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State v Pini [2021] PGNC 658; N9898 (29 July 2021)

N9898

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 774 OF 2020

THE STATE

V

FATIMA PINI

Kerevat/Kokopo: Suelip AJ
2021: 13^th April, 6^th, 24^th May & 29^th July

CRIMINAL LAW - Sentence – plea – manslaughter s.302 – loss of life – prisoner unintentionally killed infant nephew – genuine remorse – prisoner’s family willing to pay compensation – sentence of 8 years – custody term deducted – 2 years suspended – balance wholly suspended with conditions

Cases Cited

Goli Golu v. State [1979] PNGLR 653
Manu Kovi v. State (2005) SC789
State v. Nasinom Tonga (2019) CR No. 584
State v. Ambrose Talui (2020) N8542
State v. Danny Lambert (2020) CR No. 980 of 2011

Counsel

G Tugah, for the State
S Pitep, for the Prisoner

SENTENCE

29^th July, 2021

1. SUELIP AJ: On 13 April 2021, the prisoner pleaded guilty to a charge of manslaughter, thus contravening section 302 of the Criminal Code.

2. This is now my ruling on sentence.

Facts

3. The facts on which the prisoner pleaded guilty to are these. On Wednesday, 22 January 2020, between 2:00pm and 3:30pm, she was at their family home at Ward Two (2), Matupit Island, Rabaul District, East New Britain Province. She was with her husband namely Caspar Vuvut and her 5-year-old nephew namely Alwin Vuvut (deceased). At that time, she had an argument with her husband which resulted in her husband assaulting her. She had argued with her husband for coming home late from town. After assaulting her, her husband went into the kitchen and sat down. She then picked up a piece of brick and threw it in the direction of the kitchen when the deceased (Alwin) suddenly walked across, and the brick hit him at the back of his head. The deceased was rushed by the prisoner and two other ladies to Nonga General Hospital for treatment but unfortunately the deceased passed away.

Offence

4. 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 and infanticide is guilty of manslaughter.

Penalty: Subject to Section 19, imprisonment for life.

5. The maximum penalty for the offence is imprisonment for life, subject to Section 19 of the Criminal Code. However, the maximum penalty of life imprisonment must be reserved for worst type case as seen in the case of Goli Golu v The State [1979] PNGLR 653.

Personal particulars

6. A pre-sentence report prepared by Probation Officer Noel Awagalas shows the prisoner is 29 years old of mixed parentage from East Sepik Province and Matupit in Rabaul District, East New Britain Province. She resides with her family at Ramama village, Matupit Island. She has 3 sisters and 2 brothers. She is the fourth born in the family. Only one of her brothers is employed by Lihir Gold Mine whilst her and the rest of her siblings are at home. She is married and has 3 children. Her first child is doing grade 5 whilst the second is in Elementary 1. These children are from her first 2 marriages. There is no mention of the third child and so I take it that the child is under school age. She is educated only up to grade 6 and have since been unemployed. She does subsistence farming and survive on the income from sales of vegetables. She is of the Catholic faith.

7. She has no prior convictions and during allocutus, in very few words, the prisoner said she is truly sorry for what she did and apologized to God, the Court and to the deceased and his family.

Submission on sentence

8. Both counsels says that this case falls within categories 1 and 2 of the sentencing guidelines for manslaughter in Manu Kovi v The State (2005) SC789 where the sentencing tariff is for 8-12 years, and 13-16 years, respectively.

9. Whilst counsel for the prisoner argues that her starting point of sentence should be 8 years, the State says that the offence of manslaughter is very serious and is prevalent in our society, hence it calls for deterrence sentences. The State also argued that an innocent life was lost and therefore it calls for both personal and general deterrence sentences hence, the appropriate sentence should be between 8 – 12 years imprisonment.

10. To help reach a decision on the appropriate sentence for the prisoner, a few past cases with similar circumstances and sentencing trends will be discussed. In my recent decision in State v. Nasinom Tonga (2019) CR No. 584 of 2019, the prisoner pleaded guilty to manslaughter. In that case, the prisoner hit his nephew with a stick and the child went to sleep and died some hours later. I sentenced the prisoner to 10 years less custody term.

11. Another local case which I decided on is State v. Ambrose Talui (2020) N8542 where the prisoner pleaded guilty to manslaughter when he punched his wife on the head in a heated argument and she died thereafter. He was sentenced to 8 years imprisonment less pre-sentence term. I suspended balance of his term on strict conditions for reasons that he had young daughters and he paid some cash and shell money to his wife’s family, and he is willing to pay more.

12. I also decided on the local case of State v. Danny Lambert (2020) CR No. 980 of 2011 where the prisoner unintentionally threw a stone at the deceased and hit him at the back of his head, who later died. The prisoner meant to hit another person who assaulted his mother. I sentenced the prisoner to 10 years in prison but suspended half with conditions. More time was deducted for time already spent in custody and he is serving 4 years and 8 months in prison.

13. I also consider the mitigating and aggravating factors in this case. In her favor are these mitigating factors: -

(i) she pleaded guilty, thus saving the Court’s time and resources.

(ii) she had no intention to kill the child.

(iii) she is a first-time offender.

(iv) she rushed the child to the hospital for help
(v) she made admissions in her Record of Interview.
(vi) she expressed genuine remorse

(vii) she co-operated with the police in their investigations.

14. Against her, the aggravating factors are: -

(i) a young and innocent life was lost.

(ii) the brick she threw with force hit her infant nephew on the back of his head.
(iii) it is a killing in a domestic setting.

(iv) offence is prevalent in the society.

Sentence

15. This is not a worst type case and so the maximum penalty will not apply. I also consider that the mitigating factors also outweigh the aggravating factors. Further, I place great weight on the guilty plea and that she never meant to kill the deceased. I also note in the pre-sentence report the views of her husband, the adopted parents of deceased child, the child’s biological mother and her ward member. It is their common view that the prisoner is a good person and although she did not mean to hurt her nephew, she should not have been reckless. The family do not want her to remain in prison, but the family of the deceased want her to pay some compensation. The biological mother of the deceased infant request for compensation less than K2000 with 300 fathoms of shell money. Her husband is prepared to pay K3000. Her ward member is willing to supervise her and monitor her in the community. All these factors are in her favour and are taken into serious consideration. Therefore, in these premises, I am of the view that a sentence of 8 years imprisonment is warranted in the circumstances.

16. The prisoner has been in custody since 6 February 2020, a total of 1 year and 5 months. This period will be deducted.

17. As to whether I should suspend all or part of the head sentence, I am persuaded by the fact the prisoner never intended to kill her nephew. She had meant to hurt her husband. Also, for the sake of her 3 young children, I suspend a further 2 years from head sentence. As the pre-sentence report is very favourable to her, the balance of her sentence is wholly suspended, and she is placed on a 2-year probation on the following conditions: -

(i) she will pay K3000 cash and 300 fathoms of shell money within 3 months of her release from prison.

(ii) she will enter into her own recognizance and promise to keep the peace and be of good behavior.

(iii) she will attend her local Catholic Church every Sunday.

(iv) she will reside at Ramama village, Matupit Island, Rabaul District, East New Britain Province and nowhere else during her probation period.

(v) she will not commit another or similar offence.

(vi) she will not consume alcohol or drugs.

(vii) if she breaches any of these conditions, she will be brought before this Court to show cause as to why she should not serve the remainder of her sentence in prison.

Orders

18. The Orders of the Court are: -

(i) The prisoner is sentenced to 8 years imprisonment.

(ii) A period of 1 year and 5 months is deducted for time she has spent in custody.

(iii) She is placed on 2 years’ probation with conditions.

(iv) The balance of her sentence of 4 years and 7 months is wholly suspended.

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Public Prosecutor: Lawyers for State
Public Solicitor: Lawyers for Prisoner