State v Gapaiho [1990] PGNC 11; N880 (9 March 1990)

Unreported National Court Decisions

N880

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
THE STATE
-V-
JOHN GAPAIHO

Goroka

Brunton J
8-9 March 1990

Plea

CRIMINAL LAW - sentencing - principles for sentencing in cases of manslaughter arising out of an assault. The State -v- Polin Pochalon Lopai N680 discussed and distinguished - customary compensation - partial suspension of sentence under s19(1)(f) of the Criminal Code.

Held:

(1) & the lawe law regards the causing of the death of a person as an offence of great gravity, although the circumstances in which death is caused are manifestly relevant to asse the e of nal responsibility and wickedness.

(2

(2)&#16) &##160;; se0; sentences fors for manslaughter arising from an assault should relate to the sentence that would have been appropriate if the assault had not had fatal consequences, but with an innt toect the fact that that deat death has resulted.

(3) ـ the paye payment of customary compensation, and the consequent stabilization of relationships between the prisoner, his family, and the deceased’s family, are facts that c usedustif exercixercise of the discretion under s19(1)(f) )(f) of thof the Criminal Code.

Sentence:

18 months in hard labour; suspended under s19(1)(f) of the Criminal Code, after serving nine months (less two weeks spent on remand awaiting trial), on condition that the prisoner enters into a good behaviour bond in an amount of K400 cash, and on condition that the prisoner does not consume any alcoholic beverage during the nine month period of his suspended sentence.

Cases Cited:

The State -v- Polin Pochalon Lopai - N680

John Aubuku -v- The State (1987) PNGLR

R -v- Stewart & Williams 1 Cr App.R. (s)228 Commentary on R -v- Stewart & Williams, 1979 Criminal Law Review.

R -v- Hughes (1988) Criminal Law Review 545.

Statutes Cited:

Criminal Code. The Constitution of the Independent State of Papua New Guinea, Customs Recognition Act Ch.19

Texts Cited:

D.A. Thomas - Principles of Sentencing, 2nd Edition.

Chalmers, Weisbrot, Andrews Criminal Law and Practice of Papua New Guinea, 2nd Edition 15

Counsel:

D. Ashton-Lewis for the State

K. Wogaro for the Prisoner.

JUDGEMENT ON SENTENCE

BRUNTON J:

WIDER ISSUES OF LAW

The sentencing principles for manslaughter cases were discussed recently in The State -v- Polin Pochalon Lopai 1989 (Unreported Judgement) N680 by Bredmeyer, J. Lopai’s case involved the unlawful killing by a man of his wife, who died as the result of a ruptured spleen.

In his judgement His Honour said:-

“Every form of punishment takes into account the intention behind the act or omission and the consequences, both the seriousness of the intention and the seriousness of the consequences. Thus wounding with intent to do grievous bodily harm is more serious than wounding without that intent. Similarly with consequences, the more serious the consequences, the greater the punishment. If D stabs V with intent to do grievous bodily harm and V dies the offence is murder; but if D stabs V with the same intent and V only suffers grievous bodily harm, the offence is grievous bodily harm with intent which is less serious than murder.

So far I have been considering examples of different offences but the same principles are true of different examples within the same offence. Consider theft. Suppose D decides to steal a safe but he does not know how much is in it. His intention is to steal the safe and all the contents however such that is. If the amount stolen happens to be K10,000, the punishment will be greater than if the sum stolen is K100. The same point - the greater the consequences of the criminal act the greater the punishment - can be illustrated by the offence of dangerous driving. If D is guilty of dangerous driving and V dies the punishment will be greater than if V only suffered grievous bodily harm. If two people are killed as a result of that driving then the punishment will be greater than if only one is killed. In those examples the quality of the driving is the same but the punishment will increase with the seriousness of the consequences of that driving.

In the offence of this form of manslaughter the intention is simply to do some harm falling short of grievous bodily harm, and if the only result of giving vent to that intention was a few bruises the offence mould be assault and a light punishment would suffice. But in manslaughter the consequences are grave: the victim has died. I want to look at it from the victim’s point of view and compare the offence with that of rape. If the victim is asked, “Would you prefer to be raped or killed?”, she would surely answer “raped”. Rape is a very traumatic experience for the victim but she is still alive and she may get over it physically and emotionally. Similarly look at it from the victim’s family’s point of view. Would you rather your wife, or daughter, or sister be raped or killed?, the answer would surely be “raped”. I believe the community regards manslaughter as more serious than rape.

The Supreme Court in John Aubuku -v- The State (1987) P.N.G.L.R. - set a tariff for rape of 5 years in a contested case for a solo rape going up to 10 years (and sometimes more) for aggravated features. If I could add to that a reasonable discount for a plea of guilty, the tarriff for rape established by that case is say 4 years for a plea of guilty, 5 years for a conviction in a contested case, in each case in a common solo rape, going up to 10 years for an aggravated rape. I believe 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. About 15 years ago the spleen death kind of manslaughter attracted a sentence of around one year’s imprisonment. Now it is about 3 years. I believe that a suitable tariff for the spleen death type of manslaughter is 5 years for a plea of guilty, 6 years in a contested case, going up to 10 years or more in a case with features of aggravation”. (emphasis added).

With respect to His Honours view I find myself in some difficulty both as a matter of principle and as a matter of law.

As a matter of principle, to link sentencing norms applied to rape, to the crime of manslaughter, even for the purposes of emphasising the gravity of an unintended death, does not appear to me to be correct if they are to have general applicability rather than to apply solely to spleen killings and domestic violence cases.

The sentencing principles for rape meet the needs of an offence in which there is an intentioned sexual assault, while those applying to manslaughter are for an offence that by definition is unintentioned.

As a general matter, to raise the subjective view of the victim interfers with the existing proportionality that exists between balancing the seriousness of intention against the seriousness of the consequences of the offence, for the purposes of punishment.

My objection as a matter of principle is confined to any general applicability of the principles discussed by His Honour, because it appears that His Honour may well have been concerned with addressing the principles that should apply to manslaughter cases involving domestic violence and the inintentional killing by a husband of his wife. This is a particular social problem that the country is facing at this time. It is not socially or politically separate from the sexual politics that lie behind rape; domestic violence and rape are both repressive acts directed against women and affect their status in society. The principles for sentencing for rape cases have been set by the Supreme Court in John Aubuku -v- The State (1987) PNGLR. In the context of the judicial response to the plight of women in Papua New Guinea, it is quite consistent that the courts should seek some proportionality between sentencing for rape, and for those manslaughters where the victims are women who have been killed as a result of domestic violence.

To the extent that the ratio decidendi in The State -v- Polin Pochalon Lopai was intended to have general effect to all manslaughter case, it is my view, with respect to His Honour, incompatible with the law.

The principles for sentencing in cases of manslaughter arising out of an assault are set out D.A. Thomas Principles of Sentencing 2nd Edition pp83-85.

The approach is to related the sentence to the gravity of the assault. Sentences will be higher if the possibility of death or bodily injury should have been apparent to the accused at the time.

Thomas shows that where the assault is no more than a common assault, for example the slapping of the face of an elderly woman by a mature man causing her to fall and bang her head, a sentence of six months could not be criticised.

A fist-fight in which the deceased banged his head on a wall could attract a sentence of three years.

A case involving the use of a weapon in circumstances which would justify a conviction for maliciously inflicting grievous bodily harm would lead to a longer sentence within the range of four to six years. Where a beer-glass was used in a bar brawl severing the deceased’s neck-artery, a sentence of five years was imposed.

The upper limits of the range were reserved for killings in which the principals had indulged in grave violence, but had gone beyond the scope of the common purpose intended by the prisoner. While the principals were convicted of murder, and under English Law received life sentences, the other defendants who had taken part in the attack received sentences between seven to ten years.

If we put aside spleen killings arising from domestic violence in Papua New Guinea, which with respect to Bredmeyer. J I agree warrant treatment above existing tariffs, then the principles in Polon Pochalon Lopai represent a significant departure from the Common Law. Of course, a Papua New Guinean Court is not bound by the post-Independence decisions of the English Courts, but the legal principles laid down by those courts, with respect, have merit. I do not see them as being contrary to custom in the light of the facts of this case. The principles in Polin Pochalon Lopai apply only to domestic violence, and spleen killings. I adopt the English principles, whether by virtue of declaring the underlying Law under Sch.2.2 of the Constitution, or by developing it under Sch.2.3 of the Constitution.

These principles are:

1. “..English Law has always regarded causing the death of a man (sic) as an offence of great gravity, although the circumstann whiath ised anifeseleva assessing the degree of criminal responssponsibiliibility anty and wicd wickednekednessss” R -v- Stewart and Williams (1979) 1 Cr App R (s) 228,230.

2 ـ &#&60; 0;8220;...sentences nces for manslaughter arising from an assault should relate to the sentence that would have been appropriate if the assault had not had fatal consequences, bth anementeflect the fthe fact tact that dhat death has resulted... the fact that the assault is committed in circumstances where the risk of genuine injury arising should have been apparent to the offender is an aggravating factor”: 1979 Crim L.R. 793 Commentary on R -v- Stewart and Williams.

It is clear then that there is quite a difference between English practice, and the practice in this country, if the principles in Polin Pochalon Lopai are to have general applicability. As I have indicated, I prefer to regard the principles in that case as being confined to manslaughter cases in which the deceased was a wife, who died as a result of an assault in a domestic dispute.

THE FACTS

The prisoner is 30 years old, a graduate accountant who has been employed as an Accountant by TALAIR for the past five years. He is married with two wives and four children. He is a person of substance.

On the 14th of July 1989 it appears that the prisoner was involved in a series of drinking bouts. He ended up back at his house on the 15th of July, which was a Saturday. After some sleep, he started to drink again.

He became involved in a tussle with his nephew Robin Giheno. The prisoner says that Giheno provoked the struggle, Giheno says it was otherwise, but Giheno’s forehead was cut by a bottle which the prisoner had in his hand.

The sight of the blood flowing from Giheno’s head provoked the deceased Kuri Yasinefa to throw a can at the prisoner. According to the prisoner, at that time he had a stick in his hand to frighten Robin Giheno. The can missed the prisoner and the prisoner hit the deceased twice: once on the body area, and once solidly on the head. The deceased collapsed, was taken to hospital, but died two days later of a “mid brain compression from the extensive right subdural haematoma produced by the contre-coup mechanism as a direct result of the blow inflicted upon the left parietum of the deceased”.

After killing the deceased, who was the prisoner’s brother-in-law, the prisoner was attacked by his own brother and knocked unconscious.

I think this is a relevant factor because it shows the whole pattern of the prisoners’ conduct that day; it was such that he first fought with and wounded his cousin, then he struck down his tambu, and then he was attacked by his own brother.

The prisoner pleaded guilty, he helped the police, he has shown contrition before the court.

HEAD SENTENCE:

In fixing a head sentence I follow the principles set down in R -v- Stewart and Williams (1979) 1 Cr App R(s) 228 and in Rv Hughes (1988) Criminal Law 2.545. With respect I do not believe that the principles in the State -v- Polin Pochalon Lopai to be appropriate, and I confine them to their facts.

On a trial I am of the view that a head sentence in the case before me would be two years imprisonment. For a plea I fix the head sentence at eighteen months.

S19(1) (F) DISCRETION:

Both counsel have indicated to me that in the circumstances of this case a suspended sentence would not be inappropriate.

The Court was told of the payment of compensation and the settling of the relationships between the two families which enable me to exercise my discretion under s19(1)(f) of the Criminal Code, and suspend part of the head sentence.

There has been a large amount of customary compensation paid in this case. K12,000 and six large pigs. The Court has been told that this compensation has stabilized relationships between the deceased’s family, and the prisoner and his family. The Court has been told that the relationships are now harmonious.

The adoption, application and enforcement of customary law, under Sch.2.1. of the Constitution is subject to, amongst other things, an Act of Parliament, the Customs Recognition Act, which regulates the use of customary law - see Constitution Sch 2.1.(3)(b). Under the Customs Recognition Act s.4(e), custom may be taken into account in punishment, to mitigate or aggravate the sentence to be imposed - Chalmers, Weisbrot, Andrews Criminal Law and Practice of Papua New Guinea, 2nd Edition, 15. There is a clear statutory mandate for the Court to take custom into account on matters of sentence, and I do so now.

The prisoner is to serve nine months less the 2 weeks he has spent in custody in prison of the eighteen month sentence which I impose upon him. After that the balance of the sentence is to be suspended for a period of nine months on condition that he enter into a K400 cash good behaviour bond, with a further condition that the prisoner does not drink any alcoholic beverage during the nine month period.

Lawyers for the State: The Public Prosecutor

Lawyer for the Defendant: The Public Solicitor