State v Kundri [2021] PGNC 189; N8940 (16 July 2021)

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CRIMINAL LAW – Particular offence – Manslaughter – s. 302 Criminal Code - Guilty Plea – Sentencing discretion to impose a lesser sentence s. 19 - Aggravating & Mitigating factors - Extenuating circumstances – Gravity of the offence.

Goli Golu v The State [1979] PNGLR 653
Avia Aihi v The State (No 3) [1982] PNGLR 92
Manu Kovi v The State (2005) SC789
Antap Yala v The State ( 1996) SCR 69
Jack Tanga v The State (1999) SC602.
Kumbamong v The State [2008] PNGSC 51; SC1017
State v Roho, N4483 of 24 August 2006
State v Karo N2600 of 29 April 2004
State v Watakasi [2012] PGNC 266; N4597
The State v Samuel Kalib; CR, No. 318 of 2013
State v Mema [2012] PGNC N3602
State v Lossio John CR. No. 2012

1. NUMAPO J: This is a decision on sentence. The prisoner ISIKEL KUNDRI pleaded guilty to one count of Manslaughter pursuant to section 302 of the Criminal Code and was convicted accordingly.

2. The brief facts to which the prisoner pleaded guilty were that; on the 11^th of September 2017, the prisoner and the deceased (Bernard Teni) were at Aimede village, Kandrian in the West New Britain Province. On the night of the said date the prisoner asked the deceased to go fishing with him. Both are closely related as the prisoner is the deceased’s uncle. The deceased was a grade 10 student at Kandrian High School but left school due to school fee problems. They got into their canoe and paddled out to the reef known as Avolru to dive there.

3. Whilst at Avolru reef, the offender hit the deceased at the back of his neck with a 4 x 4 timber. The blow to the back of the head caused his death.

4. The matter was reported to Police and the offender was arrested and charged with one count of manslaughter pursuant to section 302 of the Criminal Code.

5. The offence of manslaughter carries the maximum penalty of life imprisonment under section 302 of the Criminal Code.

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

7. Section 19 of the Criminal Code gives the court a wider sentencing discretion to impose a lesser sentence in place of the maximum penalty prescribed by law including a non-custodial sentence where appropriate.

8. The offence of Manslaughter carries life imprisonment however, it is trite law that the maximum penalty is reserved for the worst type offence. See Goli Golu v The State [1979] PNGLR 653 and Avia Aihi v The State (No 3) [1982] PNGLR 92.

9. The most recent Supreme Court case of Manu Kovi v The State (2005) SC 789 sets out the guidelines for Manslaughter as shown in the table below:

Category	Description	Details	Tariff
1	Plea - Ordinary cases – Mitigating factors with no Aggravating factors	No weapons used – Little or no pre-planning - Minimum force used – Absence of strong intent to do GBH	8 – 12 years
2	Trial or Plea – Mitigating factors with Aggravating factors	Use of offensive weapons used such as a knife etc.– vicious attack – multiple injuries-some pre-planning involved	13 – 16 years
3	Trial or Plea – special aggravating factors – mitigating factors reduced in weight or rendered insignificant by gravity of offence	Dangerous weapons used, eg. gun, axe etc. – vicious attack – multiple injuries - pre-planning – some deliberate intention to harm – little or no regard for human life.	7 – 25 years
4	Worst Case – Trial or Plea – special aggravating factors – no extenuating circumstances- no mitigating factors or mitigating factors rendered completely insignificant by the gravity of the offence	Pre-meditated attack- some of viciousness and brutality – some pre-planning – killing of innocent, harmless person – complete disregard for human life.	Life Imprisonment

10. A number of case laws similar to the present case were also cited by both the State and the Defence in their respective submissions on sentence. It shows the current trend on sentencing in manslaughter cases. I refer to some of them below:

11. A 28-year old man pleaded guilty to manslaughter for killing his mother by kicking her in the abdomen after he became angry over her actions in chasing his sister down a cliff during which his sister sustained injuries. The deceased died of a ruptured spleen and other internal injuries.

12. The court found that there was no intervening cause of death and that the offender solely responsible for the death and his was not a youthful offender. He was sentenced to 10 years imprisonment.

13. The offender was a security guard at a club. The deceased was drunk and walked in while refusing to pay a gate fee of K2.00 charged by the club. An argument broke out which led to a fight between the offender and the deceased. The deceased punched the prisoner on his left ear. The prisoner returned the punch and hit him on his face and the deceased fell. The prisoner then pulled him up by his shirt and threw out of the gate. That caused the deceased to land hard on the ground and raptured his enlarged spleen which led to his death.
The court found that the prisoner was sober and therefore knew what he was doing and that he could have decided not to harm the deceased. It then sentenced him to 8 years imprisonment.

14. The prisoner was drinking with the deceased’s grandson when a fight broke out between them. The deceased intervened to stop the fight when the offender hit her on the head with a folded fist. She fell unconscious and died instantly.

16. The prisoner was charged with manslaughter for killing his maternal uncle. The circumstances giving rise to the case was that the prisoner was drunk and was in the company of other drunken youths. One of the drunken youths went and caused some damage to the deceased’s house. The prisoner went to stop the youth and a fight broke out between them. Whilst they were fighting the deceased returned from his garden and without finding out first who caused the damage to his house, he assumed that the prisoner was the one who caused damage to his house so he hit him on his head with a piece of firewood. The prisoner fell unconscious and the deceased continued to hit him. The prisoner got up and ran away and the deceased chased after him. The prisoner picked up a stone and threw it at the deceased. The stone hit the deceased and he fell down and died a few minutes later. The medical report showed that he died of a ruptured spleen.

17. In sentencing the prisoner the court took into account that K5, 000 and 2 pigs was paid as compensation and sentenced the offender to 7 years less his pre-sentence custody.

18. The offender, a 24-year old female pleaded guilty to one count of manslaughter for hitting the deceased on his head with a piece of wood to prevent him from assaulting her. The deceased is the cousin of the prisoner who was upset that the prisoner’s mother and sisters were keeping a piglet which he has already sold to another person from another village. The deceased got drunk and went to the prisoner’s house and assaulted her mother and retrieved the piglet. He then returned and slapped the prisoner three times. The prisoner got a piece of firewood and hit him and he died. Compensation of K5, 000 and a pig valued at K600 was paid as compensation to the deceased’s relatives. She was sentenced to 6 years with 5 years suspended.

19. The prisoner was at the market with her husband waiting for a PMV to go to Lae. Whilst they were waiting her small sister who was newly married to the deceased ran to her as she was beaten by the deceased with a fan belt. The deceased followed her to where they were sitting and the prisoner told him not to hit her sister. The deceased without saying a word took out the fan belt from his pocket and hit the prisoner three times on her head. The prisoner retaliated by hitting him once on the side of his head with a piece of wood. The deceased died of a fractured skull as a result. The prisoner pleaded guilty and was sentenced to 6 years imprisonment.

20. The seriousness of the offence is determined by its own peculiar facts being; the aggravating and mitigating factors and the extenuating circumstances. See: Antap Yala v The State (1996) SCR 69 and Jack Tanga v The State (1999) SC602.

21. In the present case, the following factors and circumstances are taken into account:

22. The evidence in summary contained in the committal depositions revealed that the prisoner had planned to kill the deceased as the deceased had caught him several times having sex with Leoni Kundri, the wife of the prisoner’s brother, Steven Kundri. For fear of being reported the prisoner decided to take the deceased out to the sea in the pretext of going fishing and killed him there and dumped his body into the sea.

23. Leoni Kundri in her statement to the Police admitted having sex with the prisoner. She stated that the deceased Bernard Teni caught them having sex once in the garden and three times in the bush. She believed that this could have been the reason why the prisoner wanted to get rid of the deceased so that he won’t be able to report the matter to her husband or the village elders. She concluded that the only reason the deceased was killed was because he knew too much.

24. In his Record of Interview, the prisoner admitted killing the deceased because he was fearful of the deceased reporting him to his brother for having sex with his wife. The killing was no doubt, pre-planned and was a deliberate attempt on his part to do GBH. The case falls under category 4 of Manu Kovi. However, the prisoner pleaded guilty hence, saving the Court time and resources to conduct a trial. Furthermore, he would no doubt, be expecting a discount on sentence for pleading guilty early as well as being a first-time offender. For that I will spare him the maximum penalty prescribed by law for manslaughter.

Orders Accordingly.
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Public Prosecutor: Lawyer for the State

National Court of Papua New Guinea

State v Kundri [2021] PGNC 189; N8940 (16 July 2021)