N11640
PAPUA NEW GUINEA 
[NATIONAL COURT OF JUSTICE]

CR No 1105 OF 2025

STATE

v

MOLLEN VIMA

VANIMO: MESA AJ
8, 17, 21 NOVEMBER 2025

CRIMINAL LAW – guilty plea – s. 302 Criminal Code Act (Code) - manslaughter- youthful offender - defacto provocation – sentencing discretion - wholly suspended sentence not appropriate – partial suspension imposed

The prisoner had sought out and assaulted the deceased after the deceased had earlier sworn at the prisoner’s younger sibling, using a derogatory slur about the prisoner’s mother. The prisoner punched the deceased three times in the neck which caused him to collapse, shaking. He died as a result at the hospital; the cause of death was attributed to severe spinal injury from applied blunt force to the neck.

Held:

1.	Manslaughter continues to be a prevalent offence.
2.	Youth are more frequently committing serious crimes; the Courts must have careful regard to their circumstances when considering sentence. 
3.	Circumstances of the offence must be balanced with the objective of rehabilitation when using sentencing discretion.
4.	Extenuating and mitigating circumstances must be given proper consideration.
5.	A wholly suspended sentence is not appropriate, but there is basis for partial suspension. 
6.	Sentence of 9 years is consistent with sentencing trends and is imposed with some suspension. 

Cases cited
Manu Kovi v The State (2005) SC789
Rex Lialu [1990] PNGLR 487
The State v Anita Kelly (2010) N3624
The State v Robert (2010)
State v Daniel Yabari N7306 
State v Lossio John CR 158 of 2012
State v Elisha Mema (2012) N3602 
State v Tau Karo (2004) N2600
State v Samuel Kalib CR 318 of 2013
State v Sebastian Sohato Roho (2006) N4483
State v Godfrey Watakasi (2012) N4597
Gideon Wally v The State (2025) SC2802
Richard Jason Magiau Namaliu v The State (2025) SC2690
Thress Kumbamong v The State (2008) SC1017
Lawrence Simbe v The State [1994] PNGLR 38
The State v Ambrose Talui (2020) N8545
The State v Paul Kalu (2011) N5270
The State v Tapolo Bernard (2019) N7842
The State v. Jerry Mana (2003) N2367 
The State v Gunan (2021) N4317
The State v Jeffery Peau (2021) N9328
The State v Robert Urevo (2021) N9319 
Passingan v Beaton [1971-72] PNGLR 206
Saperus Yalibakut v State (2006) SC890
Goli Golu v The State [1979] PNGLR 653
Avia Aihi v The State [1982] PNGLR 44 
Ure Hane v The State [1984] PNGLR 105
Public Prosecutor v Bruce Tardrew [1986] PNGLR 91

Counsel
Mr. A Kaipu, for the State
Mr. O Himore, for the defence 

1.	MESA AJ: The prisoner, MOLLEN VIMA, of Kemberatoro village, Amanab, Vanimo Green, Sandaun Province, pleaded guilty to the charge of Manslaughter, pursuant to Section 302 of the Code. This is the decision on sentence. 

2.	The State alleged that on 19 January 2025 at Wara Kongkong bridge at the residence of one Joevitta Saigory, around 5pm, the deceased, Clinton Imm and Francis Kuble were sleeping after drinking alcohol. They were awakened when the prisoner and two other people in his company assaulted Kuble. One of the two people slapped Kuble and accused him of an incident regarding his riding motor bike. 

3.	The deceased questioned them as to why Kuble was being assaulted when he too was assaulted. The prisoner punched the deceased three (3) times on his neck, causing him to fall to the ground, where he began shaking. The deceased was taken to the hospital but had already died. 

4.	The medical evidence revealed that the deceased had died due to severe cervical spinal trauma with a suspected spinal cord injury due to blunt force trauma to the neck and upper body. The medical evidence did not reveal any trauma to the deceased’s head. 

Allocutus

5.	The prisoner said he had no intention to kill the deceased. He said the deceased had been drunk and had used a derogatory phrase about the prisoner’s mother when he swore at the prisoner’s younger brother, and that he would block the road to Batas. The prisoner said he had felt offended because his parents had passed and he had taken up responsibility for his younger siblings, that’s why he went to just fight with the deceased but not to kill him. He apologised for what he had done and asked for mercy and leniency in his sentence. He was a student and asked for probation to return to school. 

Defence Submissions

6.	The prisoner is 21 years old, single, and had been a Grade 12 student at Don Bosco Technical Secondary School, Madang. 

7.	The Defence submitted that the prisoner had acted out of being provoked by what the deceased had said about his mother when swearing at his younger brother. There were good mitigating factors present: he had pleaded guilty, he was a young, first-time offender and his family had tried to assist with the repatriation costs of the deceased body, which was rejected by the deceased’s family. 

8.	The authorities of Manu Kovi v The State (2005) SC789 and Rex Lialu [1990] PNGLR 487 (Lialu) were cited as guides to sentencing manslaughter cases, and the following other cases were relied on:

a)	The State v Anita Kelly (2010) N3624. The prisoner pleaded guilty to manslaughter; he had stabbed his wife with a knife in a vulnerable part of her body, causing her death. The Court noted the seriousness of the wound and the prevalence of the offence. He was sentenced to 12 years. 

b)	The State v Robert (2010); the prisoner pleaded guilty to manslaughter. Here, the prisoner also used a knife to stab the deceased on his body, causing his death. He was sentenced to 12 years. 

9.	Mr. Himore for the Defence submitted that the cases cited were demonstrative of more severe circumstances than that of the prisoner, and so any sentence for the prisoner ought to be lower than 12 years. He submitted that this matter fell within Category 1 of Kovi and asked for a term of sentence between 6-10 years.

Prosecution Submissions

10.	Mr. Kaipu for the State cited the following useful cases in his submissions:

a)	The State v Samuel Kalib CR 318 of 2013; the prisoner pleaded guilty to manslaughter, causing the death of his uncle. 

The prisoner had been in company of other drunken youths. When one of them tried to destroy the house of the deceased, the prisoner tried to stop him and a fight ensued. The deceased mistook the prisoner as being involved in the destruction to his home and attacked him with a piece of firewood, rendering him unconscious. 

The prisoner recovered and ran away; the deceased pursued him. The prisoner threw a stone at the deceased which hit him and ruptured his spleen; he died as a result. 
In sentencing the prisoner, the Court took into account that K5, 000 and 2 pigs had been paid as compensation and sentenced the prisoner to 7 years less time spent on remand.

b)	The State v Tau Karo (2004) N2600; the prisoner pleaded guilty to manslaughter. He had been a security guard outside a club where the deceased had been drunk and tried to enter without paying the gate fee of K2.00. 

An argument broke out which led to a fight between the prisoner and the deceased. The deceased punched the prisoner on his left ear. The prisoner returned the punch, hitting him in the face and the deceased fell. The prisoner then pulled him up by his shirt and threw him out of the gate. 

The deceased landed 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. The prisoner was sentenced to 8 years imprisonment.

c)	The State v Elisha Mema (2012) PGNC 21 (Mema); the prisoner pleaded guilty to manslaughter, causing the death of her cousin. The deceased was upset over the sale of a piglet; he had earlier sold the piglet to another person from another village but learnt that the mother and sisters of the prisoner had found it and kept it. 

The deceased got drunk, went to the prisoner’s house, assaulted her mother, retrieved the piglet and returned it to the person to whom he had sold it. He then returned and slapped the prisoner three times causing her ear to bleed. The prisoner got a piece of firewood and hit him on his head; he died because of the injury. The Court noted here that there were special mitigating factors and extenuating factors that outweighed any factor of aggravation. The Court (the late Justice Kirriwom) said this:

‘In my view if factors such as inducement and or provocation precipitated the offence even in a case of manslaughter, the prisoner must be entitled to greater benefit in sentencing if the Court was satisfied of the existence of extenuating circumstances and exceptional mitigating factors by according the prisoner the most lenient sentence.’

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.

d)	The State v Lossio John CR 158 of 2012 (Murray J); the prisoner pleaded guilty to manslaughter, causing the death of her sister’s husband. The prisoner defended her sister by telling the deceased to desist from beating her sister with the fan belt of a vehicle. 

The deceased struck the prisoner on the head three times with the fan belt, whereupon the prisoner retaliated with a piece of wood, striking the deceased on the side of his head. The deceased died of a fractured skull. 

The prisoner pleaded guilty to a count of manslaughter and was sentenced to 6 years imprisonment.

e)	The State v Daniel Yabari (2018) N7306; the prisoner pleaded guilty to manslaughter, causing the death of his relative. The prisoner had been intoxicated with alcohol at the time of the offence; he had approached the deceased, swore at him and proceeded to argue with him for no apparent reason. 

During the argument, the prisoner punched the deceased on his chest, and the deceased fell to the ground. He started to shiver and vomit blood; he was taken to the hospital but was pronounced dead. The medical evidence was that he had died of a heart attack caused by severe stress from the punch to his chest.

He was sentenced to 6 years less time spent in custody; no suspension of sentence was ordered. 

f)	The State v Sebastian Sahoto Roho (2006) N4483; the prisoner pleaded guilty to manslaughter, causing the death of his mother. He had kicked his mother in her abdomen causing her death; she died of a ruptured spleen and other internal injuries. 

He had been angered by her chasing his sister down a cliff that caused her injuries. The Court found that there were good mitigating factors for the prisoner including his family and community’s not pushing for a heavy penalty; however, the Court found it had been a vicious attack on his mother that he was solely responsible for and that he was not a youthful offender. 

He was sentenced to 10 years with partial suspensions made. 

g)	The State v Godfrey Watakasi (2012) N4597; the prisoner pleaded guilty to manslaughter, causing the death of his grandmother. 
He had been drinking with another person when they got into an argument. In the fight that ensued, the deceased tried to intervene to stop the fighting when the prisoner punched her in the head with his folded fist. She was rendered unconscious from the blow and died as a result. 

Prisoner was sentenced to 8 years. The Court made this observation (para 6 and 7) when considering sentence: 

	‘Although this matter does not fall in the worst category of cases because 	it was not planned or intended it is still serious in that life was lost and 	even though the deceased was a grandmother of the accused. The 	law protects every person even the grandmother of the accused.

	Unlawful killing in many instances is committed with violence and 	prevalent in the communities and is on the rise. The Court has a duty to 	impose sentences that will deter the accused from recommitting and others 	to commit similar offences in the future and ensure that everyone is safe 	and without fear of being attacked.’

h)	Gideon Wally v The State (2025) SC2802 (Wally); in the National Court, the prisoner had pleaded guilty to manslaughter.    

The deceased had fought with the appellant during which she had sat on him and punched him on the ground. About two days later, the appellant and his family retaliated and attacked the deceased. In that attack, the appellant had kicked the deceased hard on her chest as she was lying on the ground after she was assaulted by his other co-accuseds.

After the deceased was kicked she got up and tried to go to the police station to get assistance but was punched hard on her chest by another co-accused Kanawi Wally causing her to become weak and she had to sit down. She was later punched by Stephanie Wally on the face, who then grabbed her by her throat and strangled her until she was struggling to breath. 

There were no weapons used in the attack. There was no pre-planning involved. The National Court sentenced the prisoner to 15 years. 

On appeal, the Supreme Court quashed that sentence and substituted it for 12 years, discussing that mitigating and extenuating factors must be given appropriate consideration in determining a sentence.   

11.	In this matter before me, the aggravating factors submitted by the State were: loss of life; multiple punches to a vulnerable area of the body, the neck; strong intention to cause bodily harm, evident from severity to the spinal injury; he was in company; prevalence of the offence.

12.	The State accepts that there is defacto provocation present, and acknowledges the guilty plea, first offence and that there was no preplanning.

13.	Mr. Kaipu submitted that this matter fell within Category 1 of Kovi, and that a sentence between 10 to 12 years was appropriate.   

Law

14.	The prisoner is charged with manslaughter under Section 302 of the Code: 

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

Penalty: Subject to Section 19, imprisonment for life.’

15.	It has become general practice for Counsel to refer to the sentence categories for homicide offences in the Supreme Court matter Manu Kovi v The State (2005) SC789 (Kovi). 

Sentencing Discretion

16.	In the matter of Richard Jason Magiau Namaliu v The State (2025) SC2690 (Namaliu) (decision of 28 January 2025), the Applicant, amongst others, argued a review of his sentence. The Applicant argued that the National Court incorrectly placed his matter in the second category of the Kovi manslaughter category when it should have been placed in the first. 

17.	The Supreme Court said that the trial Judge had properly put the aggravating factors in perspective and appropriately placed the sentence (of 15 years) in the second category:

‘42. The learned sentencing Judge rightfully placed this offence in the second 	category of Manu Kovi. Sentence of 15 years falls within the range of 8 to 	12 years. It is not excessive.
 43. We are of the view that sentencing Judges should pass sentences that 	conform to guidelines suggested by leading Supreme court cases in order 	to achieve uniformity and parity of sentence to different offenders 	throughout the country.’

18.	The Supreme Court later said in Thress Kumbamong v The State (2008) SC1017:

‘The Supreme Court or any Court should be careful not to prescribe or regiment the way in which a sentencing judge should exercise his or her sentencing discretions in the particular circumstances of a case before him or her. We must never forget the well accepted principle that, each case must be determined on its own merits and that criminal sentencing is not a matter of mathematics but logic and common sense. Considering all of these, we do not take issue with the Supreme Court setting guidelines as to what sort of factors a sentencing judge should take into account but it cannot set sentencing ranges or tariffs with minimums as ""starting points"" and maximums within the maximums Parliament has already provided for. Instead, a trial judge has and should be left with his or (sic) wide discretion to impose such a sentence or penalty has (sic) he or she considers the particular circumstances of the case warrant.’

19.	Kumbamong emphasises that the discretion of the Court is unfettered and should not be bound by sentencing tariffs or ranges. Each case must be assessed on its own facts and circumstances when arriving at an appropriate sentence or outcome. 

20.	With respect, I do not think the Court in Kovi intended to restrict sentences within the tariffs it suggested. In all its discussion of sentences for different homicides viz manslaughter, murder and wilful murder, the Court in Kovi acknowledged the Court’s judicial discretion:

‘In homicide cases, as with any other offences, the use of a tariff though has its limitations, because the determination of appropriate punishment in each case, is an exercise of discretion, having regard to the seriousness of the offence, the gravity or otherwise of the circumstances of the offence, the personal circumstances of the prisoner which aggravate or mitigate the punishment and the interests of the community in ensuring the punishment achieves its purposes. As the Supreme Court said in Lawrence Simbe v The State: 

"We say that it is not a matter of a tariff for particular types of murder but, rather, that each case must be decided on its own facts, bearing in mind the various factors that are involved in each case, the gravity of the attack, and the concern of the Court at people who take the law into their own hands".

However sentencing tariffs provide a useful guide in the exercise of sentencing discretion in particular types of cases and Courts must be encouraged to develop them. In developing tariffs, Courts must bear in mind that it is not a mathematical exercise involving technical classification of some broad circumstances of the offence and then fixing a mathematical figure besides them. It is an exercise of judicial discretion and care must be taken to develop them for the future use of Courts.’(emphasis mine)

21.	Tariffs notwithstanding, I place greater value on the principles and factors in Kovi that underpin its guidelines. Their continued use today is itself a study in human behavior: the reasons for killings and the manner in which people commit killings remain largely unchanged from two decades ago; if anything, killings have increased. I dare say little will probably change in the next twenty years unless there is a significant human behavioral shift that reduces the prevalence of killing to the point where it is less a societal issue than it currently is. A likely result of such a shift would be that factors to be considered may change and sentences may lessen; time will tell. 

22.	For present purposes, I am satisfied that I can be guided by the factors in the Kovi sentencing principles in the use of my discretion under the Code, consistent with Kumbamong, to consider an appropriate sentence for the offence of manslaughter. 

23.	I reproduce the Kovi guidelines for manslaughter below:

Category	Factors	Sentence	
1. Plea

•	Ordinary cases.
•	Mitigating factors with no aggravating factors.	•	No weapon used.
•	Victim emotional under stress and de facto provocation e.g. killings in domestic setting.
•	Killing follows immediately after argument.
•	Little or no preparation.
•	Minimal force used.
•	Victim with pre-existing diseases which caused or accelerated death e.g. enlarged spleen cases
	8-12 years.	
2. Trial or Plea

•	Mitigating factors with aggravating factors.
	•	Using offensive weapon, such as knife on vulnerable parts of body.
•	Vicious attack.
•	Multiple injuries.
•	Some deliberate intention to harm.
•	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 weapons used e.g. gun or axe.
•	Vicious and planned attack.
•	Deliberate intention to harm.
•	Little or no regard for safety 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 innocent, harmless person.
•	Complete disregard for human life.	Life Imprisonment	

Comparative Cases

24.	In assessing how the death was caused here, in my view, these factors are relevant: no use of weapons, presence of defacto provocation, and no preplanning. Although there is no medical evidence of a preexisting condition, what was medically determined was an acceleration of death due to spinal trauma caused by blunt force. These factors place the circumstance of death within Category 1 of Kovi. 

25.	As a matter of comparison, I have looked at other Kovi Category 1 type cases here:

a)	The State v Ambrose Talui (2020) N8545; The prisoner had an argument with his wife and during the argument, the wife said some insulting words to the prisoner, who reacted by punching her. She fell and felt pain. 

She was rushed to the hospital but died. She did not have a pre-existing condition. The Court sentenced the prisoner to 8 years imprisonment less time spent in custody. The balance of his sentence was wholly suspended with strict conditions plus an order for compensation payment to the family of the deceased.

b)	The State v Paul Kalu (2011) N5270; The prisoner punched the deceased on the head and when he fell, proceeded to kick him in the ribs. The deceased died from a raptured spleen. There was some compensation paid earlier in cash and shell monies plus payment for funeral and related expenses. The prisoner was sentenced to 7 years less time spent in custody. 

c)	The State v Tapolo Bernard (2019) N7842; The prisoner and his father had an argument at their home. The prisoner then picked up a rock and threw it at his father, hitting him in the abdomen. His father fell and cried out in pain; he was taken to the hospital but died along the way. His medical report showed that he died of hemorrhagic shock due to a raptured spleen. The prisoner was sentenced to 12 years with 2 years suspension and the balance to be served in hard labour.

d)	The State v Gunan (2021) 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.

e)	The State v. Jerry Mana (2003) N2367; The deceased provoked the prisoner in a non-legal sense at a beer club. He then punched  the deceased once, which caused the deceased to fall on the hard cement floor, and he died purely from the injuries he sustained. The prisoner had tried to pay compensation both before and at the time of the hearing of his case. However, the deceased’s relatives did not avail themselves to receiving it. The Court imposed a sentence of 8 years less time already spent in custody awaiting his trial.

26.	The prisoner is also, in my view, a youthful offender, and so I cite the following cases that are relevant for consideration of sentence:

f)	The State v Jeffery Peau (2021) N9328; The prisoner there was about 19 or 20 years old at the time of the offence. 

He made an early guilty plea to the charge of Manslaughter contravening Section 302 of the Code. The prisoner had hit the deceased with a stone on the head unintentionally. The deceased was rushed to the hospital and succumbed to his injuries and died. The prisoner was intoxicated at the time of the commission of the offence. He was sentenced to six years in hard labour.
 
g)	The State v Robert Urevo (2021) N9319; The prisoner was also about 19 to 20 years old at the time of the offence. The prisoner was drinking alcohol with the deceased when a fight broke out, and he stabbed the deceased with a pair of scissors. The deceased died two days later because of the stabbing. The prisoner made an early guilty plea and was sentenced to 10 years in hard labour.

Consideration

27.	From the cases I have considered above, the sentences range from 6, 8, 10 and 12 years, depending on their circumstances. They are predominantly instances where: 1.) The prisoner pleaded guilty; 2.) No weapons were used; 3.) Some form of provocation was present; and 4.) A preexisting condition existed, or the extent of the assault accelerated death. 

28.	This is the situation in this matter. The prisoner had assaulted the deceased out of a sense of provocation, that is, the deceased had used a vulgar description of his mother to swear at his younger brother. I also note that the deceased had been drunk at the time, and so reason that the deceased may have behaved aggressively toward the prisoner’s younger brother. Naturally, an elder brother would stand up for his younger sibling in such circumstances. I take this to the benefit of the prisoner and apply the Saperus Yalibakut v State (2006) SC890 principle, noting the consistency in what the prisoner had said in allocatus and his record of interview with the police. 

29.	The Supreme Court in Wally said this of the presence of de facto provocation:

‘The concept of extenuating circumstances is not new. These are factors for considerations that reduces the seriousness of a crime. De facto provocation is one of the factors of extenuating circumstances and if properly argued it could reduce sentence; Simbe v The State [1984] PNGLR 38. Numerous case laws have made clear that the Court must take into account all relevant aggravating circumstances, all relevant extenuating circumstances and all relevant mitigating factors. The Court must balance these factors and determine a punishment which fits the particular crime; Ume v The State (2006) SC836. The Supreme Court has not placed any time limitations on these extenuating circumstances that are relevant to the commission of the offence nor does it place any conditions on when it might and might not be accepted.’

30.	The prisoner here is 21 years old, meaning he would have been about 19 or 20 at the time of the offence; although not a juvenile, I will view him as a youthful offender as he was barely out of his teenage years at the time of the offence. Being a youthful offender is an important factor in considering sentences. In Passingan v Beaton [1971-72] PNGLR 206 (Passingan), Raine J dealt with, amongst others, the issue of determining the sentence of a 15-year-old prisoner at the time. His Honor cited Lord Hewart in R v Taggert (1923) 17 Cr. App. R. 132 who stated: 

‘It is not practicable, and if practicable it would not be desirable to lay down a general rule, but there are many cases in which it is worth while to take some risk in order to save a young man or a young woman from prison and the consequences of imprisonment’

31.	In turn, Justice Raine said: 

‘These observations seem to me to make it clear that where a court deems it proper to imprison a young first offender that it should not impose a crushing sentence.’

32.	Bearing this in mind, it is generally obvious in our society today that people in the youth bracket are more frequently becoming involved in criminal activity, often serious crime. These activities involve assaults, property destruction, robberies and killings; and more likely than not, the incidents are fueled by a growing culture of alcohol consumption and herd mentality out of peer pressure. This behavior continues to sustain the prevalence of aggravated offences in our country.

33.	However, in the sense of Passingan, once a person of youth comes before the Court, the Court has the responsibility to consider him or her as their own person on their own particulars. The material in evidence must be reviewed carefully as to their personal circumstances, and factors to be taken into account include their age, the status of their education progression, their sense of industry and prospects, their living and domestic circumstances, the views of their community and family in respect of their character, and the offence committed; this list is not exhaustive.

34.	It follows that the more positive responses there are to these factors, the less severe the sentence gradient should be, again dependent on the type and circumstance of the offence committed. For this prisoner, I refer to the evidence in the presentence report. Its contents regarding the prisoner particularly show that he is a person of good character, is industrious by taking up odd jobs while in school to earn money and was diligent in his education where he was attending the Don Bosco Technical College in Madang. These factors speak positively of him and his background, which I take into account. 

35.	I must also consider that a serious offence has been committed. Notwithstanding the positive factors that are present for the prisoner, this must be balanced against the aggravation of the assault that resulted in the loss of a life. From the same presentence report, I note the concerns of the deceased’s family who express that imprisonment is the appropriate punishment. Again, I reiterate the prevalence of killings in our society; in most cases, death is unfortune and unnecessary, as in this matter before me.

36.	In considering a sentence, the prescribed maximum penalty for manslaughter, subject to Section 19 of the Code, is imprisonment for life. However, it is trite in our jurisdiction that the maximum penalty is reserved for the worst type of an offence (Goli Golu v The State [1979] PNGLR 653; Avia Aihi v The State [1982] PNGLR 44 and Ure Hane v The State [1984] PNGLR 105), and that each matter is to be determined on its own circumstances.

Findings

37.	In my view, having considered this matter on its own circumstances, I do not think that this is the worst type of offence of manslaughter, as it falls within the bounds of the cases cited and discussed above. I find the following factors to be relevant:
	
Aggravation:

1.	The loss of life.
2.	Multiple punches (3) on the neck of the deceased, a vulnerable area of the body.
3.	Demonstrated intention to cause bodily harm.
4.	Being in company.
5.	Prevalence of the offence.

Mitigation:

6.	Guilty Plea.
7.	Youthful, first offender.
8.	Prior good record and background.
9.	Genuine expression of remorse. 
10.	Initiative to give K19, 000 to repatriate body (which was refused by deceased’s family).
11.	No weapons were used.

	Extenuation:

12.	Acting out of provocation (in the non-legal sense) to assault the deceased. 

38.	Applying the principles and guidelines of Kovi to these factors and circumstances as I have discussed, this matter, in my view, is a Kovi Category 1 circumstance of manslaughter. 

Sentence

39.	In consideration of the sentence, I refer to Kapi DCJ’s (as he then was) observations in Lialu, as submitted by the Defence:

‘In considering the penalty for manslaughter cases, I adopt the words of Watkins LJ in R v Phillips (1985) 7 Cr App R(S) 235 at 237:

“The Court has to pay very careful regard to the circumstances of death, and especially to the way the death was actually caused, in coming to a conclusion as to what punishment a defendant should receive for whatever it was he did towards bringing that about.”’

40.	I have paid careful attention to this matter to determine an appropriate sentence, and in doing so acknowledge the sentencing discretion given to the Court under Section 19 of the Code as well as what the Supreme Court said in Kumbamong. In the circumstances of this case then, I consider a sentence of nine years appropriate. Given the prevalence of this offence, I do not regard this as an unduly severe head sentence, considering the prisoner’s youth. It is consistent with the sentencing trend for manslaughter cases cited here. 

41.	I have also considered whether to suspend part or the whole of the sentence, in line with the authority of Public Prosecutor v Bruce Tardrew [1986] PNGLR 91. I do not think that a wholly suspended sentence is appropriate; here, the prisoner directly sought and assaulted the deceased which was quite different from Mema where the prisoner there acted out of a sense of self preservation. I do, however, consider that his guilty plea and that he acted out of being provoked (albeit in the non-legal sense) merit recognition for some portion of suspension. 

42.	I will also deduct the time spent on remand consistent with Section 3 (2) of the Criminal Justice (Sentences) Act 1986. I make no orders for compensation as the initiative taken by the prisoner and his family to help with repatriation costs was refused by the family of the deceased.

43.	In the result, the orders I make on sentence are these:

1.	The prisoner is sentenced to a Head Sentence of 9 years imprisonment.
2.	The 11 months spent on remand are deducted from the Head Sentence.
3.	12 months are suspended from the Head Sentence in recognition of the plea.
4.	12 months are suspended from the Head Sentence in recognition of the extenuating factor of defacto provocation. 
5.	The prisoner shall serve the balance of 6 years and 1 month IHL.
________________________________________________________________
Lawyer for the State: Public Prosecutor
Lawyer for the prisoner: Public Solicitor