Unreported National Court Decisions
N927
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
CR 1164 OF 1990
THE STATE
V
JOHN ANTHONY LESLEY
Waigani
Jalina J
6 December 1990
CRIMINAL LAW - Manslaughter - Spleen death of wife - By single punch - Deceased ten (10) months pregnant - Destruction of foetus through death of mother - Whether two persons killed - Whether loss of foetus an aggravating factor - Criminal Code ss 290, 302, 312.
Counsel:
Mr P. Mogish with Mr. Sambua, for the State.
Mr D. Koeget, for the Prisoner.
Cases Cited:
Rex Lialu v The State (unreported Supreme Court Decision dated 30th November 1990)
6 December 1990
JALINA J:  The prisoner was charged with unlawfully killing Mala Rose Uyap who was his wife. He has pleaded guilty to the charge.
The facts of this case (which are not disputed by the defence) are that on the day of the offence the prisoner left his wife watching sports at Nazareth Community School just outside Port Moresby and returned to the village near Laloki Bridge to have his bath. When he was returning to the School after having had his bath he met his wife on the road to the village. He asked her why she was walking alone but she did not answer. He then asked her if they could return to the school but she refused. She insisted that they return to the village. While they were walking he discovered that the deceased’s dress was wet so he asked her as to why her dress was wet but she again did not answer. So he grabbed her, touched her pantie and discovered that it was also wet. He became suspicious and enquired with his wife as to whether she had been raped but she did not reply thus resulting in an argument between them. During the argument she was punched several times on her head and once on her stomach. He then accompanied his wife back to the village. They held each others hands from time to time as they walked. While they were walking he discovered that the deceased could no longer walk so he took her to a shade under a tree, left her there and went to look for water which she had requested. When he returned he tried to help her by giving her the water but she could not drink so he poured the water over her head. It was then that he realised that she was dying so he left her and went to look for a vehicle to take her to the hospital. He returned with a vehicle and whilst she was being driven to the Port Moresby General Hospital she died. The cause of death was found by Dr. Barua to be haemorrhage shock due to ruptured spleen. The deceased was also found to be about ten (10) weeks pregnant at the time of her death.
The penalty for manslaughter is, subject to Section 19 of the Criminal Code, imprisonment for life. But the practice of the Court has been to impose a term of years. The principles relating to sentencing for manslaughter has now been settled through the recent decision of the Supreme Court in REX LIALU v THE STATE (an unreported Supreme Court Decision dated 30th November, 1990). It is now clear through that case that there is no hard and fast rule about the number of years to be imposed for manslaughter. Each case must depend on its own facts. Sentences for spleen-death-manslaughter have ranged from 3 to 5 years. I myself have imposed sentences of up to 5 years for unlawful killing of wives by their husbands because I have felt that wives must be protected from unnecessary and sometimes unwarranted and thoughtless assaults on them by their husbands just because the husband thinks that he is married to her and therefore has a right to beat her. I have considered death of a wife through an assault with an object or by continous kicks or punches by their husbands as being more serious than death through an assault on the wife with a single punch.
In this case it was not the number of punches to her head that caused the deceased’s death but the single punch to the stomach which ruptured her spleen. The reason surrounding the assault on the deceased by the prisoner is understandable. Any man would become concerned and even more suspicious and take some action against his wife if she offers no explanations. In this case the deceased was not suspected of a mere unfaithfulness but rape. Rape is having sexual intercourse with a woman or girl who does not consent or whose consent is obtained by force or threats or through administration of alcohol, drugs etc. Since she was suspected of having been raped there was no reason why she had refused to answer. If she was in fact raped she should have said so. I do not think that he would have been angry with her if she had told him that she was raped. He would have gone after the rapist instead. In any case, after the assault the deceased and the prisoner walked hand-in-hand thus showing that he still loved her notwithstanding his suspicions. But the unfortunate and the unexpected happaned and she died.
The prisoner has no prior convictions. His parents are old (aged about 49 years) but alive and he is the eldest of three (3) children the other two (2) being females. He has expressed remorse and has been in custody awaiting trial for two (2) months.
Although the deceased was found by Dr. Barua to have had a ten (10) week old foetus at the time of her death it has not satisfied the requirement of Section 290 of the Criminal Code to be considered a human being. He has therefore not killed two persons but only one person, namely the deceased. Furthermore, as the deceased was not about to be delivered of a child it cannot be said to constitute manslaughter pursuant to Section 312 of the Criminal Code. The destruction of the foetus therefore has no consequence in law. The destruction of the foetus through the death of the woman carrying it (in this case through the death of the deceased) may however become an aggravating factor in my view depending on the stage of pregnancy. I would consider destruction of an unborn child during the early part of pregnancy, say three (3) months (as in this case) less serious than the destruction of an unborn child during the later part of pregnancy, say, six (6) months or eight (8) months.
Nevertheless a life has been lost through an assault by the prisoner without regard to the fact that the deceased was pregnant and that if he hit her in the stomach the baby might be lost through a miscarrage. He should have therefore refrained from punching her in the stomach in which case she would not have died. He therefore needs to be punished to demonstrate to others not to do the same thing. Taking into account the various factors mentioned by the prisoner on allocutus and by his lawyer and bearing in mind the range of sentences for spleen-death-manslaughter, the appropriate sentence in the circumstances of this case is imprisonment in hard labour for three (3) years. I deduct the two (2) months he has spent in custody awaiting trial so he will have to serve another two (2) years and ten (10) months.
In respect of his request for my recommendation to the Commissioner for Corrective Institutions to have him transferred to Lakiamata Corrective Institution just outside Kimbe, I do not consider his reason that he wanted to be with his parents a convincing one. There are many prisoners who also want to be near their families so that they can be visited but I would have thought that that is one of the things that a person who commits a crime has to bear in mind before doing so or before taking any action which is itself unlawful such as in this case where the assault on the deceased was unlawful ab initio. I consequently refuse his request to make a recommendation to the Commissioner for Corrective Institutions.
Lawyer for the State: Public Prosecutor.
Lawyer for the Prisoner: Public Solicitor.