The State v Raymond Lote (2019) N7836

• Jurisdiction: Papua New Guinea
• Judge: Toliken J
• Judgment Date: 08 March 2019
• Citation: (2019) N7836
• Docket Number: CR NO. 892 OF 2017
• Court: National Court
• Year: 2019
• Judgement Number: N7836

Full Title: CR NO. 892 OF 2017; The State v Raymond Lote (2019) N7836

National Court: Toliken, J

Judgment Delivered: 8 March 2019

N7836

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 892 OF 2017

THE STATE

V

RAYMOND LOTE

Alotau: Toliken, J

2018: 13 June, 13 July, 10 August,

20 November

2019: 08 March

CRIMINAL LAW – Sentence after plea – Manslaughter – Prisoner stabs brother in-law (deceased) on stomach – Frustration over deceased’s continuous non-support of wife and children – Not a worst case – Significant mitigating factors outweigh aggravating factors – Principle in Kesino Apo v The State applicable to affines – Appropriate sentence – 14 years less time in custody – Suspension – Appropriate case for some suspension – 5 years suspended on condition – Criminal Code Ch.262, s 302.

Cases Cited:

Avia Aihi v The State (No.3) [1983] PNGLR 92

Goli Golu v The State [1979] PNGLR 653

Kesino Apo v The State [1988] PNGLR 182

Lawrence Simbe v The State [1994] PNGLR 38)

Manu Kovi v The State (2005) SC 789

Saperus Yalibakut v The State (2006) SC 890

The State v Paina (2015) N5867

The State v Tavari (2014) N5619

The State v Rurua (2014) N5617

The State v Peter Tokau (2008) N5462The State v Koni Gabriel; CR 440 of 2014 (Unreported and unnumbered judgment dated 22nd May 2017)

Ure Hane v The State [1984] PNGLR 105

Counsel:

J Apo, for the State

N Wallis, for the prisoner

JUDGMENT ON SENTENCE

08th March, 2019

1. TOLIKEN, J: The prisoner Raymond Lote initially pleaded guilty to an indictment dated 13th June 2018 charging him with one count of murder pursuant to Section 300(1)(a) Criminal Code Ch. 262. This was, however, reduced to manslaughter under Section 302 of the Code later the original plea for murder was vacated as a consequence of plea bargaining.

BACKGROUND

2. When the matter returned on 13th July 2018 for allocutus and submissions on sentence, he however, advised the Court that he was not ready as he had an issue to sort out with his lawyer Mr. Walis. The matter was then adjourned to 08th August 2018, and on that date the prisoner advised the Court that he was not guilty for murder but for manslaughter because he had assisted the deceased and provided zoom to take him to the hospital within 15 minutes, but it took the HEO 1 ½ hours before he attended to the deceased.

3. I advised the prisoner that what he was telling the Court were things that can be taken into account on sentence. I also explained the meaning of offence of manslaughter to the prisoner and he said that he in fact did not mean to kill or cause grievous bodily harm to the deceased. His lawyer Mr. Wallis confirmed, that, that was indeed his instructions which were put across to the State, but the State in its discretion charged him for murder.

4. I advised the parties that I may have to vacate the plea. Mr. Apo for the State advised the Court, the State’s position had been clearly put to the defence that they will indict for murder which they did, but since the accused has taken a position then a trial should proceed on the charge of murder. Counsel, however, asked for the matter to be adjourned to allow him to seek further instructions. I did not make a formal ruling then to vacate the plea. The matter was then adjourned to 10th August 2018 for Mr. Apo to advise the Court what position they will take.

5. On 10th of August 2018 Mr. Apo advised (the court) that the State will proceed with the charge of murder. I then formally vacated the plea and adjourned the matter to the next call-over on 03rd September 2018 for mention. I also disqualified myself from further hearing the matter and directed that it be tried before another judge. The matter was then adjournment to the October call-over.

6. On 20th November 2018 the State called the matter and advised the Court that they had reconsidered their position and had decided to proceed on the lower charge of manslaughter. Leave was sought and granted to amend the indictment by substituting the charge of murder with that of manslaughter and that the prisoner be arraigned on the same facts put to him on the initial charge.

7. The prisoner pleaded guilty to the unlawful killing of Manoa Francis on 26th January 2017 at Sariba Island, Samarai-Murua District, Milne Bay Province.

BRIEF FACTS

8. The brief supporting facts are these; on 26th January 2017, towards the evening of that day, the prisoner’s sister, Fatima Lote had prepared the family dinner and served a plate of food for her husband, the deceased.

The prisoner had a dislike for the deceased for not assisting him on some work and so got angry when he saw his sister serve food to the deceased. He picked up a knife and attacked the deceased and stabbed him in the stomach.

9. Seeing that her husband was injured and bleeding from his stomach Fatima assisted him by taking him to the Samarai Island Health Centre for medical assistance. By then it was well past midnight and going towards the early hours of the next day.

10. The Health Extension Officer at Samarai could not do much and recommended that the deceased be taken to the Alotau General Hospital. But before he could be taken to Alotau, the deceased started to have seizures and passed away early that morning.

THE OFFENCE

11. The offence of manslaughter carries a maximum penalty of life imprisonment, but as is trite, the maximum penalty may only be imposed in the worst types of offending for any offence. Each case must also be treated on an individual basis according to its own facts and circumstance so that the offender’s punishment fits the crime. (Goli Golu v The State [1979] PNGLR 653; Avia Aihi v The State (No.3) [1983] PNGLR 92); Ure Hane v The State [1984] PNGLR 105; Lawrence Simbe v The State [1994] PNGLR 38)

ISSUE

12. The issue for me then is to decide what an appropriate sentence for the prisoner ought to be.

13. At the outset I must say that this is not a worst type of manslaughter. Hence it should not attract the maximum penalty.

ANTECEDENTS

14. The prisoner is young man of 24 years of age. He was 23 when he committed the offence. He comes from Mugaya village on Sariba Island, Samarai-Murua District, Milne Bay Province. He is single and is the last born in a family of 6 siblings. Both his parents are still alive. He is a Roman Catholic and was educated up to Grade 10 at Hagita Catholic Secondary School. He is a first time offender. He has been in pre-trial detention for 1 year 10 months and 10 days.

15. On his plea in mitigation the prisoner pleaded for mercy. He asked to be placed on good behaviour or probation. He apologised for breaking the law and for wasting the Court’s time. He apologised to the Province, his District and Community and to his victim for taking his life. He apologised to the deceased’s relatives for the trouble he caused them. And he also apologised to his family for bringing disrepute to them and to his parent’s reputation.

16. The prisoner said he did not mean to kill the deceased, but acted out of frustration because the deceased had never supported his three children whom he had with his (prisoner’s) sister. He never provided any support to their mother during confinement and after the birth of each child. Support for the children had been left entirely to the prisoner and his parents and despite numerous pleas from the prisoner and his family for him to do so he never did. Further he was not around physically with his wife and children as he lived all this time at his own village. The prisoner therefore pleaded for leniency and asked for a non custodial sentence.

SUBMISSIONS

17. Mr. Wallis of counsel for the prisoner submitted that this is not a worst case. It would, counsel submitted, fall within the upper end of category 1 and the lower end of category 2 of the Manu Kovi tariffs (Manu Kovi v The State (2005) SC 789). And given the good mitigating factors an appropriate sentence for the prisoner ought to be 9 – 13 years, a portion of which may then be suspended.

18. The prisoner’s Pre-sentence Report shows that the prisoner’s relatives have paid customary compensation to the deceased’s relatives, the monetary value of which was K13,602.00. This consisted of garden food, store goods, pigs and traditional money (bagi). Village leaders, which included the Village Court Magistrate and Peace officer, a Youth Leader and Church Elder had vouched for the prisoner’s good character. The author of the Report recommends a partial custodial sentence.

19. Mr. Apo on the other hand submitted on behalf of the State that, the circumstances of the case warrant a sentence within Category 2 of Manu Kovi (16 – 20 years). And while the offence is aggravated by the use of an offensive weapon, a strong intention to cause grievous bodily harm and the prevalence of the offence, counsel conceded that the prisoner has some good mitigating factors and that there are at least a couple of extenuating factors, these being the existing discord between the prisoner and the deceased which was brought about by the deceased’s continuous failure to support his children which was exacerbated on the evening of the date in question when the prisoner’s sister fed her husband the deceased and left nothing for the prisoner.

20. Mr. Apo further...