State v Bernard [2019] PGNC 141; N7842 (9 May 2019)

N7842

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. N0. 1063 of 2017

THE STATE

V

TAPOLO BERNARD

Kokopo: Susame, AJ.
2019: 10, 17 April & 9 May

CRIMINAL LAW – Sentence On Plea – Offence – Manslaughter, S 302 Criminal Code – Branch Of A Tree Thrown At Delicate Part Of Body Causing Rapture Of An Enlarge Spleen – Gravity And Prevalence Of Offence – No Provocation – Lack Of Restraint And Self-Control – 12 Years Imprisonment -2 Years Suspended In View Mitigating Factors – 10 Years Balance Of Sentence To Serve With Period In Custody To Be Deducted.

Cited Cases:

Goli Golu v The State [1979] PNGLR 653
Manu Kovi v The State [2005] PGSC 34; SC789
The State v Bekeram [2011] N4319
The State v Paul Eleksen Vealolo Cr. N0.1361 of 2018
The State v Regina Jako [2010] PGNC 119; N4110
The State v Mara N4133" title="View LawCiteRecord" class="autolink_findcases">[2010] PGNC; N4133

Counsel:

Mr. Rangan, for the State
Ms. Ainui, for the Prisoner

DECISION ON SENTENCE

9^th May, 2019

1. SUSAME AJ: Prisoner pleaded guilty to a charge of manslaughter under s.302 of the Criminal Code.
   
2. He is in court to receive his sentence.
   

Facts

3. The facts upon which he was convicted are as follows. The prisoner is the biological son of the late Bernard Tokau. On 24 May 2017 around 10 a.m. the prisoner had an argument at their home at Chopper Block, within Inland Baining local level government (LLG) area with his father. The argument was over his sister spending most times with his boyfriend and less time helping with the house chores.
   
4. The prisoner picked up a piece of wood and threw it at his father, hitting him on his left abdomen. The father fell down shouting in severe pain. He was lying still on the ground. One of the bystanders got assistance of a vehicle. The father was rushed to the hospital but he died along the way. The medical report confirmed that the father died of hemorrhagic shock due to raptured spleen.
   

Issue

5. What is the appropriate sentence should the court impose?
   

Penalty

6. The maximum penalty for offence of manslaughter under s 302 of the Criminal Code is life imprisonment. But the court has the discretion to impose a sentence other than the maximum by exercising powers under s 19 of the Criminal Code.
   
7. The accepted principle of sentencing practice in our jurisdiction is that maximum sentence should not be readily imposed unless case falls within the worst type of case. (Goli Golu v The State [1979] PNGLR 653)
   
8. Sentencing tariffs in homicide offences of wilful murder, murder and manslaughter were prescribed by the Supreme Court in Manu Kovi v The State [2005] PGSC 34; SC789 (31 May 2005). The tariffs were prescribed under four categories for each of the offences. The factors to place the case into the worst category of manslaughter to attract the maximum penalty were:
   
   • Whether in a trial or plea there are special aggravating features
   • No extenuating circumstances,
   • No mitigating factors or are rendered insignificant by gravity of the offence i.e. there was some element of viciousness and brutality.
   • There was pre-planning or pre-meditation,
   • Killing of innocent harmless person
   • Complete disregard of human life.
     

Allocutus

9. The prisoner had this to say on his penalty. My first time in court. I have respect for the two lawyers. I already paid K1000.00. I want the court to give me minimum sentence and send me home. That is all.
   

Mitigating factors

• Prisoner pleaded guilty to the charge
• He is a first time offender
• Prisoner cooperated well with the police and made early admission of his guilt
• Compensation of well over K2000.00 in cash, customary legal tender of tolai shell money with a pig and food items had been paid. This has been verified by both counsels. Prisoner and his mother made an undertaking to pay a further K1000.00 and 100 fathoms of shell money equivalent to K500. (Refer stated pre-sentence report).
  

Aggravating Factors

• An object, (tree branch) was used
• Throwing of a tree branch at the deceased which landed on the delicate part of his body was a deliberate act.
• Gravity and prevalence of the offence.
• No provocation offered
  

Submissions

10. Submissions have been considered. Both counsels concur that this present case is not the worst type to attract the maximum penalty. But both counsel differ in which category of Manu Kovi tariffs this present case would fall under. Ms. Ainui submitted following the Manu Kovi tariffs the present case falls under category 1 (sentencing range of 8 – 12 years) of manslaughter cases. She submitted mitigating factors outweighed the aggravating factors. In view of that court should be lenient on the prisoner and impose a 10 years sentence to be partially suspended.
    
11. Mr. Tugah submitted the present case fell under category 2. He asked the court to impose a custodial sentence between the range of 13 -16 years for specific and general deterrence.
    

Comparable Judgments

12. Ms. Ainui referred the court to two cases. Mr. Tugah also referred the court to two cases. These are:
    
    1. The State v Bekeram [2011] N4319
    2. The State v Paul Eleksen Vealolo Cr. N0.1361 of 2018.
    3. The State v Regina Jako [2010] PGNC 119; N4110.
    4. The State v Mara N4133" title="View LawCiteRecord" class="autolink_findcases">[2010] PGNC; N4133
       
13. In the first case prisoner received a sentence of 14 years. In the second case which I delivered recently prisoner was sentenced to 12 years with a partial suspension of three years. Resultant sentence was wholly suspended with conditions. In the third case prisoner received a sentence of 12 years with pre- trial period in custody deducted and 3 years of sentence suspended. In the fourth case prisoner received a sentence of 12 years and pre-trial custody period was deducted. Prisoner was to serve the balance of 9 years, 11 months and 2 weeks.
    

Court’s view

14. The cases were decided on their own merits. They are not binding upon this court but are valuable for comparison and guidance.
    
15. In the present case death was accelerated by rapture of an enlarged spleen. No dangerous weapon was used except an object was thrown deliberately at the deceased hitting him on the left abdomen where the spleen is located. It was thrown at the deceased without any regard to his safety, hence causing his death. I should place the case within category 1, with a sentencing range of 8 -12 years.
    
16. The prisoner is 21 years of age. He is single and a young adult offender. In court he expressed no remorse. He said some compensation has been paid in the vicinity of over K2000.00. In the pre-sentence report the prisoner and his mother expressed their intention to pay extra compensation of K1000.00 and 200 fathoms of shell money (tolai people customary legal tender) and a pig and food stuff to his father’s family. That is confirmed by the Community Based Corrections Officer or Probation Officer in the pre-sentence report he prepared. The pre- sentence report does not capture the views from the deceased’s brothers and sisters, uncles or parents if they are still living. But then what purpose will be served if court ordered further compensation? I think it is merely an attempt by the mother and the prisoner as a way to buy prisoner’s freedom from going to prison. As a matter of fact, the mother had used that as a reason to ask the court to place his son on probation.
    

Compensation

17. Payment of compensation is a good practice and varies from society to society. Its significance was to restore peace and harmony between conflicting parties. However, compensation cannot be a substitute for a penalty court is entitled to impose under the criminal law. It cannot operate as a means for the prisoner to get a total expulsion from going to jail. Compensation has limited application and operates as a factor to mitigate a sentence. Prisoner may still go to jail even if compensation is paid irrespective of how big or small the value is.
    
18. Prisoner comes from a good loving family. He was not happy about how his sister conducts herself at home and outside of home. She is already big enough to heed to good advice and counseling. If she does not what else can the father, mother and even the prisoner do? Belt her up? Destroy her personal items and properties as a way of disciplining her? Should the prisoner blame the father for his sister’s unpleasant behaviour when she is big enough to heed to good parent advice? The father can only do much as the head and provider of the family. He cannot go beyond to the point of putting his children’s lives at great risk. No loving father would want to do that to his children. The conduct prisoner exhibited towards his father was simply disrespectful and life threatening. He attacked his father and provider with an object thrown at the delicate part of his body without giving a second thought and caused his death.
    
19. The gravity of the offence and its prevalence calls for a strong deterrent sentence. If only people can exercise restraint and self-control some deaths especially in domestic settings can be prevented. Premature termination of life by a deliberate or negligent act is quite serious and cannot be treated lightly by anyone even this court. In the words of the Supreme Court in Manu Kovi “...value of human life is more precious and valuable than anything else and no amount of remorse or compensation will restore life lost.”
    
20. I consider that a strong punitive sentence is appropriate to convey the message of personal and general deterrence. A sentence at the top end of the range in category one is appropriate. Therefore, prisoner is sentenced to 12 years imprisonment with hard labour.
    
21. In view of mitigating factors favourable to the prisoner including compensation that has already been paid to the father’s family court suspends 2 years.
    
22. Prisoner to serve a balance of 10 years imprisonment with hard labour at the Kerevat Jail. Pre-sentence custody period to be deducted from 10 years.
    

Summary of Sentence

• 12 years imprisonment.
• 02 years suspended
• 10 years to serve with period in custody to be deducted.
  

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