State v Arua [2001] PGNC 127; N2076 (28 March 2001)

N2076

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 973 of 1999

THE STATE

-V-

JOE BUTEMA ARUA

LAE: KANDAKASI, J.
2001: JANUARY 15 and 26
MARCH 28

CRIMINAL LAW - Sentence - Manslaughter - Guilty Plea - Domestic argument leading to a fight and death - Provocation in the non legal sense - One punch with the fist and several repeated kicks with a boot - Rupture of swollen spleen - Good mitigating factors - 8 years sentence in hard labour.

CRIMINAL LAW - Application of Criminal Law (Compensation) Act 1991 considered - Cross-customary marriage - Compensation considered inappropriate and not ordered.

CRIMINAL LAW - PRACTICE & PROCEDURE - Necessary to call for and consider pre-sentencing report when lenient sentence asked for and to determine whether or not compensation should be ordered.

Cases cited

The State v. Nickson Pari (No.1) (2000) N2037
The State v. John Gurave Guba (2000) N2020
The State v. Jason Dongoma (2000) N2038
Noris v. The State [1979] PNGLR 605
Rex Lialu v. The State [1990] PNGLR 487.
The State v. Steven Tlukean (2000) N1953
Jack Tanga v. The State (1999) (unreported and unnumbered decision of the Supreme Court
The State v. Ngeto Rex Rongo (2000) N2035
The State v. Horou Posu Kave [1986] PNGLR 305
The State v. Pelin Pochalon Lopai [1988-89] PNGLR 48
The State v. Ottom Masa (2000) N2021

Counsel:

J. Pambel for the State
A. Raymond for the Defendant

28 March, 2001

KANDAKASI, J: On the 15th of January 2001, you pleaded guilty to one count of manslaughter of one Nenegame Backampi (hereinafter "the deceased") pursuant to s.302 of the Criminal Code Act (Chp.262)(hereinafter "the Code"). The depositions were then admitted into evidence without any objection from you.

Statements Inconsistent With Plea

Upon a reading of the depositions, I noted that you were raising the possible defence of either provocation or self-defense. I therefore, raised that with your lawyer, who said she has no application to make under s.563 of the Code, but she said she has your instructions to maintain your guilty plea.

It is now settled law that, if a Defendant raises something either in the depositions or in his allocutus that is inconsistent with his guilty plea, the plea must be changed to one of not guilty whether or not his lawyer makes a s. 563 of the Code application: See The State v. Nickson Pari (No.1) (2000) N2037 at pages 4-8 where I set out and discuss almost all the cases on point. It should however be noted that, that is the correct procedure to follow if that which makes the guilty plea inconsistent goes to an essential element of the offence with which the Defendant has been charged. Thus, if all that the Defendant does is raise the possibility of a legal defence, then the authorities seem to suggest that, the court must raise that with the defendant’s counsel and if a choice is made to maintain the guilty plea that should be allowed. In other words, if a defendant decides to maintain a guilty plea despite having a possible legal defence and that fact being raised with his counsel, the court is not obliged to change the guilty plea.

In The State v. John Gurave Guba (2000) N2020, in so far as is relevant, I said these at page 3 of the judgement:

What is not clearly expressed one way or the other is, what should be the procedure if the defence decides to forego any defence that may appear to exist or is disclosed in the depositions or in the statement in his allocatus. For clarity on that aspect, in my view, it ought to be stated in clear terms that, just as the court is duty bound to accept an indictment presented following a plea bargain for a lesser charge, when a more serious one is disclosed in the depositions, the court should also be duty bound to accept the defendant’s decision to forego any defence he may have and supported by the depositions. Besides, a defendant may take such a position because of the obvious benefits a plea bargain may bring to him in addition to the benefits a guilty plea may bring to him. He may also see difficulties succeeding on the defence that may be disclosed in the depositions or in his statement in allocatus and decide not to raise it.

Accordingly, in the present case, after raising what appeared to be a possible defence of provocation and or self-defence with your lawyer who decided not to make an application under s. 563 of the Code, I was satisfied that the evidence presented supported the guilty plea. Therefore, I proceeded to confirm your guilty plea and convicted you as charged.

Allocatus

The administration of your allocatus was uneventful and I proceeded to hear address on sentence mainly from your lawyer. The State made no submissions. The matter was then adjourned to allow for a pre-sentencing report and thereafter a decision on sentence. What follows is the court’s decision on sentence after receiving and considering the pre-sentencing report.

Facts

As I said in The State v. Jason Dongoma (2000) N2038:

There is authority for the use of depositions to extract the relevant facts for sentencing purposes. See The State v. Sabarina Yakal [1988-89] PNGLR 129. I will therefore use the depositions to extract the facts in this case.

Accordingly for sentencing purposes, I will use the depositions to extract the relevant facts for the case before me now and find what follows as the relevant facts.

On the 11th of February 1999, at about 10:00am, you returned from your shift work with PNG Armored Guard, with whom you were employed for about a year. At the time, you lived with the deceased, after marrying some 8 months back, at Talair Compound, Lae, Morobe Province. Upon arrival at the house, you asked the deceased for some food. The deceased told you that, there was no food. You then asked the deceased about a K20.00 you gave her and the deceased told you that, she had given that to her mother who came from the village and was returning the next day. Instead of accepting and or stopping at that, you insisted upon a return of your money. That made the deceased to decide to go to the house where her mother was to get the money and return it to you. You and a Helen Eran, followed the deceased on her way to where her mother was. On the way, you demanded the deceased to go back to the house so you could get your belongings, pack them up and leave the deceased. The deceased obliged and headed back to the house first followed by you and then Helen Eran.

Once at the outside of the house, the decease took a piece of iron and swung it at you around your leg area, which failed to meet its target. She swung the second time successfully around your left hand area. A third swing by the deceased got you on your face (nose) area. At that time, you threw a punch at the deceased causing her to fall to the ground. Whilst she was on the ground, you booted her several times on the back area with a stockman boot you were wearing at the time. The deceased then took the same iron piece she earlier used and threatened to kill you and that made you let go off her and she ran away to her sister’s house which was near by.

When at the sister’s house, the deceased went into pain and agony and eventually died after almost an hour of struggling for her life. Attempts to get her to the hospital proved too late. A post mortem was carried out and it confirmed that, the deceased had a pre-existing swollen spleen, which ruptured by the punch and kicks she received from you which led to her death.

In your record of interview and a statement to the Court you obviously try to exonerate your culpability. Though telling the same story has above, you omit the following facts:

1. The arguments, the fight and the eventual death of the deceased was set in motion by your persistently calling for a return of your K20.00 and you deciding to pack up and leave;
   
2. Your actions in a way provoked the deceased to act in the way she did;
   
3. You punched the deceased down to the ground and then you proceeded to boot her several times with a stockman boot you were wearing at the time;
   
4. You would have continued your booting for sometime if the deceased did not pick up an iron piece and threatened to kill you.
   

You claim without the support of any of the evidence on file that, you executed only one kick and do not know whether the deceased was standing or was down on the ground as you were when you executed you claimed single kick. These claims are not supported by any of the evidence before the court.

Address on Sentence and the relevant law

Mrs. Raymond your Lawyer, argued for a sentence up to the rising of the Court having regard to the fact that you have spent 1 year 11 months and 3 days in custody awaiting your trial. She then advanced and I note and take into account as factors in your mitigation the following:

1. You pleaded guilty to the charge which save the State and the Court time and expenses of running a trial;
   
2. You loved your wife after having married her only 8 months back;
   
3. You did not intend to kill the deceased;
   
4. You executed only one kick which ruptured an already pre-existing swollen spleen;
   
5. You cooperated with police following the commission of the offence;
   
6. You have no prior convictions;
   
7. You are not a threat to society;
   
8. You have lost and are grieving over the lost of your wife; and
   
9. You have expressed remorse for what you have done;
   

It was also submitted for you and I accept that your own custom does not recognise customary compensation but the deceased's custom does. You are prepared to pay K500.00 in compensation to the deceased relatives.

Your lawyer referred the Court to the case of Noris v. The State [1979] PNGLR 605 and Rex Lialu v. The State [1990] PNGLR 487. In the first case, the Supreme Court reduced a sentence of 5 years to 4 years, on a guilty plea to a charge of manslaughter. The National Court sentenced the appellant to 5 years. In so doing, the National Court had regard to objected to hearsay evidence of the appellant being a "man of dangerous passion and temper". On appeal, the Supreme Court found that the learned trial judge erred in admitting and relying on evidence, which was hearsay and in any case objected to. Omitting the evidence objected to by the appellant there was evidence to find that he executed blows to the deceased head, resulting in brain damage and eventual death. The deceased was his de facto wife.

In the Rex Lialu case, it was also a case of manslaughter. That was a case in which, one man killed another, following suggestive words against the appellant’s wife. The appellant threw one punch causing the victim to fall on his back on the bitumen and eventually die in the consequence. The National Court gave the appellant a sentence of six and half years but the Supreme Court on appeal reduced that to four and half years. The Supreme Court also set the guidelines for sentencing in manslaughter cases in the following terms without limiting the list at page 497:

(a) The court must have careful regard to the circumstances of death and the way in which death was actually caused;

• (b) The following matters may be relevant to the nature of the act causing death:
  

(i) the nature and frequency of any attack or assault;

(ii) whether the injury which caused the death arose directly from an attack or assault or was caused by, for example, falling on an object;

(iii) whether the injury was caused by the person or by a weapon;

(iv) whether there was deliberate intention to harm;

(v) whether there was provocation in the non-legal sense;

(vi) whether the deceased had a thin skull, and

(vii) whether the deceased had an enlarged spleen.

The above guidelines have been followed in many subsequent cases. A most recent example of that is the case of The State v. Steven Tlukean (13/04/00) N1953. In that case, the defendant unlawfully killed his wife during a domestic argument. He inflicted a 7cm by 10cm knife wound to his wife on the left side of her vagina. That led to heavy loss of blood and eventually her death. There was evidence of past and an almost continuous domestic argument and wife beating by the defendant. The Court referred to a not yet reported and numbered Supreme Court decision, delivered on the 6th of April 1999, and imposed a sentence of 12 years and after deducting the period spend in custody awaiting his trial, the defendant was ordered to serve a term of 10 years 11 months and 2 weeks in hard labour.

The Supreme Court decision relied on was Jack Tanga v. The State. The following passage was quoted from that case from page 3:

The sentence in any given case will of course depend on its own peculiar facts. We are unable to prescribe any particular range of sentences for this offence, as it is all too difficult to fix any range of sentences with some degree of precision. However, we should suggest that in an unintentional killing case which is uncontested, whatever the extenuating and mitigating circumstances may be, the application of vicious force, with or without the use of a weapon, causing serious bodily injury resulting in death may attract sentences between 10 years and above and in some cases, even life imprisonment. Such stern punishment should reflect the seriousness and prevalence of this offence throughout the country, which this Court and the National Court has emphasised time and time again.

The National Court then adopted with approval and I do likewise the following passage from the same Supreme Court judgement:

It is about time that sentences started to increase in a large way in relation to domestic violence. The National Court (has) been far too lenient in the past in relation to men who are belting their wives. And in some instances wives belting their husbands. So let (us) warn everyone right now that the sentences are going to go up.

As may be apparent from the above cases, the charge of manslaughter is a serious offence carrying a maximum penalty of life imprisonment, as it involves the unnecessary and premature lost of a human life. Such a loss could easily be avoided if people learned to and did learn not to fight each other regardless of whatever the differences they have amongst themselves. If indeed marriage partners love their partners, whatever the status they are in, they should be slow to lifting their hand against the other and hurt them let alone, kill them.

In The State v. Ngeto Rex Rongo (2000) N2035, I said these at pages 10:-

Without going into any details, when God created man and woman, He made woman a little lower than man by creating her out of the man’s ribs (Genesis 2: 21-23). Women are therefore, inherently not stronger than men. Because of that the Bible teaches that when a man and woman get married they become one flesh (Genesis 2: 24). Therefore a man needs to tender and care for his wife as his own flesh. The Bible also teaches that all human kind should love one another for that is the greatest commandment or law of God. Built into that is the commandment which says, you shall not kill (Exodus 20: 13). Through our Constitution our country has adopted these very principles. Therefore, all citizens of our country and more so those who claim to be Christians should be the last to act contrary to those principles.

Unfortunately, these principles have been over-looked and many people are acting contrary to those principles even by those people who claim to be Christians. This has necessitated the enactment of the criminal laws.

Wife beating is now an offence in our country. This has been brought about because of husbands beating up wives as if they are not more than just mere beings fit only to be their wives. Even after the enactment of the laws against wife beating, many men are continuing to beat up their wives. Some of the beatings are ending up in deaths. Currently, the women in our country are continuing to call for violence against women and girls to stop. Yet a few men like the Defendant are continuing to beat up and even kill their wives.

These men fail to appreciate the fact that their wives are human beings like them and have the right to live and to be treated with human dignity and respect. They do not appreciate the fact that women are inherently weaker than men are and as such they need to be treated with care and respect. Men need to show the women or their wives that they truly love them. If they do not love their wives, they should not have married them at the first place, or if their love has grown cold, they should let them go their own way rather than killing them.

If there are differences in the family or marriage, that should be resolved in a non-violent and orderly manner. If that is not possible, then the Church or community leaders should be called to assist. If through such process, the difference or problems cannot still be resolved, they should agree to go their separate ways because of the irreconcilable differences. Entering into an argument and beating up a wife and or killing her is not the way to resolve family problems. The men as head of the family should show true leadership by acting in a manner that is not violent and treat his wife with respect and care.

In the case before me, I find that the Defendant acted in a manner that was contrary to his Christian principles, the Constitution in so far as that is relevant and of course s.300(1)(a) of the Code. I fail to see how a human life could equate to a coffee, strainer, 2 lamps and a wire used for cooking, being the objects over which the Defendant killed his wife, the deceased.

The present case

In your case, the argument was over food and a K20.00. Upon your return from work, you asked the deceased for food and you were told there was no food. You then asked the deceased about a K20.00 you gave her and the deceased told you that, that was given to her mother who had come from the village and was returning the next day. With full knowledge of the money being given to your mother-in-law, you pestered the deceased to go and retrieve the money from her mother to the point of actually causing the decease to go to where her mother was to get the money back. Before she could do that, you demanded the deceased to go back to the house so you could pack up your things and go away.

I believe what you did must have made the deceased very angry. So when she eventually got back to the house, she picked up an iron piece and was trying to hit you. Instead of running away or taking such other steps to cool her down, you threw a punch at the deceased, which caused the deceased to fall down to the ground on the side of the house. As if that was not enough, you proceeded to boot the deceased with a boot you were wearing at the time. On the evidence, it seems you landed several kicks until the deceased managed to pick up the iron piece again and threatened to kill you and you let go off her. Before she escaped however, the damage was already done. Her swollen spleen ruptured and she died.

You argued that, you were provoked in the non-legal sense. I find however, that situation if it did exist, was given rise to by your persisting upon a return of your money and spoke of leaving the deceased after marrying and living with her for 8 months. I also find that, there was nothing preventing you from either running away or avoid your own provoked attacks of your wife now deceased. Further, I find that, you tried to exonerate yourself before both this court and the police, by omitting from your own recount of the incident the factors, which go against you such as you landing several kicks by a boot you were wearing at the time.

I further find that, this is not a case of a single blow rupturing an already swollen spleen but a case of repeated assault after provoking the deceased into an argument and eventually a fight, which directly led to her death. This therefore, calls for a sentence above what has now become known as "spleen death cases". Sentences in such cases range between 4 and 6 years. See The State v. Horou Posu Kave [1986] PNGLR 305 and The State v. Pelin Pochalon Lopai [1988-89] PNGLR 48, in addition to the cases cited above. These cases have to be reviewed in the light of the Supreme Court decision in Jack Tanga v. The State (supra).

Once again, I note and take into account the factors advanced in your mitigation namely that, you have pleaded guilty to the charge, which saved the State and the Court time and expenses of running a trial. I also take into account the fact that, you say you loved the deceased but I quickly ask, then why did you see fit to pester her and argue over a mere K20.00 and eventually claim her life. I fail to see how a human life could be taken away just for a mere K20.00 as if the K20.00 was more valuable than a human life. Your claim of having loved the deceased is at odds with the circumstances in which the offence was committed. At the same time, I note your claim that, you did not intend to kill your wife. That must however, be viewed in the light of the fact that, you have been charged with and you have pleaded guilty to an offence which does not carry intention to kill as an element. I further note that, you have no prior convictions and that, you are not a threat to society and that, and you have lost a wife. Nevertheless, the last factor was brought upon yourself as a direct consequence of your unlawful acts and as such it should not operate in your favour. You should have warned yourself of such a consequence before embarking upon your unlawful actions.

I do no accept your claim of executing only one kick leading to the death of the deceased because the facts as I have already outlined, do not support you on that. I am of the view however that, even if it were a single kick as is claimed, that would not substantially reduce your culpability. You committed an offence, which was very serious, and the Supreme Court has ruled that sentences in this type of cases should be increased to 10 years and up wards because of the prevalence of the offence. The maximum imposed now, per The State v. Steven Tlukean (supra) is 12 years. But that case is distinguishable with you case in two respects. Firstly, you did not use a knife to inflict a wound to the deceased. Secondly, there is no evidence of you having a habit of continuously fighting with the deceased during the period of your marriage to her.

Mrs. Raymond your lawyer argued for a sentence to the rising of the court. She argued, that was appropriated in view of the particular circumstances of your case and also in view of the fact that you were in custody awaiting your trial for one year 11 months and 10 days up to the 16th of January 2001.

Pre-sentencing report

In view of the argument for a sentence up to the rising of the Court and the issue of whether or not compensation should be ordered, I ruled that it was necessary that a pre-sentencing report should be called for, received and considered before imposing a sentence. I indicated that, such a report should cover the kind of person you are in terms of your character and background. I also indicated that such a report should cover the issue of compensation as to whether compensation is payable in accordance with either yours or the deceased’s custom and if so, what means you have to meet any order for compensation.

I have received the report on the 26th of January 2001. I then asked your lawyer and the State’s to make any submissions they may wish to make on the basis of the report. They informed the court that they had no submissions to make. I therefore, reserve for a consideration of the report and give a ruling on sentence at a later time as I was ending the circuit that day and did not have the time to consider and deliver a judgement.

The report has inputs mainly from your relatives and a community leader. For reasons only known to the author of the report, no one from the deceased side has been interview for the purpose of the report. There is also no input from the police on the kind of sentence they consider is appropriate for you. In my view, inputs from the deceased relatives as well as the police, especially the police investigating and arresting and or charging officer necessary if a pre-sentencing report is to be considered fair and well balanced and serve the interest of justice. I view this important because it is the relatives of a deceased person or the victims of an offence are the persons who really feel and suffer the lost of a life and or the sufferings that criminal acts bring upon them. They are the ones that demand justice. Thus, unless the courts are able to take into account the kind of punishments these persons wish to see an offender receive, any punishment imposed may not necessarily be justice to them. This may lead to an apprehension of justice not being done and an offender let off lightly.

As for in puts from the police investigating officer, I consider that appropriate and important because they alone will be in a better position to tell the court what kind of a person a prisoner is. That they will do, having regard to whole process of receiving complaints of an offence being committed, investigating into it followed by an arrest of the offender and charging him. They would also be in a better position to say whether the prisoner who is waiting for his sentence is a threat to society and therefore, needs to be lock away or a non-custodial sentence on terms would be appropriate. It would be defeating the whole purpose of law enforcement, if offenders who deserve to be dealt with severely are left of easily based on a pre-sentencing report which highly favours an offender without any inputs from the police and other sectors of the community who have a right or interest in seeing offenders receive a punishment which befits the offence they have committed. It may also be counter productive to send an offender back to the society on say a suspended sentence or probation without knowing whether the police will approve of such sentence and they will be in a position to help police compliance of any terms that may be imposed. Allowing for inputs from the police will also help eliminated the risk of offenders failing to meet any conditions that may be imposed on offenders for letting them out of prison. It will also help encourage better police work for they will come to appreciate that the courts appreciate their work and or the role they play in society.

Of course, as I said in The State v. Ottom Masa (20/12/00) N2021 at page 3:

... a pre-sentencing report cannot substitute or dictate the kind of sentenced to be imposed in any one case. They only assist the courts in the process of assessing what kind of sentence to give in cases before them. The courts still have the power to decide on the appropriate sentence to give after having regard to all the factors that need to be taken into account, including any pre-sentencing report. If the situation were otherwise, than there would be no need for the courts to administer justice in criminal cases.

In the present case, the report speaks in favour you. Your relatives, who have been interviewed, blame the deceased for her own death. They claim that she was a troublesome person and a gambler. However, these claims should not be readily accepted for the simple reason that, they have not been independently verified. Instead, they have been made purposely in my view, to facilitate a lighter sentence for you. As expected, the report recommends that you be place under probation for 36 months. It also recommends that K500.00 compensation be ordered, despite you having no money to meet such an order.

The above recommendation has also been influenced by some medical evidence of you having contracted a sickness, which the doctors have not yet identified. You and the pre-sentencing report claim that, that condition may worsen if you are sent to serve further time in prison. Yet, there is no professional medical opinion to support that claim.

Since there has been no input from the deceased relatives and the police-investigating officer, I am not convinced that, the report is a well-balanced one. I therefore, do not accept the report has one that is representative of the community’s wish as to the kind of punishment the court should give to you. I am also not prepared to order compensation, as you have no means to pay. Indeed, compensation orders can only be made under the Criminal Law (Compensation) Act 1991 if an offender has the means to pay compensation. If your relatives want to make peace with the deceased relatives by paying compensation they may do so. This judgement does not and should not operate as a bar to the payment of any compensation for that purpose.

The Sentence

To arrive at an appropriate sentence in this case, I take into account the particular circumstances in which the offence was committed, the factors going both in your favour and those going against you, which I have already outlined and discussed above as well as the pre-sentencing report and my comments on it. I consider a sentence of 8 years in hard labour appropriate. This is to show that, domestic violence leading to death is no longer acceptable. It also reflects the society’s call for an end to domestic violence and the trend in this type of offences is to increase sentences. Of that, I will deduct 2 years 1 month and 22 days up to today, being the period you have already spend in custody awaiting your trial. That leaves you with the balance of 5 years 11 months and 8 days in hard labour to serve at the Buimo CIS and I so order.
_____________________________________________________________________
Lawyer for the State: Public Prosecutor
Lawyer for the Defendants: Public Solicitor