State v Gunaing [2005] PGNC 146; N2803 (25 February 2005)

N2803

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1198 OF 2004

THE STATE

V

HILIONG GUNAING

KIMBE: CANNINGS J
18, 25 FEBRUARY 2005

SENTENCE

CRIMINAL LAW – indictable offence – Criminal Code, Division V.2 (homicide etc) – Section 302 (manslaughter) – sentence on plea of guilty – sentencing guidelines –– man stabbed his wife once, inflicting a fatal wound – no other person involved in attack – no other intervening cause of death – intention to do serious harm – offender suspected his wife was having an affair – no evidence of pre-existing condition of deceased making her susceptible to injury – vicious attack – prisoner surrendered to police – cooperated with police – no evidence of doing anything tangible to remedy the wrong – not clear whether prisoner genuinely remorseful – not a youthful offender – starting point for head sentence – identification of relevant considerations – application of relevant considerations – whether appropriate to suspend whole or part of sentence – need for properly documented pre-sentence report – sentence of 15 years – 8 years must be served – balance of 7 years may be suspended on application to the National Court.

Cases cited:
Anna Max Marangi v The State (2002) SC702
Antap Yala v The State (1996) SCR No 69 of 1996, unreported
Jack Tanga v The State (1999) SC602
John Kapil Tapi v The State (2000) SC635
Rex Lialu v The State [1990] PNGLR 487
The State v Daniel Ronald Walus (2005) CR No 472 of 2003, 25.02.05, unreported
The State v Mark Kanupio and Others (2005) CR Nos 238-242 of 2003, 25.02.05, unreported

Counsel:
F Popeu for the State
O Oiveka for the accused

CANNINGS J:

INTRODUCTION

This is a decision on the sentence for a man who pleaded guilty to the offence of unlawful killing, also known as manslaughter, committed against his wife.

BACKGROUND

Incident

The incident giving rise to the charge took place at Gigo, Kimbe, West New Britain Province on the night of 12 April 2004. It was alleged that the accused stabbed his wife to death.

Indictment

On 8 September 2004 the accused was committed by the District Court and remanded in custody. On 18 February 2005 he appeared before the National Court and faced the following indictment:

Hiliong Gunaing of Ongokai, Kabwum, Morobe Province, stands charged that he on the 12th day of April 2004 at Kimbe in Papua New Guinea unlawfully killed one Ronang Hiliong.

The indictment was presented under Section 302 of the Criminal Code.

FACTS

Allegations

The following allegations were put to the accused for the purpose of obtaining a plea:

The accused suspected his wife, Ronang, of having an affair with a man, Owen Peters. He went to that man’s home at Gigo 2 settlement, Kimbe. He saw the two of them there, chased his wife. She fell. He pulled out a small knife and stabbed her, once, on the right breast. He left her there and walked away. She died as a result of the wound. There was no lawful excuse for what he did.

Conviction

The accused pleaded guilty to those facts. I entered a provisional plea of guilty and then, after reading the District Court depositions, confirmed the plea and convicted the accused. He is now referred to as the prisoner.

ANTECEDENTS

The prisoner has no prior convictions.

ALLOCUTUS

I administered the allocutus, ie the prisoner was given the opportunity to say what matters the court should take into account when deciding on punishment. A paraphrased summary of his response follows:

When I went to Gigo 2, I went with my thoughts. I saw the two of them sitting together under that man’s house. It was nighttime. I flashed my torch. The man ran up to the house and my wife ran down the slope. I ran down and she had fallen down. When I went close to her she wasn’t moving. I wanted to inflict pain on her. I tried to get her on the hand, but got her on the body. I had no intention of killing her. I just wanted to inflict pain on her. I apologise to the court and to everyone in this courtroom for what I have done. This is my first time to be in trouble with the law. I have six children to look after and three of them are at school. The three at home are very small. If I am given a custodial sentence there will be nobody to look after them. I have been in custody for nine months and I don’t know how my children are getting on. I therefore ask for the court’s mercy. Please give me a good behaviour bond or probation.

SUBMISSIONS BY DEFENCE COUNSEL

Mitigating factors

Mr Oiveka referred to a number of mitigating factors. The prisoner pleaded guilty, saving the trouble and expense of a trial. He is a first time offender, never having been in trouble with the law before. He surrendered to the police immediately after the incident. He cooperated with the police in their investigation, admitting what he had done. He was frustrated by his wife’s affair. He tried to sort out that problem, but she kept associating with the man with whom he believed she was having an affair. There was provocation in a non-legal sense.

Personal particulars

Mr Oiveka submitted that the prisoner has six children to look after and he wants to go back home and look after them.

Overall

He referred to the Supreme Court’s decision in Anna Max Marangi v The State (2002) SC702, Jalina J, Injia J, Sawong J. A woman pleaded guilty to the manslaughter of a woman who she suspected was having an affair with her husband. The court reviewed the sentencing guidelines for uncontested manslaughter cases in a domestic setting and suggested that the following categories be used:

• application of force in an uncalculated manner, of a single blow, kick or punch on any apart of the deceased’s body: 3 to 7 years imprisonment;
  
• repeated application of vicious force, with or without an instrument or weapon, eg repeated kicks or punches applied to the head or chest with intention to wound or cause grievous bodily harm, or single or multiple knife wounds on a vulnerable part of the body, with other aggravating factors: 8 to 12 years imprisonment;
  
• application of direct force in a calculated manner with a weapon such as a knife, bushknife or axe: 13 to 16 years.
  

This case belongs to the first category, Mr Oiveka argued. Therefore the starting point for the head sentence is 3 to 7 years.

SUBMISSIONS BY THE STATE

Mr Popeu, for the State, submitted that the prisoner was guilty of a serious offence. The case fits into the second Marangi category.

RELEVANT LAW

The crime of manslaughter

Section 302 of the Criminal Code states:

A person who unlawfully kills another under such circumstances as not to constitute wilful murder, murder or infanticide is guilty of manslaughter.

Penalty: Subject to Section 19, imprisonment for life.

Maximum penalty

I am satisfied that the elements of the offence of manslaughter were adequately set out in the indictment, that the prisoner was aware of their significance and that the summary of the facts pleaded to by the prisoner supported those elements.

The prisoner is therefore liable to a penalty of imprisonment for life.

Discretion

That is the maximum penalty. The court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code. For example:

• a shorter term of imprisonment may be imposed (Section 19(1)(a)); or
  
• a fine up to K2,000.00 may be imposed instead of or in addition to a term of imprisonment and the prisoner can be imprisoned until the fine is paid (Sections 19(1)(b), 19(1)(c)); or
  
• the prisoner may be given a ‘good behaviour bond’ (Section 19(1)(d)); or
  
• the prisoner can be discharged and the sentence postponed (Section 19(1)(f)); or
  
• the court can suspend all or any portion of the sentence imposed, subject to conditions (Section 19(6)).
  

DECISION MAKING PROCESS

To determine the appropriate penalty I will adopt the following decision making process:

• step 1: what is the appropriate head sentence, in terms of years?
  
• step 2: should all or part of the sentence be suspended?
  
• step 3: if all or part of the sentence is suspended, what conditions should be imposed?
  

STEP 1 - WHAT IS THE APPROPRIATE HEAD SENTENCE?

Approach

In setting an appropriate head sentence I will take this approach:

• first I will identify an appropriate starting point;
  
• secondly I will set out the considerations that should be taken into account in deciding whether to impose a sentence equal to, lesser or greater than the starting point; and
  
• thirdly I will apply those considerations to the circumstances of the prisoner, thus arriving at a head sentence.
  

Starting point

I accept that the starting point for working out the head sentence should be identified by considering Marangi’s case. It was a case where the unlawful killing occurred in a domestic setting, ie where there was a dispute of some sort between the offender and the deceased.

In Marangi the court noted that historically manslaughter cases occurring in the home tended to attract lower sentences. But that has changed, particularly since the Supreme Court’s decision in Antap Yala v The State (1996) unreported SCR 69/96, Amet CJ, Salika J, Injia J, where the view was strongly expressed that the National Court had been too lenient on sentencing for manslaughter in a domestic setting.

The present case, I consider, falls into the third and most serious category. I reject Mr Oiveka’s submission that it falls to the first category. I also reject Mr Popeu’s submission that it falls into the second category. This was not an uncalculated attack.

The evidence suggests clearly that the prisoner went looking for his wife, armed with a knife. He found her. Then he chased her, with the knife, intending to harm her. The third category includes calculated attacks using direct force, with a weapon. Force was applied in a direct and calculated manner by the prisoner, with a knife. That was the direct cause of her death. The fact that it was a hunt and chase situation by a man upon his wife aggravates the circumstances of death and brings the case squarely into the most serious category. I think it is fair to use the concept of a starting point and I will adopt the point which is in the middle of the range, ie 14 years.

Relevant considerations

I will now set out the things I consider should be taken into account when determining whether to increase or decrease the head sentence or leave it at the starting point. In arriving at this list I have considered previous manslaughter cases decided by the Supreme Court, including Rex Lialu v The State [1990] PNGLR 487, Kapi DCJ, Hinchliffe J, Jalina J; Jack Tanga v The State (1999) SC602, Jalina J, Injia J, Kirriwom J; John Kapil Tapi v The State (2000) SC635, Kapi DCJ, Injia J, Sawong J; as well as Marangi and Yala. I have also considered two other manslaughter cases, each involving a plea of guilty which I have dealt with this month in Kimbe: The State v Mark Kanupio and Others CR Nos 238-242 of 2003, 25.02.05, unreported and The State v Daniel Ronald Walus CR No 472 of 2003, 25.02.05, unreported.

The relevant considerations are:

1. Did the attack on the deceased consist of just a single blow?
   
2. Was just one person involved in the attack?
   
3. Was there some intervening cause of death, ie did the death not result directly from the assault due to death being caused by an object when the deceased fell down?
   
4. Was the deceased injured by only a fist?
   
5. Did the offender not set out to hurt anyone?
   
6. Did the deceased or any other person provoke the offender in ‘the non-legal sense’, eg did the deceased abuse or assault the offender?
   
7. Did the deceased have a pre-existing condition making him susceptible to serious or fatal injury by a moderate blow, eg did the deceased have a thin skull or enlarged spleen?
   
8. Can the attack on the deceased be classed as ‘not vicious’?
   
9. Did the offender play a relatively minor role in the attack?
   
10. Did the offender give himself up after the incident?
    
11. Did the offender cooperate with the police in their investigations?
    
12. Has the offender done anything tangible towards repairing his wrong, eg offering compensation to the family of the deceased, engaging in a peace and reconciliation ceremony, personally or publicly apologising for what he did?
    
13. Has the offender pleaded guilty?
    
14. Has the offender genuinely expressed remorse?
    
15. Is this his first offence?
    
16. Can the offender be regarded as a youthful offender or are his personal circumstances such that they should mitigate the sentence?
    
17. Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence?
    

Rationale

The above considerations have been framed so that an affirmative (yes) answer to any one can be regarded as a mitigating factor, a negative (no) answer will be an aggravating factor and a neutral answer will be a neutral factor. The more mitigating factors that are present, the more likely it is that the head sentence will be reduced. The more aggravating factors present, the more likely it is that the head sentence will be lifted above the starting point. However, sentencing is not an exact science. It is a discretionary process. When a factor is marked as mitigating or aggravating it does not mean necessarily that it is given the same weight as another mitigating or aggravating factor. Some mitigating factors may be ‘strongly mitigating’. Others may be ‘mildly mitigating’. The same goes for aggravating factors.

Another thing to note is that there are, in general, three sorts of considerations listed.

Numbers 1 to 9 focus on the circumstances of the incident that led to the death. All manslaughter cases are bad. The death that has occurred is invariably unnecessary and tragic. But the circumstances of each incident are different. Some are worse than others. These considerations are intended to capture the circumstances of the incident.

Numbers 10 to 14 focus on what the offender has done since the incident and how he has conducted himself.

Numbers 15 to 17 look at the personal circumstances of the offender and give an opportunity to take into account any other factors not previously considered. As pointed out by the Supreme Court in Lialu a list of considerations or sentencing criteria of this sort is not meant to be exhaustive.

Application of considerations

I apply the above considerations to the prisoner as follows:

1. Yes the prisoner stabbed the deceased only once.
   
2. Yes there was only the prisoner involved in the attack.
   
3. No there was no other intervening cause of death.
   
4. No the deceased was not injured by only a fist. A knife was used.
   
5. No it cannot be said that the prisoner did not intend to do any harm. He admitted wanting to harm his wife. The force of the stab wound manifested an intention to do serious harm.
   
6. Yes from the point of view of the prisoner, the deceased did a provocative thing, by associating with someone whom he suspected was having an affair with her. I am prepared to give the prisoner the benefit of the doubt on this issue. There is a substantial amount of material in the depositions which refers to the prisoner’s suspicions in this regard. I do not make a finding that in fact his wife, Ronang, was having and affair with Owen Peters. But I accept that the prisoner genuinely believed that that was what was happening.
   
7. It is not known whether the deceased had a pre-existing condition making her susceptible to serious or fatal injury by a moderate blow.
   
8. No the attack on the deceased cannot be classed as ‘not vicious’. It was a vicious attack.
   
9. No the prisoner’s role in the attack was not minor. He was the sole attacker.
   
10. Yes the prisoner gave himself up to the police.
    
11. Yes he cooperated with the police in their investigations.
    
12. No there is no evidence he has done anything tangible to repair or remedy his wrongs.
    
13. Yes he pleaded guilty.
    
14. It is not clear whether the prisoner is genuinely remorseful. All he said in his allocutus was that he was sorry to the court and everyone in the courtroom. He is obviously concerned about his children. But he gave no indication that he was deeply and genuinely sorry for what he had done or that he appreciated the gravity of his crime.
    
15. Yes this is his first offence.
    
16. No he cannot be regarded as a youthful offender. He is a mature adult person who should have known better. There is nothing in his personal life to mitigate the sentence.
    
17. No there are no other circumstances of the incident or the offender that warrant mitigation of the head sentence.
    

I regard consideration Nos 4, 5, 8 and 9 as serious aggravating factors. This attack was vicious, unnecessary and cowardly. It takes the case beyond the range suggested in Marangi. This is a case where elements of the crime of murder appear to exist. He has not been charged with murder. But it is a very serious manslaughter case and in the absence of mitigating factors, the head sentence I consider would have been at least 20 years imprisonment. That would have been above the suggested range in Marangi. But the court stated in Marangi that its categories were guidelines only and in an appropriate case the penalties could be higher.

There are some weighty mitigating factors: those numbered 6, 10, 11, 13 and 15. He was acting on the belief that his wife was having an affair. He was frustrated. Immediately after he committed the crime he surrendered to the police. He cooperated with them. Then he pleaded guilty. The other considerations I have not specifically mentioned are those that are neutral (Nos 7, 14 and 17) or those I think are neither significantly aggravating nor significantly mitigating (Nos 1, 2, 3, 12, 16).

Taking all the above considerations into account and comparing this case with the sentences in the previous cases referred to, the head sentence is 15 years imprisonment.

STEP 2 - SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

Request

This is a case where it did not seem appropriate to consider suspending part of the sentence, given the circumstances in which the offence was committed, particularly the violence. However, to help me in making a decision on this issue I requested and received a pre-sentence report under Section 13(2) of the Probation Act in relation to the prisoner. The report was prepared by the Kimbe office of the Community Correction and Rehabilitation Service.

Report

According to the report Hiliong Gunaing resides at the Bulama Stettin Bay Lumber Company (SBLC) compound, near Kimbe. The house is in good condition and he will return to it when he is able to. He has six children. His wife had been unfaithful since 2003. He tried to solve the problem by going to the Bulama Village Court; then he took the matter twice to the Lutheran Church. He has no formal education. Prior to his incarceration for this offence he was employed by SBLC as a shore operator. His supervisor, Ludwig Watitio, says that he is an asset to the company, a dedicated worker and he can have his job back. He has no money to pay a fine or compensation. He claims to have paid K2,000.00 compensation to his wife’s relatives. But that was not confirmed. His health is satisfactory. Once his case is over he plans to return to his job and take care of his children. He claims to be a regular churchgoer with the Lutheran Church. But this was not confirmed. He appears lonely, with no immediate family to support him. He is a low risk offender with a high need.

The report concluded that he is a suitable candidate for probation supervision for an extensive period. The assessment given of the prisoner is encouraging. It gives the impression that he is a mature man, lonely, with children to support, holding down a steady job and well regarded by his employer.

Assessment of report

However, even accepting the report at face value, I do not consider it to be sufficiently detailed to warrant, at this stage, suspending the sentence. No firm conditions are recommended and there is no guarantee that if the prisoner were released into the community he would have the support of the community or that his wife’s relatives would be at peace with him.

The court must also be mindful of the fact that the prisoner took the life of his wife in a vicious manner. He robbed his six children of their mother. He chased his wife like an animal. It is an extreme and tragic case of domestic violence. The danger in suspending the sentence immediately is that it would tend to condone this sort of behaviour by men against women in the country.

Qualified sentence

I will nonetheless qualify the prison sentence by ordering that it can be suspended after the prisoner has served a minimum term of imprisonment if before the expiration of the term prescribed the National Court approves a post-release parole period with strict conditions attached.

The conditions that I envisage would be suitable are, for example, that the prisoner do some strictly controlled community work; that he submit to regular counselling with an officially recognised and reputable local church or other place of religious worship; that his movements be restricted; that he refrain from consuming drugs; that he be of impeccable behaviour. The issue of compensation could also be addressed. Proof of genuine steps towards peace and reconciliation between the prisoner and the relatives of the deceased would be viewed favourably.

The prisoner will be at liberty to, at any time, make an application to vary the sentence so as to suspend the remaining part of the term of imprisonment.

Step 3

Step 3 of the sentencing process, referred to above, will not be considered at this stage.

SENTENCE

The Court makes the following order:

1. Hiliong Gunaing, having been convicted of the crime of unlawful killing, is sentenced to 15 years imprisonment in hard labour, 8 years of which must be served and the balance of 7 years of which may be suspended by order of the National Court if and when an application for suspension is granted.
   

2 For the avoidance of doubt:

(a) suspension of the above sentence will only come into effect if and when ordered by the National Court; and

(b) there shall be deducted from the term of imprisonment the period in custody that the prisoner has already spent in relation to this offence.

Sentenced accordingly.
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Lawyers for the State : Public Prosecutor
Lawyers for the accused : Public Solicitor