weight.
   
10. You are 38 years old, married with 8 children and originally from Nuku in the West Sepik Province. This is your first offence. The presentence report also confirmed your trouble free past and that you have no behavioral record in your Community. According to the Probation Officer, your offence had come as a surprise to many.
    
11. You resided with your father at a Tiauru Oil Palm Settlement block and were virtually managing the 12 hectares block due to your father’s old age. For this and for the sake of your large family, you have pleaded for non-custody sentence. You have waited in custody for 1 year 3 months. This is your first offence.
    
12. I accept that you assaulted the deceased on the spur of the moment and there was some explanation for your conduct. Stories of your K50.00 pig credit were being spread around the neighborhood. You felt humiliated and incensed by that. This then led to your altercation with the deceased and subsequent attack when you met him by chance on the road.
    
13. Compensation of K5,000.00 cash with a pig, two wheel barrows of mixed garden food and 2 bales of rice was also made prior to trial. You have again offered to pay K5,000.00 compensation in cash and kind. Relatives of the deceased had initially demanded K50,000.00 but have reduced that K14,000.00 for actual funeral expenses incurred. Your presentence report is also strong on the payment and proposed payment of compensation in support of the recommendation for probation orders.
    
14. I think compensation payment has been overplayed in this case as a mitigating factor to support the contention for non-custodial sentence.
    
15. The significance of compensation payment and its effect as a customary sanction is not clarified. Defence counsel has a duty to assist in calling evidence on that aspect so that the court is fully appraised of any customary punitive effect that may be associated with payment of compensation following an unlawful killing.
    
16. Under s. 2 of the Customs Recognition Act (Ch.19), proof of the existence and nature of custom in relation to a matter, and its application in or relevance to any particular circumstances, shall be ascertained as if they were matters of fact. If no direct evidence is called, the court may be referred to books, treatises, reports or other works of reference, or statements by Local Government Councils or committees of Local Government Councils (whether published or not). The court may accept any matter or thing stated in such works as evidence on the question.
    
17. The Supreme Court in Acting Public Prosecutor v Nitak Mangilonde Taganis of Tampitanis [1982] PNGLR 299 (Kidu CJ, Kapi DCJ, Pratt J) has also given a clear direction that, customary compensation is a matter that may be taken into account on sentencing in homicide cases, where such payment is considered relevant to sentence. An accused person who relies on payment of customary compensation as a mitigating factor on sentence bears the onus of proving as a matter of fact, the existence of such a custom. In deciding this issue the court is not bound by strict legal procedure or technical rules of evidence. But it is sufficient in my view for the Court to be satisfied on the balance of probability the existence of custom.
    
18. In this case, the offender and the deceased are settlers from different provinces with varying cultural backgrounds. The prisoner is from West Sepik Province in the coastal region and his victim was from Chimbu Province in the highlands region. So, the question is which custom would apply? Would it be the Chimbu custom or Sepik custom or the Nakanai cultural practices in West New Britain where the parties have migrated to? Or is there a universal customarily practice that applies?
    
19. In the absence of proof of custom in this case, it is open to conclude that, the payment of compensation did nothing more than appease grieving relatives of the deceased. The effect of restoring peace and harmony may also follow. It is also apparent from the demand for refund of funeral expenses that any further payment of compensation would have lost it cultural significance as a form of punishment.
    
20. The statement by Amet J (as he then was) in The State v Rex Lilu [1988-89]PNGLR 449 is relevant and I adopt it:

“ I want also to say something about customary compensation payments, their effect and the perceived intentions behind their payment. It is an honourable exercise and exchange to restore peace and harmony between the relatives of the parties involved. It is also taken into account as mitigation if the victim and/or the relatives consider it just, where death has or has not resulted. But it can never replace the punishment of the law of the land which stipulates the conduct to be against the law. The punishment will be balanced, taking into account this as well as the other principles earlier discussed and antecedent particulars.

....t compensation, however large or small, cannot exonerate the offender from criminal liability. Nor do I think that sentence will or should be reduced relative to the size of the compensation, such that it can be thought that the larger the compensation the greater the reduction in sentence should be. This cannot be the effect of compensation. If it is a genuine method of restoring peace and harmony by custom or tradition and whatever form and size it takes, it should not now be extended to obtain total exculpation of the offender. The natural flow-on effect of the acceptance of such a belief is obvious and would lead to the rich believing they can buy their way out of criminal responsibility, and the less rich feeling aggrieved if they do not receive the same treatment.”

21. One must also bear in mind that the unlawful killing of a human being by another is a detestable crime, viewed with abhorrence and repugnance by the community. Unlawful killing is such a serious felony that the more serious offence of willful of murder is punishable by death while manslaughter which represents the least culpable homicide of the three main types of homicides has the penal servitude of life imprisonment.
    
22. It is therefore expected, that those convicted of manslaughter will be given sentences that meet both the personal and general aspects of sentencing. It is also in the community interest that the offender is kept away from the community for a long time as the community expects those who unlawfully kill to be punished with imprisonment.
    
23. Balancing all the facts for and against you the appropriate sentence in my view should fall within the wider range of 8 to 16 years. Your time in pre-sentence custody will be deducted from the head sentence. On the strength of the presentence reports there sound basis for part suspension of your sentence.
    
24. You are sentenced to 10 years imprisonment less 1 year 3 months. I will exercise the discretion to suspend 2 years, 9 months to be served on good behavior bond. Your effective term to serve is 6 years IHL.
    

_______________________------------------------___________________
Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Accused