State v Pinuana [2007] PGNC 119; CR 1590 of 2006 (23 April 2007)

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1590 OF 2006

STATE

V

TONY PINUANA

Kokopo: Lay J.
2007: 23 April and

CRIMINAL LAW–Criminal Code s 302 ─ manslaughter ─ sentence ─ plea of guilty ─ wanbel payment ─ co-operation with police ─ first offender control - two blows, only one life – threatening ─ argument in domestic setting ─ sentence of six years IHL.

Facts

The prisoner slapped his wife from behind and kicked her in the back after an argument about the wife's wish to attend a church choir rehearsal, which the prisoner opposed. The wife died from a ruptured spleen.

Held

Both blows directed at the wife by the prisoner were very heavy which is an aggravating factor. Taking into account the mitigating factors of first offender, co-operation with police, guilty plea, wanbel payment and other matters, the appropriate sentence was one of six years in hard labour.

PNG Cases Cited
Anna Max Marangi v State (2002) SC702
Sakaroa Koe v The State (2004) SC739
Manu Kovi v The State (2005) SC789

References
Criminal Code

Counsel
Popue, for the State
P. Kaluwin, for the Accused

DECISION

2007 (Decision Date)

1. LAY J.: The prisoner has pleaded guilty to the manslaughter of his wife Sunaim Karigal at Ratavul village in East New Britain in the early evening of 10 April 2006. He had an argument with his wife because he was trying to prevent her from going to a church choir practice. She walked away from him and he slapped her on the face from behind and kicked her in the back. She lay screaming on the ground for some time and neighbours came to her assistance. Sunaim died from a ruptured spleen the same evening. She was taken to Napapar Health Centre where nurses said that she was dead. The autopsy performed later at Nonga hospital disclosed 2 1/2 litres of blood in the abdomen from the ruptured spleen.
   
2. On his allocutus the accused said sorry to the court. He has four children and does not trust his brothers to look after the four children. He would like to stay with his children and look after them and their school fees.
   
3. The prisoner is aged 25 years. He was educated to grade 6 in the 1980s. He went to a vocational school from 1991 to 93 and did a carpentry course. He has been on bail until trial.
   
4. In mitigation counsel for the prisoner submitted that he is a first offender, he made admissions in the record of interview, there was some de facto provocation, he would have to live with the stigma of having killed his wife, is the sole parent to bring up the children. The youngest is 4 years of age and the oldest 10 years of age. His remorse is demonstrated by the compensation paid to the relatives of his wife. There are letters from the local level government and village councillor confirming that the prisoner's clan have spent K5, 550 on funeral expenses and "wanbel" payment.
   
5. I was asked to draw the inference that the victim had an enlarged spleen because the spleen was ruptured by a blow from behind. I am not prepared to do that. There is nothing in the post mortem report to support it.
   
6. Counsel for the prisoner submitted that I should follow the case of Anna Max Marangi v State (2002) SC702 rather than the case of Manu Kovi v The State (2005) SC789 he also submitted that three to four years would be an adequate sentence.
   
7. Counsel for the State submitted that the case fell into the first category discussed in Manu Kovi v The State (2005) SC789 with a range of 8 to 12 years. He submitted a head sentence of eight years would be appropriate.
   
8. The prisoner applied for bail pending sentence, which was refused. A presentence report was ordered and sentence stood over until the report was available.
   
9. The offence of manslaughter is created by s 302 of the Criminal Code which provides a maximum sentence of life imprisonment subject to section 19. In the case of Anna Max Marangi v State (2002) SC702 the Supreme Court noted the sentencing range in a domestic setting for manslaughter was three to seven years where force is applied in an uncalculated manner by a single blow or punch. In the subsequent case of Sakaroa Koe v The State (2004) SC 739 to the court suggested an increase in the tariff to a range of seven to 12 years considering the prevalence of the crime. This view is reflected in the decision in Manu Kovi v The State which provides a guide line of 8 to 12 years. More than 10 judges of the court have followed or approved the guidelines set out in that case and I consider that I should follow those guidelines rather than revert to guidelines which time has passed by.
   

10. In this case there were two blows, only one of which was life-threatening. The blows occurred in the heat of a domestic argument. There was no element of preplanning. I consider that the appropriate head sentence is 8 years. The blow to the face caused bruising around the eye. So both blows were very heavy and delivered from behind which I consider an aggravating factor. The victim had no opportunity to take evasive action. Taking into account the mitigating factors, the prisoner is a first offender, his co-operation with police, the early admission, the plea of guilty, the wanbel payment made soon after the death and the other matters mentioned by defence counsel and the prisoner, I consider the appropriate sentence to be one of six years imprisonment. The prisoner is sentenced to six years in hard labour.

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner