The State v Ilai Bate of Vakuta, Alotau, Milne Bay Province (No 2) (2008) N3556

• Jurisdiction: Papua New Guinea
• Judge: Davani J
• Judgment Date: 19 September 2008
• Court: National Court
• Citation: (2008) N3556
• Docket Number: CR 1147 OF 2007
• Year: 2008
• Judgement Number: N3556

Full Title: CR 1147 OF 2007; The State v Ilai Bate of Vakuta, Alotau, Milne Bay Province (No 2) (2008) N3556

National Court: Davani J

Judgment Delivered: 19 September 2008

N3556

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 1147 OF 2007

(NO.2)

THE STATE

V

ILAI BATE of VAKUTA, ALOTAU, MILNE BAY PROVINCE

Prisoner

Alotau: Davani .J

2008: 19th September

SENTENCE – Manslaughter – trial – use of a steel rod – 20 years

Facts

After a trial on charges of wilful murder, the prisoner was found guilty of the lesser charge of manslaughter, where he used a steel rod to attack a person he was chasing, which missed that person, then struck the deceased in the head, protruding from the left to the other side, and causing the skull to crack and the spillage of brain matter.

Issues

- What is a suitable sentence?

Held

Twenty (20) years in hard labour less time spent in custody on remand.

Cases cited

Rex Lialu v The State [1988] PNGLR 487

Antap Yala v The State (1996) SCR 69 of 1996

John Tapil Kapi v The State (2000) SC635

Sakarowa Koe v The State (2004) SC739

Anna Max Marangi v The State SC702

Manu Koivi v The State SC 789

State v Tou Aitsi (No.2) (2008) N3296

Counsel:

P. Kaluwin, for the State

R. Yayabu, for the Prisoner

SENTENCE

19 September, 2008

1. DAVANI .J: This morning I found the prisoner guilty of the lesser charge of manslaughter after I found that the charge of wilful murder had not been proven. The penalty for this offence, subject to section 19 of the Criminal Code Act (‘CCA’), is imprisonment for life.

2. The evidence on which the prisoner was found guilty of manslaughter are that in the early hours of the morning on 5th May, 2007, there was a running scuffle on Kirriwina Street where Michael Dulo and Daniel Bate, started fighting from the canteen on Garuboi Street onto Kirriwina Street, after which Daniel Bate then sought help from his family members. His brother, the prisoner, came to his aid armed with a long steel rod or crowbar. He fought with Michael Dulo and even, thrust the steel rod 3 times at him, which he ducked and avoided. Michael Dulo got to the vehicle that was parked near the canteen however by then, the prisoner was also there. The prisoner thrust the steel rod or crow bar at Michael Dulo, he ducked, pulling down one other occupant on the truck. However, the deceased, Trent Wesley was not so fortunate. The steel rod hit his head on the left with such force, that it protruded into the skull causing the spillage of brain matter.

3. On allocatus, when asked if the accused had anything to say, he said he did not.

4. What is an appropriate sentence for a case of this nature? In Antap Yala v The State (1996) SCR 69 of 1996, the Supreme Court affirmed the trial judge’s sentence of 10 years and said;

“The maximum punishment for the offence of manslaughter is life imprisonment. Whilst sentences for manslaughter will normally be lower than sentences for murder and wilful murder, there are those cases that will justify the imposition of heavy punishment and even the maximum penalty.”

5. The authorities show that there is no hard and fast rule that manslaughter cases must attract lesser sentences than murder. The Courts have said that circumstances of a manslaughter case may justify sentences higher than those normally imposed for murder or even wilful murder.

6. In John Tapil Kapi v The State (2000) SC 635, the Supreme Court dismissed an appeal against a sentence of 16 years as not being excessive. The circumstances leading to the imposition of that sentence were that the appellant ambushed his wife, then chopped her head, almost severing it. When she fell down, he chopped her on the neck. She died from loss of blood.

7. In Sakarowa Koe v The State (2004) SC 739, the appellant appealed against a sentence of 20 years imposed on a manslaughter charge, arguing that it was too excessive. The Supreme Court said it was not.

8. The Court must not shirk from its Constitutional duties to uphold the law in recognition of the right to life pursuant to s. 35 of the Constitution. This Court has a duty to impose a sentence reflective of the circumstances under which the offence was committed.

9. The case of Rex Lialu v The State [1988] PNGLR 487 sets the guidelines for sentencing in manslaughter cases at pg. 497. It held that;

(a) The Court must have careful regard to the circumstances of death and the way in which death was actually caused;

(b) The following matters may be relevant to the nature of the act causing death;

i) The nature and frequency of any attack or assault;

ii) Whether the injury which caused the death arose directly from an attack or assault or was caused by, for example, falling on an object;

iii) Whether the injury was caused by the person or by a weapon;

iv) Whether there was deliberate intention to harm;

v) Whether there was provocation in the non-legal sense;

vi) Whether the deceased had a thin skull; and

vii) Whether the deceased had an enlarged spleen.

10. Later the Supreme Court decision in Anna Max Marangi v The State (SC 702) dated 8.11.02, reviewed and summarized the kind of sentences imposed by the Courts at that time and where reference was made to Antap Yala v The State (supra) and John Tapil Kapi v The State (supra).

11. The facts of this case are similar to the State v Tou Aitsi (No. 2) (2008) N 3296 dated 28th March, 2008, where after a trial on a charge of manslaughter, the Court sentenced the accused to a period of 17 years, where the accused used an iron rod to hit the deceased in the head during a fight, which resulted in his death.

12. I note the categories set by the Supreme Court in Manu Koivi v The State (SC 789) dated 31/5/05 and note Defence Counsels submission that sentencing should be within the second category of that case, i.e. a term of 13 to 16 years.

13. As I pointed out earlier, sentences for manslaughter cases vary,...