State v Lambert [2020] PGNC 517; N9944 (26 November 2020)

N9944

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 980 OF 2011

THE STATE

V

DANNY LAMBERT

Kokopo: Suelip AJ
2020: 30^th July, 22^nd September, 5^th & 26^th November

CRIMINAL LAW - Sentence – plea – manslaughter s. 302 Criminal Code – loss of life – prisoner unintentionally killed another person – father of the deceased wants prisoner in prison – prisoner’s family willing to pay compensation – sentence of 10 years – custody term deducted – part of sentence suspended with conditions.

Cases Cited

Goli Golu v. State [1979] PNGLR 653
Manu Kovi v. State (2005) SC789
State v. Henson Poponil (2008) N3434
State v Makis Lalai [2018] N7092
State v Arimin [2007] PGNC 129

Counsel

J Batil, for the State
JM Ainui, for the Prisoner

SENTENCE

26^th November, 2020

1. SUELIP AJ: On 22 September 2020, the prisoner of Lungalunga village, Gazelle District, East New Britain Province, pleaded guilty to a charge of manslaughter pursuant to section 302 of the Criminal Code.

2. This is now my ruling on sentence.

Facts

3. On 30 July 2011 between 6.30pm and 7pm, the prisoner and Allan Kauba, now deceased, his wife and some others were at Allan Kauba’s residence at Lungalunga village in the Gazelle District of East New Britain. They all had just arrived home from Kerevat town and they were all drinking alcohol at that time.

4. After they all returned home, one of them named Rupen went to the prisoner’s house and assaulted his mother. The prisoner retaliated and a fight erupted between him and Rupen. He was separated during the fight. He then picked up a stone and asked where Rupen was and he threw the stone at the direction where Rupen was sitting. The stone hit the deceased on the back of his head, and he fell down. He was then rushed to the Kerevat Rural Hospital but was pronounced dead upon arrival.

Offence

5. 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.

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

Personal particulars

7. A pre-sentence report prepared by Probation Officer Noel Awagalas shows the prisoner is 29 years old of mixed parentage from Lungalunga village, Gazelle District, East New Britain Province and Malol village in West Sepik Province. The report shows that he is the fifth child out of 8 children in his family. It also shows that he is educated up to grade 8 and both his parents are deceased. The report further shows that none of his siblings is employed. It also shows that the deceased is the husband of one of his sisters and that the family relationship is good, but the support is divided as his sister is now without a husband. Also in the report, it says that his family relies on subsistence gardening and the family has a hectare of land which cocoa and coconut are planted. The report says that the family’s earning therefore depends on how much copra or cocoa bags they all can sell. It says the prisoner and some of his family members are willing to pay compensation. It is also says that the prisoner is of the Catholic faith.

8. Also, in the pre-sentence report, his uncle and aunt say he is a good person and never meant to hurt his sister’s husband. His uncle says they are willing to pay compensation and his aunt asks the Court to be lenient on him when sentencing him. These statements are supported by the ward member of his village.

9. On the other hand, the father of the deceased is concerned about his grandchildren as he has not seen them since their father passed away. The children’s mother has now remarried, and he is worried about the children and their welfare. He wants the prisoner to be sent to jail.

10. There is another person in the report, whom the author refers to as the “deceased father-in-law”. It is unclear as to how this person is the father-in-law of the deceased as the parents of the prisoner have passed away. It may be that sister of the prisoner is not his biological sister but a distantly related person or someone he regards as a sister or, this person is an uncle. In any event, he says that the prisoner must face the consequences of what he did and be sent to jail.

Allocutus

11. When given the opportunity to speak in Court prior to the Court considering an appropriate sentence, the prisoner asked for the Court’s mercy and leniency. He said sorry to the Court and to God. He also apologised for what he had done. He asked the Court to give him probation and good behaviour bond, so he can serve his time outside prison. He said he said whenever the Court requires of him to come sign in or attend Court, he will obey.

Submission on sentence

12. Both counsels agree that the maximum penalty of life imprisonment must be reserved for worst type case. See Goli Golu v The State [1979] PNGLR 653.

13. Both counsels also agree that this case falls within categories 1 and 2 of the sentencing guidelines for manslaughter in Manu Kovi v The State (2005) SC789 where the sentencing tariff is for 8-12 years, and 13-16 years, respectively.

14. Some comparable cases referred to by counsels include State v. Henson Poponil (2008) N3434 where the accused pleaded guilty to the charge of manslaughter when he killed his wife by throwing a stone at her in the course of a domestic dispute which raptured her spleen and caused her death. He was sentenced to 12 years. Also, in State v Makis Lalai [2018] N7092, the offender beat the deceased on his head with a tree branch during a drunken fight causing internal injuries leading to his death. He was sentenced to 14 in hard labor less time he had spent in custody. In State v Arimin [2007] PGNC 129, 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 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.

15. Whilst counsel for the accused submits that his client’s starting point of sentence should be 10 years, the State says that the offence of manslaughter is very serious and is prevalent in our society, hence it calls for deterrence sentences. The State submits that a sentence towards the upper end of category 1 and lower end of category 2 of the sentencing range in Manu Kovi is appropriate.

16. In favor of the accused are the following mitigating factors: -

(i) he pleaded guilty.

(ii) he had no intention to kill the deceased.

(iii) he is a first time offender.
(iv) he made admissions in his Record of Interview.
(v) he expressed remorse.

17. Against him, the aggravating factors are: -

(i) a life was lost.

(ii) he threw a stone (weapon) that hit the deceased at the back of his head.
(iii) it is a killing in a domestic setting.

(iv) he escaped from lawful custody on 4 February 2012 and were recaptured on a Bench Warrant on 22 of July 2020.

18. In considering all these factors, I place great weight on the guilty plea and that the accused never meant to kill the deceased. Hence, I will impose a head sentence of 10 years.

19. Pursuant to 3(2) of the Criminal Justice (Sentence) Act 1986, I will deduct pre-sentence custody time he has spent in custody. He was recaptured on a bench warrant on 22 July 2020 and have since spent 3 months, 3 weeks, and 4 days in custody. This period will be deducted.

20. As to whether I should suspend all or part of the head sentence, I am convinced that the accused never intended to kill the deceased. He meant to hurt the person who had assaulted his mother. I will therefore suspend half of his sentence on the following conditions: -

(a) he shall pay the sum of K3,000 cash and 400 fathoms of shell money within 6 months from his release with customary reconciliation to the victim and his family, which reconciliation which shall be witnessed by your Ward Member and the Probation Officer in Kokopo.

(b) he shall reside at Lungalunga village, Livuan/Reimber LLG, Gazelle District and nowhere else except with permission of this Court.

(c) he shall not leave East New Britain Province without permission of this Court.

(d) he shall perform at least six hours unpaid community work each week at a place notified to the Probation Office under the supervision of his ward member.

(e) he shall attend your local Catholic church every weekend for service and worship and submit to counselling.

(f) he shall report to the Probation Officer at Kokopo on the first and third Monday of each month between 9am and 3pm.

(g) he shall not consume alcohol or drugs.

(h) he shall keep the peace and be of good behaviour and must not cause any trouble for, or harass, the family of the deceased.

(i) he shall have a satisfactory probation report submitted to the Probation Office at Kokopo every six months after the date of suspended sentence.

(j) if he 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.
Orders

21. The Orders of the Court are: -

(i) He is sentenced to 10 years imprisonment.

(ii) A period of 4 months is deducted for time he has spent in custody.

(iii) He will spend another 4 years and 8 months in custody at Kerevat Correctional Institution.

(iv) The balance of his sentence of 5 years is suspended subject to compliance with conditions.

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Public Prosecutor: Lawyers for State
Public Solicitor: Lawyers for Prisoner