State v Tikau [2008] PGNC 256; N3938 (18 September 2008)

N3938

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1036 0F 2002

THE STATE

V

SIMON TIKAU

Madang: Cannings J
2008: 6 May, 3, 18 September

SENTENCE

CRIMINAL LAW – sentence – manslaughter – Criminal Code, Section 302 – guilty plea – offender stabbed his brother during domestic dispute – sentence of 10 years.

A man pleaded guilty to manslaughter. He killed his brother by stabbing him with a kitchen knife in the course of a domestic dispute. The deceased struck the offender with an iron rod immediately before being killed. The offender has a history of mental illness.

Held:

(1) The starting point for sentencing for this sort of manslaughter (killing in a domestic setting, straight after an argument) is 8 to 12 years imprisonment.

(2) A sentence of 10 years was imposed. The pre-sentence period in custody was deducted and 5 years of the sentence was suspended.

Cases cited

The following cases are cited in the judgment:

Manu Kovi v The State (2005) SC789
Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06
The State v Elizabeth Gul CR 375/2005, 09.05.05
The State v Henson Poponil (2008) N3433
The State v Hiliong Gunaing (2005) N2803
The State v Isaac Ulul CR 203/2007, 16.10.07
The State v Jacklyn Boni CR 786/2005, 08.09.05
The State v John Buku Kailomo CR 920/2005, 24.08.07
The State v John Loangesa CR 301/2000, 21.03.07
The State v Joseph Dion CR 71/2001, 20.05.05
The State v Kila Peter (2006) N3018
The State v Michael Jim Gorogoro, CR 105/2006, 22.02.08
The State v Michael Sapri (2008) N3434
The State v Steven Ruben CR 843/2007, 22.02.08

Abbreviations

The following abbreviations appear in the judgment:

CR – Criminal case reference
J – Justice
N – National Court judgment
No – number
SC – Supreme Court judgment
SCRA – Supreme Court Criminal Appeal
v – versus

SENTENCE

This was a judgment on sentence for manslaughter.

Counsel

J Wala, for the State
E Turi, M Painap & N Los, for the offender

1. CANNINGS J: Simon Tikau is a 30-year-old East Sepik man, brought up in Madang town. He has a history of mental illness. He is being sentenced for the manslaughter of his brother, Mathew Akike, aged 35. He killed him in a domestic dispute at the family home at Lavalava settlement, Newtown, Madang, on 27 November 2001. He pleaded guilty to the offence.

2. The incident happened at 9 o'clock in the morning. Simon was in the house. He had an argument with his mother over a packet of biscuits. He chased her with a kitchen knife. Mathew was outside. He came running in when he heard the commotion, armed with a piece of iron. Mathew stopped Simon from attacking their mother by striking him on the arm with the iron. 3. There was a struggle between the two of them. Simon stabbed Mathew three times, the last time inflicting a fatal chest wound.

4. This case has taken a long time to be processed because of delays in getting a psychiatric assessment of the offender.

ANTECEDENTS

5. The offender has no prior convictions.

ALLOCUTUS

6. When the offender was given the opportunity to say what matters the court should take into account when deciding on punishment, he said:

I say sorry for what happened. I apologise for killing that person.

OTHER MATTERS OF FACT

7. As the offender has pleaded guilty he will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06). In that regard, I will take into account that the deceased, to some extent, provoked the offender.

PRE-SENTENCE REPORT

8. A pre-sentence report prepared by the Madang branch of the Community Correction and Rehabilitation Service shows that Simon Tikau has a history of mental illness. He suffers from bipolar affective disorder. He is prone to mood swings and can be depressed and withdrawn for long periods. He was educated to grade 10 at Tusbab High School in 1995. He attended the Lutheran School of Nursing in Madang, commencing in 1996. He was forced to withdraw in 1998 because of his mental illness. He was suffering severe headaches, felt nervous and became withdrawn, symptoms that were exacerbated by marijuana abuse. A recent report by Dr Goiba Tienang, Chief Psychiatrist for the Department of Health, shows that his condition has improved and stabilised, due to medication and ongoing treatment at the Modilon mental health clinic.

9. Simon is single and is the second-born in a family of seven. His deceased brother, Mathew, is actually his mother's small brother but was raised as her son from a young age. Simon's parents, Sam and Pinia Tikau, are fully supportive of him. They want him to come home and live with them. They think that he has spent enough time in custody and he should be given a suspended sentence. They travelled to Mathew's village, Nungwaia, in the Maprik district soon after the death. They reconciled with his biological parents and paid compensation (K16,000.00 cash, pigs and other items).

SUBMISSIONS BY DEFENCE COUNSEL

10. It was submitted that a sentence of six to eight years would be appropriate, as there were many mitigating factors, including de facto provocation.

SUBMISSIONS BY THE STATE

11. Mr Wala submitted that a sentence of eight to twelve years would be appropriate.

DECISION MAKING PROCESS

12. 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 sentences have been imposed for equivalent offences?
• step 4: what is the head sentence?
• step 5: should the pre-sentence period in custody be deducted?
• step 6: should all or part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

13. Under Section 302 (manslaughter) of the Criminal Code the maximum penalty is 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?

14. 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

15. In this case the offender was under emotional stress (due to his ongoing mental illness). There was de facto provocation. The killing was in a domestic setting and followed straight after an argument. The starting point is therefore in the range of 8 to 12 years.

STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED RECENTLY FOR EQUIVALENT OFFENCES?

16. Before I fix a sentence, I will consider manslaughter sentences I have handed down, where the offender has killed a family member in a domestic setting. These cases are shown in table 2.

TABLE 2: SENTENCES FOR MANSLAUGHTER OF FAMILY MEMBER
IN DOMESTIC SETTING

No	Case	Details	Sentence
1	The State v Hiliong Gunaing (2005) N2803, Kimbe	Guilty plea – stab wound causing death of wife – Laleki settlement, Kimbe – allegations of wife's infidelity.	15 years
2	The State v Jacklyn Boni CR 786/2005, 08.09.05, Kimbe	Guilty plea – juvenile offender hit deceased with stick, rupturing his spleen – argument over a small domestic matter.	8 years
3	The State v Elizabeth Gul CR 375/2005, 09.05.05, Kimbe	Guilty plea – offender was being assaulted by the husband and his sister – offender stabbed husband on his leg, claiming that he was being unfaithful.	10 years
4	The State v Joseph Dion CR 71/2001, 20.05.05, Kimbe	Trial – offender had fight with his wife on the back of a moving vehicle, causing her to fall from vehicle and die upon hitting road.	10 years
5	The State v Kila Peter (2006) N3018, Kimbe	Guilty plea – stab wound to the back causing death of husband – offender walked 2 km in middle of night and waited for husband who was with another woman.	12 years
6	The State v John Loangesa CR 301/2000, 21.03.07, Bialla	Guilty plea – offender assaulted his wife while drunk, kicking her in stomach – an element of de facto provocation.	12 years
7	The State v John Buku Kailomo CR 920/2005, 24.08.07, Kimbe	Trial – man assaulted his wife during a domestic dispute – she died of a ruptured spleen.	15 years
8	The State v Isaac Ulul CR 203/2007, 16.10.07, Madang	Guilty plea - He killed his brother by slashing him with a bush knife. There was strong de facto provocation.	10 years
9	The State v Steven Ruben CR 843/2007, 22.02.08, Madang	Guilty plea – offender assaulted his wife by throwing paw paws at her during domestic dispute, killing her by rupturing her spleen	10 years
10	The State v Michael Jim Gorogoro, CR 105/2006, 22.02.08, Madang	Guilty plea – offender had argument with his wife over a family problem – she ran away, he followed her, then stabbed her once with a screwdriver, inflicting a fatal wound.	13 years
11	The State v Henson Poponil (2008) N3433, Kimbe	Guilty plea – offender killed his wife by throwing stone at her in the course of a domestic dispute, rupturing her spleen.	12 years
12	The State v Michael Sapri (2008) N3434, Kimbe	Guilty plea – offender killed his wife by kicking her in the abdomen in the course of a domestic dispute, rupturing her spleen.	12 years

STEP 4: WHAT IS THE HEAD SENTENCE?

17. Mitigating factors are:

• some de facto provocation – the deceased struck the offender first;
• sole attacker;
• compensation paid and the offender's parents have made genuine efforts to reconcile with the deceased's biological parents;
• pleaded guilty;
• expressed some remorse;
• first-time offender;
• the offender's on-going mental health problems.
  

18. Aggravating factors are:

• directly killed deceased;
• deceased had no condition making him susceptible to injury.
  

19. In weighing all these factors I place great weight on the guilty plea, the offender's mental health problems and effective reconciliation with the deceased's biological parents. After comparing this case with the other manslaughter cases I have dealt with, I impose a head sentence of 10 years imprisonment.

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

20. Yes. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment the whole of the pre-sentence period in custody, which is five years.

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

21. The special circumstances of this case warrant suspension of a substantial part of the sentence. The pre-sentence report shows that the offender's parents want to bring him back into the family home and look after him. If he spends more time in custody, this might bring about deterioration in his condition. With proper management of his mental health, he should be able to lead a productive life. I will suspend five years of the sentence, which means that he will be able to be discharged from custody immediately. The sentence is suspended subject the following conditions:

(a) must report to the Probation Office within 24 hours after release from custody and settle on a community work program, which must be ratified by the National Court;
(b) must perform at least six hours unpaid community work each week at a place notified to the Probation Office under the supervision of his Ward Councillor;
(c) must reside with his parents and nowhere else except with the written approval of the National Court;
(d) must attend Modilon mental health clinic regularly, take prescribed mediation and submit to psychiatric treatment and counselling as and when required by the head of the clinic;
(e) must not leave Madang Province without the written approval of the National Court;
(f) must attend his local Church every weekend for service and worship and submit to counselling;
(g) must report to the Probation Office on the first Monday of each month between 9.00 am and 3.00 pm;
(h) must not consume alcohol or drugs;
(i) must keep the peace and be of good behaviour;
(j) must have a satisfactory probation report submitted to the National Court Registry every three months after the date of sentence;
(k) 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 detained in custody to serve the rest of the sentence.

SENTENCE

22. Simon Tikau, having been convicted of one count of manslaughter, is sentenced as follows:

Length of sentence imposed	10 years
Pre-sentence period to be deducted	5 years
Resultant length of sentence to be served	5 years
Amount of sentence suspended	5 years
Time to be served in custody	Nil, subject to compliance with conditions of suspended sentence

Sentenced accordingly.
___________________________

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