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State v Ten [2024] PGNC 301; N10971 (22 August 2024)

N10971

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR NO. 401 OF 2024


THE STATE


V


REGINA TEN


Waigani: Miviri J
2024: 08th, 20th, 21st, & 22nd August


CRIMINAL LAW – PRACTICE AND PROCEDURE – Manslaughter S302 CCA – Plea – Deceased Husband Stabbed with a Knife in the Neck – Massive Bleeding – Attack In Response to Sighting Deceased Naked with Another Woman – First Offender – Unlawful Action – Death Resulting – Prevalent Offence – strong deterrent sentence – 10 years IHL– 5 years suspended on 5 yr GBB.


Facts
Accused stabbed deceased in the neck after finding him in bed naked with another woman.


Held
Guilty plea.
First time offender.
Flagrante Delicto
Prevalent Offence
10 years IHL
5 years IHL suspended on 5 yrs. GBB.


Cases Cited:
Guina v State [2023] PGSC 57; SC2409
Warome v State [2020] PGSC 73; SC1991
Angitai v The State [1983] PNGLR 185
Marangi v The State [2002] PGSC 15; SC702
State v Er [1998] PGNC 78; N1749
Kumbamong v State [2008] PGSC 51; SC1017
Tardrew, Public Prosecutor v [1986] PNGLR 91
Avia Aihi v The State (No 3) [1982] PNGLR 92
Kovi v The State [2005] PGSC 34; SC789
Aquila v Independent State of Papua New Guinea [2020] PGSC 113; SC2023
State v Hagei [2005] PGNC 60; N2913


Counsel:


S. Kuku & M. Tamate, for the State
F. Bomal, for the Defendant


SENTENCE


22nd August 2024


  1. MIVIRI J: Regina Ten, aged 43 years old of Tigi village, Dei District, Western Highlands Province appears to be sentenced for Manslaughter of William Map her husband after pleading guilty to the Indictment pursuant to section 302 of the Code.
  2. She is married to William Map the deceased and reside at Bush wara 9-mile Settlement in the National Capital District. And was the subject of domestic violence at the hands of the deceased during their marriage. Prior to the 22nd August 2022, He had badly assaulted her physically causing her to seek refuge at her brother’s house at ATS for few days before returning home to her husband on the 22nd August 2022. There she found the deceased with another woman lying naked in their bedroom. When she saw this, she was enraged attacking the other woman with a small knife. The deceased got up and as he was about to go out of the room, the accused stabbed him in the neck with the same knife and ran away.
  3. He died because of that stab wound. She was later arrested and charged with the offence. Her actions were unlawful and contravene section 302 of the Criminal Code.
  4. That section Manslaughter is in the following terms, “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.”


  1. This is yet again another killing that has come about because of the unfaithful actions of the deceased husband. He was in Flagrante Delicto, in the very act of wrongdoing, especially in an act of sexual misconduct prompting that reaction from the prisoner. Blame could not be entirely drawn out upon the prisoner for the death of the deceased. He invited what flowed because she is the wife of deceased. Human attachment, emotionally, spiritually and physically between man and woman is very strong, that it is not uncommon and unheard for the reactions of the prisoner. Our Jurisprudence has seen it across at first instance to appeals. In Guina v State [2023] PGSC 57; SC2409 (23 June 2023) had the appellant successfully appeal against her sentence of 12 years imposed at first instance over the killing of her husband’s mistress. She found both having sexual intercourse. The deceased attempted to stab her but was overpowered knife taken off her by the appellant who stabbed and killed her. Part of the 12 years IHL for murder was suspended pre-trial custody period, and three (3) years suspended with conditions.
  2. That approach was followed in Warome v State [2020] PGSC 73; SC1991 (27 August 2020) where the Supreme Court confirmed the head sentence imposed at first instance, but then suspended 3 years of the 10 years imposed for manslaughter pursuant to section 302. The period on remand deducted. She served 6 years in jail. Here too the wife was surprised and shocked when finding husband and sex partner sleeping naked on a bed, she acted under extreme de facto provocation which the Supreme Court acceded to giving the suspension of the sentence. This behaviour has not deteriorated by any measure to show the rule of law upon it. Immorality within the marriage is rife and must be stopped. Women, men who are of no fault of theirs, made to suffer emotional and physical torment and trauma to climax in the killing as is the case here, are not criminals in that sense of the word.
  3. Regina Ten was beaten up and sought refuge from that at her brother’s house, only to return to what the deceased did. She stayed on despite his violence towards her enduring. But she is human like any other, she can take so much, and as it happened, she released what was in her in this way. The action has terminated the life of the husband who was so bold to bring the woman or mistress to the room where they both, prisoner and deceased shared as husband and wife. He knew what he was doing. Emotionally this is what Regina Ten was faced with so is her actions abnormal, or her criminal responsibility diminished by that fact, in that he contributed to his demise. He prompted her to do what she did. And for that fact, should she bear the brunt of the sentence that a life has been prematurely terminated. She has been provoked within the meaning set out in Angitai v The State [1983] PNGLR 185. And the provisions of section 267 of the Criminal Code defence of Provocation is available given her facts. Here he was going out and stabbed in the back on the neck. He had no weapon, and his conduct may have been such that she was in a high emotional phase to go direct and stab the female in the act. Are these facts that depict that, an ordinary person she was, what she saw deprived so that there was no power of self-control in her. Even if I hold that she was deprived of the power of self-control, the force used would not be proportionate given he was walking out and away. It would open the flood gates to invite persons seen their wives, husbands in this way to be given the okay in law to take the lives of the offending in this way. The court will contribute to lawlessness than lawfulness in society. It is a hard decision to take when one has children of that union and life that has been built over the years to be treated in this way, by one’s husband or wife. Emotionally it is what was faced by Regina Ten. It is a very serious fact that will underly the sentence eventually passed upon her for the crime of manslaughter she pleaded guilty to.
  4. So, what is a proportionate sentence given that she has pleaded guilty is a first offender aged 43 years old with five children. There will be some similarities in the facts in Marangi v The State [2002] PGSC 15; SC702 (8 November 2002), she was the co-wife tied in that relationship to the same man. The court imposed nine (9) years imprisonment for the manslaughter of a co wife or girlfriend of the common man. The difference is that it is another woman not a co wife in that union so the penalty would differ given. In State v Er [1998] PGNC 78; N1749 (31 July 1998), eight (8) years imprisonment was imposed for murder upon the wife killing the young woman the husband was with ignoring her and four children. She reacted as she did as is the case here, kill the deceased who she intended to give her pain only. It is what happened in Kumbamong v State [2008] PGSC 51; SC1017 (29 September 2008) 9 years was imposed for pleading guilty to the killing of the wife or girlfriend of the husband who had fathered six (6) children with her. She appealed to the Supreme Court against that sentence of 9 years for manslaughter pursuant to section 302 of the Code. The Supreme Court varied the sentence stating that she had defences of provocation and self-defence in law that she had not pursued in the trial. It varied the sentence stating that it was appropriate custodial to the time she had spent, and the balance remaining was suspended on a non-custodial basis. Effectively the period of 2 years and 1 month spent pre-sentence and postconviction were considered sufficient for the offence. Six (6) years eleven (11) months were suspended on own recognitions to keep the peace and be of good behaviour.
  5. It would give more sense to follow Kumbamong (supra) to suspend part of the sentence particularly considering also the law in Tardrew, Public Prosecutor v [1986] PNGLR 91 on the basis of which I consider that there is material here warranting a suspension of the term due the prisoner. She is no criminal true and true to heart. She is just an ordinary woman who has reacted as any other would want to do what she did given. She has demonstrated in that presentence report evidenced by willingness between all to move on in life harmoniously. This is evidenced by the payment of K29, 000.00 plus K2000 worth each of 17 pigs to the deceased family. This is in accordance with life and practice in the Western Highlands Province. And it is an acceptance of the wrong committed and responsibility to amend for the betterment of all including the prisoner.
  6. I am also comforted that this is confirmed by one Councillor JK Nema from Mt Hagen confirming customary compensation achieving successful peace between the parties. Further that as a result of that homicide confirmed by Pastor Luke Tepra of Tete AOG Church 12th July 2024, the prisoner has four children now in the care of her old mother. She is not a bad person and has taken turn evidenced by Corporal Greg Teine Acting Chaplain’s character reference of her dated the 11th March 2024, confirming that she is member of the Interdenominational Church Group in prison holding position of Assistant Secretary within. She is a mature detainee humble in her deeds and words showing learning from her past by the homicide. That is confirmed by Prison Ministry Leader one Shemillar Kapoi. Coupled with certificates in advanced baking issued of her achievement in the field of bread, buns, biscuits and cakes proving her competency in leading self-sustaining life outside of prison. Which is corresponded to by Certificate of Completion in her name completing literacy 1 and 2 successfully on the 28th September 2023. She can at minimum read write to keep simple record and write to sustain life at the minimum. That is evident by certificate one dated 23rd June 2023 of completion of Stage one reading skills in her name. And recently advanced in adult literacy conducted by the Adventist University dated 02nd July 2024.
  7. These in my view fulfill what is set out by the law in Tardrew (supra) on the basis of which I consider that these are material warranting a suspension of the term due the prisoner. It will meaningfully give effect to section 19 (6) of the Code in that rehabilitation will be accommodated by what is started in prison carrying on into life outside. Further incarceration would not amount to Justice warranted apparent. She was a law abiding citizen who endured the violation at the hands of the deceased to pinnacle in this offence. She ought to be given a chance to settle in life from that given. Women are equal in the eyes of the Constitution of our country. They will be afforded protection in law. And that I do that here balancing all.
  8. A wrong must be addressed by the process of law. Yes, the union of husband and wife has been violated by the deceased. He is cause inspiring the actions of the prisoner. The sentence will certainly not be the maximum of life years prescribed. A determinate term is in view because it cannot be the worst case of its kind: Avia Aihi v The State (No 3) [1982] PNGLR 92. In my view if aligned in accordance with Kovi v The State [2005] PGSC 34; SC789 (31 May 2005) it will come in at the second category drawing 13 to 16 years imprisonment. There is a knife used as a weapon. Here it is supported further by the presentence report ordered affirming that K29, 000.00 was paid together with 17 live pigs each valued at K2000. Although it does not bring out the years it would only be evidence of settlement of the relationship between the parties. Nor would it cut down some time because of that fact: Aquila v Independent State of Papua New Guinea [2020] PGSC 113; SC2023 (29 October 2020). Because by law, the Criminal Compensation Act is a maximum of K5000 and not more. Here the payment exceeds that amount. And it does not mean that the prisoners will now have some of the time due in law for the crime reduced. The haves will pay their way out of jail, the have nots will go to jail. There are no two sets of laws one for the former and the other for the latter. Therefore, the payment of compensation at the highest is levelling the relationship between the offending and grieved no more no less.
  9. It is relevant to underline that "Manslaughter is a very serious matter or offence and it carries a maximum penalty of life imprisonment. And the life imprisonment is because a life is gone, and that person is never going to come back. "No matter whose fault it is, the person is dead, and it is tragic.” Marangi (supra)
  10. This is an exceptional setting imposing that the sentence will be out of normal and ordinary: State v Hagei [2005] PGNC 60; N2913 (21 September 2005). There are exceptional circumstances that highlight that treatment. She saw them together naked in the bed that she shared with the deceased husband. So, consideration in accord and on par with other cases will not be followed. I sentence Regina Ten of Tigi, Dei District, Western Highlands Province for the crime of Manslaughter pursuant to section 302 of the Criminal Code committed upon William Map on the 22nd day of August 2022, to 10 years imprisonment in hard labour.
  11. I recommend that sentence shall be served near her children and family in Baisu Mt Hagen. That she shall be transported there by or before the fourth year of imprisonment.
  12. In the exercise of my discretion pursuant to section 19(6) of the Criminal Code, I suspend 6 years of that sentence forthwith for the reasons I set out above on a six (6) years good behaviour bond and a probation order for six (6) years on the following conditions: -

Sentenced accordingly.


Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Defendant

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