State v Roth [2019] PGNC 33; N7770 (15 March 2019)

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CRIMINAL LAW – sentence – manslaughter – Criminal Code, Section 302 – killing of spouse in domestic setting – conviction after trial – death caused by striking deceased with leather belt and inflicting other severe blows – infliction of blunt trauma with considerable force

The offender was convicted after trial of the manslaughter of his wife, who he unlawfully killed by inflicting severe injuries on her in the course of a domestic dispute in the family home. The offender struck the deceased with a leather belt and by other means assaulted and injured her severely, inflicting blunt trauma on her back with considerable force. The cause of death was hypoxia brought about by bilateral lung contusion.

Manu Kovi v The State (2005) SC789
The State v Albert Kududu (2010) N4108
The State v Christopher Dubun (2010) N4109
The State v John Buku Kailomo (2007) N5023
The State v John Yeon Bekeram (2011) N4319
The State v Melchior Gunan (2011) N4317
The State v Michael Jim Gorogoro (2008) N3949
The State v Samuel Roth (2018) N7591
The State v Steven Ruben (2008) N3941
Thress Kumbamong v The State (2008) SC1017

1. CANNINGS J: This is the decision on sentence for Samuel Roth who has been convicted after trial of one count of manslaughter under Section 302 of the Criminal Code. The victim is his wife Lenneth Rus.

2. The offender killed the deceased by assaulting her during a domestic dispute at their house on the campus of Divine Word University, Madang, on the afternoon of Sunday 11 January 2015. The injuries he inflicted on her led to her death early the following morning. The offender faced trial on a charge of murder. He was found not guilty of murder due to the absence of intention to do grievous bodily harm. His defences of self-defence and provocation were rejected and his killing of the deceased was found to be without lawful justification or excuse. Hence the conviction for manslaughter (The State v Samuel Roth (2018) N7591).

3. In January 2015, the offender was a lecturer in the Department of PNG Studies and International Relations at Divine Word University, aged 35 years. He was living in staff accommodation on campus with the deceased, aged 30 years. They had been married since 2011. They are both from Western Highlands Province. The offender is from Wara-Bukapena village, Mul-Baiyer District. The deceased was from Warakum village, Hagen District.

4. Other members of the household on the day of the incident, Sunday 11 January 2015, included the offender’s sister, Priscilla Roth, and the deceased’s cousin-sister, Charmaine George, both of whom gave evidence at the trial. Several days before the incident the deceased left Madang with Charmaine and went to Mt Hagen, as she had had a difference of opinion with some of the offender’s male relatives.

5. Lenneth and Charmaine arrived back in Madang by bus on the morning of the incident. They went to the Divine Word University house. The offender was not there. They did other things, including sleeping, until the offender came home about midday. The offender rebuked the deceased for going missing and not returning his many mobile phone calls and text messages. They went into their bedroom and had an argument. During the course of the argument the offender bashed the deceased. He injured her so seriously that she was unable to walk by herself to the car, and she excreted in her trousers. He took her to the nearby Modilon General Hospital and she was treated and discharged. Her condition deteriorated overnight.

6. The next morning, Monday 12 January, the offender rushed the deceased back to the hospital after finding her unconscious, lying on the bedroom floor. She was dead on arrival at the Accident and Emergency Department.

7. The offender’s explanation for his wife’s death – that she died of a drug overdose – was rejected at the trial. It was established, after considering the joint post-mortem report and oral testimony by two senior doctors at Modilon General hospital, Dr Vincent Atua and Dr Jiuth Gawi, that the cause of her death was hypoxia (lack of oxygen) resulting from a bilateral lung contusion (being amongst the injuries inflicted on her by the offender). It was proven that the offender hit the deceased with a leather belt, and that by other means he assaulted and injured her severely. He inflicted blunt trauma on her back with considerable force.

9. The offender was given the opportunity to say what matters the court should take into account when deciding on punishment. He said:

I thank the Court for the experience it has provided to me and the decision it has made. I express my heartfelt apology to the family of my late wife, in particular her parents and brothers. I know that they miss her, and I miss her too, very much. I am so sorry that I cannot bring her life back. I beg for forgiveness from her family and I beg for peace with them in the future. I ask for forgiveness from my former colleagues at Divine Word University.

I say sorry to the Court and to the officers of the court and all the witnesses who gave evidence and to everybody who has been involved in the case. I took the case to trial as I thought I was not guilty. But the Court has made its decision and I respect the decision.

I did not think that a small domestic dispute would end her life. We would not have fought like this had it not been for interference by her family in our marriage. They made many unannounced visits to our house and took her away without my knowledge.

I have learned many lessons from my actions and from this case. I will become a better person. I believe that I will never strike my wife or any other woman in the future.

I have been attacked by my late wife’s relatives and I surrendered to the police.

I ask the Court for forgiveness and for a sentence that will allow me to continue to learn. I am not a bad person. I want to be a good person. I ask for leniency. Please give me a reduced sentence or a non-custodial sentence with strict conditions that will help me learn to become a better person.

10. A pre-sentence report prepared by the Madang branch of the Community Based Corrections Service shows that Samuel Roth is a highly educated man with post-graduate qualifications in international relations and an academic career at Divine Word University. Strong character references have been provided by Professor Fr Patrick Gesch, Head of Department, PNG Studies and International Relations; Chief Inspector Andrew Polis, Commanding Officer, Beon Correctional Institution; Tyell Bidigo, a former student; Henry Itob Makul (Clan Leader) and Councillor Mark Nayon (Ward 3 member, Ambenob Local-level Government); Mr Darous Odal, Head Teacher, Beon Primary School; Mr Raymond Malib, Chairman Beon Elementary School; Fr Mathew Wambi, Parish Priest, Maria Queen Kinabuga Parish, Catholic Archdiocese of Mt Hagen; and Councillor Thomas Nambil Kumin, Chairman of Law and Order, Mul Local-level Government, Western Highlands Province.

11. Samuel Roth is the first-born in a family of six children. He has a strong family support network in his home district. At the time of commission of the offence he had two wives. His surviving spouse lives at Furan village, near Beon Correctional Institution and she is concerned about her welfare if the offender is given an extended prison sentence.

12. The deceased’s father was interviewed for the purposes of the report and it is clear that he and his family are still struggling to cope with the death of their much loved daughter and family member. They do not forgive the offender for what he did and they have refused compensation and have expressed no desire to reconcile with him. They want to see him thoroughly punished. They are disappointed that he was found not guilty of murder and convicted of manslaughter.

13. Mr Pipike submitted that a sentence of six to ten years imprisonment would be appropriate, given the strength of the mitigating factors, which he argued to be that: the offender expressed genuine remorse; he is a first time offender; he acted quickly to take the deceased to the hospital once the seriousness of her condition was realised; there was an element of de facto provocation due the deceased leaving Madang and going with her relatives to Mt Hagen without his knowledge and without being informed where she was; the high level of external interference in the marriage, which left the offender frustrated and uninformed about his wife’s whereabouts; the offender was not able to obtain the assistance of counsellors who could have intervened to assist both him and his wife with their marital problems; the offender tried genuinely to resolve those problems in the privacy of the matrimonial bedroom, rather than in public; the offender has made genuine attempts to compensate the deceased’s relatives and reconcile with them.

14. Mr Pipike submitted that the Court should exercise caution in applying the conventional sentencing guidelines for homicide cases derived from the Supreme Court’s decision in Manu Kovi v The State (2005) SC789. The Court must appreciate that it has a wide discretion as to sentence and should not be constrained by the Kovi guidelines, for the reasons set out by the Supreme Court in Thress Kumbamong v The State (2008) SC1017. Mr Pipike submitted that although heavy sentences for domestic violence offences are often called for, and justified by the need to provide a deterrent to such behaviour, it has not been established that heavy sentences provide any deterrence. There are far better ways to address domestic violence, and the government needs to take responsibility for developing measures such as making marriage counselling services widely available so that potential perpetrators such as Samuel Roth are positively assisted in resolving marital issues peacefully before becoming frustrated to the extent that their emotions spill over and they do things that they in fact never had any intention of doing.

15. Ms Ambuk highlighted the use of the leather belt, which became a weapon used by the offender in the course of bashing his wife, which make this a very serious case warranting a sentence, according to the Kovi guidelines, of 13 to 16 years imprisonment.

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

17. 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.

18. 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

19. I am not persuaded by Mr Pipike’s submission, that these guidelines should be disregarded. I appreciate that in Thress Kumbamong v The State (2008) SC1017 a differently constituted Supreme Court expressed very strong misgivings about the use of tariffs, such as those in Kovi. However, I retain the view that the Kovi guidelines are just that: guidelines. They are not set in stone. They provide helpful starting point ranges for sentences. To state the obvious: each case must be judged on its merits. I have power to sentence an offender outside the suggested range under the Kovi guidelines.

20. In this case there are both mitigating and aggravating factors present and death was caused by use of offensive weapon (the leather belt). Also this was not a guilty plea case so it is difficult to put this case in category 1. I place it in category 2. The starting point is therefore 13 to 16 years imprisonment.

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

21. I refer to seven cases I have decided in which men were sentenced for the crime of manslaughter. In each case the victim was the wife of the offender and death followed an argument in a domestic setting:

22. The State v John Buku Kailomo (2007) N5023: the offender was convicted after a trial. He assaulted his wife during the course of a domestic dispute and she died of a ruptured spleen. The sentence was 15 years imprisonment.

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

24. The State v Michael Jim Gorogoro (2008) N3949: the offender pleaded guilty. He 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.

25. The State v Albert Kududu (2010) N4108: the offender pleaded guilty. He 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.

26. The State v Christopher Dubun (2010) N4109: the offender pleaded guilty. He 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.

27. The State v Melchior Gunan (2011) N4317: the offender pleaded guilty. He argued with his wife, assaulted her and ruptured her spleen and fractured her neck. The sentence was 12 years imprisonment.

28. The State v John Yeon Bekeram (2011) N4319: the offender was convicted after a trial. He became angry with his wife and assaulted her, and she died shortly afterwards from the injuries he inflicted on her. The sentence was 14 years imprisonment.

30. Other considerations contended by Mr Pipike to be mitigating factors or extenuating circumstances are rejected as being irrelevant or carrying no weight. There was no de facto provocation due the deceased leaving Madang and going with her relatives to Mt Hagen without his knowledge and without being informed where she was. There was credible evidence at the trial that the deceased was concerned that the offender would become violent, as he had assaulted her previously. She went to Mt Hagen to seek the protection of her family. As for the alleged external interference in the marriage, on the part of the deceased’s brothers and uncles, this “interference” is better regarded as a manifestation of the family’s concern that the deceased needed protecting.

31. I have great difficulty with Mr Pipike’s suggestion – amplified by the offender in his allocutus – that the offender was left frustrated and almost powerless because of the community’s failure to provide him with counselling. This was tantamount to saying that the offender was the victim of what happened. He can in no reasonable or decent way be regarded as the victim. As for the argument that the offender tried to resolve problems in the privacy of the matrimonial bedroom, rather than in public, this is a shallow excuse for what happened. It is in no way a mitigating factor.

32. The overwhelming aggravating factor is that the injuries inflicted on the deceased were severe, resulting from a brutal physical assault by a husband upon a woman, his wife, the very person whom custom and societal norms dictated that he should love, nurture, respect and protect. And he did the exact opposite.

33. Though I have highlighted more mitigating factors, in numerical terms, than aggravating factors, those mitigating factors do not outweigh the aggravating factor. The Court must impose a sentence that reflects the gravity of the offence and the attitude of the deceased’s family to what happened. It is that family who are the next victims – after the deceased – of the offence. They are still suffering, four years after the event, because of the offender’s actions. This was a very bad case of gender-based violence, the very kind of violence that all right-minded people in Papua New Guinea are so gravely concerned about. I impose a sentence of 16 years imprisonment.

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

34. 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 one month in remand before being granted bail + three months, three weeks and two days in remand since the date of conviction = four months, three months and two days.

35. 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. The deceased’s relatives continue, as is their right, to reject the offender’s relatives’ offer of compensation. The offender needs to serve his term in custody.

36. Samuel Roth, having been convicted of one count of manslaughter under Section 302 of the Criminal Code, is sentenced as follows:

Length of sentence imposed	16 years
Pre-sentence period to be deducted	4 months, 3 weeks, 2 days
Resultant length of sentence to be served	15 years, 7 months, 5 days
Amount of sentence suspended	Nil
Time to be served in custody	15 years, 7 months, 5 days
Place of custody	Beon Correctional Institution

Sentenced accordingly.
______________________________________________________________
Public Prosecutor: Lawyer for the State
GP Lawyers: Lawyers for the Offender

National Court of Papua New Guinea

State v Roth [2019] PGNC 33; N7770 (15 March 2019)