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State v Kande [2021] PGNC 251; N9104 (2 September 2021)

N9104

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 916 OF 2019

THE STATE

V

KELLYN GRACE KANDE

Waigani: Berrigan, J
2021: 1^st June and 2^nd September

CRIMINAL LAW – SENTENCE - MANSLAUGHTER – Extenuating circumstances present - Strong de facto provocation – Mitigating Circumstances – Sentence of 8 years of imprisonment, partially suspended.

Cases Cited:

Allan Peter Utieng v The State (2000) SCR No 15 of 2000
Manu Kovi v The State (2005) SC789
Kumbamong v State (2008) SC1017
Goli Golu v The State [1979] PNGLR 653
The Public Prosecutor v Vangu’u Ame [1983] PNGLR 424
The State v Tardrew [1986] PNGLR 91
The State v Frank Kagai [1987] PNGLR 320
Rex Lialu [1990] PNGLR 487
Lawrence Simbe v The State [1994] PNGLR 38
The State v Peter Korak Siwi (2003) N2443
The State v Carol Alfred (2009) N3602
State v Piro (2011) N4410
The State v Baundo Nicholson (2016) N6442
State v Kwalaro Wafihuambu CR No. 834 of 2016, unreported
The State v Wenia Tony (2017) N6774

References Cited

Sections 19, 302 of the Criminal Code (Ch. 262) (the Criminal Code)

Counsel

Mr D Digori, for the State
Mr F Kirriwom, for the Offender

DECISION ON SENTENCE

2^nd September, 2021

1. BERRIGAN J: The offender pleaded guilty to the manslaughter of her fiancé, Ishmael Indepine, contrary to s. 302 of the Criminal Code, on the basis of the following admitted facts which were supported by the depositions.
   
2. On 19 August 2018, the offender was eight months pregnant to the deceased. The offender and the deceased were to meet with their families earlier that day but it did not eventuate as the deceased did not turn up. Later that night, sometime after 8.00 pm, the deceased visited the offender at Ranu Place, Four Mile Hill, National Capital District. At the time he was intoxicated. After some time talking on the street, an argument broke out between them and the deceased physically assaulted the accused, knocking her to the ground. The offender ran to the safety of a house, armed herself with a knife and went out to see the deceased as he was calling out for her. By then it was between 10 and 11 pm. A further argument ensued during which the offender stabbed the deceased in his left thigh. The offender and deceased continued to fight and struggle. At some point during the struggle, the deceased gave his back to the offender at which point the offender stabbed the deceased. The knife penetrated the victim’s back through to his left lung, causing him to bleed. The offender escaped but was found by her relatives and accompanied them to seek medical help for the deceased. He died whilst being attended to at the Emergency Ward, Port Moresby General Hospital on 20^th August 2018, between 3:00 – 4:00am.
   

Allocutus

3. On allocutus the offender said: Firstly, I want to apologise to God for breaking one of his commandments. Secondly, I apologise to Court for breaking mother law of this land. Thirdly, I want to apologise to the family of my boyfriend, the late Ishmael, especially his father and mother, and three siblings, and his tribesmen and relatives of mother and father. I want to apologise to my own family because that is the first time I have committed such an offence and I destroyed the reputation of my family. I also want to say sorry to my innocent child. I gave birth to him inside CIS. He is with me in the prison. I also want to apologise for my action that cost of my life of my boyfriend. I really loved him. I realise my mistake... With the child, I worked in hard labour. I am also involved in prison program, active city development, baking and Book of Mark. I have certificates. I take part in church programs. Currently I am a leader in Sunday Church Service in the prison. My family did compensation. K114,000 cash and 112 pigs. I have had no visit from my family whilst in prison. After three years the child will leave the prison but I want to raise the child myself because that is my responsibility and that is why I ask this Court to have mercy on me so I myself can raise my child outside the prison. This September he will leave me and go. I will not commit this kind of offence again. I ask the Court for mercy and let me spend time outside. Thank you.
   

Sentencing Principles and Comparative Cases

4. The maximum penalty for manslaughter under Section 302 of the Criminal Code is life imprisonment.
   
5. In Manu Kovi v The State (2005) SC789 the Supreme Court suggested that manslaughter convictions could be put in four categories of increasing seriousness, as shown in the following table:
   

6. Defence counsel submitted that the court should take into account that the deceased was drunk and determined to have sex with the deceased, despite the fact that she was eight months pregnant and they were on a public street. The offender had refused and when she did he assaulted her and tried to drag her away from the road into a grassy patch of dirt. The deceased armed herself in the hope that it might deter him from further aggression but she was wrong.
   
7. Defence counsel submitted that a sentence of 10 years would be appropriate, and suitable for partial or full suspension. He referred to the following cases:
   
   1. The State v Carol Alfred (2009) N3602 Makail J: sentenced a woman to 10 years imprisonment in hard labour for the manslaughter of her husband. She stabbed her husband on his thigh, unwittingly, after he physically assaulted her for not preparing his dinner in time. She was severely assaulted at the time, and there was a history of past violence. There was no suspension;
      
   2. The State v Wenia Tony (2017) N6774, Liosi AJ: sentenced the prisoner to 10 years imprisonment in hard labour for causing the death of her husband. The prisoner cut her husband’s legs with a bush knife to prevent him from entering their house and assaulting her. The wounds were so deep that they caused his death. She was sentenced to 10 years in hard labour, less time spent in custody. A further two years was suspended leaving a balance of 5 years to be served in custody;
      
   100. The State v Baundo Nicholson (2016) N6442, Liosi AJ: in which the offender and her husband had a quarrel over money. The argument led to a fight during which the prisoner stabbed the deceased on the right thigh with a kitchen knife, severing the main artery to the right leg. The deceased died from loss of blood whilst being transported to the health centre. There was a history of violence by the deceased often as a result of his efforts to gain control of the offender’s wages. She was the only bread winner. She was sentenced to 10 years, less time spent in custody, leaving a balance of 7 years, 3 months, of which 6 years, 3 months was suspended, leaving 1 year to serve.
        
8. The State submitted that a sentence of 13 years was appropriate. I note here that the State should submit by reference to a range rather than a specific term.
   
9. The State referred to the following cases in support of its submissions:
   
   1. State v Kwalaro Wafihuambu CR No. 834 of 2016, unreported, Manuhu J: The prisoner and her husband (deceased) were both drunk. The deceased became angry about the prisoner drinking beer so he beat her up. The prisoner then ran to the house, armed herself with a kitchen knife and stabbed her husband twice on his left thigh and his knee. She was sentenced to 10 years in hard labour, less 1 year, 7 months spent in custody. 3 years suspended as suspended;
      
   2. State v Piro (2011) N4410, Cannings J: The prisoner pleaded guilty to one count of manslaughter. The prisoner and her husband, the deceased, argued over allegations of him having an extra marital affair. The deceased threw a plate of food at the prisoner’s face and the offender stabbed the deceased in his chest with a kitchen knife, penetrating 13cm deep. The offender was sentenced to 10 years, less time spent in custody, 1 year, 5 months and 3 weeks, and a further 3 years was suspended;
      
   100. The State v Peter Korak Siwi (2003) N2443, Jalina J: The prisoner pleaded guilty to one count of murdering his wife by stabbing in the armpit from behind when she refused to return home with him from her village. The dagger went through to penetrate her left lung causing her instant death. Jalina, J sentenced the prisoner to 16 years in hard labour (IHL) and deducted 5 months and 2 weeks for pre-sentence custody.
        

Consideration

10. It is well established that the maximum penalty is reserved for the most serious instances of the offence: Goli Golu v The State [1979] PNGLR 653. This case is not in that category.
    
11. Having regard to the fact that this was a plea matter, that the offender was emotionally under stress, the killing occurred in a domestic setting, the presence of de facto provocation, and the killing occurred following an argument, together with the use of an offensive weapon on a vulnerable part of the body and the presence of some intention to cause harm, the case falls between category 1 and the lower part of category 2 of Manu Kovi, and thus the starting point is 8 to 14 years.
    
12. Section 19 of the Criminal Code provides the Court with broad discretion on sentence. Whilst guidelines and comparative cases are very relevant considerations, every sentence should be determined according to its own circumstances: Lawrence Simbe v The State [1994] PNGLR 38. In a case of homicide, careful regard must be had to the circumstances of death and the way death was caused: in Rex Lialu [1990] PNGLR 487; Kumbamong v The State (2008) SC1017.
    
13. The offender is from Karanas, Ialibu District, Southern Highlands Province. She is in good health. She is the first born of five children. Her parents are alive but divorced in 2011 and started new families, effectively abandoning her to her maternal uncle, whom she moved to Port Moresby to live with.
    
14. The offender was in a relationship with the deceased. Their son is now almost three years old and living with her in the prison. She is educated to Grade 12 and graduated with a Certificate in Information Technology in 2017 but did not study due to her pregnancy. She is a faithful member of the Catholic Church.
    
15. In aggravation this case involved the use of an offensive weapon to a vulnerable part of the deceased’s body, and the intention to do some harm. This type of offense is increasingly prevalent.
    
16. Against these factors, however, are very significant extenuating and mitigating circumstances which must be taken into account.
    
17. Strong de facto provocation was present immediately before the offence. The State does not dispute that the deceased was drunk and was trying to force the offender off the road to have sex with him. When she refused he assaulted her, and then knocked her to the ground. In addition, it must be born in mind that the deceased was a professional sportsman, and much stronger than the offender. The offender was also vulnerable, being heavily pregnant at the time. The offender escaped to the house. But the deceased demanded that she come out. Whilst it is significant that the offender armed herself with a knife before doing so, the offending must be seen in that context. Once outside a struggle again ensued, and it was during the course of that struggle that the deceased was stabbed three times, superficially to the chest and thigh, and once with a deep penetrating wound to the back.
    
18. In response to questions from the Court, the State made it clear that they do not dispute that the struggle resulted because the deceased tried to take the knife from the offender and she refused to give it up. There is some support for this view from the offender’s own statements on the depositions.
    
19. There are potentially complex issues of self-defence raised in all of the circumstances. Those matters are not straight forward on the depositions and, it should also be made clear, would require a testing of certain matters which the State has been prepared to accept for the purposes of the plea. The offender was represented by senior counsel and her plea was unequivocal. She accepts responsibility for the death of the deceased. It is not in dispute that there was some intention to cause harm.
    
20. In addition to the matters discussed, there are several mitigating factors that also require consideration.
    
21. The offender is a first time offender. She is of prior good character. Her uncle, Michael Kande, speaks highly of her and says she is just an ordinary girl and a good member of the family and the community. He pleaded with the court to consider a reduced sentence or partial suspension and is committed to take her and her child back into his family home if she is released into his care. He has made contact with her mother, who has also committed to supporting her daughter if released.
    
22. The offender surrendered herself to police. She cooperated with police and authorities from the earliest stage and made admissions in her record of interview. She pleaded guilty at the first opportunity at the National Court.
    
23. I take this into account as reflecting her heartfelt remorse, which she expressed during allocutus. I note that her child is named after his father, Ishmael Indepine Junior. I also take her guilty plea into account from the perspective that it has saved the Court and authorities the time and cost of a trial.
    
24. It is also significant that the offender was a young woman at the time of the offence. She is 25 years old and was about 22 years old at the time of the offence.
    
25. The impact of the offence on the offender has been and will continue to be grave. Any term of imprisonment will have a significant impact on the offender and her child, from whom she will certainly be separated, and who is very young. I remind myself, however, that except in very extreme circumstances, the impact on family, whilst regrettable, is not ordinarily a relevant consideration on sentence: see for example Allan Peter Utieng v The State (2000) SCR No 15 of 2000; The Public Prosecutor v Vangu’u Ame [1983] PNGLR 424.
    
26. I don’t agree with the State submission that this case is very similar to Siwi. Apart from the fact that was for murder, the prisoner stabbed his wife simply because she refused to return home with him, in an act of anger and frustration at her refusal to obey him. Here the deceased was drunk, and was trying to force the offender to have sex with him against her will, out on the street, and physically assaulted her when she refused to do so. The case is also different to that of Wafihuambo, where the offender ran to the house, armed herself with a knife and then ran out and deliberately stabbed the husband. Here whilst the offender armed herself with a knife she went out because the deceased called for her and the stabbing occurred during the course of a struggle, which again it is not disputed was instigated by the deceased.
    
27. I also take into account that the offender has with the support of her family sought to reconcile with the deceased’s family. A total of K114,000 and 114 pigs have been paid in compensation in 2019, for which there is evidence. Whilst compensation may be indicative of remorse, and may play an important role in bringing peace to the community, it must not interfere with the administration of justice. A person cannot escape punishment because compensation has been paid. Here, however, it is relevant that the offender has with the assistance of her family sought to reconcile with the deceased’s family.

The compensation has been formally accepted by the deceased’s family albeit that they refused to say more about what should happen to the offender. That is entirely their right. They have suffered a great loss as a result of the deceased’s death.

28. It should not be forgotten that the deceased was a young man himself with a loving family, a promising career, and a long life ahead of him. He will never meet his son, and his son will never know his father.
    
29. Having regard to the general circumstances of the case, the personal circumstances of the offender, the aggravating, extenuating and mitigating factors, the submissions of counsel, the guidelines contained in Manu Kovi , and comparative cases, I sentence the offender to 8 years of imprisonment.
    
30. The offender has been in custody since 30 August 2018. I exercise my discretion to deduct the time spent in custody to date.
    
31. The question remains whether any or all of the sentence should be suspended.
    
32. In The State v Tardrew [1986] PNGLR 91 the Supreme Court set out three broad, but not exhaustive, categories in which it may be appropriate to suspend a sentence, namely: where it will promote the general deterrence or rehabilitation of the offender; where it will promote the repayment or restitution of stolen money or goods; or where imprisonment would cause an excessive degree of suffering to the particular offender, for example because of bad physical or mental health.
    
33. Probation Services regards the offender as suitable for probation. The offender has demonstrated strong prospects for rehabilitation. She has fully accepted responsibility for her actions. She has actively participated in church and rehabilitation programs whilst in custody. She has made serious efforts to reconcile with the deceased’s family. It is also significant that her own family, in particular her uncle, are willing to take her in and provide a stable and supportive environment for her in which to serve out her sentence outside of prison. She herself has committed to focusing on her education, which was interrupted by her pregnancy, and on her son.
    
34. It has long been recognised that suspension is not an act in leniency but a form of punishment that is to be served outside the prison system in the community interest to promote restitution or rehabilitation in appropriate cases: The State v Tardrew [1986] PNGLR 91; The State v Frank Kagai [1987] PNGLR 320; Kumbamong v State (2008) SC1017 at 56 to 60.
    
35. The offender has been sentenced to 8 years of imprisonment. She has spent three years in custody. She is not a threat to the community and I am not satisfied that the only appropriate penalty is further time in custody. I am satisfied that suspension of the balance of the sentence in this case would promote the offender’s rehabilitation into the community, and that it would be in the best interests of the community to enable her to serve the balance of her sentence outside of prison, and to care for and guide her young child in his formative years.
    
36. In the circumstances I make the following orders:
    
    1. The offender is sentenced to 8 years of imprisonment;
    2. Three years, 3 days spent in custody is deducted from time to be served, leaving a balance of 4 years, 11 months, 27 days to be served;
    100. The balance is suspended on condition that the offender keep the peace and be of good behaviour.
         

Sentence accordingly.

_______________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Offender