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State v Talui [2020] PGNC 308; N8542 (12 August 2020)

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N8542

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 231 OF 2019

THE STATE

V

AMBROSE TALUI

Kokopo: Suelip AJ

2020: 9^th, 12^th June, 14^th, 15^th, 29^th, 30^th July & 12^th August

CRIMINAL LAW - Sentence- plea - guilty - manslaughter s 302 of the Criminal Code Act- accused and deceased wife had domestic argument at home- deceased said insulting words to the accused - accused punched her and she fell down - deceased rushed to hospital but passed away- sentence of 8 years - custody term deducted - balance wholly suspended with strict conditions

Cases Cited

Goli Golu v. State [1988 - 89] PNGLR 653

Manu Kovi v. State (2005) SC 789

State v Kalimet Tovut [2005] PGNC 196; N4964

State v Gunn [201 l] PGNC 342; N4317
State v Christopher Dubun (2010) N4109

The State v. Kailorno [2007] PGNC 212; N5023

State v. Roho [2006] PGNC 72; N4483

State v Ninjipa [2010] PGNC 141; N4135

Legislations

Section 302 of the Criminal Code Act

Counsel

G Tugah, for the State
S Pitep, for the Prisoner

SENTENCE
12^th August, 2020

1. SUELIP AJ: On 9 July 2020, Ambrose Talui of Ratavul Village in Gazelle District, East New Britain Province, was indicted for manslaughter.

2. The prisoner appeared from bail and pleaded guilty to the charge on 15 July 2020.

3. Parties made their respective submission on sentence on 30 July 2020.

4. This is now my ruling on sentence.

Facts

5. The brief facts for the purpose of sentencing the prisoner are that on 2 October
2018 at around 5pm, the prisoner and his late wife, Bemadeth Ambrose were at Ratavul No. 2 village when they had an argument over the family vehicle. It is alleged that the deceased said some insulting words to the prisoner, who punched her, and she fell to the floor of their house. She was then rushed to the hospital but died.

6. The prisoner was arrested and charged for manslaughter pursuant to Section 302
of the Criminal Code Act.

Offence

7. Section 302 of the Criminal Code Act provides:
   

Section 302. Manslaughter

A person who unlawfully kills another under such circumstances as not to constitute wilful murder, murder and infanticide is guilty of manslaughter.

Penalty: Subject to Section 19, imprisonment for life.

8. The maximum penalty for the offence is imprisonment for life, subject to

Section 19 of the Criminal Code Act.

9. There is sufficient evidence in the depositions, particularly admissions by
the accused in the Record of Interview, and the autopsy report which revealed the cause of death, to confirm the plea of guilty.

Issue

10. What is the appropriate sentence?

Antecedent report

11. The prisoner is 33 years old from Ratavul No.2 Village, Gazelle District, East New Britain Province, and comes from a family of nine. He is the second born in the family and he provides for both his parents who are still alive. He was educated as far as Grade 6 which he did at Vunadidir Primary School. He is a self-taught mechanic and runs a garage and an indoor petrol service station for a living. He also farms vegetables and works on the family cocoa and coconut plantation. He is married to the deceased and they have six girls aged between 14 and 3 years old. He is the sole breadwinner of the family and is of Catholic faith.

Allocutus

12. The prisoner apologised to God, to this Court, to his late wife's family, and to the State. He said he never intended to kill his wife. He said he is worried about his 6 children who are all girls. Three of them are at primary school whilst one is at elementary school and the other 2 are at home. He said his parents are of old age and cannot look after his daughters. He pleads for the Court's mercy and for Court to give him good behaviour bond or probation. He begged if he could serve his sentence outside and look after his daughters, playing both roles of mother and father, as his punishment.

Submission on sentence

13. Both counsels agree that the maximum penalty must be reserved for worst type case and this view is expressed in the homicide case of Goli Golu v The State [1979] PNGLR 653.

14. Both counsels also agree that this case falls within category one (1) of the sentencing guidelines for manslaughter in Manu Kovi v The State (2005) SC789 where the sentencing tariff is for 8-12 years.

15. Counsel for the prisoner cited the following case precedents with similar circumstances:

(a) State v Kalimet Tovut [2005] PGNC 196; N4964

The deceased in this case was drunk and had an argument with the prisoner. They were cousin brothers and very good friends.

The prisoner had punched the deceased and he fell then he continued no to kick him which resulted in his spleen being ruptured causing him to die. He was sentenced to 10 years imprisonment.

(b) State v Gunan [2011] PGNC 342; N4317

The prisoner had pleaded guilty to manslaughter. He had argued with his wife, assaulted her which resulted in her spleen being ruptured and her neck fractured. He was sentenced to 12 years imprisonment. The pre-sentence period was deducted, 4 years of his sentence was suspended, and he served 7 years, 5 months, and 2 weeks.

(c) State v Christopher Dubun (2010) N4109

The offender in this case kicked his wife on the buttocks and on the sides of her body. She died shortly afterwards due to a ruptured spleen. The offender was sentenced to 12 years imprisonment, pre-sentence period was deducted, 3 years was suspended, and the offender served 8 years and 9 months.

16. Counsel for the prisoner submitted that the deceased did not have a pre--existing condition which accelerated her death. Counsel further argued that the prisoner has a medical condition of tuberculosis and he is still taking medications for this illness and therefore, the prisoner should be allowed on probation or suspended sentence. She also argued that facts of the case precedents are more severe than the present case and the starting point for this case sentence should be 8 or 9 years.

17. Counsel for the State argued in response to the submission by the prisoner that there were pre-existing medical conditions in the case precedents cited and therefore, it makes this case more serious. Further, counsel submitted that there is no evidence presented to prove that the prisoner has a medical condition and section 141 (1) of the Correctional Services Act provides for the detainees right to seek medical treatment.

18. State Counsel cited in his written submission the cases of State v. Kailomo [2007] PGNC 212; N5023 and State v. Roho [2006] PGNC 72; N4483 but relied on State v Ninjipa [2010] PGNC 141 N4135 where the prisoner, who is the wife of the deceased pleaded guilty to manslaughter of her husband by stabbing him with a kitchen knife. The killing arose out of a domestic argument between her and her husband (deceased). Prisoner was at the market selling food when the deceased got drunk, went to the prisoner, and started an argument with her and assaulted her. The prisoner then retaliated and stabbed the deceased on his chest. He lost a lot of blood and died. Prisoner was

sentenced to 9 years and pre-sentence custody period of 1 year, 2 months deducted, leaving a balance of 7 years and 10months to be served.

19. The State counsel added that any offence of manslaughter is serious and is prevalent in our society, hence it calls for both personal and general deterrence. He submitted further that the offence is aggravated by the fact that a life has been lost and can never be replaced and therefore, a sentence well within the sentencing range in category 1 for the manslaughter sentencing guidelines in Manu Kovi is appropriate.

20. The State counsel concluded that a stern warning should be sent to the general public and any would be offenders out there that such acts should not be tolerated and accepted in society.

Deliberations Whether this a worst case

21. Both counsels agree that the circumstances of the present case fall within a sentencing tariff of 8-12 years.

22. As this is not a worst type case, it does not attract the maximum penalty of life imprisonment.

Pre-sentence report

23. In the Pre-Sentence Report ("report") dated 8 June 2020, the family of the deceased do not want the prisoner to go to jail leaving his young daughters with family members. Whilst the mother of the deceased demands for more compensation at K24,000, the brother of the deceased wants the accused to pay K5,000 before he is put on probation. The family of the prisoner also do not want him to go to jail because his children are very young girls and need their father to look after them since their mother is gone. His family is also willing to pay more compensation but will need time to prepare for it.

24. On the part of the prisoner, he is willing to sell his vehicle for K15,000
and pay more compensation. He has a small fuel station, does welding and owns a small garage for fixing vehicles. Further, he relies on subsistence farming for domestic consumption. He also has a cocoa and coconut plantation and sells copra and cocoa beans.

25. In the report, it is indicated that the prisoner has a drinking problem as he gets aggressive when under the influence of alcohol. The Ward Member, one

5

Tony Kove, says the prisoner does not take part in community and church activities and although he is a humble person with quiet appearances, he has affairs with many women. The prisoner denied in Court that he does not take part in community work or church activities. He also denied getting drunk and having affairs.

26.. The author of the report, Mr. Noel Awagalas has assessed that the prisoner is not a threat to the community but because of the seriousness of the offence, he could be dangerous to others. However, he has considered all the factors and those he had interviewed and recommend that the prisoner is a suitable candidate for probation with strict conditions to be imposed and compensation to be paid.

Mitigating factors

27. The mitigating factors in favour of the prisoner are that he is a first-time offender with no prior conviction and he entered an early plea of guilt during his Record of lnterview and again during arraignment thereby saving the court's time and resources to run a trial. Further, there were no weapons used in the commission of the offence and he acted alone. There was also no prior planning and he expressed genuine remorse. There was no objection by the State to deny there was de facto provocation.

28. Also, as a mitigating factor, a peace ceremony held at Kerevat with payment of cash and shell money showed that the prisoner was truly sorry about what he had done to the deceased.

29. In the report, the family of the prisoner and his late wife's family do not want him to go to prison. His late wife's family wants more compensation while his family want him to be placed on strict conditions. His family is willing to assist in further payment of compensation. There is no tension between the families. All their concerns are about the young daughters and their well-being.

Aggravating factors

30. Against him, the aggravating factors are that the prisoner punched the deceased on her head, and she fell to the floor and sustained injuries to the head which resulted in her death. A life has been lost and cannot be replaced and the prisoner is solely responsible. This incident happened in a domestic setting where it should have been the safest place to be. Such an offence is prevalent in society and prisoner is not a youthful offender.

31. The aggravating factors balance out with the mitigating factors. The State does not dispute that there is a degree of provocation on the part of the deceased when she uttered some insulting words to the prisoner prior to him hitting her on the head. Further, the prisoner had no intention to kill his wife. He punched the deceased with a single blow. He expressed genuine remorse.

32. Gender based violence or domestic violence is fast becoming grave concerns in our society resulting in deaths. However, the real victims are the children and they should not suffer as a consequence for the actions or inactions of their parents.

Sentence

33. Having considered all submissions by both counsels with case precedents compared to the particular circumstances of this case, I agree with both counsels that the appropriate range of sentence is between 8 to 12 years and the appropriate penalty for this prisoner for the charge of manslaughter is a sentence of 8 years.

34. The Court is given power under section 3(2) of the Criminal Justice
(Sentence) Act 1986 to deduct pre-sentence custody time that the prisoner has spent in custody. The prisoner was in custody from the 9 October 2018 up until the 27 of May 2019 when he was released on bail. He was in custody for 7 months, 2 weeks, and 4 days and therefore, this period will be deducted.

Orders

35. I therefore make the following orders.
    

(l) The prisoner is sentenced 8 years imprisonment.

(2) The period of 7 months, 2 weeks and 4 days is deducted for time spent in custody.

(3) The balance of his sentence is wholly suspended on the following strict conditions:

(a) that he pays the sum ofK3,000 in cash and 400 fathoms of shell money as compensation to the deceased and her family within 6 months to be witnessed by the Ward Member, local Priest and the Probation Officer in Kokopo.

(b) he shall not change his residential address at Ratavul No. 2 Village, Gazelle District, East New Britain Province.

(c) he shall not leave East New Britain Province without leave of this Court during the period of suspension.

(d) he shall perform 5 hours of community work at Vunadidir Primary School or church area each week for the first 3 years of his suspended sentence.

(e) he shall attend his local Catholic Church every Sunday for service and worship and submit to counselling; he shall not engage in any intimate relationship during the period of suspension; he shall not consume alcohol or drugs.

(f) if he breaches any one or more of the above conditions, he shall be brought before the National Court to show cause why he should not be detained in custody to serve the rest of the sentence.

(4) The prisoner's cash bail of K1,500 and his two guarantors cash surety of K250 each, totaling K2,000 shall be converted as surety upon his entering into his own recognizance to keep the peace and be of good behaviour for the first 3 years of his suspended sentence.
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Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for Prisoner