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State v Nokup [2012] PGNC 225; N4787 (21 August 2012)

N4787

PAPUANEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO 543 OF 2012

THE STATE

V

ESTHER KOITE NOKUP

Waigani: Maliku AJ
2012: 15th, 21st August

CRIMINAL LAW - Unlawful killing - Section 302(1) of Criminal Code Act

CRIMINAL LAW - Sentence on guilty plea- Accused is first offender – Prevalence of crime in the community- Appropriate sentence for first offender- Sentence in any given case is to be decided on its own peculiar facts

Cases cited

Rex Lialu - v - The State [1990] PNGLR
Goli Golu -v- The State [1979] PNGLR at page 653
Avia Aihi - v- The State (NO3) [1982] PNGLR 92 at page 96

Counsel

Mr. J Apo, for the State
Ms Cherake, for the accused

SENTENCE

21 August, 2012

1. MALIKU AJ: Accused Esther Koite Nokup is charged that she on the 12th December 2011 at Gerehu, National Capital District, Papua New Guinea did unlawfully kill one Maria Koite contrary to Section 302 (1) of the Criminal Code Act.

Plea

2. The accused having the benefit of a legal counsel pleaded guilty to one count of unlawful killing.

The Facts

3. The accused and the deceased are sisters, the deceased being the younger sister, aged 23 at the time of her death and the prisoner being 39 years of age.

4. The deceased was not permitted to use any property belonging to the accused after a prior argument between the accused and the deceased which resulted in the deceased burning some property belonging to the accused and her children.

5. On the 02nd of December, 2011, between 9and 10 am at their family home at Gerehu in the National Capital District, the deceased was frying sago in the frying pan belonging to the accused which caused the accused to become angry.

6. The accused said some words to the deceased and a fight broke out between the accused and the deceased in the house. The deceased and the accused were separated from fighting by the aunty of the accused and the deceased. The fight however continued on outside the house until it was stopped by the father of the accused and the deceased.

7. In the Record of Interview at Question 22 and Answer 22 the accused admitted that she went into the house and got a small kitchen knife. She went over to where the deceased was sitting and stood waiting for the deceased to say something. The deceased did not say anything and the accused stabbed the deceased with a small kitchen knife on her left side of her back.

8. The deceased died a short time later as a result of bleeding in the plural cavity due to penetrating stab wound to her back. The deceased was taken to Gerehu Hospital where she was pronounced dead on arrival.

Allocutus

9. When administering the allocutus, the accused said:

• I am sorry for what I have done to my little sister.
  
• Because of being frustrated I did what I did. I am now in Court.
  
• I have been a widow for 11 years and was supporting myself with four children.
  
• I want to apologize to my father, to my brother, my family and the Court too.
  
• I am asking for leniency from the Court and for the Court to consider the upbringing of my children as well as my father.
  
• I am the bread winner of my father and the children and I am responsible for the children's education.
  
• I am asking for forgiveness from my father and my brothers for what I did.
  
• If I go to jail, no one will look after my children's welfare.
  
• I am asking the court to consider a non custodial sentence for me so I could still look after my children and my father.
  
• I am concerned about my daughter who is 11 years old because of the kind of crimes that are being committed on young girls. I am asking the court to consider an appropriate sentence for me. That's all.
  

Personal Background:

10. The accused is 39 years old female and comes from Miaru village, Malalaua District, Gulf Province.

11. She is a widow and a mother of four (4) children, one (1) daughter, the youngest and three (3) sons aged between nine (9) and twelve (12) years old. The three (3) of the younger children are in Primary School while the eldest child is in High School in East Sepik Province.

12. She completed Grade six (6) at Gerehu Primary School in 1986.

13. From 1988 until July of 2011 she worked in various hotels specializing in the food and beverage department before committing the offence she was convicted off.

14. She is a member of PNG Revival faith at Nine (9) mile in Port Moresby.

Mitigating factors:

15. Miss Cherake submits that the Court should take into account the following when considering the appropriate sentence:

• The accused has pleaded guilty to the charge, thus saving the court's time and resources in conducting a trial.
  
• The accused has had no previous unblemished records against her. She is a first offender on the charge of unlawful killing.
  
• The prisoner had co operated well with the police
  
• The accused has shown remorse for the offence committed in her allocutus.
  
• The commission of the offence was not deliberate
  
• The accused never pre planned or pre-meditated the offence
  
• The duration of the attack was not long but a swift short stab.
  
• The accused stabbed only once, there was no multiplicity of injuries.
  
• The accused did not use a high degree of force.
  
• The accused did not inflict other acts upon the deceased.
  
• The deceased was not under any disability at the time of the offence committed.
  
• The offence against the deceased was not committed by more than one person but by the prisoner alone.
  
• There was provocation in a non legal sense for the offence; the accused at that time was under a lot of stress from family obligations.
  
• The accused comes from a family background where she had to bear a lot of responsibilities in providing for her younger siblings as her father is retired and her mother is deceased apart from raising her own four (4) children for the last eleven (11) years after her husband passed away.
  
• The offence does not fall in the worst category of unlawful killing.
  

16. Counsel for the accused also asked the court to take into account the pre trial custodial period in which the prisoner was remanded in custody awaiting her trial, a period of four (4) months and six (6) days to be deducted from the total sentence imposed.

Aggravating Factors

17. The defence acknowledges the following aggravating factors of the offence committed by the prisoner.

1. An innocent life has been lost prematurely and never to be brought to life again.
   
2. The offence is prevalent
   
3. The offence is serious in nature
   
4. The prisoner used a dangerous weapon.
   
5. The prisoner and the deceased were sisters; and
   
6. The deceased did not have any pre existing condition.
   

Submission by State

18. The State submits that the above enumerated aggravating factors are those that the State's submission distinguishes this case from other cases of manslaughter, and offer some guidance as to what should be the appropriate sentence in this particular case. Rex Lialu -vs- The State [1990] PNGLR 16

19. In brief this is a case where the appellant was found guilty and convicted by the National Court after a trial and sentenced to six years and six months. On appeal the sentence was reduced in that four and half years imprisonment was substituted for the penalty handed down by the National Court.

20. In reducing the sentence from six and half years to four and half years, the Supreme Court outlined the guides or considerations that Courts should look at in determining what should be the appropriate sentence in cases of manslaughter.

21. Here are some of the considerations which the Supreme Court outlined:

• The nature and frequent of attacks or assault.
  
• Whether the injury causing death was a direct result of falling on any objects.
  
• Whether the injury was caused by the accused or a weapon.
  
• Whether the harm caused was the result of a deliberate intention to cause that injury.
  
• Whether there was provocation in the non legal sense; or
  
• Whether the deceased had a thin skull or an enlarged spleen.
  

22. Evidence shows in the present case that a dangerous weapon was used by the accused to cause the injury on the deceased.

23. The other case that the State cited is Manu Kovi v The State (2005) SC789. In brief the appellant was found guilty and convicted of wilful murder by the National Court. He appealed against the sentence of life imprisonment. The appeal was dismissed and the conviction and sentence were affirmed by the Supreme Court.

24. The Supreme Court went to outline categories of circumstances in homicide cases, those that should help the Courts in determining the appropriate sentence in homicide cases including manslaughter. The Supreme Court in Manu Kovi's case outlined the manslaughter in domestic settings into categories.

25. The first category is where the assault on the deceased comprise of uncalculated use of force, such as single blow, kick or punch to any part of the deceased's body. These would attract the range of three (3) to four (4) years imprisonment.

26. The second category of manslaughter includes those with repeated application of force with or without weapons, or death caused by use of weapons or stab wounds caused by use of weapons or instruments and without any special aggravating factors. Such circumstances will and should attract a penalty of eight to twelve years in prison.

27. The third category of manslaughter includes those cases wherein the application of force is calculated with vicious injuries, multiple wounds and injuries and with the existence of special aggravating factors. The case that fall within the circumstances above attracts sentence within a range of thirteen to sixteen years. It is noted that such range as highlighted above revolve around manslaughter cases within the domestic setting.

28. The State also cited a number of other cases where the courts had determined manslaughter charges. Included in those cases is the case of The State v Kenny (1999) N1881 by Kirriwom J. This is a case where the accused pleaded guilty to unlawfully killing his elder brother's wife for gossiping about his second wife.

29. The accused assaulted the deceased by kicking her twice in her abdomen and ruptured her spleen. She died from massive loss of blood. The accused was sentenced to six years imprisonment. On deduction of four months pre trial custodial period the accused then served five years and eight months in prison.

30. It is obvious that matter did not fall in the worst category of unlawful killing cases. In the present case there was no kicking and punching. The similarity in both cases would be that they do not fall in the worst category of unlawful killing.

31. In the recent case of Jack Tanga-v- The State (1999) SC 602 on an appeal, the Supreme Court confirmed a sentence of twelve years even though it was a plea but it was a very bad case of punching and kicking by a man heavily inebriated by alcohol that brutally caused the death of his wife. This is a matter which was on its facts a bad case of unlawful killing.

32. In the present case there were no punching and or kicking by the accused and the accused was not heavily intoxicated by alcohol but was a single stabbing with a kitchen knife on the deceased by a sober person.

Submission by Defence

33. The defence submits that in deciding an appropriate sentence the court must adopt the principle set out in Manu Kovi (supra) as to the category the offence of unlawful killing being dealt with falls under or within to determine the seriousness of the offence which will eventually lead to the appropriate sentence for the prisoner.

34. Miss Cherake also referred me to the case of State-v- Kaingi (2006) PGNC 108; CR 1119 of 2006 (19/12/06). This is a case where the accused was a young woman who pleaded guilty to killing her younger sister by stabbing her because she alleged that the deceased was having an affair with her husband.

35. His honour Cannings J in sentencing the accused to ten (10) years took into account the mitigating factors and aggravating factors put to the court. His honour however observed that it was vicious assault, and the accused was solely responsible for the death of the deceased and the cause was her husband's infidelity.

36. The similarity of that case to this present case is that both cases stem from a killing in a domestic setting and in being so both fall in Category 2 as spelt out in Manu Kovi's case.

The Law on sentencing

37. Section 302 (1) (b) of the Criminal Code prescribes a maximum a penalty of life imprisonment but subject to section 19 of the Criminal Code Act, Chapter 262.

38. It is an established law in our Criminal Jurisdiction that maximum prescribed penalty should be reserved and imposed only in the worst category of the offence under consideration: see Goli Golu -v- The State [1979] PNGLR at page 653; Avia Aihi - v- The State (NO3 [1982] PNGLR 92 at page 96.

What are the issues?

1. Does this matter fall in the worst category of unlawful killing cases?
   

39. I have considered this issue and agree with both counsel that this present matter does not fall under the worst category of unlawful killings or manslaughter. It falls under Category 2 of unlawful killing (see Manu Kovi (supra).

2. What is the appropriate sentence to be imposed on the accused?
   

I have had the benefit of reading the cases cited by both counsel where the offence of unlawful killing were argued and appropriate sentences were imposed.

40. The principle of sentencing is well settled in our criminal jurisdiction in the case of Rex Lialu - v - The State [1990] PNGLR and is: "Sentence in any given case will depend on its own peculiar facts.... the Court ought to have regard to all aggravated effects of all relevant considerations on matters which aggravate or mitigate the serious nature of the offence and then to decide an appropriate penalty". I agree and do not intend to depart from this principle.

41. I have paid great attention to the case of Manu Kovi where the Supreme Court very rightly categorized the offence of unlawful killing or manslaughter according to their degree of seriousness as set out in the Manu Kovi's case.

42. I have also considered the prescribed maximum penalty in Section 302 (1), and Section 19 of the Criminal Code. I am mindful that I have discretion under section19 of the Criminal Code even though there is a prescribed penalty for unlawful killing in Section 302(1) of the Criminal Code for consideration.

43. I said earlier that the present case falls under category 2 which attracts a sentence of eight (8) to twelve (12) years of imprisonment. I note that the mitigating factors outweigh the aggravating factors. This is in favour of the accused person.

44. Having said that, I sentence the accused to 9 years imprisonment in light labour less the pre trial custodial period of four (4) months and six (6) days. Accused shall serve the balance after the deduction of the pre trial custodial period.

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Public Prosecutors: Lawyers for the State
Public Solicitors: Lawyers for the Accused