State v Kaparo [2007] PGNC 79; N3189 (21 March 2007)

N3189

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1636 & 1637 OF 2006

THE STATE

V

ALPHONSE KAPARO & JOHN LOANGESA

Bialla: Cannings J
2007: 13, 19, 21 March

CRIMINAL LAW – Criminal Code, Division V.2 (homicide etc) – Section 302 (manslaughter) – sentence on plea of guilty – killing in domestic, family dispute – two men fought with their brother-in-law, killing him – sentence of 12 years imprisonment each.

Two men pleaded guilty to unlawfully killing their brother-in-law by punching and kicking him. They were angry with him as he was married to one of their sisters but was having an affair with another of their sisters. They used no weapons but it was a vicious assault. The first offender was drunk and instigated the assault on the deceased and kicked him. The other offender assisted the first offender but did not kick the deceased.

Held:

(1) When sentencing co-offenders it is proper to take account of their different degrees of involvement in commission of the offence. In this case it was a two-against one fight and the second offender, by joining in with the first offender, allowed the first offender to inflict the lethal blow; so their degree of involvement was regarded as the same.

(2) The starting point for sentencing for this sort of killing in a domestic setting is 13 to 16 years imprisonment.

(3) Mitigating factors are: co-operated with police; compensation and reconciliation; pleaded guilty; expressed remorse; first offenders; deceased’s conduct.

(4) Aggravating factors are: more than one blow; two-against-one fight; no intervening cause of death; not just a fist; intention to do serious harm; no provocation; deceased had no pre-existing condition; vicious assault; offenders equally responsible; did not give themselves up.

(5) A sentence of 12 years was imposed on each offender. The pre-sentence periods in custody were deducted and two years of each sentence was suspended due to the process of compensation and reconciliation that has commenced.

Cases cited

Ignatius Pomaloh v The State (2006) SC834
Manu Kovi v The State (2005) SC789
Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06
The State v Daniel R Walus (2005) N2802
The State v Elizabeth Gul CR 375/2005, 09.05.05
The State v Hiliong Gunaing (2005) N2803
The State v Jacklyn Boni CR 786/2005, 08.09.05
The State v John Loangesa CR No 301 of 2000, 21.03.07
The State v Joseph Dion CR 71/2001, 20.05.05
The State v Kalimet Tovut CR 968/2004, 20.12.05
The State v Kila Peter (2006) N3018
The State v Lien Kaingi CR 1119/2006, 19.12.06
The State v Mark Kanupio, Balwin Kining, Peter Pasikio, Steven Lipilas and Paul Nowor (2005) N2800
The State v Timothy Mawe CR 1455/2003, 20.05.05

PLEAS

Two accused pleaded guilty to manslaughter and the following reasons for sentence were given.

Counsel

F Popeu, for the State
O Oiveka, for the accused

SENTENCES

21 March, 2007

1. CANNINGS J: This is a decision on the sentences for two men who pleaded guilty to an unlawful killing (manslaughter) under Section 302 of the Criminal Code.

CONVICTION

2. The offenders pleaded guilty to the following facts:

• At 6.30 pm on 14 August 2006 they were both together in the vicinity of Kisiluvi village, WNBP. Alphonse was under the influence of liquor.
  
• They walked to the village and went to the house of the deceased, John Keke Lotesa. Alphonse confronted the deceased’s wife about some problems and assaulted her.
  
• The deceased, who was present, then assaulted Alphonse.
  
• Alphonse knocked the deceased to the ground. While he was assaulting him and kicking him, John Loangesa assisted Alphonse.
  
• The deceased felt a lot of pain and ran to the end of the village to seek assistance.
  
• He was taken to Silanga Health Centre but could not be treated there so he was taken to Kimbe but died on the way.
  
• Both offenders caused the death of the deceased without lawful excuse or justification.
  

3. I entered provisional pleas of guilty and then, after reading the District Court depositions, confirmed the pleas and entered convictions.

ANTECEDENTS

4. Neither offender has any prior convictions. During the same court circuit that this case was dealt with, John Loangesa was convicted and sentenced for the manslaughter of his wife, an offence he committed in 1999 (The State v John Loangesa CR No 301 of 2000, 21.03.07). For sentencing purposes, that is not regarded as a prior conviction as he was not convicted until after the date of the offence for which he is now being sentenced.

ALLOCUTUS

5. I administered the allocutus, ie each offender was given the opportunity to say what matters the court should take into account when deciding on punishment. A paraphrased summary of their responses follows.

Alphonse Kaparo:

I apologise to the court and to everyone here for what I did. This is my first time to be in court. This incident happened because our in-law, the deceased, was having an affair with our younger sister. His true wife is also one of our sisters but he took our younger sister as his wife. They used to always go to the garden together and their relationship was causing a lot of problems. We took it to mediation but our younger sister kept saying that we were lying. Our elder sister knew about it and was upset about it and whenever we confronted the deceased about it he would threaten us with sorcery or want to assault us with knives.

On the day of the incident I was trying to tell our older sister that she should pack up and go to her husband’s village. She did not agree with that idea. I got angry with her and slapped her. Then the deceased intervened and we fought.

I am very sorry that my in-law has died. I did not mean to kill him. I was shocked when I was told that he had died. I ask for the mercy of the court. I have sorted out this problem in the village. Some compensation has already been paid. My parents are still alive. I am married with three children. I have two oil palm blocks and I still owe K3,000.00 to the company. I want to serve my sentence in the village so that I can finally sort out the problem.

John Loangesa:

For every problem there is a reason. The death of our in-law occurred because of what he was doing. He was married to one of our sisters but was having an affair with another sister. The matter was taken to mediation and orders were made that he take his true wife back to his own village but he showed no respect for that order. We tried to introduce our younger sister to potential husbands but he would always bring her back. He continued to do the wrong thing. At one stage Alphonse broke his house and told him he had to go back to his own village with his true wife but still he refused. The next day he came back and put up a temporary house.

On the day of the incident, we wanted to talk to our sister. We did not want to fight anyone. But our sister said things that angered Alphonse so he hit her and then her husband came to assist her. Then I came in and assisted Alphonse. We did not know he had a spleen problem. We only wanted him to go back to his own village. We were shocked when he died. To show our remorse we have paid compensation.

I apologise to the court and to God and to everyone in the courtroom. I was not supposed to have done this but it has happened so I ask for mercy. I am a family man so please consider me for probation.

OTHER MATTERS OF FACT

6. As the offenders have pleaded guilty, they are entitled to the benefit of the doubt on mitigating factors that are apparent from the depositions, the allocutus or matters raised by defence counsel that are not contested by the prosecutor (Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06, Supreme Court, Jalina J, Mogish J, Cannings J). This provides an incentive for accused persons to plead guilty and is a benefit accorded to them for saving the State extra resources that would have been committed to the case if a trial were necessary.

7. I accept that the incident arose due to an ongoing family problem. Both offenders were concerned that the deceased, who was married to one of their sisters, was having an affair with a younger sister. They had tried to sort it out through mediation to no avail. Both offenders made admissions to the police and co-operated fully.

PRE-SENTENCE REPORTS

8. To help me make a decision on the appropriate sentences I requested and received pre-sentence reports in relation to the offenders. The reports were prepared by the Kimbe office of the Community Corrections and Rehabilitation Service. A summary of the reports follows.

9. Alphonse Kaparo is aged 27 and married with three children. He comes from the village, Kisiluvi, where the offence was committed. He is the oldest in a family of six children. His parents are old and he looks after them. He was educated to grade 6 at Silanga Primary School. He lives at the village. He worked for Open Bay Logging for five years before leaving to look after his brother who was seriously ill. He has two oil palm blocks, which generate income for him and his dependants. His children are his priority.

10. John Loangesa is aged 28 and married with two children. He comes from the village, Kisiluvi, where the offence was committed. He comes from a family of seven children. His parents are deceased. He was educated to grade 10 at Bialla High School. He lives at the village. He has never been formally employed. He has two oil palm blocks, which generate income for him and his dependants. He wants to further develop his blocks.

11. In both reports, the deceased’s relatives say that all that they have received from the offenders is K2,000.00 and two pigs, which they do not regard as much for the loss of a life. Both reports conclude with an open finding as to suitability for probation.

SUBMISSIONS BY DEFENCE COUNSEL

12. Mr Oiveka highlighted that the death of the deceased was attributable to his own conduct and that this should be taken into account as a major mitigating factor. The killing was not planned, intended or justified and the offenders should receive a sentence in the range of seven to ten years imprisonment.

SUBMISSIONS BY THE STATE

13. Mr Popeu, for the State, submitted that the court should note that the medical evidence reveals that the deceased had no pre-existing conditions making him susceptible to moderate blows. This was a spleen death, so the force inflicted by the kick must have been substantial. A sentence of 12 to 15 years imprisonment is warranted.

DECISION MAKING PROCESS

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

• step 1: what is the maximum penalty?
  
• step 2: what is a proper starting point?
  
• step 3: what other sentences have been imposed recently in West New Britain for equivalent offences?
  
• step 4: what should the head sentence be for each offender?
  
• step 5: should the pre-sentence periods in custody be deducted from the terms of imprisonment?
  
• step 6: should all or part of the sentences be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

15. Section 302 (manslaughter) 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.

16. The maximum penalty is therefore life imprisonment. The court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code.

STEP 2: WHAT IS A PROPER STARTING POINT?

17. In Manu Kovi v The State (2005) SC789 the Supreme Court suggested that manslaughter convictions could be put in four categories of increasing seriousness, as shown in table 1.

TABLE 1: SENTENCING GUIDELINES FOR MANSLAUGHTER DERIVED FROM THE SUPREME COURT’S DECISION IN MANU KOVI’S CASE

No	Description	Details	Tariff
1	Plea – ordinary cases – mitigating factors – no aggravating factors.	No weapons used – offender emotionally under stress – de facto provocation – killing in domestic setting – killing follows straight after argument – minimal force used – victim had pre-existing disease that caused or accelerated death, eg enlarged spleen cases.	8-12 years
2	Trial or plea – mitigating factors with aggravating factors.	Use of offensive weapon, eg knife, on vulnerable parts of body – vicious attack – multiple injuries – some deliberate intention to harm – some pre-planning.	13-16 years
3	Trial or plea – special aggravating factors – mitigating factors reduced in weight or rendered insignificant by gravity of offence.	Dangerous or offensive weapon used, eg gun, axe – vicious and planned attack – deliberate intention to harm – little or no regard for sanctity of human life.	17-25 years
4	Worst case – trial or plea – special aggravating factors – no extenuating circumstances – no mitigating factors, or mitigating factors rendered completely insignificant by gravity of offence.	Some element of viciousness and brutality – some pre-planning and pre-meditation – killing of harmless, innocent person – complete disregard for human life.	Life imprisonment

18. The present case did not involve the use of an offensive weapon but it involved a vicious assault by two men against one man. It therefore falls within category No 2 of Manu Kovi, which gives rise to a starting point of 13 to 16 years.

STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED RECENTLY IN WEST NEW BRITAIN FOR EQUIVALENT OFFENCES?

19. Before I fix a sentence, I will consider other manslaughter sentences I have imposed in 2005 and 2006 in West New Britain.

TABLE 2: NATIONAL COURT SENTENCES FOR MANSLAUGHTER,
WEST NEW BRITAIN, CANNINGS J, 2005-2006

No	Case	Details	Sentence
1	The State v Hiliong Gunaing (2005) N2803	Guilty plea – stab wound causing death of wife – Laleki settlement, Kimbe – offender in his mid- 40s – allegations of wife’s infidelity.	15 years
2	The State v Mark Kanupio, Balwin Kining, Peter Pasikio, Steven Lipilas and Paul Nowor (2005) N2800	Guilty plea – mob attack – Kandrian, WNB – various sentences – degree of participation – in company with 4 others – knives and sticks and stones used – election-related killing.	15 years, 7 years, 4 years, 4 years, 3 years
3	The State v Daniel R Walus (2005) N2802	Guilty plea – domestic setting – Gaongo VOP, Kimbe – offender punched and kicked the deceased, a female, a number of times – deceased was offender’s in-law – ruptured spleen causing death.	18 years
4	The State v Jacklyn Boni CR 786/2005, 08.09.05	Guilty plea – domestic setting – Buvussi, Kimbe – juvenile offender hit deceased with a stick, rupturing his spleen – deceased was offender’s husband – argument over a small domestic item.	8 years
5	The State v Elizabeth Gul CR 375/2005, 09.05.05	Guilty plea – domestic argument – Mosa, Kimbe – offender was being assaulted by the husband and his sister – offender stabbed husband on his leg – prisoner claimed husband was being unfaithful.	10 years
6	The State v Joseph Dion CR 71/2001, 20.05.05	Trial – offender had fight with his wife on the back of a moving vehicle – Salelubu, Central Nakanai area – she fell off the vehicle and was killed upon hitting the road.	10 years
7	The State v Timothy Mawe CR 1455/2003, 20.05.05	Trial – offender was prosecuting an unlawful purpose, making a homemade gun – Buvussi, Kimbe – discharged the weapon killing the deceased – charged with murder – alternative verdict of manslaughter entered.	10 years
8	The State v Kalimet Tovut CR 968/2004, 20.12.05	Guilty plea – argument between cousins – Sarakolok, Kimbe – offender punched the deceased to the ground, kicked him in abdomen – ruptured spleen causing death.	10 years
9	The State v Kila Peter (2006) N3018	Guilty plea – fatal stab wound to the back causing death of husband – Mosa, Kimbe – young mother – offender walked 2 km in middle of night and waited for victim – husband was with another woman.	12 years
10	The State v Lien Kaingi CR 1119/2006, 19.12.06	Guilty plea – family dispute – Barema, near Bialla – offender suspected her sister was having an affair wither husband – offender stabbed her sister.	10 years

STEP 4: WHAT IS THE HEAD SENTENCE?

20. There are a number of considerations to take into account in deciding on the head sentence. I have listed them below as a series of questions. An affirmative (yes) answer is regarded as a mitigating factor. A negative (no) answer is an aggravating factor. A neutral answer will be a neutral factor. The more mitigating factors there are, the more likely the head sentence will be reduced below the starting point. The more aggravating factors present, the more likely the head sentence will be above or at the starting point.

21. When sentencing co-offenders it is proper to take account of their different degrees of involvement in the commission of the offence (Ignatius Pomaloh v The State (2006) SC834). In this case it was a two-against one fight and the second offender, by joining in with the first offender, allowed the first offender to inflict the lethal blow; so their degree of involvement was regarded as the same.

22. Three sorts of considerations are listed. Numbers 1 to 8 focus on the circumstances of the incident. Numbers 9 to 13 focus on what the offenders have done since the incident and how they have conducted themselves. Numbers 14 to 16 look at the personal circumstances of the offenders and gives an opportunity to take into account any other factors not previously considered.

23. The relevant considerations are:

1. Did the attack on the deceased consist of just a single blow? No, the offenders struck the deceased on more than one occasion.
   
2. Was just one person involved in the attack? No, the two co-offenders simultaneously assaulted the deceased. It was a two-against-one fight.
   
3. Was there some intervening cause of death, eg did the death not result directly from the assault due to death being caused by an object when the deceased fell down? No.
   
4. Was the deceased injured by only a fist? No, the first offender kicked the deceased.
   
5. Did the offenders not intend to do serious harm? No. Once any person kicks another person in the stomach an intention to do serious harm is to be presumed.
   
6. Did the deceased or any other person provoke the offender in ‘the non-legal sense’? No. The offenders were angry with the deceased for a reason but that should not be regarded as provocation.
   
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? No.
   
8. Can the assault on the deceased be classed as ‘not vicious’? No.
   
9. Did the offenders play a relatively minor role in the attack? No, each offender had an equal role.
   
10. Did the offenders give themselves up after the incident? No.
    
11. Did the offenders co-operate with the police in their investigations? Yes.
    
12. Have the offenders done anything tangible towards repairing their wrong, eg offering compensation to the family of the deceased, engaging in a peace and reconciliation ceremony, personally or publicly apologising for what they did? Yes. A process of compensation, apology and reconciliation has started.
    
13. Have the offenders pleaded guilty? Yes.
    
14. Have the offenders genuinely expressed remorse? Yes.
    
15. Is this the first offence of each offender? Yes.
    
16. Can the offenders be regarded as youthful or are their personal circumstances such that they should mitigate the sentence? Neutral.
    
17. Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence? Yes, the offenders were angered by the deceased’s alleged affair with their younger sister.
    

24. To recap, mitigating factors are:

• No 11 – co-operated with police;
• No 12 – compensation and reconciliation;
• No 13 – pleaded guilty;
• No 14 – expressed remorse;
• No 15 – first offenders; and
• No 17 – deceased’s conduct.
  

25. Aggravating factors are:

• No 1 – more than one blow;
• No 2 – two-against-one fight;
• No 3 – no intervening cause of death;
• No 4 – not just a fist;
• No 5 – intention to do serious harm;
• No 6 – no provocation;
• No 7 – deceased had no pre-existing condition;
• No 8 – vicious assault;
• No 9 – offenders equally responsible; and
• No 10 – did not give themselves up.
  

26. After weighing all these factors, and bearing in mind that there are only six mitigating factors compared to ten aggravating factors, this is the sort of case that could warrant a sentence at the top of the starting point range, ie 16 years imprisonment, perhaps more. However, the offenders have made admissions, co-operated with the police, started a process of compensation and reconciliation and, most importantly, pleaded guilty. They must be given credit for that. After comparing this case with the other manslaughter sentences imposed in recent times in West New Britain, I impose a head sentence of 12 years imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIODS IN CUSTODY BE DEDUCTED FROM THE TERMS OF IMPRISONMENT?

27. The offenders have spent different times in custody in connexion with this offence and it is proper that those periods be deducted from the total sentence. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the terms of imprisonment the whole of the pre-sentence periods in custody, as shown in the following tables.

TABLE 3: CALCULATION OF FINAL SENTENCE
ALPHONSE KAPARO

Length of sentence imposed	12 years
Pre-sentence period to be deducted	2 months, 2 weeks
Resultant length of sentence to be served	11 years, 9 months, 2 weeks

TABLE 4: CALCULATION OF FINAL SENTENCE
JOHN LOANGESA

Length of sentence imposed	12 years
Pre-sentence period to be deducted	6 months, 3 weeks, 2 days
Resultant length of sentence to be served	11 years, 5 months, 5 days

STEP 6: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

28. Because of the process of compensation and reconciliation with the deceased’s relatives that has commenced and is recorded in the pre-sentence report I will suspend two years of the sentence on conditions.

29. Upon release from custody the following conditions will apply:

Alphonse Kaparo

1. must within seven days report to Probation Office in Kimbe;
   
2. must reside at Kisiluvi and nowhere else except with the written approval of the National Court;
   
3. must not leave WNB without the written approval of the National Court;
   
4. must perform at least six hours unpaid community work each week at the Catholic Church;
   
5. must attend the Catholic Church every Sunday for service and worship and assist the Church in its community activities under the supervision of the Parish Priest;
   
6. must report to the Bialla District Court every government fortnight Friday between 9.00 am and 3.00 pm and sign the register;
   
7. must not consume alcohol or drugs;
   
8. must keep the peace and be of good behaviour;
   
9. must have a satisfactory probation report submitted to the National Court Registry at Kimbe every three months after the date of release from custody;
   
10. if the offender breaches any one or more of the above conditions, he shall be brought before the National Court to show cause why he should not be re-detained in custody to serve the rest of the sentence.
    

John Loangesa

1. must within seven days report to the Probation Office in Kimbe;
   
2. must reside at Malasi OPS and nowhere else except with the written approval of the National Court;
   
3. must not leave WNB without the written approval of the National Court;
   
4. must perform at least six hours unpaid community work each week at the Catholic Church;
   
5. must attend the Catholic Church every Sunday for service and worship and assist the Church in its community activities under the supervision of the Parish Priest;
   
6. must report to the Bialla District Court every Monday between 9.00 am and 3.00 pm and sign the register;
   
7. must not consume alcohol or drugs;
   
8. must keep the peace and be of good behaviour;
   
9. must have a satisfactory probation report submitted to the National Court Registry at Kimbe every three months after the date of release from custody;
   
10. if the offender breaches any one or more of the above conditions, he shall be brought before the National Court to show cause why he should not be re-detained in custody to serve the rest of the sentence.
    

SENTENCES

30. Alphonse Kaparo, having been convicted of the crime of manslaughter, is sentenced as follows:

Length of sentence imposed	12 years
Pre-sentence period to be deducted	2 months, 2 weeks
Resultant length of sentence to be served	11 years, 9 months, 2 weeks
Time to be served in custody	9 years, 9 months, 2 weeks
Suspended sentence subject to conditions	2 years

31. For the avoidance of doubt, it is declared that the suspended part of the sentence that is subject to conditions shall be applicable after the time spent in custody.

32. John Loangesa, having been convicted of the crime of manslaughter, is sentenced as follows:

Length of sentence imposed	12 years
Pre-sentence period to be deducted	6 months, 3 weeks, 2 days
Resultant length of sentence to be served	11 years, 5 months, 5 days
Time to be served in custody	9 years, 5 months, 2 weeks
Suspended sentence subject to conditions	2 years

33. For the avoidance of doubt, it is declared that John Loangesa’s sentence is cumulative upon the sentence imposed upon him at Bialla on 21 March 2007 in CR No 301 of 2000, 21.03.07. The suspended parts of both sentences that are subject to conditions shall be applicable after the time spent in custody.

Sentenced accordingly.
_________________________

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