Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

State v Eneg [2016] PGNC 100; N6310 (9 May 2016)

N6310

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 782 OF 2015

BETWEEN:

THE STATE

V

MELENDA ENEG

Wabag: Auka, AJ

2016: 19^th Feb, 7^th April & 9^th May

CRIMINAL LAW – Sentence – Manslaughter – Accused Stabbed deceased with bush knife – Killing of husband’s girlfriend –Plea of guilty - De facto provocation –First time offender – Expression of remorse –Prevalence of offence - Plea – Mitigation factors – Sentencing principles – Not a wost type case –Partly suspended sentence appropriate - Term of 10 years imposed and partly suspended – Criminal Code Act s.19(6)

Cases cited:
Avia Aihi v. The State (No. 3) [1982] PNGLR 92
Goli Golu v. The State (1978) PNGLR 653
Manu Kovi v. The State (31.5.2005) SC 789
Rex Lialu v. The State [1990] PNGLR 487
Ure Hane v. The State (1984) PNGLR 105
The State v. Daniel Kondonga (2012) N4619
The State v. Jimmy Mogoi (2012) N 4680
The State v. Rex Lialu [1988-89] PNGLR 488
The State v. Kesino Apo [1988-89] PNGLR 182
The Public Prosecutor v. William Bruce Tordew [1986] PNGLR 91

Counsel:
Mr. Joe Waine and Ms. Sheila Luben, for the State
Mr. R. Bellie, for the Accused

SENTENCE

9^th May, 2016

1. AUKA, AJ: The accused pleaded guilty to one count of Manslaughter Contrary to S. 302 of the Criminal Code.

2. The brief facts of the case were that on 18^th of November, 2014 at about 1:00 am at Wapai Village, Kompiam District, Enga Province, the deceased who was accused husband’s girlfriend was fast asleep in the accused house in one of the rooms. The accused was not happy and so she got hold of her husband’s bush knife and crept to where the deceased was sleeping and cut her on her left leg and inflicted a wound and caused lot of bleeding. She died while travelling to hospital to get treatment. She died from loss of blood.

3. On her statement on allocatus, the accused said she is very sorry for the offence she committed. She said sorry to the Court, to her family and to the deceased’s line. She said the incident would not have happened if the victim did not go to her house and sleep with her husband. I saw that they were sleeping in my house and so I got upset and cut her. She asked the Court to be lenient on her on Sentence because she has 3 young children to care for. She said she has spent 1 year 4 months in custody awaiting trial. She asked the Court to have mercy on her.

4. On the request of Mr. Bellie of Counsel for the accused, the Court directed the Probation Officer based in Mt. Hagen to furnish and file a pre-sentence report on the prisoner and directed the matter to return on 4^th April, 2016. I’m now in possession of that report.

5. On 07^th April, 2016, the Court heard Counsels on Sentence. It was submitted that accused is 25 years old and hails from Lailam Village, Kompiam District, Enga Province. She is married with three young children. Have five (5) sisters and one (1) brother. She is third born in the family of seven children. She did not attend any formal education and at the time of the offence she was a housewife.

6. Mr. Bellie asked the Court to take into account accused guilty plea to the serious charge. She is a first time offender and her expression of remorse, there was de-facto provocation in this case and the offender acted alone and inflicted one single wound. That there was no pre-planning and some compensation was paid.

7. Mr. Bellie referred the Court to the following National Court cases on Manslaughter charges and submitted for a term below thirteen (13) years. The State v. Jimmy Mogoi (2012) N4680. Accused pleaded guilty to manslaughter of another person who he killed by stabbing him with kitchen knife at a market place. Cannings J sentenced him to thirteen (13) years, The State v. Daniel Kondonga (2012) N4619. Accused aged 20 years pleaded guilty to unlawful killing of a young boy. He accidently killed the deceased when he threw a stone to scare the deceased and 2 other to go to their houses at a video place. The stone strucked the deceased on his chest and he was in great pain. He was rushed to the hospital and following Surgery, died. According to medical report, he died from a blunt trauma caused by the impact of the stone on his chest.

8. Ms. Luben for the state submitted that a bush knife was used to stab the deceased from which she died. She urged the court to consider that the offence of Manslaughter is a prevalent offence. Counsel cited the often cited case of Manu Kovi v. The State (30.5.05) SC 789 and said that, this case falls under category 2 of Manu Kovi’s case which attracts sentences between 13 to 16 years. She submitted that this was not a worst type case.

9. I have had the advantage of reading the Pre-Sentence report. The report shows that Compensation of K3, 000. 00 in cash and 27 pigs were paid to victim’s line. It was reported that the accused regretted her action and is willing to face the consequences of her action. The report recommended that a custodial sentence is suitable for the serious offence she committed.

10. The maximum penalty prescribed by law for the offence of manslaughter under s.302 of the Criminal Code is life Imprisonment. The Court has discretion to impose a term of years pursuant to s.19 of the Criminal Code. I am of the view that this case falls into the Second category in Manu Kovi’s case (supra). The second category suggested in that case are for cases where there is use of offensive weapon, example; knife on vulnerable parts of body with some deliberate intention to harm and some planning.

11. On authority of Goli Golu v. The State [1979] PNGLR 653, Avia Aihi v. The State (No. 3) [1982] PNGLR 92 and Ure Hane v. The State [1984] PNGLR 105, the maximum penalty must be reserved for the worst type case. In my view the accused case is not worst type case.

12. In Rex Lialu v. The State [1990] PNGLR, the Supreme Court said that, the proper approach to sentencing in manslaughter cases is to have regard to all the aggregate effect of all relevant consideration and then determine an appropriate penalty. The aggregate effect come from several considerations which the Court must consider by carefully examining the circumstances of each case and how the death was caused.

13. By authority of the above case, the Court must consider factors such as the nature and frequency of the attack. The Court must consider whether the injuries were caused by a direct hit or did the victim fell on any object. I must also consider whether the injuries caused were caused by the accused bare handed or did he use any weapon.

14. Was there any intention to deliberately harm the victim? In the circumstances of the case, there was some intention. The accused used a bush knife and cut the victim on the left leg. Was there any provocation in the non-legal sense? Yes I would say there was some provocation in the non-legal sense in that the accused saw the deceased sleeping with her husband in the same room. In my view, this was a high degree of de-facto provocation.

15. Crimes of violence are very prevalent throughout the country and as such deterrence sentences are called for. All communities in this country are experiencing a high level of violent crimes affecting our country’s quest for progress in term of solving disputes in more amicable manner as provided for by the law.

16. In this case accused used a bush knife to inflict injury on the body of the deceased particularly her left leg. The legs of a human person are very vulnerable parts of the human anatomy.

17. The National Court has repeatedly warned that sentences for manslaughter cases must reflect the serious view which the parliament took over the loss of a human life when it fixed the maximum penalty at life Imprisonment.

18. For the above reason, a starting point on sentence for manslaughter case should be a custodial as a means of protecting human life. The State v. Rex Lialu v. The State [1988-89] PNGLR 449, Kesino Apo v. The State [1988] PNGLR 182.

19. By authority of Rex Lialu v. The State (supra), the relevant consideration to determine the appropriate sentence in the present case are that the accused used a bush knife and cut the victim on a vulnerable part of victim’s body and directly caused injuries from which she died. There was some intention to harm the victim. Of course there was some provocation in the non legal sense for the accused to act the way she acted.

20. Having said what I have said, I take into account in accused’s favour her plea to this serious charge. I also take into account in her favour what she said on allocatus. I have also considered Counsels submission or mitigation and aggravation. I considered that a sentence of 10 years imprisonment should be imposed. Accordingly, I impose that sentence against the prisoner. The time already spent in custody awaiting trial and sentence shall be deducted.

21. The next issue for determination is whether the sentence be wholly or partially suspended.

22. In Public Prosecutor v. William Bruce Tardew [1986] PNGLR 91, the court held that suspension of part of a sentence under s.19(6) is, or may be, appropriate if it will promote the personal deterrence, reformation or rehabilitation of the offender.

23. The accused in this case have admitted committing the offence from the very beginning and expressed remorse in court. She could have raised the defence of provocation but she did not do that, and was prepared to take responsibility for her action. Her conduct after the commission of the offence and all the events leading up to her guilty plea and conviction has prompted me to give special consideration and accommodation in the sentence.

24. The Pre-Sentence Report on page 3 paragraph 5 shows that the accused is a first time offender who regrets her actions and promises to stay away from any future crime and to abide by all orders of the court. She said she will fully co-operate with the law and it’s enforcing agents now and in future as she had enough bad experience from this crime.

25. The accused’s future plans include committing herself fully to church activities with the Lutheran Church and will receive help from her father who is a Lutheran Church Pastor. She said she will live as a Law abiding citizen as she has encountered so many difficulties and hardships while in Police and CS custody.

26. I consider that a youthful woman like the accused in this case do not require lengthy imprisonment term but correction and rehabilitation outside the prison system. And the future activities she has mentioned which she will be involved in indeed will correct her from the trauma that she had gone through.

27. I give serious and appropriate consideration to what I have stated above and I consider that this is a appropriate case to suspend part of the sentence.
28. I propose therefore to suspend 7 years from the sentence on condition that the prisoner will enter into her own recognition to be of good behaviour for the whole period of her suspended sentence.

Public Prosecutor : Lawyer for the State
Public Solicitor : Lawyer for the Accused