The State v Edmond Hotsia Geria

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi, J
• Judgment Date: 17 November 2008
• Citation: (2008) N3868
• Court: National Court
• Year: 2008
• Judgement Number: N3868

Full : CR NO. 1221 of 2008; The State v Edmond Hotsia Geria (2008) N3868

National Court: Kandakasi, J

Judgment Delivered: 17 November 2008

N3868

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1221 of 2008

THE STATE

-V-

EDMOND HOTSIA GERIA

Buka: Kandakasi, J.

2008: 12th And 17th November

CONSTITUTIONAL LAW - Bougainville Constitution – Consideration of - Resolution of conflicts and disputes in Bougainville – Main focus - Promotion of peace and harmonious living – Use of non violent means such as mediation and reconciliation - Customary or traditional justice system – Criminal sentencing to start with inquiry on existence of a form of customary punishment - Application of – Customary practice promoting peace and peaceful co-existence – Appropriate to adopt and apply in combination with modern principles of criminal sentencing - Focus for criminal justice system should be rehabilitation through peaceful means – Imprisonment a form of violence and should be reserved for the hardcore, repeat and offenders having propensity to re-offend Bougainville Constitution – Sections, 45(1).

CRIMINAL LAW –Sentence – Unlawful killing – One punch to the stomach area – Rapture already swollen spleen – Prisoner acting under provocation or in defence of child – Guilty plea – First time offender – No history of violence – No likelihood of re-offending –Genuine remorse expressed with payment of customary compensation – Noone to look after children in whose defence prisoner acted – Bougainville Constitution calling for promotion of peace and harmony through mediation, reconciliation using customary or traditional justice system - Prisons to be reserved for last resort and for the habitual, most violent or hardened criminal or an offender having the propensity to re-offend - 8 years fully suspended sentence on conditions imposed – Section 302 and 19 Criminal code – .Sections 13, 45 Bougainville Constitution

Cases cited:

The State v. Lawrence Mattau CR 960 of 2006

James Pangnan & Patrick Ponat v. The State SCRA 39 & 54 OF 2004, delivered on 30th August 2006 at Kokopo

Manu Kovi v. The State (31/05/05) SC789, per Injia DCJ., Lenalia, Lay JJ.

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

Anna Max Marangi v. The State 08/11/02) SC702

The State v. Robert Potou (2008) N3316

The State v. Elias Peter Wano Miva (unreported and unnumbered judgment delivered in 24/10/06)

Kama v. The State (2004) SC740

Thress Kumbamong v. The State (decision delivered on 31st October 2008)

Acting Public Prosecutor v. Don Hale (1998) SC 564

The State v Allan Nareti and Amstrong Kupe (2004) N2582

The State v Gibson Haulai (2004) N2555

The State -v- Abel Airi (2000) N2007

The State v Micky John Lausi (2001) N2073

The State v. Frank Kagi [1987] PNGLR 320

The State v. Nyama [1991] PNGLR 127

Counsel:

L. Rangan, for the State.

P. Kaluwin, for the Accused

DECISION ON SENTENCE

19th November, 2008

1. KANDAKASI J: In this case, Edmond Hotsia Geria, a father of three young children pleaded guilty to killing his wife, Marylne Pesi. That came about out of an argument over who should take one of their children who was due for his schedule clinic to the hospital. In the course of the argument, Edmond kicked Marylne and Marylne decided to take it against the child instead of Edmond. Edmond went for the defence of the child, got hold of him with one of his hands and punched Marylne with his other hand on her stomach area. That caused, Marylne’s already swollen spleen to rapture and caused her death.

2. The main issue for this Court to decide is, what is an appropriate punishment for Edmond? As I noted in the decision I handed down this morning in the matter of The State v. Lawrence Mattau CR 960 of 2006, this is usually the main issue in all cases of criminal sentencing. In order to determine that issue, the courts often have to address the following subsidiary issues:

(1) What are the relevant facts or the particular circumstances in which the offence was committed?

(2) What is the nature of the offence with which the offender has been charged with and its relevant sentencing trend?

(3) What are the factors in aggravation and mitigation of the offender?

(4) Are there any special features attending the commission of the offence?

(5) After carefully considering all of the relevant factors, what should be the appropriate sentence? and

(6) Whether the whole or any part of the sentence should be suspended and if so on what terms?

3. Again as I observed in the Lawrence Mattau case, any special feature attending the commission of an offence could either be a factor in mitigation or aggravation. Therefore, if there is any special feature attending the commission of the offence under consideration, it would appropriately be considered within the context of the factors operating for or against the offender. Given that, it would be inappropriate to deal with the fourth issue as an issue on its own.

4. With that clarification, I now turn to a consideration of the issues outlined above. I start with, what are the relevant facts or the particular circumstances in which the offence was committed?

What are the Relevant Facts or Circumstances in which the offence was Committed?

5. In the early morning hours of 20th May 2008, Edmond and his wife, Marylne argued over taking one of their three children who was due on a schedule visit to the clinic for appropriate medical treatment. The child was three months old. Marylne argued for Edmond to go with her to the hospital. On the other hand, Edmond argued for Marylne taking the child to the hospital as he wanted to go and work on his copra so he could bring in some income for the family. Edmond thought Marylne was becoming unreasonable and he became angry over her insistence. He therefore kicked her on her legs. Rather than taking it against Edmond, with whom she was arguing and the one who assaulted her, she went into the house and took it against the three months old child. She held the child upside down by his legs. On seeing what Marylne was doing, Edmond decided to act in defence of the child. He got hold of the child with one of his hands and punched Marylne in her stomach area with his other hand. The punch caused her already swollen spleen to rapture and lead to her death.

6. With these facts and the circumstances in which the offence was committed in mind, we now turn to a consideration of the next subsidiary issue of, what is the nature of the offence Edmond has been charged with and its sentencing trend?

What is the Nature of the Offence and its Sentencing Trend?

7. I will repeat what this Court said in the Lawrence Mattau this morning. The State charged and Edmond pleaded guilt to a charge of manslaughter or unlawful killing under s. 302 of the Criminal Code. This section creates the offence of unlawful killing and prescribes its penalty of life imprisonment. That is, however, subject to the Court’s wide sentencing discretion under s. 19 also of the Criminal Code.

8. Given the prevalence of the offence, the Supreme Court has revisited some of its age old sentencing guidelines and have come up with new sentencing guidelines with increased ranges of sentences for offenders. The decision of the Supreme Court of which I was a part, in James Pangnan & Patrick Ponat v. The State

SCRA 39 & 54 OF 2004, delivered on 30th August 2006 at Kokopo.

1 traces that development and ends with the decision of the Supreme Court in Manu Kovi v. The State.

(31/05/05) SC789, per Injia DCJ., Lenalia, Lay JJ.

2

9. Until the decision in the Manu Kovi case, there were only three categories of manslaughter cases were identified, with their suggested range of sentences. The latest decision of the Supreme Court was its decision in Sakarowa Koe v. The State.

(01/04/04) SC739, per Sevua, Kandakasi and Lenalia JJ.

3 There, the Court reviewed the categorization of unlawful killing cases and varied the Supreme Court’s earlier decision in Anna Max Marangi v. The State

(08/11/02) SC702, per

4 in terms of increasing the suggested sentences in each category.

10. In my decision in The State v. Robert Potou (2008) N3316, a case out of here in Buka, I reviewed the sentencing trend in manslaughter cases and concluded that the decisions of the Supreme and National Courts show an increase in the kind of sentences imposed in...