State v Tonga [2020] PGNC 515; N9943 (19 November 2020)

N9943

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 584 OF 2019

THE STATE

V

NASINOM TONGA

Kokopo: Suelip AJ
2020: 8^th, 15^th, 29^th July & 10^th, 22^nd August & 19^th November

CRIMINAL LAW - Sentence – plea – manslaughter s.302 Criminal Code – loss of young life – victim’s family want prisoner in prison – no demand for compensation – prisoner’s life is at risk if released – sentence of 10 years – custody term deducted.

Cases Cited

Goli Golu v. State [1979] PNGLR 653
Manu Kovi v. State (2005) SC789
State v Arimin [2007] PGNC 129

Counsel

G Tugah, for the State
S Pitep, for the Prisoner

SENTENCE

19^th November, 2020

1. SUELIP AJ: On 15 July 2020, the prisoner of Malaguna No. 2 village, Rabaul District, East New Britain Province, pleaded guilty to and was convicted of manslaughter pursuant to section 302 of the Criminal Code. The offence was committed at Warapukpuk Block, Gazelle District, East New Britain Province.

2. This is now my ruling on sentence.

Facts

3. On 17 December 2018, between 10am and 11am, the prisoner was at his house at Warapukpuk Block, Gazelle District, East New Britain Province. His nephew, Jonah Turagil, now deceased was also with him at the same location. At that time and place, he beat up his nephew with a piece of stick. He hit the child for constantly running away from his house. Late that evening, his nephew was in pain and vomited. He then laid down to sleep and passed away.

Offence

4. Section 302 of the Criminal Code provides: -

302. Manslaughter

A person who unlawfully kills another under such circumstances as not to constitute wilful murder, murder and infanticide is guilty of manslaughter.

Penalty: Subject to Section 19, imprisonment for life.

5. The maximum penalty for the offence is imprisonment for life, subject to Section 19 of the Criminal Code.

Personal particulars

6. A pre-sentence report prepared by Probation Officer, Noel Awagalas shows that the prisoner is 34 years old from Malaguna No. 2 village, Rabaul District, East New Britain Province. It shows that he is the fourth child out of 6 children in his family and their father is deceased. The report also shows that his mother is 72 years old and still alive, and his family has a piece of land up at Warapukpuk Block where they all have settled on. The report further says the prisoner is married to Rowena Low and they have two children together. It also states that he is educated up to grade 12 where he did his primary education at Vudal Primary School and then his grades 9 and 10 at Anditale High School in Wabag, Enga Province. The report says he then completed grades 11 and 12 at Wabag Secondary School. The report says further that the prisoner has never been employed and his family relies on gardening for sustenance as well as for income by doing marketing of his produce at least twice a month. It says his family also own cocoa trees from which they all earn a little income. It also says that the prisoner is the sole bread winner, and he takes care of his elderly mother. The report says he is of the Catholic faith.

7. During allocutus, the prisoner apologised to God, to this Court, to the family of the deceased and also to the deceased. He said that he has 2 young children aged 2 and 3 years, respectively. Whilst in cell, he said there is no support to his family and to his aged mother as he is the sole breadwinner. He also said there is no one to attend to the cocoa trees while he is in prison. He said the cell blocks hold about 19 prisoners in one cell and he asked the Court to consider all these and have mercy on him. He said he is a first-time offender.

Mitigating factors

8. In the prisoner’s favor, the mitigating factors are:

(i) he had no intention to kill his nephew.

(ii) he was frustrated with his nephew for being elsewhere without telling him or any of his family of his whereabouts.
(iii) he is a first-time offender with no prior conviction.
(iv) he pleaded guilty.
(v) he made admissions to police and cooperated well with them.
(vii) his family made some payment towards a peace ceremony.

Aggravating factors

9. Against him, the aggravating factors are:

(i) a life has been prematurely lost and cannot be replaced and taken lightly.
(ii) the child was 7 years old.

(iii) he beat the child with a piece of stick several times (significant use of force).
(iv) the deceased sustained injuries to his body (fractured ribs x 6).
(v) deceased was hit on a vulnerable part of the body.
(vi) a killing in a domestic setting.
(vii) he is solely responsible for the death of his nephew.

(viii) he is not a youthful offender (33 years at the time of the offending).

(ix) prevalence of the offence in the society and the need for deterrence.

Prisoner’s submission

10. Counsel for the prisoner says that the maximum penalty must be reserved for worst type case and this view is expressed in the homicide case of Goli Golu v The State [1979] PNGLR 653. She says that this is not the worst type case and therefore should not attract the maximum penalty. She referred to a few cases in support of her client’s submission and said the case of State v Arimin [2007] PGNC 129 is similar to this case. In that case, the prisoner assaulted the deceased by punching her and using a stick to hit her on her head, face and other parts of the body. He took the children and left her at the garden house, and she died afterwards. He agreed that he did not set out to kill the deceased but beat her only because he was angry with her. He was sentenced to 12 years to be reduced by time spent in custody.

11. Counsel for the prisoner says this case falls within category one (1) of the sentencing guidelines for manslaughter in Manu Kovi v The State (2005) SC789 where the sentencing tariff is for 8-12 years for the following reasons:

(i) apart from the stick, no dangerous or offensive weapons were used

(ii) the prisoner was stressed because the child was entrusted to him for the holidays and the child kept leaving the house without permission

(iii) the boy’s constant attitude of running away from the house had provoked him

(iv) the offence happened in a domestic setting

12. Counsel argued that the starting point of sentence for her client should be 10 years.

State’s submission

13. On the other hand, the State submits that the offence of manslaughter is very serious and is prevalent in our society, hence it calls for deterrence sentences. The State says the offence is aggravated by the fact that a life has been lost and can never be replaced and in this case, a very young child was unlawfully killed and his life was prematurely taken away at a very young and tender age. The State agrees that a sentence within the sentencing range in category one for the manslaughter sentencing for 8 to 12 years is appropriate.

14. Finally, the State submits that the Court should send a stern warning to the general public, and any would be offenders out there that such acts should not be tolerated and accepted in society.

Consideration

15. The maximum penalty for the offence is imprisonment for life, subject to Section 19 of the Criminal Code. As it is, this is not a worse type case and so a lesser penalty will be imposed.

16. The aggravating factors outweigh the mitigating factors. However, the mitigating factor that stands out is that the prisoner did not intend to kill his nephew. He meant to teach the child a lesson which unfortunately, turned out to be fatal in the end.

17. In the pre-sentence report, only the prisoner’s mother wants the Court to consider a reduced sentence as she has already paid K2000 cash, K500 worth of food and 4 fathoms of shell money (equivalent to K200) towards the peace ceremony. She has also spent almost K100 for other expenses. However, the victim’s mother and grandfather want him to be sent to jail. They say that if he is released, he may be attacked and so his life is at risk. As there is a threat on his life if he is placed on probation and/or released, I am reluctant to consider any suspension of his sentence nor any payment of compensation,

18. Having considered all submissions by both counsels with case precedents compared to the particular circumstances of this case, the appropriate penalty for him for the charge of manslaughter is a sentence of 10 years.

19. He has been in custody since 28 February 2019 and his pre-sentence custody period is 1 year, 8 ½ months. This period will be deducted.

Orders

20. The Orders of the Court are:

(i) He is sentenced to 10 years imprisonment.

(ii) The period of 1 year, 8 ½ months is deducted for time he has spent in custody.

(iii) The balance of his sentence will be spent in custody at Kerevat Correctional Services.
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Public Prosecutor: Lawyers for State
Public Solicitor: Lawyers for Prisoner