The State v Paul Kalu (2011) N5270

• Jurisdiction: Papua New Guinea
• Judge: Batari, J
• Judgment Date: 21 September 2011
• Citation: (2011) N5270
• Docket Number: CR 862 of 2011
• Court: National Court
• Year: 2011
• Judgement Number: N5270

Full Title: CR 862 of 2011; The State v Paul Kalu (2011) N5270

National Court: Batari, J

Judgment Delivered: 21 September 2011

N5270

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 862 of 2011

THE STATE

V

PAUL KALU

Lihir	:	Batari, J
2011	:	15, 21 September

CRIMINAL LAW– Sentence – Manslaughter – Accused assaulted victim on abdomen resulting in spleen rupture – Spleen death –State of spleen – Whether spleen enlarged – No evidence of – Benefit of doubt - Manslaughter unlawful assault – Plea - Early plea - Value of – Mitigation – Factors of – Conduct of prisoner subsequent to the offence – Compensation – Payment of – Customary punitive effect - Proof of required - Sentencing principles applied - Sentence of 7 years appropriate.

PRACTICE AND PROCEDURE – Sentence – Compensation – Payment of – Evidence of customary punitive effect of compensation – Onus on accused or counsel to adduce evidence under s. 2 of Customary Recognition Act Ch 19 and on balance of probability.

Facts

The offender and the deceased had a fight at a function at which alcohol was consumed. The offender punched the deceased in the head; the deceased fell down, then the offender kicked him in the ribs. The deceased died from a ruptured spleen. There was an early plea of ‘guilty’ and payment of compensation of K 2000, 10 fathoms of shell money and payment of the funeral and related expenses. Elements of provocation not amounting to a legal defence were present.

Held

1. In a spleen death, in the absence of medical evidence on the condition of the spleen, it will be inferred that the spleen was enlarged, at [4];

2. An accused person who relies on payment of customary compensation as a mitigating factor on sentence, bears the onus of proving as a matter of fact, the existence of such a custom, at [10];

3. The ceremonial payment of traditional shell money in New Island is proof of the prisoner taking full responsibility for his criminal act and suggestive of customary retributive sanction against the offender’s conduct, at [12];

4. The value to be given to a plea of guilty depends on a number of factors namely, but not exhaustive to:

1) seriousness of the offence;

2) circumstances of aggravation;

3) factors in mitigation;

4) young age or advanced age of offender;

how soon it is taken after committal

at [19];

5. Value may still be given to a late plea if the delay is caused by infrequent sittings of the National Court, lack of opportunity to seek legal advice, change of representation or the result of plea-bargaining, at [20];

6. The prisoner is sentenced to 7 years imprisonment less time spent in custody.

Cases Cited:

Papua New Guinea Cases

Acting Public Prosecutor v. John Airi SC 214,

Anna Max Marangi v The State SC 702.

Antap Yala v The State (SCR 69/96)

Jack Tanga v The State [1999] SC602

Manu Kovi v The State (2005) SC789

R. v. Tsarangaon Kagobo [1965-66] PNGLR 123

Rex Lialu v The State [1990] PNGLR 487

The State v Bluey Hanua (1997) N1625

The State v Win Thomas (un-numbered National Court Judgment) CR No. 837 of 1994

The State v. Mathew Marut [1979] PNGLR 1814

Overseas Cases Cited

R. v. Pickett (1986) 2 QR 441

R. v Phillips [1985] 7 CR App R (S) 235

Counsel

L. Rangan, for the State

M. Yawip, for the Accused

SENTENCE

21 September, 2011

1. BATARI J: OVERVIEW: Paul Kalu (the prisoner) is presented before the Court for sentence following his unlawful killing conviction. He punched and kicked the deceased on his abdomen resulting in rupture of the spleen and subsequent death.

BACKGROUND

2. On 19 September, 2010 Paul Kalu attended a feast at Kinami village, Lihir Island, New Ireland Province. Alcohol was consumed into the night and to the time of the incident. An altercation between Paul and Bernard Atim (deceased) resulted in exchange of punches. Paul punched Bernard on the head and after Bernard fell, he kicked him on the left rib area. Bernard died shortly after the assault.

3. The medical findings from a summary of the post mortem compiled by a Dr. Mellie Samson of Lihir Medical Centre attributed the cause of death to severe internal bleeding from a ruptured spleen. The injury was noted as, “a rugged tear across the hilum of the spleen where the blood vessels are attached...” A Post Mortem Report that was to follow is not on the Court file. And there is no indication whether such a report has been made available.

4. The final report is of essence as it may clarify the spleen condition. It will confirm whether or not the spleen was normal at the time of the offence and hence, the extent and seriousness of the attack. For instance, it may be reasonably inferred from rupture of a normal spleen that, the injury was a direct result of a heavy trauma or blow to the spleen area. In the absence of that clarification, the offender has the benefit of doubt and it will be inferred that the spleen was enlarged.

PRISONER’S BACKGROUND & CIRCUMSTANCES

5. Paul is aged 24 years and married with a 3 year old daughter. He completed grade 8 at Lakuplien Primary School and is a member of the Catholic Church. Aside from his unblemished past and personal particulars in the Police Antecedent Report, there is nothing else that might be exceptional from his personal background. This is the prisoner’s first conviction.

6. The lack of prior conviction is suggestive of prior good conduct. This also has support from his behaviour since the offence. He surrendered to the police and consistent with that, he made early admissions in the record of interview. His guilty plea in open court was also consistent with his actions following the commission of the offence. The prisoner’s expression of remorse is consistent with his other personal conduct and attributes since the commission of the offence. For that reason also, I accept him to be genuine in his expression of remorse.

7. The expression of remorse is consistent with and supported by payment of compensation of K2,000 in cash and 10 fathoms of ‘mis’shell money. His family also paid funeral and related expenses to the relatives of the deceased. Mr Yawip submitted that the total amount of compensation and assistance to the deceased’s relatives in cash or kind amounted to K6,000 to K7,000.

Compensation

8. The significance of compensation payment and its effect as a customary sanction is not clarified. Defence counsel has a duty to assist in calling evidence on that aspect so that the court is fully appraised of any customary punitive effect that may be associated with payment of compensation following an unlawful killing.

9. Under s. 2 of the Customs Recognition Act (Ch.19) proof of the existence and nature of custom in relation to a matter, and its application in or relevance to any particular circumstances, shall be ascertained as if they were matters of fact. If no direct evidence is called, the court may be referred to books, treatises, reports or other works of reference, or statements by Local Government Councils or committees of Local Government Councils (whether published or not). The court may accept any matter or thing stated in such works as evidence on the question.

10. The Supreme Court in Acting Public Prosecutor v Nitak Mangilonde Taganis of Tampitanis [1982] PNGLR 299 (Kidu CJ, Kapi DCJ, Pratt J) has also given a clear direction that, customary compensation is a matter that may be taken into account on sentencing in homicide cases, where such payment is considered relevant to sentence. An accused person who relies on payment of customary compensation as a mitigating factor on sentence bears the onus of proving as a matter of fact, the existence of such a custom. In deciding this issue the court is not bound by strict legal procedure or technical rules of evidence. But it is sufficient in my view for the Court to be satisfied on the balance of probability the existence of custom.

11. In the absence of that proof of custom in this case, it is open to conclude that, the payment of compensation did nothing more than appease grieving relatives of the deceased. The effect of restoring peace and harmony may also follow.

12. However, the customary compensation component of traditional shell money commonly known as “mis” gives an insight into the significance and solemnity of that ceremony. It is proof of the prisoner taking full responsibility for his criminal act. It is also suggestive of customary retributive...