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State v George [2021] PGNC 357; N9182 (20 September 2021)

N9182

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 963 OF 2021

THE STATE

-v-

AKU GEORGE

Bulolo: Kangwia J.

2021: 7^th,17^th & 20^th September

CRIMINAL LAW – Manslaughter – stabbing of husband guilty plea by first time offender – alcohol related - apprehension of harm – sentenced to 8 years with deductions

Cases Cited
State v Wenia Tony (2017) N6774
State v Drekore Yuana Peter (2002) N1973
State v Serah Joe Wennis (2011) N4661
Goli Golu v the State [1979] PNGLR 653
Antap Yala v the State (1996) SCR 69
Kesino Apo v State (1988) PNGLR 182
State v Abel Ari (2000) N2007
State v Peter Diga (2000) N1991
Anna Max Marangi v the State (2002) SC703
State v Camullus Burida (2017) N6794
State v Billy Eric (2017) N6790
Manu Kovi v The State (2005) SC789

Counsel
P. Matana, for the State
G. Peu, for the Accused

20^th September, 2021

1. KANGWIA J: Prisoner AKU GEORGE is appearing for sentence. She was convicted on her guilty plea to unlawfully killing her husband by stabbing him with a knife. She was charged for manslaughter under s 302 of the Criminal Code Act.

2. The State alleged that during a drinking session an argument flared between the prisoner and her husband. After they dispersed from the drinking session the prisoner took her child into the room to sleep.

3. The deceased followed and struck her feet with a bush knife. The prisoner took her child and went to a neighbour’ s house to hide.

4. Sometime later the prisoner came out of hiding to smoke. The deceased came and hit her back with the flat of his bush knife. The prisoner grabbed a knife from the neighbour’s house and stabbed the deceased on the chest. He was taken to the hospital but died. The prisoner surrendered to police.

5. The medical report cited the cause of death as hemopneumothorax due to a penetrating puncture wound to the left lung.

6. The prisoner is 28 years old and was married with one child. She has no prior conviction.

7. On her allocutus the prisoner apologised to God, the Court, her late husband’s family and her family. She asked for leniency with probation orders.

8. On her behalf Ms Peu sought a partially suspended sentence of 8 to 10 years for the prisoner. While conceding that a life was lost there was a strong presence of de facto provocation. The deceased was armed, pursued, and cut the prisoner on the ankle. There was no preplanning but a spur of the moment act. The killing was accidental and not premeditated. It was intended to fend off the deceased attack, but the knife pierced the chest. It was submitted that the offender and her child have become victims of a domestic related killing.

9. Several cases where the wives killed their husbands were referred to as relevant in sentencing. In all the cited cases, a sentence of 10 years was imposed in each case.

10. It was suggested that the present case was similar in nature to the case of the State v Wenia Tony (2017) N6774. In that case the deceased and offender lived an unhappy life with regular arguments and fights. On the day of the incident the deceased under the influence of alcohol shouted for her and struggled to enter the room where the offender stayed. Fearing an attack, the offender struck the deceased on the leg to prevent him from entering. The deceased died from loss of blood. She was sentenced to 10 years with deductions and suspensions.

11. Ms Peu also asked the Court to consider what his Honour Kirriwom J in the case of the State v Drekore Yuana Peter (2002) N1973 said:

“The problem of killing in domestic settings is “deeply rooted” and cannot be addressed by simply penalising and incarcerating the already overly abused and battered wives who have the misfortune to go overboard in their emotional reaction by causing the death of another”.

12. With respect I beg to differ from his honour’s sentiments. Mitigating factors in sentences for killings howsoever should be measured against a life lost regardless of colour, creed, cripple, leper or how dreadful someone may be. Life is precious and sacred to each human being. No one is entitled to take another person’s life how justified it may seem. When the value of life is concerned it matters little whether you are battered or carried on a platter.

13. Coming back to the present case, Ms Patana sought an immediate custodial sentence of 10 to 13 years imprisonment owing to the increase in wanton killings with dangerous weapons and for deterrent purposes. A life was permanently lost, a dangerous weapon was used, there was disregard for human life and safety, and the offence was prevalent.

14. The Court was also referred to 03 cases as relevant in sentencing but the one which is near to the present case is the case of the State v Serah Joe Wennis (2011) N4661. In that case the offender who had returned from a Woman’s Day function had a heated argument with the deceased. The offender fled to the road, but her husband followed her and attempted to punch her. The offender drew a knife and stabbed the deceased on the chest leading to the death.

15. The crime of manslaughter under s 302 carries a maximum prescribed penalty of life imprisonment. The maximum prescribed penalty is subject to the sentencing discretion under s 19 and the principle of law that the maximum prescribed penalty is reserved for the worst category of each offence. (See Goli Golu v the State (1979) PNGLR 653).

16. The Supreme Court in the case of Antap Yala v the State (1996) SCR 69 while dismissing an appeal against sentence and confirming a sentence of 10 years where the prisoner slashed the neck of his wife said:

“Whilst sentences for manslaughter will normally be lower than sentences for murder and wilful murder, there are those cases which will justify the imposition of heavy punishment and even the maximum punishment”.

17. In the present case the wife stabbed her husband with a knife resulting in a death. The offence is alcohol related and in a domestic setting.

18. On the issue of alcohol, the Supreme Court in the case of Kesino Apo v State (1988) PNGLR 182, per Kapi DCJ said: “The relevance of intoxication goes to the question of culpability. The rationale is that if an offender offends while under the influence alcohol, his self-control is affected therefore his culpability may be diminished”

19. This view although binding, has been negated in several National Court decisions.

20. In the State v Abel Ari (2000) N2007 Kandakasi J in his opposing view said:

“Anyone who voluntarily gets himself drunk, must know that his capacity to control himself will be impaired and it is no reasonable explanation by him after the event that his self-control was affected by alcohol. On its own it ought not to be taken as a mitigating factor”.

21. In the State v Peter Diga (2000) N1991 Sawong J viewed it this way; “You and your friend were drunk when you committed this offence. Unfortunately, we once again see the effect of alcohol abuse. This is not a factor in your favour, in fact it is a factor against you”.

22. Despite the binding determination I concur with the opposing views for the simple reason that unless intoxication is not voluntary an offence committed under the influence of alcohol should not be considered as a mitigating factor in sentencing. Voluntary intoxication involves a choice and not an imposition against will.

23. Sentences for offences in similar circumstances to the present case are varied. The reasons seem to be mainly de facto provocation, long time violence, abuse and apprehension of danger.

24. The Supreme Court in the case of Anna Max Marangi v the State (2002) SC 703 in reference to killings by the use of knives said:

“To our knowledge, there are increasing instances of manslaughter and murder killings coming before the Courts in which a knife is used to settle domestic differences, with fatal consequences. The use of readily available kitchen knife to settle one’s domestic grievances is prevalent in this country. It is becoming a silent lethal weapon, far more dangerous than other potentially dangerous weapons like axes, bush-knives or even guns. The reason for this is because the knife is readily available, it can be easily concealed, and used on unsuspecting unarmed victims who are usually taken by surprise, and used in a calculating and precise manner, that the human body is easily penetrated, and vital organs are damaged or even severed.

It seems to us that more lives are being lost in this country today from the use of the knife than with any other weapon. Therefore, a strong punitive and deterrent sentence is required.”

25. In the case of the State v Camillus Burida (2017) N6794 where the prisoner who pleaded guilty to manslaughter after he stabbed the deceased on the neck area was sentenced with deductions and suspensions.

26. In the case of State v Billy Eric (2017) N6790 where the prisoner pleaded guilty to stabbing the deceased in a struggle was sentenced to 12 years with deductions and suspensions.

27. The present case involves a killing in a domestic setting. Offences in domestic settings involve relationships. One such relationship is husband and wife or vice versa. The litany of cases referred to demonstrate the prevalence of killings of husbands by distraught wives. In most cases killings emanate from domestic discord. Circumstances of each case determine what the cause was.

28. I consider what the Supreme Court said in the case of Manu Kovi v The State (2005) SC789 as paramount in sentencing in the present case. In that case the Supreme Court stated that the sanctity and value of human life is far more precious and valuable than anything else and no amount of remorse or compensation will restore life lost.

29. The circumstances in the present case were that the prisoner was sleeping in their house when the deceased assaulted her with a bush knife. She sought refuge in a neighbour’s house next door.

30. Thinking it was safe she went out to smoke to be met with another assault from the deceased. From her statement to police, she apprehended further harm by her husband and retaliated with a view to disarming him of the bush knife, but it turned fatal.

31. Alcohol was involved. Blame must be accorded the deceased for facilitating the domestic discord.

32. The Pre-Sentence Report (PSR) suggested that the offender was a suitable person for probation supervision. Police statement in the PSR stated that compensation of K9, 800. 00 was paid as “bel kol” out of a demand for K20, 000. 00 from the deceased relatives. The amount is yet to be settled. In the report the offender told the interviewer that she will not return to her matrimonial home as the deceased family do not want her anymore. Her parents were living in Port Moresby, and the possibility of her going there depends on the present case.

33. Probation with a suspended sentence is in my view more for reform and rehabilitation of a distraught person than deterrence. The type of killing as the present case is prevalent. Prevalence demands deterrence. Deterrence may be achieved in the long term through positive dealings with human behaviour under probation supervision. However, the better option for deterrence is a custodial sentence.

34. The present case is not suitable for probation. A life was lost through stabbing. Life is immeasurable. Loss of lives through stabbings is prevalent Howsoever the life was lost is immaterial. In the earlier part of this decision, the deceased was blamed for facilitating the domestic discord. In that respect a sentence lower than those imposed in the cited cases is appropriate for deterrence purposes.

35. In her favour the prisoner pleaded guilty early as a first-time offender. She expressed remorse. She stabbed the deceased once. She and her child became victims of the death. Compensation was paid in part.

36. Considering that the maximum prescribed penalty for manslaughter is life imprisonment a sentence at par with the cited cases would be crushing under the circumstances of this case.

37. The prisoner is sentence to 8 years imprisonment. The period in pretrial custody shall be deducted and the balance shall be served at CIS Buimo.

______________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Defence