The State v Robert Potou (2008) N3316

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi, J
• Judgment Date: 20 February 2008
• Citation: (2008) N3316
• Docket Number: CR NO. 575 of 2007
• Court: National Court
• Year: 2008
• Judgement Number: N3316

Full Title: CR NO. 575 of 2007; The State v Robert Potou (2008) N3316

National Court: Kandakasi, J

Judgment Delivered: 20 February 2008

N3316

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 575 of 2007

�

� THE STATE

-V-

ROBERT POTOU

Buka: Kandakasi, J.

2008: 14, 15 and 20 February

� DECISION ON SENTENCE

CRIMINAL LAW – Sentencing – Manslaughter – Conviction after trial – Arguments over land and preventive orders – Attack on prisoner’s house – Retaliation by wife – Wife attacked – deceased later trying to attack prisoner – Prisoner striking deceased once on the back of the head with pinch bar – Death resulting from prisoners attack –First time offender – Expression of remorse without tangible evidence of - Sentence of 16 years imposed - Criminal Code Sections 302 and 19.

Cases cited:

Sakarowa Koe v. The State 01/04/04) SC739

Anna Max Marangi v. The State (08/11/02) SC 702.

Antap Yala v. The State (Unreported judgment in, SCR 69/96 delivered on 31/05/96).

Jack Tanga v. The State (19/04/99) SC602

John Kapil Tapi v. The State (30/03/00) SC635

The State v. Dominic Mangirak (29/04/03) N2368

The State v Jimmy Morgan (17/12/01) N2171

The State v. Samuel Benimo (18/04/02) N2203

The State v. Hobert Erick (18/04/02) N2201

The State v. Saku Sogave (15/12/00) N2086

Sakarowa Koe v. The State (01/04/04) SC739

The State v Charles Maniwa and Joseph Utura Maniwa (22/06/04) N2674

The State v. Hiliong Gunaing (25/02/05) N2803

The State v. Daniel Ronald Walus (25/02/05) N2802

Manu Kovi v. The State (31/05/05) SC789

CR No. 448 of 2005: The State v. Elias Peter Wano Miva (unreported and unnumbered judgment delivered in 24/10/06)

Simon Kama v. The State (01/04/04) SC740

l Counsels:

D. Mark, for the State.

P. Kaluwin, for the Prisoner.

20 February, 2008

1. KANDAKASI J: You were convicted on the alternative charge of manslaughter following a trial on a charge of murder. That was on the basis that, you acted under provocation which reduced the severity of the offence you committed to manslaughter. I now need to determine an appropriate sentence for you.

2. For the purposes of sentencing, I note that your conviction was based on your admissions in the record of interview and again in your oral testimonies in Court in addition to the State’s witnesses’ testimonies against you. You admitted to hitting the deceased on the back of his head with a pinch bar which is in evidence. But you stated that, you only intended to stop him from attacking you when he came charging at you with his bare hands. Prior to your attacking the deceased, the deceased and his relatives or supporters came over to you and your wife’s house and threw stones and sticks over a preventive order that was obtained against him. At the time of the deceased attacking your family home, your wife was asleep and was woken up by the attack. On getting up and realizing what was going on, she went away, got help and returned and attacked the deceased’s house.

3. In the return attack the deceased and your wife fought and both of them landed on the ground with the deceased landing on top of her. At about that time, you heard your wife shouting or screaming in the direction of the deceased’s house and you went to help her. You armed yourself with a pinch bar for your defence. When you got to the deceased’s house, you found the deceased on top of your wife and the deceased’s son was attacking your wife from her head area. You repeatedly told them to stop and when they eventually did, the deceased stood up and walked away from the scene. You claimed that the deceased then charged back at you after you said something to him. At that time, you struck him on the head with the pinch bar.

4. According to other evidence before the Court which I accepted, show that, soon after you attacked the deceased, he fell onto the ground. He was later taken to the hospital and pronounced dead sometime later. There was no evidence of any other intervening force or attack that caused the deceased’s death. On the evidence before me, I found that it was your attack of the deceased on his head that caused his death.

Allocutus and Submissions

5. In your address on sentence, you told the Court that you are a married man. You have 6 children, one in grade 11, another in grade 8 and the others are in the village as they are small. These children depend on you for their school fees and sustenance. When the incident occurred, the deceased’s people destroyed your home, leaving you and your family members with no clothes, killed two of your pigs, took food from the garden, destroyed your coconut and cocoa. You then asked for mercy of the Court and put you on probation, after saying sorry for the death of the deceased.

6. Your lawyer added by informing the Court that, you were aged 46 and that, both of your parents are deceased. You come from a family of 7, 4 brothers and 3 sisters. You have reached grade 8 at the Hutjena High School.

7 Your lawyer then correctly reminded the Court that, the maximum sentence for manslaughter is life imprisonment. At the same time, he urged the Court to note before sentencing you that, you are a first time offender and you acted under provocation. He also urged the Court to note that, you have already been punished in that the deceased’s relatives destroyed your properties and helped themselves. Further, your lawyer drew the Court’s attention to the decision of the Supreme Court in Sakarowa Koe v. The State 01/04/04) SC739, which revised the guidelines for sentencing in manslaughter cases, especially the tariffs. He then argued for a sentence between 10 to 15 years.

7 The State also referred to the decision of the Supreme Court in the above case and pointed out that your case falls under the second or third category. Counsel for the State then asked for a sentence in the range of 18 years to life imprisonment.

9. These submissions give rise to only one issue for this Court to determine, which I have already stated in the opening parts of this judgment. For clarity, the issue again is, what is an appropriate sentence in your case? This issue can only be appropriately decided by having regard to the sentence prescribed by Parliament, the sentencing guidelines and trends per the Supreme and National Court judgments and the particular circumstances in which you committed the offence from which comes, the factors in your aggravation as well as those in your mitigation. I will therefore, first turn to a consideration of the offence and its sentencing guidelines, trends and tariffs.

The Offence and Sentencing Trend

10. Section 302 of the Criminal Code creates and prescribes the penalty of life imprisonment as its maximum penalty subject to s. 19 of the Code for the offence of manslaughter. However, the courts have imposed sentences lower than that in the exercise of the discretion vested in them by s. 19. The Supreme Court reviewed nearly all of the previous decisions on sentences in manslaughter cases, in its judgment in Anna Max Marangi v. The State.

1 (08/11/02) SC 702.

1 In so doing, the Court had particular regard to its earlier decisions in Antap Yala v. The State;

2 (Unreported judgment in, SCR 69/96 delivered on 31/05/96).

2 Jack Tanga v. The State;

3 (19/04/99) SC602.

3 and John Kapil Tapi v. The State.

4 (30/03/00) SC635.

4

11. The Supreme Court decision in Anna Max Marangi v. The State,

5 Opt Cit note 4.

5 spoke of three categories of manslaughter in the context of domestic killings. I identified those categories in my decision in The State v. Dominic Mangirak,

6 (29/04/03) N2368.

6 as follows:

“The first consists of cases in which force is used accidentally or in an uncalculated manner, such as a single blow, punches or kicks on any part of deceased’s body. This also includes cases in which death is caused by an acceleration of a pre-existing disease or condition leading to death. These kinds of killings attract sentences between three (3) years and seven (7) years.

The second are cases that involve repeated application of vicious force, with or without the use of an instrument or weapon, such as repeated kicks and punches applied to the head or chest with deliberate intention to wound or cause bodily harm. Deaths caused by a single or multiple knife stab wounds applied to the head, neck, chest or abdomen or on any other vulnerable part of the body, even if there is no other special aggravating factors, come under this category. This category attracts sentences between 8 and 12 years.

The third and final involve cases in which there is direct application of force in a calculated manner, on the body using a weapon such as a knife, bush knife or axe causing serious bodily injuries, such as piercing vital organs or severing vital parts of the body. Deaths caused by chopping the neck, legs and arms with an axe or bush knife are examples of this kind of killings. This includes death caused by single or multiple knife stab wounds on the head, face, neck, chest or the abdomen if accompanied by other special aggravating factors may...