State v Kaupa [2002] PGNC 74; N2266 (23 October 2002)

N2266

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. 495 OF 2002

THE STATE

-vs-

DAVID KAUPA

Lae: Jalina, J

2002: 8 and 23rd October

CRIMINAL LAW – Unlawful killing – Death due to rupture of spleen from single punch to the left abdominal area of deceased’s body by husband – Plea of guilty – Sentence – Death from assault on wives by husbands prevalent – Need for deterrent sentence – Criminal Code s. 302

Cases cited:
The State v Rex Lialu [1988-89] PNGLR 449
Antap Yala v The State Unreported SC Judgment dated 31 May 1996
Jack Tanga v The State (1999) SC602 dated 19th April 1999
John Kapil Tapi v The State SC635 dated 30th March 2000
The State v Steven Kenny (1999) N1881

Counsel:
P. Kaluwin with J. Nidue for the State
L. Siminji for the Prisoner

23rd October 2002

JALINA, J: This prisoner has pleaded guilty to unlawfully killing the deceased who was his second wife through a single punch he had applied with his clenched fist to her abdominal area during a domestic argument at Kamkumung here in Lae on 12th October 2001. She died almost instantly.

The Medical or Post Mortem Report of Dr Caspar Conny shows that the deceased died from hypovolemic shock due to spleen injury. He noted and found 200ml of blood in the deceased’s abdominal cavity.

The assault and subsequent death arose out of a dispute over whether the prisoner or the deceased should remain at the house to attend to the family’s laundry as both appear to have been employed at that time.

The maximum penalty for unlawful killing is life imprisonment pursuant to s. 302 of the Criminal Code Act subject to the Court’s discretion to impose a lesser sentence under s. 19 of that Act. Whilst there is power in the Court to impose the maximum penalty of life imprisonment for this offence in appropriate cases, the practice has been to impose a term of years and such term has of course depended upon the facts and circumstances of each case particularly the manner in which the death of the deceased was brought about. However, both the National Court and the Supreme Court have continuously expressed their concern about the seriousness of the offence of manslaughter unintentional the death may have been because of the loss of human life which cannot be restored and that any sentence imposed should reflect this. For instance in The State v Rex Lialu [1988-89] PNGLR 449 Amet J (as he then was) said at 452:

"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 killings. 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."

In Antap Yala v The State Unreported Supreme Court Judgment dated 31 May 1996, Amet CJ, Salika and Injia JJ. in dismissing an appeal against a sentence of 10 years for manslaughter of the deceased (wife) by her husband who chopped her head off with a bush-knife said:

"The maximum penalty for the offence of manslaughter is life imprisonment. Whilst sentences for manslaughter will normally be lower than sentences for murder and wilful murder, there are those cases which will justify the imposition of heavy punishment and even the maximum punishment. The sentence in any given case will of course depend on its own peculiar facts. We are unable to prescribe any 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 would suggest that in an unintentional killing case, which is uncontested, whatever the extenuating or 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. 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."

In Jack Tanga v The State (1999) SC602 and dated 19 April 1999 in Lae, the Supreme Court in which I was a member when dismissing an appeal against a sentence of 12 years for manslaughter of the deceased (wife) by her husband who repeatedly assaulted her said:

"The offence of manslaughter is a serious offence. This is reflected by the maximum punishment which is life imprisonment. This reflects the value the society places on human life and its total condemnation of one person’s unlawful taking of another’s life under any circumstances."

In John Kapil Tapi v The State SC635 dated 30th March 2000 the Supreme Court dismissed an appeal against a sentence of 16 years as not being excessive. It was imposed by the trial judge upon the appellant who had ambushed his wife and chopped her in her hand almost severing it and after she fell down he chopped her on her neck. She died from loss of blood.

With regard to spleen death manslaughter of a wife through assault by her husband, Kirriwom, J said in The State v Steven Kenny (1999) N1881:

"[m]en who physically assault their wives or women generally must realise by now that spleen-related deaths are common and frequent where men indiscriminately batter their women-folk without the slightest regard for their health and life. Resorting to physical violence to resolve one’s anger is not the right behaviour of decent and respectable men. Men who expect respect and support from their women must earn that respect by their conduct deserving of praise and dignity. ...The prisoner simply lost his self-control and as the consequence an innocent life is lost. ... Counsel for the prisoner referred to the case of Rex Lialu v The State [1990] PNGLR 487 ... I must say categorically that Rex Lialu is out of date and in view of the prevalence and the rising trend of violent deaths in totally unacceptable circumstances, reliance on this authority is no longer of any force or effect. That was a time when a sentence of six and half years was held to be excessive on appeal and reduced to four and half years imprisonment. Constant reliance on Rex Lialu gives clear impression that sentences of manslaughter fall within the category of four (4) years. But the tide has changed. Manslaughter cases with no aggravating circumstances can now attract up to 6 to 7 years imprisonment on a plea or more on trial. Where there are aggravating circumstances and on a plea matter, the prisoner should expect nothing less than 8 years."

In the present case the prisoner has expressed remorse during his statement on the allocatus. He also stated that before the deceased’s body was taken to Chimbu Province, his relatives paid the sum of K1,000.00 for a coffin as well as K2,400.00 as "bel kol" money to avoid any retaliation against him or his relatives by the deceased’s relatives. Such expenditure has not been disputed by the State.

In the course of submissions in mitigation of sentence, Mr Siminji, his lawyer, has tendered a statement dated 17 December 2001 from Mr James Sinemauwe, the Caretaker District Administrator at Kamtai District Office in the Sinasina/Yongomugl area of Chimbu Province advising that the prisoner’s relatives have agreed to pay between January and June 2002, the K30,000.00 cash and 10 pigs demanded by the deceased’s relatives. There is however nothing current before me to confirm that such payment has in fact been made so I do not take it into account for purposes of Criminal Law (Compensation) Act. In any event, even if paid, I do not consider that it would act as a punishment in place of a custodial sentence for a very serious offence as manslaughter where a human life has been prematurely taken. A custodial sentence must therefore be imposed except in wholly exceptional circumstances. There is no exceptional circumstances in this case to warrant a non-custodial sentence.

Whilst conceding that this offence was serious, Mr Siminji has submitted that mitigating factors such as the prisoner’s co-operation with the police, his plea of guilty, his expression of remorse, his lack of prior conviction, absence of use of weapon against the deceased and the fact that a single punch was applied to the deceased’s abdominal area, that a sentence of about 6 years as in Kenny’s case (supra) be imposed.

I have taken into account in determining the length of sentence I should impose the prisoner’s personal antecedents and other factors which were put to me by his lawyer in mitigation of sentence. Whilst I note and accept that no weapon was used and that a single punch was employed against the deceased, the prisoner has reacted in a manner that most men do these days as described by Kirriwom, J in Kenny’s case (supra) which I with respect endorse. Manslaughter of wives through thoughtless assaults upon them by their husbands are becoming too prevalent and a deterrent sentence is necessary. Husbands and men and even women must be made to realise that they just cannot assault anyone without the fear of someone dying due to a pre-existing medical condition such as a thin skull or an enlarged spleen.

The sentence I consider appropriate in all the circumstances of this case is a period of 10 years imprisonment in hard labour. I deduct from that sentence the 1 year, 1 week and 4 days he has spent in custody which leaves 8 years, 11 months, 2 weeks and 3 days in hard labour that he has to serve.
_____________________________________________________________________
Lawyer for the State : Public Prosecutor
Lawyer for the Prisoner: Public Solicitor