The following problem was the basis for the advocacy exercise last year. What arguments about an appropriate sentence should be made by (a) counsel for the prosecution (b) counsel for Lote Doe? Just summarise the arguments that could be made on each side Don't bother at this stage about the formalities of legal expression or the technicalities of sentencing law.

In a sentence hearing, prosecuting counsel is the first one to present arguments (technically called 'submissions'); defence counsel can then address the court. Note that Lote's communication to his lawyer is not available to the police or prosecutor before the sentence hearing. Defence counsel will need to expressly refer to it in making their arguments. Prosecuting counsel can then respond to anything in dispute. For the purposes of this tutorial/forum, assume that prosecuting counsel will not dispute any part of the communication that is used by defence counsel.

LW205 ADVOCACY EXERCISE 2022

STATE v DOE

CHARGE TO WHICH THE DEFENDANT PLEADED GUILTY: MANSLAUGHTER

Suppose that the following proceedings take place in the Supreme Court of Pacifika where the offence of manslaughter carries liability of up to 20 imprisonment. For cases where death was caused by an attack that was intentional but provoked, most sentences fall within the range 2 - 6 years. There are no relevant sentence precedents in Pacifika for the particular facts of this case.

The defendant pleaded guilty at earlier proceedings. The current proceedings are to determine the sentence.You will appear as counsel for the prosecution or as counsel for the defendant. What sentencing submissions would you make?

ALLEGED FACTS READ OUT BY THE PROSECUTOR

The deceased, Joe Doe, lost his life in the evening of 14 June 2021. The death occurred during a period when the government had imposed a night time curfew because of an outbreak of COVID-19 disease. The deceased lived with his wife Freda, his daughter May and his son Lote. The curfew had been in force 6 pm - 6 am for three weeks before the death of Joe.

Apparently tensions within the family had risen during the course of the lockdown, especially between Joe and Lote. At 7 pm on the night of 14 June, an argument broke out between Joe and Lote in the kitchen of the house. In the course of the argument, Lote Doe stabbed his father in the chest with a large kitchen knife that had been lying on a table. He then stormed out of the house and went to the home of his girlfriend. Joe Doe collapsed, bleeding heavily, onto the kitchen floor. Freda Doe was present at the time. She called an ambulance. However, it ran out of fuel half way to the house: the driver knew that the ambulance was low on fuel but had forgotten to fill up. Joe died from loss of blood just before the ambulance finally arrived.

The following day, Lote was interviewed by police officers under caution. In his statement, he admitted that he had stabbed his father. He said that his father had been saying nasty things about him and that he had lost his temper. When he was formally charged with manslaughter, he indicated that he accepted that he was guilty.

Joe Doe was 55 years old at the time of his death. He was employed as a builder and was the main provider for the family.

Lote Doe was 20 years-old at the time of the death and is now 21. He has been employed as a trainee nurse. He has a prior conviction for theft from a shop when he was 18 years-old. He pleaded guilty to that and served one year's probation.

Note: The defendant will be asked whether he agrees with this statement of facts. Assume that he has agreed.

DEFENDANT'S COMMUNICATION TO HIS LAWYER - TO BE USED AT THE DISCRETION OF DEFENCE COUNSEL; IT IS Not available to the police or the prosecutor

Lote's relationship with his father was difficult. Joe adored Lote's elder sister, May. May was smart, went to university and was studying to become a lawyer. In contrast, Lote had often struggled at school. Joe was always telling Lote that he was a disappointment in comparison with May. Joe would often sneer at Lote in front of Freda and May for being 'stupid' and 'useless'.

Lote avoided his father as much as he could, but this was difficult when they were cooped up at night because of the curfew. Tension between father and son grew as the curfew dragged on. Joe seemed irritated by the presence of his son and made little effort to disguise this: hardly a day went by without some disparaging comments aimed at Lote. Lote found this increasingly difficult to handle. Lote was part of a group of trainee nurses who had been assigned to care for patients sick with COVID-19 and in a quarantine facility. The hours were long. Lote was exhausted when he got home and easily became upset by the abuse from his father.

On the night of Joe's death, Lote was resting after supper. Joe apparently thought he should been helping his mother clear up after the meal. Joe started berating him: 'You worthless excuse of a human being. You're lazy and useless. You've failed me and your mother.' On and on he went, until Lote grabbed a knife from the kitchen table and, in a rage, stabbed him in the chest. Joe collapsed but Lote turned round, walked out of the house and went to see his girlfriend. When he returned an hour later, his father was dead. Lote is not sure what he was thinking when he stabbed Joe: 'I just lost it. I didn't care. I was sick of him.'

Lote now appreciates the seriousness of what he did and is horrified by his actions: 'I think my father was already mentally ill, and the lockdown made it worse for him. I'm training to be a nurse. I should have been able to help.'

Lote is worried about how a court will view his previous conviction for theft. He says that the shoplifting was the result of 'a dare' by some friends and only involved a few cans of tuna and peanuts. He is terrified by the prospect of a prison sentence.