The State v Joe Butema Arua (2001) N2076

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 28 March 2001
• Citation: (2001) N2076
• Court: National Court
• Year: 2001
• Judgement Number: N2076

Full Title: The State v Joe Butema Arua (2001) N2076

National Court: Kandakasi J

Judgment Delivered: 28 March 2001

N2076

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 973 of 1999

THE STATE

-V-

JOE BUTEMA ARUA

LAE: KANDAKASI, J.

2001: JANUARY 15 and 26

MARCH 28

CRIMINAL LAW — Sentence — Manslaughter — Guilty Plea — Domestic argument leading to a fight and death — Provocation in the non legal sense — One punch with the fist and several repeated kicks with a boot — Rupture of swollen spleen — Good mitigating factors — 8 years sentence in hard labour.

CRIMINAL LAW — Application of Criminal Law (Compensation) Act 1991 considered — Cross-customary marriage — Compensation considered inappropriate and not ordered.

CRIMINAL LAW — PRACTICE & PROCEDURE — Necessary to call for and consider pre-sentencing report when lenient sentence asked for and to determine whether or not compensation should be ordered.

Cases cited

The State v. Nickson Pari (No.1) (2000) N2037

The State v. John Gurave Guba (2000) N2020

The State v. Jason Dongoma (2000) N2038

Noris v. The State [1979] PNGLR 605

Rex Lialu v. The State [1990] PNGLR 487.

The State v. Steven Tlukean (2000) N1953

Jack Tanga v. The State (1999) (unreported and unnumbered decision of the Supreme Court

The State v. Ngeto Rex Rongo (2000) N 2035

The State v. Horou Posu Kave [1986] PNGLR 305

The State v. Pelin Pochalon Lopai[1988-89] PNGLR 48

The State v. Ottom Masa (2000) N2021

Counsel

J. Pambel for the State

A. Raymond for the Defendant

28 March, 2001

KANDAKASI, J: On the 15th of January 2001, you pleaded guilty to one count of manslaughter of one Nenegame Backampi (hereinafter "the deceased") pursuant to s.302 of the Criminal Code Act (Chp.262)(hereinafter "the Code"). The depositions were then admitted into evidence without any objection from you.

Statements Inconsistent With Plea

Upon a reading of the depositions, I noted that you were raising the possible defence of either provocation or self-defense. I therefore, raised that with your lawyer, who said she has no application to make under s.563 of the Code, but she said she has your instructions to maintain your guilty plea.

It is now settled law that, if a Defendant raises something either in the depositions or in his allocutus that is inconsistent with his guilty plea, the plea must be changed to one of not guilty whether or not his lawyer makes a s. 563 of the Code application: See The State v. Nickson Pari (No.1) (2000) N2037 at pages 4-8 where I set out and discuss almost all the cases on point. It should however be noted that, that is the correct procedure to follow if that which makes the guilty plea inconsistent goes to an essential element of the offence with which the Defendant has been charged. Thus, if all that the Defendant does is raise the possibility of a legal defence, then the authorities seem to suggest that, the court must raise that with the defendant's counsel and if a choice is made to maintain the guilty plea that should be allowed. In other words, if a defendant decides to maintain a guilty plea despite having a possible legal defence and that fact being raised with his counsel, the court is not obliged to change the guilty plea.

In The State v. John Gurave Guba (2000) N2020, in so far as is relevant, I said these at page 3 of the judgement:

What is not clearly expressed one way or the other is, what should be the procedure if the defence decides to forego any defence that may appear to exist or is disclosed in the depositions or in the statement in his allocatus. For clarity on that aspect, in my view, it ought to be stated in clear terms that, just as the court is duty bound to accept an indictment presented following a plea bargain for a lesser charge, when a more serious one is disclosed in the depositions, the court should also be duty bound to accept the defendant's decision to forego any defence he may have and supported by the depositions. Besides, a defendant may take such a position because of the obvious benefits a plea bargain may bring to him in addition to the benefits a guilty plea may bring to him. He may also see difficulties succeeding on the defence that may be disclosed in the depositions or in his statement in allocatus and decide not to raise it.

Accordingly, in the present case, after raising what appeared to be a possible defence of provocation and or self-defence with your lawyer who decided not to make an application under s. 563 of the Code, I was satisfied that the evidence presented supported the guilty plea. Therefore, I proceeded to confirm your guilty plea and convicted you as charged.

Allocatus

The administration of your allocatus was uneventful and I proceeded to hear address on sentence mainly from your lawyer. The State made no submissions. The matter was then adjourned to allow for a pre-sentencing report and thereafter a decision on sentence. What follows is the court's decision on sentence after receiving and considering the pre-sentencing report.

Facts

As I said in The State v. Jason Dongoma (2000) N2038:

There is authority for the use of depositions to extract the relevant facts for sentencing purposes. See The State v. Sabarina Yakal [1988-89] PNGLR 129. I will therefore use the depositions to extract the facts in this case.

Accordingly for sentencing purposes, I will use the depositions to extract the relevant facts for the case before me now and find what follows as the relevant facts.

On the 11th of February 1999, at about 10:00am, you returned from your shift work with PNG Armored Guard, with whom you were employed for about a year. At the time, you lived with the deceased, after marrying some 8 months back, at Talair Compound, Lae, Morobe Province. Upon arrival at the house, you asked the deceased for some food. The deceased told you that, there was no food. You then asked the deceased about a K20.00 you gave her and the deceased told you that, she had given that to her mother who came from the village and was returning the next day. Instead of accepting and or stopping at that, you insisted upon a return of your money. That made the deceased to decide to go to the house where her mother was to get the money and return it to you. You and a Helen Eran, followed the deceased on her way to where her mother was. On the way, you demanded the deceased to go back to the house so you could get your belongings, pack them up and leave the deceased. The deceased obliged and headed back to the house first followed by you and then Helen Eran.

Once at the outside of the house, the decease took a piece of iron and swung it at you around your leg area, which failed to meet its target. She swung the second time successfully around your left hand area. A third swing by the deceased got you on your face (nose) area. At that time, you threw a punch at the deceased causing her to fall to the ground. Whilst she was on the ground, you booted her several times on the back area with a stockman boot you were wearing at the time. The deceased then took the same iron piece she earlier used and threatened to kill you and that made you let go off her and she ran away to her sister's house which was near by.

When at the sister's house, the deceased went into pain and agony and eventually died after almost an hour of struggling for her life. Attempts to get her to the hospital proved too late. A post mortem was carried out and it confirmed that, the deceased had a pre-existing swollen spleen, which ruptured by the punch and kicks she received from you which led to her death.

In your record of interview and a statement to the Court you obviously try to exonerate your culpability. Though telling the same story has above, you omit the following facts:

1. The arguments, the fight and the eventual death of the deceased was set in motion by your persistently calling for a return of your K20.00 and you deciding to pack up and leave;

2. Your actions in a way provoked the deceased to act in the way she did;

3. You punched the deceased down to the ground and then you proceeded to boot her several times with a stockman boot you were wearing at the time;

4. You would have continued your booting for sometime if the deceased did not pick up an iron piece and threatened to kill you.

You claim without the support of any of the evidence on file that, you executed only one kick and do not know whether the deceased was standing or was down on the ground as you were when you executed you claimed single kick. These claims are not supported by any of the evidence before the court.

Address on Sentence and the relevant law

Mrs. Raymond your Lawyer, argued for a sentence up to the rising of the Court having regard to the fact that you have spent 1 year 11 months and 3 days in custody awaiting your trial. She then advanced and I note and take into account as factors in your mitigation the following:

1. You pleaded guilty to the charge which save the State and the Court time and expenses of running a trial;

2. You loved your...