KOSRAE STATE COURT TRIAL DIVISION
Cite as Kosrae v. Kilafwakun, 13 FSM Intrm. 368 (Kos. S. Ct. Tr. 2005).

[13 FSM Intrm. 368]

STATE OF KOSRAE,

Plaintiff,

vs.

PAUL M. KILAFWAKUN,

Defendant.

CRIMINAL CASE NO. 31-05

SENTENCING ORDER

Yosiwo P. George

Chief Justice

Hearing: August 3, 2005

Decided: August 9, 2005

APPEARANCES:

For the Plaintiff:   Paliknoa Welly, trial counselor

                                 State Prosecutor

                                 Office of the Kosrae Attorney General

                                 P.O. Box 870

                                 Lelu, Kosrae   FM   96944

For the Defendant:   Harry A. Seymour, Esq.

                                       Office of the Public Defender

                                       P.O. Box 245

                                       Lelu, Kosrae   FM   96944

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HEADNOTES

Criminal Law and Procedure ) Sentencing; Custom and Tradition

     Custom, including customary apology and reconciliation, is to be considered during the sentencing of a criminal prosecution, but when there was no customary reconciliation reached among the defendant and the victims, there is no consideration of this factor for sentencing. Kosrae v. Kilafwakun, 13 FSM Intrm. 368, 369 (Kos. S. Ct. Tr. 2005).

Criminal Law and Procedure ) Sentencing

     When there was no evidence submitted to support defendantís contention that he, as an adult male in the family, is authorized under custom to commit an assault and battery upon two selected females in his family in order to stop an argument among three females in his family; when there was no evidence submitted to support defendantís argument that his actions were appropriate and taken in accordance with custom; and when although the defendantís sister initiated the argument with victims, the defendant committed the assaults and batteries upon the non-aggressors in the argument only further inciting the argument and raising tensions among the family instead of encouraging

[13 FSM Intrm. 369]

resolution of the argument and initiating reconciliation and peace, the defendantís argument that his actions were taken properly in accordance with custom, based upon his traditional authority as an adult male in the family must therefore be rejected in consideration of sentencing. Kosrae v. Kilafwakun, 13 FSM Intrm. 368, 369 (Kos. S. Ct. Tr. 2005).

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COURTíS OPINION

YOSIWO P. GEORGE, Chief Justice:

     Trial was held in this matter on June 22, 2005. By Judgment of Conviction entered on July 5, 2005, the Defendant was found guilty and convicted of two counts of the criminal offense of assault and battery. The sentencing hearing was held on August 3, 2005. Paliknoa Welly, State Prosecutor, appeared for the State. Defendant was represented by Harry Seymour, Public Defender. Copies of the pre-sentence report as ordered by the Court were distributed to the parties at the outset of the hearing.

     Prior to imposing the sentence, the Court allowed Counsel for Defendant to speak on behalf of the Defendant. The Defendant was also provided an opportunity to make a statement in his own behalf. Counsel for Kosrae State was also given an opportunity to speak to the Court.

     The Court was informed that there exist family tensions between the Defendantís family and the victimsí family. Despite such tensions, no customary reconciliation was reached by the Defendant and the victims. The tension existed prior to and lead up to this incident. The Defendant claimed that there were attempts made at reconciliation, but that they had failed. Defendant again argued that his actions, the assault and batteries upon Myrah and Dina, were properly taken in accordance with custom, based upon his traditional authority as an adult male in the family.

      Custom, including customary apology and reconciliation, is to be considered during the sentencing of a criminal prosecution. Kosrae v. Nena, 12 FSM Intrm. 20 (Kos. S. Ct. Tr. 2003). As there was no customary reconciliation reached among the Defendant and the victims, there is no consideration of this factor for sentencing. The Court now considers Defendantís argument that his actions were properly taken in accordance with custom, based upon his traditional authority as an adult male in the family. The Defendant did not submit satisfactory evidence at trial in support of this argument. The Defendant did not present to this Court evidence showing his customary authority seeking reconciliation with the victims. There was also no evidence submitted to support Defendantís contention that he, as an adult male in the family, is authorized under custom to commit an assault and battery upon two selected females in his family, in order to stop an argument among three females in his family. There was no evidence submitted to support Defendantís argument that his actions were appropriate and taken in accordance with custom. The evidence at trial showed that the Defendantís sister, Melvina, initiated the argument with victims. Yet, Defendant committed the assaults and batteries upon the non-aggressors in the argument: Myrah and Dina. Defendantís actions only further incited the argument and raised tensions among the family, instead of encouraging resolution of the argument and initiating reconciliation and peace. Defendantís argument that his actions were properly taken in accordance with custom, based upon his traditional authority as an adult male in the family must therefore be rejected in consideration of sentencing.

Based upon the facts of this case, in consideration of the nature of the offenses, and the Defendantís background, including his prior criminal record, and potential, the Court imposes the following sentence upon the Defendant:

[13 FSM Intrm. 370]

1. The Defendant is sentenced to 12 months incarceration for each count of assault and battery. Of the 12 months incarceration, 11 months shall be suspended on the condition that Defendant successfully completes 11 months probation.

2. Defendant shall serve one month incarceration at the Kosrae State Jail. Defendant shall present himself to the Kosrae State Jail at 10 am on Wednesday, August 10, 2005 to begin his term of incarceration. Probation shall begin immediately following the one month term of incarceration at Kosrae State Jail.

3. The term of incarceration, including the one month in custody at Kosrae State Jail and the 11 months probation shall be served concurrently for both offenses.

4. Conditions of probation include the following:

a. Defendant shall not violate any national, state or municipal laws or ordinances.

b. Defendant shall not leave the State of Kosrae without prior written permission of the Court.

c. Defendant shall not have any hostile contact with the victims or the victimsí family.

d. Any violation of the conditions of probation may result in the revocation of probation and the return of the Defendant to jail to be incarcerated for the remainder of his total sentence.

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