State v Lilu [1989] PGNC 60; [1988-89] PNGLR 449; N885 (25 October 1989)

N885

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

STATE

V

REX LILU

Waigani
Amet J

12-13 October 1989
19 October 1989
25 October 1989

CRIMINAL LAW - Sentence - Manslaughter - Appropriate tariffs - Lower end of scale for murder - Slightly higher than for rape.

CRIMINAL LAW - Sentence - Relevant considerations - Customary compensation - Not substitute for punishment - Relevant only on mitigation.

CRIMINAL LAW - Sentence - Manslaughter - One punch - Victim dying from head injuries sustained in fall - Argument following consumption of alcohol - Substantial customary compensation - Sentence of six years and six months.

Held

(1) Sentences for manslaughter should be increased to merge with the lower end of the scale of sentences for murder and should be higher than the sentences for rape as death is a more serious consequence than rape.
The State v Polin Pochalon Lopai [1988-89] PNGLR 48, followed.
John Aubuku v The State [1987] PNGLR 267, considered.

(2) Compensation payments, whilst an accepted customary method of restoring peace and harmony between relatives of disputing parties and whilst a relevant consideration in mitigation, however large or small cannot be used to exonerate an offender from liability to punishment for criminal offences.

(3) Where the accused and the deceased had both consumed alcohol and entered into an altercation over alleged suggestive words used by the deceased to the accused’s wife and where the accused punched the deceased once to the back of the head as a result of which the deceased fell onto the back of his head on bitumen and died from head injuries and where substantial customary compensation had been paid to the relatives of the deceased, a sentence of six years and six months IHL was appropriate.

Cases Cited

Gimble v The State [1988-89] PNGLR 271.
John Aubuku v The State [1987] PNGLR 267.
State, The v Polin Pochalon Lopai [1988-89] PNGLR 48.

Sentence

The prisoner was found guilty of manslaughter and the following reasons for sentence were delivered.

Editor's Note

An appeal to the Supreme Court has been lodged.

Counsel

K Bona, for the State.
R Vai, for the accused.
Cur adv vult

25 October 1989

AMET J: I have to sentence the prisoner whom I have found guilty of unlawfully killing one Aparari Hetaia.

The short facts necessary for this purpose as I have found against the prisoner are these. The prisoner by his own admission had been drinking beer and playing darts with one Sergeant Alu at the prisoner’s wife’s residence in Boroko on the relevant evening until midnight. The prisoner and his wife then walked with Sergeant Alu to the junction of Bisini Parade and Lahara Avenue near the Boroko market and the Papuan Rugby League Ground to find transport for Sergeant Alu to go to Taurama Barracks. The deceased was dropped off in a bus at the same junction at the same time. He, too, had been drinking all of that evening at Morata and playing snooker. An altercation or an exchange of words then transpired between the prisoner and the deceased over alleged suggestive actions or words on the part of the deceased towards the prisoner’s wife. A policeman on motor patrol saw the parties arguing and intervened, inquiring what the problem was. The deceased disengaged himself and walked away. The prisoner followed and punched the deceased once on the back region of the deceased’s body. The deceased staggered onto the middle of the bitumen road and fell onto his back. He died shortly after without moving, from intracranial haemorrhage due to head injuries which were described as:

(1) contusion and haematoma under the scalp in the occipital region,

(2) massive sub-arachnoid haemorrhage extending up to the base of the brain.

The deceased was a young 23-year-old man from Tawanda Village in the Magarima District of the Southern Highlands Province. The prisoner is a "wantok" from Kikita Village in the Tari District, also of the Southern Highlands Province. Because of this, substantial compensation, which the Public Prosecutor, Mr Bona, has confirmed, was paid by the relatives of the prisoner to the relatives of the deceased. First, a cash amount of K5,000 was paid in Port Moresby followed by a second payment made in Tari Town on 20 March 1989 and witnessed by Mr Joe Gadi, Assistant District Commissioner Tari, and Police Constable Josiah Penk, representing the police. This second payment consisted of 198 live pigs and K60. The 198 pigs were said to have been valued at K20,754 altogether. A copy of a letter to this effect was produced by the parties to confirm this. It was from Tari Police, addressed to the Officer-in-Charge, Serious Crime Squad, CID, Boroko, National Capital District, dated 23 March 1989, by Constable J Penk. I quote a paragraph of this letter to which I wish to make reference shortly. It stated:

"At the time of the compensation payment the relatives of both deceased and the suspect have come to agree that the compensation payment made was sufficient for the death of the deceased and that suspect Rex Lilu would then be released from police custody as well as from criminal charges as both parties would have no differences in future but they would have peace ...

The above total value of cash was paid out to the relatives of the deceased as a compensation payment to have peace as well as to release the suspect, Mr Rex Lilu."

The following are other antecedents of the prisoner; he is a young 25-year-old man, married to a woman from Mumeng in the Morobe Province and has been a soldier with the Papua New Guinea Defence Force for six years. He is said to be a hard, dedicated worker. He had been in custody only four months. He has no previous record to take into account.

The following additional submissions were made in mitigation on behalf of the prisoner:

1. Substantial compensation had been paid by the prisoner and his relatives and he had been exonerated or excused for the death of the deceased;

2. The deceased had contributed to his own death by most probably swearing at the prisoner’s wife;

3. Only one punch was delivered by the prisoner;

4. The appropriate sentence therefore is a non-custodial one with substantial fine with heavy bond, because a custodial sentence would result in loss of his job, and throw his marriage into difficulty.

What then are the principles of sentencing in a manslaughter case and the range of sentences or the tariff in cases with these kinds of circumstances?

The first fact to note is that the penalty for this offence pursuant to s 302 of the Criminal Code (Ch No 262) is: "Subject to s 19, imprisonment for life," This suggests that the legislature considered the taking of another person’s life to be very serious, warranting penal servitude for life. Manslaughter is a general term for a group of offences with different definitions, linked by the common consequence of death. Within the legally distinctive categories of manslaughter, it is possible to identify varying patterns of factual situations which provide a basis for discussion of the court’s sentencing policy.

This case falls within the sixth category of a "manslaughter arising out of an assault", where death has occurred as the unintended consequence of an assault in the course of a fight. DA Thomas, in Principles of Sentencing, 2nd ed (1979), under this category at 83, states:

"As in the robbery cases, the Court’s approach is to relate the sentence to the gravity of assault, although it may be aggravated if the possibility of death or bodily injury should have been apparent to the accused at the time."

I refer to a recent unreported and unnumbered sentencing decision of Kidu CJ in The State v Ted Abiari (CR632) dated 20 April 1989 wherein he observed where in the last nine years, sentences for manslaughter have increased to the point where in the last two years or so the higher tariff for manslaughter has merged with sentences for murder cases. Kidu CJ referred to another of his own sentence decisions in The State v Michael Saragun of October 1988 in Madang, in which he imposed a sentence of five years for manslaughter where the prisoner husband had punched his wife in the stomach, puncturing her spleen and causing her death. Kidu CJ observed in this case that "previously the sentence would have been up to three years". The Chief Justice also referred to a decision of Hinchliffe J in The State v Dokus Akonil also in 1988; a spleen case in which the husband knew his wife had an enlarged spleen but he punched her in the stomach, causing the spleen to rupture leading to her death, and the husband was sentenced to six years imprisonment.

The Supreme Court has, from time to time over the years, dealt with appeals for manslaughter sentences, but without dealing with the general principles of appropriate tariff for the various categories of manslaughter cases. It has, in 1987, in John Aubuku v The State [1987] PNGLR 267, enunciated the principles of sentencing for rape and the range of sentences generally appropriate as being from five years to eight years, 15 years and life imprisonment. Similarly, recently in August 1989 in the case of Gimble v The State [1988-89] PNGLR 271, the Supreme Court laid down guidelines on sentences to be imposed on offenders for different kinds of robbery. The Court listed four generally common kinds of robbery and stipulated the range of sentences it considered appropriate in order of gravity: being three years for street robbery by a group of young first offenders; five years for robbery of a store, a vehicle and the like; six years for robbery of a bank; and seven years and upwards for robbery in a private house.

I consider that relative to these sentences, for offences against the person without death and against property, the sentences for manslaughter have been far too lenient and low. I agree entirely with the views of the Chief Justice that sentences for manslaughter must be increased to merge with the lower end of the scale of sentences for murder.

I therefore agree entirely with the views of Bredmeyer J in The State v Polin Pochalon Lopai [1988-89] PNGLR 48 where his Honour held (at 49) that:

"... the tariff for manslaughter should be fixed slightly higher than for rape because death is a more serious consequence than the injury and trauma suffered in a rape ... a suitable tariff for the ‘spleen death’ type of manslaughter is five years for a plea of guilty, six years in a contested case, going up to 10 years or more in a case with features of aggravation."

I consider that our sentences for manslaughter must reflect the serious view which the legislature took over loss of human life in fixing the maximum sentence as life imprisonment. This is also a reflection of the community’s view against unwanton killing. I repeat my view that sentences for manslaughter must be relatively higher than sentences for rape and robbery to reflect the importance and sanctity of the life given by God which no man has the right to take or deprive prematurely. A life has been taken which cannot be restored, quite unlike rape and robbery.

I want also to say something about customary compensation payments, their effect and the perceived intentions behind their payment. It is an honourable exercise and exchange to restore peace and harmony between the relatives of the parties involved. It is also taken into account as mitigation if the victim and/or the relatives consider it just, where death has or has not resulted. But it can never replace the punishment of the law of the land which stipulates the conduct to be against the law. The punishment will be balanced, taking into account this as well as the other principles earlier discussed and antecedent particulars.

I should stress categorically that compensation, however large or small, cannot exonerate the offender from criminal liability. Nor do I think that sentence will or should be reduced relative to the size of the compensation, such that it can be thought that the larger the compensation the greater the reduction in sentence should be. This cannot be the effect of compensation. If it is a genuine method of restoring peace and harmony by custom or tradition and whatever form and size it takes, it should not now be extended to obtain total exculpation of the offender. The natural flow-on effect of the acceptance of such a belief is obvious and would lead to the rich believing they can buy their way out of criminal responsibility, and the less rich feeling aggrieved if they do not receive the same treatment.

Where, then, does this prisoner’s culpability fall in the range of sentences for manslaughter? I have stated most of the factors in mitigation already. The deceased was a young 23-year-old man. A long life expectancy of over 40 years has been cut short. It is an aggravating factor.

I reject any suggestion that the deceased contributed to his own death. There is no basis whatever for such a suggestion. I reject the submission that a non-custodial sentence is appropriate. It is, rather, entirely inappropriate.

In all the circumstances, taking into account all the personal antecedent particulars, the circumstances surrounding the unfortunate death as I have found them, the payment of compensation, the appropriate sentence in my judgment is six years and six months, to be reduced by the four months spent in custody to six years and two months to be served IHL.

Sentence of six years and six months IHL

____________________

Lawyer for the State: Public Prosecutor.
Lawyer for the defendant: Public Solicitor.