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State v Waieng [2017] PGNC 126; N6775 (21 April 2017)

N6775

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 12 OF 2016

THE STATE

V

MARIA TIUKE WAIENG
Defendant

Kundiawa: Liosi, AJ

2017: 21^st February & 21^st April

CRIMINAL LAW – Sentence – Manslaughter – Criminal Code Sections 19 & 302 – Deceased adult female – Death arising from Domestic dispute setting – Offender killed husband’s lover – Death caused by knife wounds to back and left chest – Provoked assault – Mitigating and Aggravating factors considered.

CRIMINAL LAW – Sentence – Relevant considerations – Customary compensation – Not substitute for punishment – Relevant only on mitigation – Sentence of 10 years partly suspended.

Cases Cited:

State -v- Manu Kovi [2005] SC 789
State -v- Anna Max Marangi [2002] SC 702
State -v- Thress Kumbamong [2008] SC1017
Goli Golu -v- State [1979] PNGLR 653
Kesino Apo -v- State [1988-89] PNGLR 182
Kali Mari -v- State [1980] SC 175
Donald Robin -v- The State [1980] N230
State -v- Tauseng Bange: CR No. 973 of 2007 (Unnumbered & Unreported
Judgment of 10^th November 2008)
State -v- Ellis Nema Mara [2010] N4133
State -v- Anita Kelly [2009] N3624
State -v- Lossy Karapus [2009] N3640
Ume -v- The State [2002] SC 836
Public Prosecutor -v- Panikuiaka Nopi [1979] PNGLR 536

Counsel:

C. Kos, for the State
M. Yawip, for the Offender

SENTENCE

21^st April, 2017

1. LIOSI AJ: On 21^st February 2017, I convicted the offender on 1 count of unlawful killing of one Gabriella Anthon under s.302 Criminal Code after she pleaded guilty to the crime and after having satisfied myself from the depositions presented by the State that the charge was sufficiently made out against her.
   

Brief statement of facts

2. These are the brief allegations of facts on arraignment to which she pleaded guilty. The deceased developed a de facto relationship with the offender’s husband. The offender has four (4) children from her husband. Their marriage was an unhappy one. There was continuous arguments and fights due to the husband’s extra marital affairs with the deceased as he was spending most of his pay on the deceased. He was also spending most of his time with the deceased either at her village or at his cousin’s house at Yuwai village in Kundiawa.

On the morning of 03^rd May 2015, the offender armed with a kitchen knife went looking for her husband at Yuwai village after he failed to come home the previous night. The offender seeing the deceased there approached her and they argued. The argument developed into a fight where the offender produced the kitchen knife and stabbed the deceased twice on her back and a single stab to the left chest. The stab wounds were so serious that the deceased died from heavy loss of blood on the same day.

Allocatus

3. On allocatus she said she was sorry to God first for breaking Gods law, the State, the Court, the parents of the deceased, to the family, Kamaneku tribe, to the public witnessing the incident, to the children missing school and to her four (4) children for making them suffer.

4. She says she carried the burden for 8 years and there appeared to be no solution. Firstly she reported the matter to the Village Court which issued a preventive order. Then she took the matter to the District Court after filing summons for adultery which she dropped due to continuous threats from her husband. She then took the matter to welfare and the husband promised not to see the deceased again, but the situation never improved.

5. She says she saw her at Yuwai market on 3^rd May 2015. She walked over to her and they fought wherein she stabbed her. She reported the incident not knowing that she had died. After her report the Police went to arrest her but came back and advised her that she had died. She cried after hearing of her death because a life had been lost.

6. She asked the Court to have mercy on her as she has four (4) children aged 9, 7, 5 & 2 years old. She says there is no one to look after the children except the grandmother. Her husband only comes for break and goes back to work on a fly in fly out basis. She asked the Court for mercy and to put her on probation.

Defence Counsel’s Submission

7. Mr. Yawip of Counsel submits as follows. The offender is 38 years old and comes from Waigar village Kerowagi, Simbu. She is married with four (4) children aged 9, 7, 5, & 2 years respectively. The offender completed Grade 12 at Holy Rosary Secondary School and attended University of Papua New Guinea where she graduated with a Bachelor of Arts Degree. She started teaching at Kerowagi Secondary School in 2015 up to the time of the offence.

The Law on Manslaughter

8. Section 302 of the Criminal Code provides as follows:

“302 Manslaughter

A person who unlawfully kills another under such
circumstances as not to constitute wilful murder, murder
or infanticide is guilty of manslaughter.

Penalty: Subject to section 19 imprisonment for life.

What is the appropriate penalty?

9. The maximum penalty is life year’s imprisonment subject to section 19 of the Criminal Code. Section 19 of the Criminal Code provides for various sentencing options available to the Court. The provision gives the Court the discretion to impose penalties according to each circumstance of the case. The maximum penalty is reserved for the worst category cases. See Goli Golu -v- State (1979) PNGLR 653.

10. The fact that the maximum penalty for manslaughter is life imprisonment subject to s.19 of the Criminal Code speaks for itself. It reflects the serious stand which parliament has taken to reflect the communities view against such killings.

11. Thus custodial sentence is a starting point for the fundamental reason that all human life must be protected: Kesino Apo -v- State [1988-89] PNGLR182 (Los J).

12. The Supreme Court case of Manu Kovi -v- The State (2005) SC789 has tried to bring together sentencing guidelines in homicide cases. It sets out cases ranging from ordinary pleas to the worst cases of pleas and trials.

13. Mr. Yawip submits that given the circumstances of the case this case falls within category two (2) of Manu Kovi’s case. This category deals with a trial or plea with both mitigating and aggravating factors and includes use of offensive weapons eg; knife upon vulnerable parts of the body and involves some preplanning.

Mitigating factors

14. The following are submitted in mitigation. The offender pleaded guilty, is a first time offender and the offence was committed out of stress, depression and anger arising out of the adulterous affairs of the husband. Furthermore a substantial amount of compensation payment has been made. He submits considering the guidelines in Manu Kovi, the case falls into category two (2) attracting a sentence between 13–16 years.

15. Considering all the factors, a term of 10 –13 years would be an appropriate sentence part of which can be suspended.

Submission by State

16. The State submits that the sanctity of human life is more precious and valuable than gold or silver and no amount of compensation or remorse can compensate life itself. That should be the underlying factor that should guide the Court in its assessment of an appropriate sentence to impose on an offender in homicide cases as in this particular case. This underlying factor has been emphasized by the Courts over the years when sentencing offenders in homicide cases.

What is the appropriate sentence for the offender?

17. Aggravating factors include;

• The use of a weapon, namely a kitchen knife to attack the deceased that fateful morning of 03^rd May, 2015.
  
• The offender went to the residence or village where the deceased and her husband were staying, armed with a kitchen knife, which suggest that there was premeditation. That is, she had planned to do grievous bodily harm to the deceased.
  
• The attack was vicious. This is because, the deceased died an hour later at the hospital after the stabbing;
  
• The offender stabbed the deceased on a vulnerable part of the body, namely the chest and back, thereby piercing the lungs. It is no wonder, there was little or no chance at all that the deceased would survive; and
  
• The crime of unlawful killing in a domestic setting is prevalent in this country. This case is just another example of an unlawful killing case and adds to the already long list of unlawful killing cases dealt with by the Court. It is an indication that no matter the increase in the sentences imposed by the Court, there is no deterrent effect on the people, like this offender.
  

Sentencing guidelines

18. In Manu Kovi -v- The State (supra) the Supreme Court set out guidelines for manslaughter cases. The State submits the case falls into second category of the case which carries a range of 13–16 years. There was a use of a kitchen knife. The stabbing was on the back and chest of the deceased which are vulnerable parts of the human body. The medical report of Dr. Aiwa dated 8^th May 2015 confirms that death resulted from heavy loss of blood. It submits a sentence of 13 years would be appropriate.

19. It cites number of comparable judgments to support its submission.

• The State -v- Tauseng Bange: CR No. 973 of 2007 (Unnumbered & Unreported judgment of 10^th November 2008). This was a murder case but the facts are similar to the present case. Makail, J sentenced the offender to 16 years imprisonment for the murder of her husband’s lover on her guilty plea. It was also a case of domestic setting where the offender suspected her husband of having an extra marital affair, followed her husband and his lover, the deceased to their own house in the night and confronted them. An argument arose between the offender and the deceased followed by the offender attacking the deceased by stabbing her on the chest once with a kitchen knife and she died.
  

The two factual differences are that the offender was charged with murder and convicted on her guilty plea, thus attracting a higher sentence as opposed to a case of manslaughter. The other difference is that the offender stabbed the deceased once as opposed to the present case where the offender stabbed the deceased three (3) times. Other than that, all facts are very similar to the present case.

• The State -v- Ellis Nema Mara [2010] N4133
  
  In this case, the offender found her husband and the deceased together and fought with the deceased. The deceased was armed with a kitchen knife and she wrestled it from her. She stabbed her on the right back and the kitchen knife penetrated the back and punctured the right lung. The deceased lost a lot of blood and died. A sentence of 12 years was imposed. The factual difference in that case was that the deceased was armed with a kitchen knife. It was also a single stab. There was also no pre-planning.
  
• The State -v- Anita Kelly (2009) N3624
  

It was also a killing from a domestic setting. This is because the prisoner stabbed a co-wife of her husband with a kitchen knife on the neck and she died. It was a surprise attack with some element of viciousness and pre-planning. There was also presence of very strong de-facto provocation and history of domestic violence and wife abuse of the prisoner by her husband. The husband has deserted her and the children forcing her to fend for herself and the children. A sentence of 12 years imprisonment was imposed.

• The State -v- Lossy Karapus (2009) N3640
  

This was also a killing arising from domestic setting. The prisoner killed the girlfriend of her husband by stabbing her with a kitchen knife as a result of the husband’s infidelity. It was a guilty plea and there was strong de-facto provocation as a result of the husband’s infidelity but there were multiple blows resulting in multiple wounds and some element of pre-planning. A 10 years imprisonment sentence was imposed.

20. In view of the above range of sentences, the State submits the Court must impose a sentence higher than 12 years imprisonment as the factors against her outweigh those in her favour.

Reasons for Decision

21. I agree with both Counsels that this case falls under the second category of Manu Kovi’s case given the circumstances under which the killing took place.

22. The law is that under s.302 of Criminal Code, a person found guilty of Manslaughter subject to s.19 is liable to imprisonment for life. There is therefore a discretion to impose a lesser sentence as every case is determined on its own peculiar circumstances.

23. Offences of unlawful killing is a common occurrence nowadays. The offender must be reminded that he/she is responsible for the death of the deceased no matter how sorry one is, the life is gone forever.

24. I have noted and agree with submissions in respect of mitigation and aggravating factors. The two notable mitigating factors would be extenuating circumstances and the substantial compensation payment.

25. On the issue of the extenuating circumstances, the Supreme Court in the case of Ume -v- The State (2002) SC 836 stated that:

“they relate to the circumstances of the commission of the offense itself – factors which reduce the seriousness of the crime. They are relevant factors for purpose of sentencing in all criminal offences. Examples of extenuating circumstances include de-facto provocation, duress or coercion, the degree of extent the offender’s participation, the offender’s medical condition such as psychopathic personality, offender’s lack of sophistication or traditional customs, practices and beliefs which influence the offender to act in the way he did”

26. I consider that there was de-facto provocation in this case not only by the deceased. There was also de-facto provocation by the husband. The circumstances which gave rise to the killing was a result of an unhappy marriage relationship. The prisoner on her allocatus says she had gone through this for 8 years. This in my view is in no way condoning the offense. This however is the reality of why the killing happened and it must be considered.

27. Another notable mitigating factor would be the substantial compensation payment. In this regard there is an affidavit by the victim annexing a copy of a “compensation demand of customary settlement” which occurred on 15^th May 2015. This was done by payment of K16, 000.00 and 23 pigs as wari pay or “bel kol” money.

28. In Manu Kovi (supra) the Court discussed the significance of a compensation payment. Whilst the courts acknowledge that compensation should not be used to pay for crime. It is none the less an important mitigating factor. Whether it is an ordinary or special mitigating factor depends on two indicators. They are the form and amount of compensation.

29. Whilst it is difficult to fix any specific amount, the Criminal Law (Compensation) Act 1991 prescribes the maximum of K5, 000.00. Because that is the amount fixed by the law, payment to the value of K5, 000.00 – K10, 000.00 or above is a substantial payment. This takes it out of the “ordinary mitigating factor” category and places it in the “special mitigating factor” category.

30. The payment of customary compensation is a sign of the offender’s acceptance of criminal responsibility for the wrong she has done and also a sign of forgiveness by the line of the deceased. This principle was set out in the Supreme Court case of the Public Prosecutor -v- Panikuiaka Nopi [1979] PNGLR 536. That was a case of wilful murder arising out of the continued domestic violence by the husband.

31. Thus I take into account as a special mitigating factor, the payment of customary compensation between the offender’s line and the deceased’s line as a symbol of peace and the offender’s acceptance of criminal responsibility and also forgiveness by the line of the deceased.

32. As against this I take into account the State’s submission on aggravating factors particularly the prevalence of the offence.
33. I have also considered the cases that were cited by counsels. All this cases are similar in nature in that all the killings in those cases cited arose out of domestic settings with the head sentence ranging between 10–12 years.

34. Considering the circumstances of the case and weighing the factors for and against, I consider a 10 year head sentence is appropriate and I so order. I deduct 2 years for pre-trial custody period.

Should any or part of the sentence be suspended?

35. Section 19 of the Criminal Code gives the Court the discretion to suspend a sentence. In Don Hale -v- Acting Public Prosecutor, the court said that a return to the community should mean an appropriate report of the attitude of the community and whether the community is prepared to take some responsibility for their own offending members and supervise any alternative punishments.

36. Whilst there is no Pre-Sentence Report nor any other report from the probation office, there is a “Presentation of Compensation Demand Customary Settlement” report dated 15^th May 2015. The document confirms a basic “wari” payment of K16, 000 .00 and 22 pigs which was made.

37. Such a report in my view has some significance as it confirms compensation payment. Such a payment given the amount is substantial and takes it out of the “ordinary mitigating factor” category to a “special mitigating factor” category: See the case of Manu Kovi (supra).

38. Such a payment is a sign of the offender’s acceptance of criminal responsibility for the wrong she has done and also a sign of forgiveness by the late deceased relatives. See the Public Prosecutor -v- Panikuiaka Nopi (supra).

39. Having said that, I agree to suspension of a portion of the sentence based on the extenuating circumstances, the compensation payment and the mitigating factors pursuant to s.19 (1) (d) (i) & (ii) of the Criminal Code. I suspended 2 years of the resultant 8 years sentence on the following conditions:

(a) Within 3 days after release from custody you must report to the Probation office in Kundiawa.
(b) You must reside at your Waigar Village unless approved by the National Court to live elsewhere.
(c) You must not leave Simbu without the written approval of the National Court.
(d) You must not consume alcohol or drugs.
(e) You must keep the peace and be of good behaviour.
(f) If any of the conditions are breached you shall be brought to the National Court to show cause why you should not serve the balance of your term.

Sentence

40. Maria Tiuke Waieng having being convicted of 1 count of Manslaughter under s.302 of the Criminal Code is sentenced as follows:

Sentenced accordingly,
____________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Offender