State v Jeribanu [2021] PGNC 264; N8979 (16 July 2021)

N8979

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 172 OF 2019

THE STATE

-v-

ZERI JERIBANU

Lae: Kangwia J.

2021: 15^th May & 16^th July

CRIMINAL LAW - Manslaughter – Death of son-in-law in domestic setting - death a consequence of aiding daughter - Guilty plea by a first-time offender –compensation paid – no substitute for imprisonment – substantial compensation paid treated as special mitigating factor – wholly suspended sentence with probation conditions.

Cases Cited:

Manu Kovi v the State (2005) SC789
Don Hale, Edmund Gima & Siune Arnold v the State; State v Ruben (2008) N3942
State v Ano (2007) N3465
State –v- Jimmy Mogoi (2012) N4680
State v Mara (2010) N4133
State v Eunice Benn and Stephanie Benn CR 499 & 500 of 2019 (Unreported Judgement of 6 May 2021).

Counsel
P. Matana, for the State
G. Peu, for the Accused

16^th July, 2021

1. KANGWIA J: The prisoner appears for sentence after he was convicted on his guilty plea to one count of manslaughter pursuant to s 302 of the Criminal Code Act (CCA).

2. The brief facts are that the prisoner is the father-in-law of the deceased. The deceased was married to the prisoner’s daughter.

3. On 11 October 2018, the deceased carried his child and went looking for the mother. The mother was found at a gambling area. The deceased slapped his wife and a fight erupted between them.

4. The prisoner’s wife went to stop the fight. The prisoner also went and hit the deceased on the head with a softball bat.

5. The deceased fell to the ground. While the deceased was on the ground the prisoner hit him again on the head with the softball bat. According to the autopsy report the deceased died from severe traumatic head injury due to blunt force trauma.

6. The prisoner is 70 years old and married with six children. He is a former soldier of PNG Defence Force. He has no prior convictions.

7. On his allocutus the prisoner said, “I respect the Court. I say sorry to the Court, its staff, and my child. We lived for 10 years. On the day of the incident, I defended my daughter after the deceased assaulted her badly.

“I am 70 years old. I ask for mercy in sentencing. The deceased’s relatives demanded K5, 000. 00 compensation. I paid K3, 500. And a pig under custom. It was witnessed by leaders at the police station. We settled out of Court and peace was restored. They have charged me again and I’m in Court.”

8. On his behalf Ms Peu submitted that this case fell into the first category of the guidelines in Manu Kovi v the State (2005) SC 789 and a head sentence of 8 years was appropriate. The prisoner pleaded guilty early as a first- time offender. A softball bat used was not a dangerous weapon. The offence arose out of a domestic setting and there was no intention to kill. De-facto provocation was present, and he expressed remorse. He is currently aged 68 years old, and he has been in custody for 02 years 08 months 03 weeks and 03 days.

9. She referred the Court to the case of the State v Dai Watbag (2016) N6410 where the prisoner was sentenced to a head sentence of 13 years. In that case the prisoner who was angered over allegations by the deceased that he had impregnated their daughter, beat the deceased with his fists and a piece of wood.

10. It was further submitted that the PSR was favourable to the prisoner as a suitable person for probation. The Court was urged to accept the prisoner as a suitable person for probation.

11. On behalf of the State Ms Patana submitted that a sentence of 14 to 16 years be imposed to have a punitive and deterrent effect.

12. A life was prematurely lost. There was complete disregard for human life through a number of attacks on a vulnerable part of the body with the use of a softball bat. The offence was prevalent.

13. After identifying the sentencing guidelines and tariffs suggested in the case of Manu Kovi v the State (2005) SC 789 it was submitted that the present case fell into category two which suggested a sentence between 13 and 16 years imprisonment. The Court was also referred to the following cases as guides.

14. In the State v Ruben Bamatu (2008) N3942 the prisoner who pleaded guilty to manslaughter for killing his wife was sentenced to 10 years imprisonment.

15. In the State v Japhet Marshall Ano (2007) N3465 the offender pleaded guilty to manslaughter after he was charged for using a timber to hit the deceased on the head. The Court after considering that the case fell into the 2^nd category of Manu Kovi sentenced the offender to 17 years.

16. The PSR suggested that the prisoner was a suitable candidate for probation. A suspended sentence with further compensation orders be imposed as he had paid K3, 500. 00 with one pig. He was arrested when K1, 500.00 was outstanding from a mediation settlement. The complainant’s view could not be taken.

17. The law creating the offence of manslaughter under s 302 of the CCA is in the following terms.

302 Manslaughter

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

Penalty: Subject to section 19, imprisonment for life.

18. The prisoner stands liable to be sentenced to life imprisonment. In view of the sentencing principle that the maximum prescribed is reserved for the worst type of each offence the maximum prescribed penalty shall not apply here.

19. Pursuant to s 19 of the CCA the Court can impose a lower or any other penalty.

20. The Courts in this country are imposing varying sentences for manslaughter.
21. In The State –v- Jimmy Mogoi (2012) N4680 on a guilty plea, the prisoner was sentenced to 13 years for stabbing the deceased with a knife at the marketplace in a revenge attack.

22. In the State v Elias Nime Mara (2010) N4133 the offender who stabbed the deceased with a kitchen knife was sentenced to 12 years

23. The sentences imposed in the cited cases were for knife attacks. In the present case a softball bat was used in the attack. However, the cases cited serve a useful service as guides in sentencing for the present case.

24. This is a case of a death arising out of a domestic setting. The undisputed facts and the circumstances of the case places it into the serious category of manslaughter, bordering on an intention to cause death which eventually occurred. The prisoner used a softball bat to club the deceased on the head two times.

25. In the prisoner’s favour it is accepted that he pleaded guilty early to a very serious offence and expressed remorse. He has no prior convictions.

26. Against him are that he caused the loss of a life. Life is precious. Once life is gone it will not come back. Imprisonment or compensation cannot restore a lost life. It is reflected by the importance placed on the sanctity of life under s 35 of the Constitution.

27. The offence is very serious. The prisoner harboured an intention to cause GBH from the type of attack employed, yet it turned fatal.

28. Courts in this country are imposing varying sentences for manslaughter cases. Counsels have referred to several of them which are all relevant as guides in sentencing for this offence.

29. In the case of State v Eunice Benn and Stephanie Benn CR 499 & 500 of 2019 (unreported Judgement of 6 May 2021) the Court said:

“The actions of the prisoners were generally a common aspect of family life in society. It is more embedded in the people of this country where one cannot expect a family member or close relative to stand and watch an immediate family member or close relative being physically attacked. People naturally would take part in any shape or form to lend support to a family member or close relative who is deemed to be at a receiving end of an attack or other situations”.

30. This aspect of life also arose in the present case. The prisoner went to the aid of his daughter. The deceased had fought with his wife who was the prisoner’s daughter and assaulted her in his presence. The prisoner’s wife also intervened in a more moderate way.

31. It is considered that the offence emanated from a common aspect of family life in society. The offender could not stand and watch his daughter being assaulted.

32. Even though the assault on the deceased was wrong in law it was a spur of the moment reaction by the prisoner. The safety concerns for his daughter blinded proper reasoning and restraint. This type of reaction cannot be completely ignored as irrelevant or inconsequential. It may not be wrong to suggest that it is an embedded aspect of life in society. There must be appreciation that we do not live in a perfect society. In the present case de facto provocation was present.

33. However, multiple attacks were not necessary. After the deceased fell from the first blow the prisoner caused another blow with a softball bat. There was no need for that. Restraint was absent.

34. Be that as it may, the deceased on the other hand was not an innocent bystander. He started the whole scenario by first assaulting his wife who happened to be the prisoner’s daughter.

35. For most homicides it seems the sanctity of life is shielded either by choice or otherwise from the perpetrators who take the law into their own hands. Life is treated as a commodity. The prisoner fell into this situation. The consequence of taking the law into his own hands is that his son-in-law lost his life.

36. Taking the law into one’s own hands for whatever reason, must be deterred with a view to curtailing or stopping recurrence of the offence.

37. It is also considered that the prisoner was naturally placed under the societal aspect of life referred to above.

38. The prisoner’s actions befit an extenuating circumstance. It should operate in his favor as a special mitigating factor.

39. The probation report suggested a suspended sentence with conditions as part of the sentence.

40. On suspension of sentence the Supreme Court has determined that there should be no suspension of sentence without a report. A suspension of sentence was permissible where conditions were set and in the exercise of discretion. The exercise of discretion for suspended sentences applies where suspension was deemed appropriate. A common condition for suspension of sentence is the payment of compensation to a victim.

41. Compensation in criminal matters under the Criminal Law (Compensation) Act prescribes a maximum of K5, 000: 00 that a Court could award.

42. The PSR affirms the prisoner’ s assertion on allocatus that he paid compensation of K3, 500. 00 and a pig as compensation. This amount is accepted as verified and within the limit set under the Criminal Law Compensation Act.

43. Although compensation is no substitute for imprisonment in a crime, substantial award of compensation in offences such as the present case would act as a deterrence to some extent.

44. Persons would desist from or have second thoughts about committing a similar offence if they were put on notice through a Court order that they stood to pay substantial awards of compensation from the Court in lieu of imprisonment or both if they did commit a similar offence.

45. An award of inadequate compensation would certainly have no deterrent effect or satisfaction by the relatives of the deceased.

46. Under those consideration the Criminal Law (Compensation) Act should be revisited and reviewed as far as it relates to the amount of compensation that can be lawfully awarded by a Court. The present maximum of K5, 000: 00 provided in that Law is in my view inadequate for the present time and restrictive of the Courts’ sentencing discretion.

47. The present case arose out of a domestic setting. It falls into the second category of manslaughter in the Manu Kovi guidelines which suggested a sentence of 13 to 16 years.

48. The offence is prevalent, and it demands sentences for deterrent purposes.

49. Uniformity in sentencing in line with the cited cases dissuades me from imposing a sentence marginally outside the sentences imposed in those cases.

50. The prisoner is sentenced to 10 years imprisonment. However, a suspended sentence is deemed appropriate. He has paid some compensation in compliance of a settlement decision. He pleaded guilty as a first-time offender. For those reasons from the 10 years sentence, 02 years is suspended.

51. From the remaining 08 years, 03 years shall be deducted as an appropriate period spent in pretrial custody. The balance of the sentence being 05 years shall be wholly suspended on the following conditions:

1. The prisoner shall be placed into probation for two years from the day the probation service deems appropriate.
2. He shall be of general good behavior for the two years’ probation period.
3. He shall comply with all probation conditions during the two years’ probation period.
4. He shall pay a cash sum of K2, 000. 00 as surety.
5. He shall pay a further sum of K1, 500. 00 as outstanding compensation arising out of the mediation settlement.
6. The K1, 500. 00 compensation shall be paid within one month after the probation orders are settled and shall be supervised by the probation service.
7. In default of any of the conditions in the suspension orders during the probation period, the surety of K2, 000. 00 shall stand forfeited to the State and the prisoner shall serve the suspended sentence of five years forthwith at CIS Buimo.
8. The cash surety of K2, 000. 00 shall be refunded to the prisoner upon satisfactory compliance of the conditions at the end of the two-year probation period.

________________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Defence