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Independent State of Papua New Guinea v Kisokau [2025] PGNC 359; N11413 (11 July 2025)

N11413

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR NO. 733 OF 2023

BETWEEN:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA

AND
ALOIS KISOKAU
Prisoner

MANUS: DINGAKE J
9, 11 July 2025

CRIMINAL LAW – Sentence – Manslaughter – Criminal Code Act, s.302 – Discretion under s.19 – Alcohol-fuelled fight on boat – Deceased drowned at sea – Guilty plea – No prior convictions – Elderly offender – Sentence of 9 years imposed – Entirely suspended – Probation with conditions.

The Accused pleaded guilty to unlawful killing. The Deceased and the Accused whilst under liquor, fought on a banana boat. The Deceased fought with the Accused and both fell overboard into the sea. The Accused was seen pushing the Deceased under the sea. As a result, the Deceased drowned in the sea and his body has never been found. This is the judgment on sentence.

Held:

1. Mitigating factors are such that the maximum penalty would not apply.
2. Sentencing tariffs are discretionary in application given the National Court has the power to exercise its discretion in sentencing given the facts of the case.
   

Cases cited
State v Edmund Hotsia Geria (2008) N3868
State v Goli Golu [1979] PNGLR p653
State v Jeribanu [2011] PGNC 264; N8979 (16 July 2021)
Lawrence Simbe v The State [1994] PNGLR 38
State v Billy [2022] PGNC 97; N9554

Counsel
Mrs. Linda Maru, for the State
Mr. David Kayok, for the prisoner

JUDGMENT ON SENTENCE

1. DINGAKE J: INTRODUCTION: The prisoner pleaded guilty to one count of manslaughter contrary to Section 302 of the Criminal Code Act on 9 July 2025. The offence could upon sentencing result in a maximum penalty of life imprisonment. Section 19 of the Criminal Code empowers the Court to impose a sentence that is less than the maximum penalty.
   

Brief Facts

2. They were travelling in a banana boat owned by the Deceased. Along the way, they had stopped at Lou Island for a while to consume some liquor.
   
3. After consuming liquor, they then continued their journey to Baluan Island. By this time, the Accused was the skipper of the boat.
   
4. As they were about 500 meters away from Mouk village, the Deceased started accusing the Accused of having an extra marital affair with his wife. The Accused kept telling the Deceased that he had not been having an affair with the Deceased’s wife.
   
5. The Deceased was angry by this time and walked to the back of the boat where the Accused was and fought with the Accused. In the course of the fight, both the Deceased and the Accused fell out of the boat into the sea.
   
6. The Accused was seen pushing the Deceased down under the sea. This resulted in the Deceased drowning in the sea and his body has never been found.
   
7. The State says that the Accused unlawfully killed the Deceased thereby contravening Section 302 of the Criminal Code.
   

Antecedents

8. The prisoner has no prior conviction.
   

Allocutus

9. Allocutus was administered as outlined in Section 593 of the Criminal Code. The Accused admitted that on the day that the court mentioned, they were all drunk. He also told the court that he has never been indicted before, either in this Court or the village court. He asked the Court to be merciful. He told the Court he was a clan leader.
   

Relevant Considerations

10. In considering the Appropriate sentence I have adopted the approach adopted by my brother Kandakasi J (as he then was) in the case of the State v Edmund Hotsia Geria (2008) N3868. In that case he formulated the questions that are worthy of consideration when determining the appropriate sentence.
    
    1. What are the relevant facts or pertinent circumstances in which the offence was committed?
       
    2. What is the relevant sentencing trend applied by the Courts, with respect to the offence with which the offender has been convicted?
    3. What (if any) are the aggravating and mitigating factors?
       
    4. Are there any special features or extenuating circumstances present in this case?
       
    5. What is the appropriate head sentence?
       
    6. Should any or part of the sentence be suspended?
       

Aggravating Factors

11. The circumstances of aggravation in relation to this offence are as follows:
    1. The prisoner pushed the Deceased into the sea and the Deceased drowned.
       
    2. A life was taken away
       

Mitigating Factors

12. The mitigating factors are as follows:
    
    1. The Prisoner’s early guilty plea
       
    2. The Prisoner has no prior convictions.
       
    3. The Deceased started the accusations which led to the fight.
       
    4. The Deceased also started the fight resulting in them falling into the water and subsequently it led to the drowning of the Deceased.
       
    5. The Prisoner cooperated well with the police during the initial stages of the investigations.
       

Submissions on Sentence – The State

13. Mrs. L Maru learned Counsel for the State submitted that maximum penalty prescribed for this offence under Section 302 of the Code is subject to Section 19, imprisonment for life. She indicated that the Court still has a wide discretion under Section 19 to impose a shorter term than the maximum penalty and in cases where the mitigating factors far outweigh the aggravating factors, the Court can consider a wholly suspended sentence. It is also a well settled principle of law in this jurisdiction that the maximum penalty is reserved for the worst case, see State v Goli Golu (1979) PNGLR p653.
    
14. Consistent with the precedent in the case of State v Jeribanu [2011] PGNC 264; N8979 (16 July 2021), the prisoner was a 70-year-old man who pleaded guilty to manslaughter. The prisoner was sentenced to 10 years, however, the court considered that a suspended sentence was appropriate. The court deducted time spent in custody and wholly suspended the remaining balance with conditions.
    

Submissions on Sentence – The Prisoner

15. Mr. D Kayok, learned Counsel for the prisoner relying on the case of Lawrence Simbe v The State [1994] PNGLR 38, submitted that this case must be determined on its own peculiar circumstances. He argued that this is not one of the worst types of cases for the charge of manslaughter. It is quite very distinct from the other manslaughter charges where violence is involved, also and at the time of the offence, the offender and the prisoner were all very intoxicated.
    
16. Drawing from the above authorities he submitted that an appropriate starting point would be 8 years’ imprisonment.
    
17. It is submitted that a sentence of eight (8) years is appropriate in the present case on the offence of manslaughter.

In my opinion, in this case it would not be unreasonable to consider suspension of the sentence imposed, wholly. The Offender is an elderly clan leader who has standing in his community and had since made peace with the family of the deceased.

Sentencing Authorities and Guidelines

18. The maximum penalty prescribed for this offence under Section 302 of the Code is subject to Section 19, imprisonment for life.
    
19. The Court still has a wide discretion under Section 19 to impose a shorter term than the maximum penalty and in cases where the mitigating factors far outweigh the aggravating factors, the Court can consider a wholly suspended sentence, it is also a well settled principle of law in this jurisdiction that the maximum penalty is reserved for the worst case, see State v Goli Golu (1979) (supra).
    
20. In State v Billy [2022] PGNC 97; N9554 (Alotau: Salika CJ) the accused pleaded guilty to one count of manslaughter. The Prisoner was the operator of a dinghy travelling from one village to another on a high speed to drop off passengers. At that time, he was consuming alcohol and taking marijuana with fellow passengers. He made a sudden U-turn of the dingy causing the passengers including deceased to fall overboard while the dinghy sprung uncontrollably in circle without the operator. A search was conducted but the deceased body was never recovered. The prisoner was sentenced to 10 years’ imprisonment with 2 years deducted and balance served.
    

Appropriate Sentence: Circumstances

21. This case must be determined on its own peculiar circumstances. This is not one of the worst cases for the maximum charge of manslaughter. It is quite very distinct from other manslaughter charges where violence is involved, also and at the time of the offence, the offender and the prisoner were all intoxicated thus contributing to his death.
    
22. In the result, I have come to the conclusion that a wholly suspended sentence in this case would be appropriate.
    
23. I have read the Pre-Sentence Report by Acting Senior Probation Officer, Ms. Nancy Poli. I have noted its contents including the diverse positions of the family members of the deceased and the offender, I have also considered the submissions of the Prosecutor and the Defence and the Pre-Sentence Report. What stands out in her report is that the family of the deceased do not want compensation.
    

Sentence

24. You are sentenced as follows:
    
    1. Nine (9) years imprisonment.
       
    2. The Offender is placed on probation of 36 months on the following conditions:
       
       • 2.1. The Probationer shall pay a court fine of K2,000.00.
         
       • 2.2. Attend counselling session for a period of twelve (12) months.
         
       • 2.3. Refrain from assaulting or committing any offence against anyone within the duration of the supervision period.
         
       • 2.4. The probationer shall provide his home address to which he is to go and shall remain until he is contacted by a probation officer.
         
       • 2.5. The probationer shall report to the probation officer as and when required by the probation officer to do so.
         
       • 2.6. The probationer shall keep the peace and be of good behaviour during the period of probation.
         
       • 2.7. The probationer shall not change his address
         
       • 2.8. Whereby virtue of the change of address, the probationer has moved to another declared area- he shall, within 48 hours of arrival, report to a probation officer in that area.
         
       • 2.9. The Probationer shall not be released until such time that he has paid the K2,000.00 Court fine to the National Court Registry and has produced the receipt. Only then, shall he be released.
         
       • 2.10. Failure to comply with any of the conditions stated, the Probationer shall be arrested and shall serve the full sentence.
         
       • 2.11. The bail money paid shall be refunded.
         

Ordered accordingly.
________________________________________________________________
Lawyer for the State: Public Prosecutor
Lawyer for the prisoner: Public Solicitor