State v Kududu [2010] PGNC 117; N4108 (22 April 2010)

N4108

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NO 972 OF 2008

THE STATE

V

ALBERT KUDUDU

Madang: Cannings J
2010: 18 February, 21, 22 April

CRIMINAL LAW – sentencing – manslaughter, Criminal Code, Section 302 – sentence after guilty plea – offender killed wife by hitting her on the back, rupturing spleen – sentence of 12 years.

The offender killed his wife by hitting her three times on her back with an open hand in the course of a domestic argument. He pleaded guilty to manslaughter.

Held:

(1) The starting point for sentencing for this sort of killing (killing in domestic setting, straight after argument, no weapons used) is 8 to 12 years imprisonment.

(2) There were a number of mitigating factors, including the guilty plea, the offender had no prior convictions and he has expressed genuine remorse.

(3) A sentence of 12 years imprisonment was imposed. The pre-sentence period in custody was deducted. None of the sentence was suspended.

Cases cited

The following cases are cited in the judgment:

Gerald Kirafe v The State (2007) SC893
Manu Kovi v The State (2005) SC789
Saperus Yalibakut v The State (2006) SC890
The State v Jacklyn Boni CR No 786 of 2005
The State v Michael Jim Gorogoro, CR 105/2006, 22.02.08
The State v Vincent Matana Laore and 3 Others CR No 915 of 2005, 24.04.08

SENTENCE

This was a judgment on sentence for manslaughter.

Counsel

N Goodenough, for the State
J Kolkia, for the offender

22 April, 2010

1. CANNINGS J: This is a decision on sentence for a 42-year-old Manam Island man, Albert Kududu, who has pleaded guilty to the manslaughter of his wife, Pauline Albert, also from Manam. She argued with him over domestic matters at their temporary home at the Asuramba care centre in the Bogia District at 11.00 pm on 27 April 2008. He responded by hitting her three times on her back with an open hand, which ruptured her spleen and caused her death soon afterwards.

ANTECEDENTS

2. The offender has no prior convictions.

ALLOCUTUS

3. The offender was given the opportunity to address the court. He said:

I say sorry to the Heavenly Father and to the Court. I did not mean to kill my wife. I only slapped her and she fell. She said 'I am going to die', I felt very sorry for what had happened so I picked her up and placed her on the bed and washed her. She told me again that she was going to die, and then she died. We took her body by dinghy to Bogia Health Centre and I surrendered to the police and they put me in the cell. I ask for mercy and for probation.

OTHER MATTERS OF FACT

4. 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 (2006) SC890). In that regard, I will take into account the following matters:

• He surrendered to the police straight after the incident.
• He made full admissions to the police when interviewed.
  

PRE-SENTENCE REPORT

5. I received a pre-sentence report from the Community Corrections and Rehabilitation Service. Albert Kududu is from Kolang village, Manam Island. He is the second-born in a family of two. His parents are deceased. Family relationships are strong. His sister, Pauline Zauenga, has assisted him by assuming responsibility for his three children, as he has been in custody since the incident.

6. Albert has had no formal education or employment. He has been a villager and subsistence farmer all his life. His health is sound. He does not drink alcohol or smoke. The report contains no information on payment of compensation or reconciliation with the deceased's relatives. He has no bad record in the community.

SUBMISSIONS BY DEFENCE COUNSEL

7. Mr Kolkia submitted that the case fell within the first (least serious) category of the guidelines given by the Supreme Court in the case of Manu Kovi v The State (2005) SC789 and therefore the sentence should be in the range of 8 to 12 years. He suggested that the offender's relatives have assisted him pay K751.00 compensation to the deceased's relatives. Because of the strength of the mitigating factors (eg the guilty plea, a first-time offender, genuine remorse), the sentence should be at the bottom of the range: eight years. In support of that proposition Mr Kolkia referred to a Kimbe case, The State v Jacklyn Boni CR No 786 of 2005, 09.09.05, where the offender killed her husband by hitting him with a tree branch in the course of a domestic argument, rupturing his spleen. She pleaded guilty to manslaughter and was sentenced to eight years imprisonment. Mr Kolkia submitted that the pre-sentence report provides support for a partially suspended sentence.

SUBMISSIONS BY THE STATE

8. Mr Goodenough, for the State, agreed that this is a category 1 case according to the Kovi guidelines, warranting a sentence of 8 to 12 years. He pointed out that those sentencing guidelines were affirmed by the Supreme Court in Gerald Kirafe v The State (2007) SC893 (where an appeal by an offender against a 13-year sentence on a guilty plea in a category 2 case was dismissed). On the question of suspension of the sentence, Mr Goodenough submitted that the pre-sentence report contains no recommendation for a suspended sentence or any form of probation.

DECISION MAKING PROCESS

9. 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 for similar offences?
• step 4: what should the head sentence be?
• 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?

10. The maximum penalty for manslaughter under Section 302 of the Criminal Code is life imprisonment. The National 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?

11. 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

12. I agree with both counsel that this is a category 1 case: it was a killing that occurred in a domestic setting, straight after an argument, and no weapons were used. The starting point is 8 to 12 years imprisonment.

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

13. I refer to two Madang cases which have similarities to this case. In The State v Steven Ruben CR 843/2007, 22.02.08, the offender pleaded guilty to unlawfully killing his wife in a domestic dispute. He assaulted her by throwing paw paws at her, killing her by rupturing her spleen. The sentence was 10 years imprisonment. In The State v Michael Jim Gorogoro, CR 105/2006, 22.02.08, the offender pleaded guilty to unlawfully killing his wife by stabbing her with a screwdriver. The assault followed a domestic dispute. Because of the use of the screwdriver as a weapon and other aggravating factors this was a more serious manslaughter case than Ruben. The sentence was 13 years imprisonment.

STEP 4: WHAT IS THE HEAD SENTENCE?

14. I refer to the list of sentencing considerations set out in The State v Vincent Matana Laore and 3 Others CR No 915 of 2005, 24.04.08 and highlight the following mitigating and aggravating factors.

15. Mitigating factors:

• It was a spontaneous, not planned, incident.
• The offender surrendered to the police and made early admissions.
• The offender has no prior convictions.
• Some compensation has been paid – but this is not a strong mitigating factor as the amount (K751.00) appears modest and there is no evidence of whether that is regarded as acceptable or whether it has been complemented by any reconciliation.
• He has expressed genuine remorse.
• He pleaded guilty.
  

16. Aggravating factors:

• It was a case of multiple blows being inflicted on a vulnerable part of the body.
• It was an assault by a man upon his wife, exhibiting a shocking betrayal of trust.
  

17. I reject the defence counsel's submission that a sentence as low as eight years is warranted. Jacklyn Boni's case, which he referred to, was a juvenile case involving an assault by a girl upon a man. It does not provide a useful point of comparison. In any event, that sort of sentence should be reserved for a case where an offender has inflicted a single sharp blow with a part of the body, such as a fist, and the death can almost be described as accidental. This offender in this case has said that he had no intention of killing his wife; and this is probably a true statement. But this was not a case of death by accident. Death was caused by intentional acts of violence by a man against a person who he was supposed to love, nurture and protect. After weighing all these factors, comparing this case with others, particularly the cases of Steven Ruben and Michael Jim Gorogoro, the head sentence should be at the top of the starting point range. I impose a head sentence of 12 years imprisonment.

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

18. Yes. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the head sentence, the whole of the pre-sentence period in custody, which is 1 year, 11 months, 3 weeks.

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

19. I do not accept the defence counsel's submission that the pre-sentence report provides a strong case for suspension. There is insufficient information about what has been done about reconciliation with the deceased relatives. None of the sentence will be suspended.

SENTENCE

20. Albert Kududu, having been convicted of one count of manslaughter under Section 302 of the Criminal Code, is sentenced as follows:

Length of sentence imposed	12 years
Pre-sentence period to be deducted	1 year, 11 months, 3 weeks
Resultant length of sentence to be served	10 years, 1 week
Amount of sentence suspended	Nil
Time to be served in custody	10 years, 1 week
Place of custody	Beon Correctional Institution

Sentenced accordingly.

____________________________________________
Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyers for the offender