State v Kot [2000] PGNC 61; N2027 (10 November 2000)

N2027

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR 559 of 2000

THE STATE

v.

JOHN PETER KOT

LAE: GAVARA-NANU, J

2000 : November 10

CRIMINAL LAW – Sentence – Manslaughter – Compensation as a mitigating factor – Prevalence of the offence – Need for punitive deterrent punishment – What is fair and proper punishment.

Cases Cited:
Rex Lialu v The State [1990] PNGLR 487

The State v Steven Tilukean CR 814/99 Numbered N1953
The State v Betty Kondai CR 553 of 2000
R –v- Whitmore [1988] CR App. R.288 at 290
The State v Michael Saragum (Unnumbered October, 1988)

Counsel:
N. Miviri for the State
J. Kaumi for the Accused

SENTENCE

GAVARA-NANU, J: The prisoner has been convicted of manslaughter after pleading guilty. The person killed in this case was his wife, one Mana Kim Bimbim. The brief facts are that on 9th November 1998, during a domestic argument, the prisoner threw a stone at the back of the deceased’s head and broke the skull, which resulted in the deceased’s death. From the statements of the eyewitnesses at the scene, the prisoner and his wife had been arguing and at some stage during the argument, the prisoner motioned as if to hit her with his hands and the victim covered her face with her hands. One eyewitness says, the prisoner then picked up a stone and when the deceased saw that, she tried to run away from the prisoner with her back to him, the prisoner then threw the stone with force which connected at the back of the head of the deceased, immediately cracking the skull. As the result, she fell down and blood came out from her nose and mouth, she vomited and died soon after. According to this witness the prisoner fled the scene.

The other eye witness, namely, John Kawas in describing the way the prisoner threw the stone at the deceased said in pidgin "taim meri bilong en Mana Bimbim lukim John Eriku pikim ston, em tanim fes bilong em igo olsem long gate wei na traim long ron away igo insait. John Eriku taitim bun wantaim toromoi ston long han bilong em igo long het bilong Mana Bimbim na ston pas long kolostu long right side long baksait long het bilong em na ston pundaun igo daun long giraun na meri Mana Bimbam pundaun igo daun arere long gate wei stret na tanim tanim long wesan istap. Taim ston bin pas long baksait long het bilong Mana Bimbim, em bin pairap bikpela tru olsem burukim wanpela drai kokonut long cement floor kain olsem". This in my view is the perfect description, of the type of force the prisoner used to throw the stone, and the effect of it when it connected with the back of the head of the deceased. From this description, it is very clear that the force used was considerable. In fact all the eyewitnesses, including the prisoner in his record of interview say that when the skull cracked it sounded like a dry coconut been cracked. Mr. John Kawas’ evidence of where the deceased fell is supported by the photographs of the scene marked A1R.1.Photograph A’8’ shows that the stone that was thrown by the prisoner at his wife’s head, is a sizeable stone which is more than heavy enough to cause serious injury to a person when thrown with the force described by this witness. The stone had been identified by the prisoner as well. The prisoner in his record of interview admitted the offence but said, the deceased went and accused him of going around with other women while he was trying to fix the steering rod of a car. He said, as the result, they argued, and the deceased fought him and tore his shirt in another person’s yard and even stoned him.

The prisoner also said that, the deceased hit him with the stone he used to hit the deceased with at the back of his head. He said, he then got the stone and hit her.

This story differs from what John Kawas said. I accept John Kawas’ version of how the prisoner hit the deceased with the stone. The prisoner in his record of interview said that, he used his right hand to throw the stone and was very cross because the deceased was angry and was talking a lot.

I quote the relevant questions and answers in the record of interview:-

Q.39 - "What happened to Mana when you threw the stone at her?

Ans – The stone landed at the back of her head and we all heard a cracking noise as breaking a dry coconut.

Q.40 – What did Mana do then?

Ans – She fell to the ground and started to vomit from her mouth while I stood watching her with fear.

Q.41- Was there any sign of blood vomited from her mouth?

Ans – No I was very very troubled because I did not mean to kill her.

Q.42 – Which side of your hand did you use to throw the stone?

Ans – Right hand.

Q.43 – Is it true that you were very angry before you struck her with the stone?

Ans – Yes, she talked too much and made me angry.

The deceased was estimated to be 20 years old at the time of her death. According to the prisoner, the deceased reached Grade 7 at the Lae Provincial High School. The prisoner is a young man from Western Highlands Province aged about 25 years. The deceased is from Morobe Province.

The prisoner says, he paid K6,500-00 and gave away a 25 seater Coaster bus to the relatives of the deceased in compensation. He says, there has been reconciliation between him and the deceased’s family and says that the matter has been settled in a customary way. After receiving compensation, the deceased’s relatives did not want the matter to come to court. They in fact told the police to withdraw the case, and even in this court, I have been given a letter purportedly signed by the father, mother and the sister of the deceased suggesting that the prisoner be discharged. The relatives of the deceased have apparently sold the bus and used the money from that sale.

The bus was bought for about K67,000-00 and was about 3-4 years in use when it was given to the deceased’s relatives. I estimate the value of the bus to be about K25,000-00 to K30,000-00 when it was given to the deceased’s relatives and would have clocked at least 70,000 kms by then. So a lot in terms of compensation has been paid to the relatives of the deceased.

I can therefore understand why the father, mother and the sister of the deceased did not want to see this matter come to court because as far as they are concerned, the prisoner has paid for the wrong he did to them.

Any form of killing, be it wilful murder, murder or manslaughter is a very serious crime. Maximum penalty for this type of crime is life imprisonment.

The range of sentences imposed by the National Court for manslaughter in recent years has been increasing. In this regard, I adopt the principles adopted by the Supreme Court in Rex Lialu v The State [1990] PNGLR 487 as a guide for purposes of determining the type of punishment I should impose on the prisoner in this case. In Rex Lialu’s case, the court substituted the sentence of 6½ years imposed by the National Court with 4½ years. In that case, the deceased died when he fell onto the bitumen and hit his head as the result of being punched once to the head by the prisoner. This case before me is more serious than Rex Lialu but applying the guidelines adopted by the supreme court in that case, I find the following aggravating factors:-

1. The death in this case resulted directly from the attack by the prisoner.
2. Injury which resulted in the death of the deceased was caused by an object used by the prisoner to harm the deceased namely a stone.
3. And there was a deliberate intention by the prisoner to harm the deceased.
   

I find that there was some provocation by the deceased in the non legal sense. However, the force and the object or weapon used to cause the death of the deceased was in my view beyond any measure of provocation offered by the deceased. It cannot be justified.

This is not a spleen type manslaughter or dying as the result of falling on an object and breaking a thin skull after been punched or pushed or such similar less serious types of manslaughter cases.

As I said, the sentences in manslaughter cases in recent years have been increasing due to the offence becoming prevalent. Indeed as way back as 1988, in the case of The State v Michael Saragum an unnumbered decision of October, 1988, the court imposed 5 years for manslaughter where the accused punched his wife in the stomach, puncturing her spleen and causing her death. That case is referred to in Rex Lialu’s case at p.490. In the same case at p.497, Kapi DCJ, said "Consistent with the approach of sentencing I have outlined in my judgment, I took liberty to consult the statistics in manslaughter cases in the last 15 years, which are outlined in the Judge’s Annual Report to the Parliament. Sentences range from a good behaviour to 10 years.

In the same case Hinchliffe J, at p. 499 said, "Violence is on the increase and innocent people are being killed quite regularly. Members of the public are looking towards the courts to be more severe when sentencing violent offenders, hoping that tougher sentences may be a deterrent to others".

I have the benefit of reading two recent National Court decisions on the types of sentences given in manslaughter cases, one by Jalina J, in Kokopo in East New Britain Province in the case of The State v Steven Tilukean CR 814/99 Numbered N1953. In that case, the prisoner viciously attacked his wife by kicking her severely on her genital area resulting in severe bleeding, which eventually led to her death. The husband had on previous occasions harmed her and had been violent towards her. The prisoner in that case showed remorse and pleaded guilty and had paid compensation of K600-00 cash, 5 pigs, 2 kakals and 1 fathom of mis (shell money) in a big feast held in the village to settle the problem with the wife’s relatives. He naturally sought leniency. The prisoner was sentenced to 12 years IHL.

Then in another case which was decided by Injia J in Lae, in the case of The State v Betty Kondai CR 553 of 2000, on 12 October 2000, the judge imposed a sentence of 10 years. In that case, the prisoner who was the wife, stabbed the deceased who was her husband with a kitchen knife which resulted in his immediate death. They had some problems in their marriage and had been staying apart. On the day of the incident, the deceased’s husband went to get their child who was living with the prisoner at that time. She told him that he should have brought a pig to compensate her before taking the child, upon which the deceased called her a prostitute and was wasting money on her. This made the prisoner angry and she first hit him with a stone on the back then later attacked him with a kitchen knife by stabbing him which resulted in his death.

The prisoner in that case showed genuine remorse, pleaded guilty, had no prior convictions, had good character, had formal education and had good Christian background. She also paid K3,260-00 in cash, 31 pigs worth K16,050-00 as compensation to the deceased’s relatives. The relatives of the deceased and the prisoner requested that she not be punished by the court.

The court sentenced her to 10 years. His Honour said, no amounts of compensation will restore the life of a young policeman. I respectfully agree with his Honour. In any form of crime, where one’s life is taken, nothing will restore the life that is lost. In this case, a young woman, with some education, who would have lived for many more years is no longer alive. The laws are made to protect people’s lives. When a life is taken through crimes such as this, those responsible must be punished with punitive deterrent sentences.

In R –v- Whitmore [1988] CR App. R. 288 at 290, the appellate court was considering the severity of the sentence imposed on the appellant for unlawfully killing the deceased by stabbing him with a kitchen knife. The court said "Those who take deadly weapons in their hands to use upon others, whatever their intent, must appreciate the serious risk that they take with other peoples' lives and that they will be severely punished by the court". The appellate court affirmed the sentence of 7 years.

I have considered and taken into account all the mitigating factors in favour of the prisoner including the huge compensation paid to the parents of the deceased. That has reduced the sentence I would have otherwise imposed had such compensation not been paid. The compensation cannot exonerate the prisoner, it can only mitigate his sentence. To let the prisoner out on a bond as requested by prisoner would not be an appropriate sentence for him. Such sentence would be manifestly inadequate in the circumstances of this case. The plea by the prisoner and the relatives of the deceased to regard the matter as settled because of the amount of compensation paid is not sanctioned by the law either. I must therefore reject it.

Taking into account all the circumstances of this case, I consider the sentence of 7 years IHL to be appropriate punishment. The prisoner has spent 1 year 3 weeks in custody. I deduct that period. The prisoner will serve the balance of 5 years 11 months and 1 week IHL. I recommend that the prisoner serve his sentence in Baisu CIS, in Mt. Hagen.

__________________________________________________________

Lawyer for the State: Public Prosecutor

Lawyer for the Accused: Public Solicitor