State v Pung (Yamai) [1995] PGNC 80; N1363 (15 September 1995)

N1363

PAPUA NEW GUINEA
[In the National Court of Justice]

CR 870 of 1995

THE STATE

-v-

MARIA PELTA PUNG (YAMAI)

Mt. Hagen: AKURAM, AJ
1995: 12 & 15 September

Criminal Law - Manslaughter - Second wife stabbed fourth wife as pay back for attack on accused by deceased and another women some three years ago - previous dispute not resolved - plea - sentence.

Cases cited in the judgment:
Iamo Ani v The State SC 70 of 1993.
Lawrence Simbe v The State SC 455 of 1994.
The State v Laura (No. 2) (1988-89) PNGLR 92.
Rex Lialu v The State (1990) PNGLR 487.
The State v Margaret John (No.1) N. 1326 dated 20th April 1995.
The State v Elino Ainu Cr 797/94 dated 8th September 1994.

Accused charged for manslaughter of a co-wife and 4th wife of their husband for an almost similar attack on her some three years ago and not resolved. The burden for paying compensation was shifted to prisoner and her relatives.

Held:

1. Each case must be decided on its own facts, especially in manslaughter cases and especially including co-wives or wives and husbands or wives and girl-friends; to the circumstances of death and especially the way in which death was actually caused, in reaching an appropriate punishment.
   
2. In circumstances involving disputes between co-wives over their common husband, the husband’s role in the conflict should be considered as a mitigating factor on sentence.
   
3. In order to prevent more deaths of co-wives, girl-friends, boy-friends and husbands in polygamous marriages, the question of "well-being" of the spouses have to be well understood both in the customary sense and to the understanding of the bonum fidei (bond of love) in a marriage bond.
   
4. Where a wife is the offender, the husband is obliged by custom to pay compensation for the wife’s wrong-doing, whether or not the husband is at fault in causing or contributing to his wife’s wrong-doing.
   

CARTER for the State
TERA for the Accused

15 September 1995

AKURAM, AJ. The State alleged that on the 3/3/95 at Mt. Hagen town at about 10.30 am accused was outside Kitip Surgery. The deceased was walking up from the PNGBC branch across to the Bowling Club side of the road opposite the Kitip Surgery. Accused ran across the road from behind the deceased with a stainless steel hunting knife, and without warning she stabbed the deceased three times on the back of the neck. The prisoner is the second wife of the same man and deceased is the fourth wife. The deceased died 24 hours later next day at 12.45 pm.

The accused pleaded guilty and in her allocutus, made a lengthy statement which State took as a denial of the facts upon which she pleaded. Defence Counsel sought adjournment to clarify the situation with the prisoner.

Upon resumption the Defence Counsel advised that it is a plea but she is explaining her past instances with the deceased. What the prisoner basically said in allocutus is that she could not have attacked deceased had the deceased and another women compensated her for the previous attack on her which paralysed her left hand. And that they also promised to attack her later.

The prisoner also said that this is her first offence and she is sorry for the deceased and her relatives. She also said she is sorry for her children attending school and her husband’s relatives who had to pay compensation for the deceased. She is sorry for committing the offence and asked for leniency.

In mitigation the Defence Counsel submitted that the prisoner is married with two children, one is attending Hagen Park High School. She is the second wife of the five wives of one John Yamai. Prisoner is a housewife, no prior convictions and has been in custody since 4th March 1995, a period of 6 months and 12 days.

As to the circumstances surrounding the commission of the offence, it is submitted that prisoner is a co-wife of a total of five (5) wives. The relationships were not harmonious between the wives. That is in reference to an incident 3 years ago where deceased and fifth wife attacked prisoner where her left arm is useless because of the injuries prisoner received.

The Defence submitted that they concede that it is a serious offence and she must take a custodial sentence but taking into account her statement in allocutus, court be lenient on her.

The State in reply submitted that leniency should be reserved for those who deserve it. That compensation to her was offered for injuries she received three years ago but she refused.

There is no provocation from the words used by the deceased in the legal sense. It is a situation of a loss of control at the spur of the moment and is not justified by law. Although there is a lack of intention to kill, it does attract a life sentence for this type of offence as it is the worst type of its kind. I was referred to a case where the wife killed and chopped the deceased because she suspected deceased for having adulterous relationship with or entice her husband and sentence her to 10 years. That was the case of the State v Elino Ainu Cr. 979/94 dated 8th September 1994. He submitted that this case is not quite the same as the gravity is lighter. He therefore submitted a sentence not less then 8 years is appropriate.

I have carefully considered both submission and prisoner’s statement in allocutus.

I have also considered the evidence of the five State witnesses and believe their account of what took place. That is, the knife belonged to Edward Yamai, her son which she used at the time by approaching the deceased from the back and stabbed her three times, then severing of "left common carotid artery, internal jigular vein and subclavian vein" which caused loss of blood and deceased died, according to the medical report.

I am of the view that each case must be decided on its own facts, especially in manslaughter cases and especially involving co-wives or wives and husbands and wives and girl-friends. (See Iamo Ani v The State SC 70 of 1993; Simbe v The State, SC 455 of 1994, The State v Launa (No.2) (1988-89) PNGLR 98). I adopt the approach taken by the Supreme Court in Lialu v The State (1990) PNGLR 487 where Kapi DCJ said at 497 that:

"In considering the penalty for manslaughter cases, I adopt the words of Watkins LJ in R v Phillips (1985) 7 Cr App R (S) 235 at 237."

"The Court has to pay very careful regard to the circumstances of death, and especially to the way the death was actually caused, in coming to a conclusion as to what punishment a defendant should receive for whatever it was he did towards bringing that about."

I consider that this approach of sentence is inherent in the decision of the Supreme Court in Norris v The State [1979] PNGLR 605. The Deputy Chief Justice Raine was having regard to the way death was caused when he said (at 611-612):

"I say this because this was a bad assault on the deceased. This is not one of those unfortunate cases where one angry blow has tragic consequences. There was a number of blows and it is perfectly clear that the appellant, furious at the believed misbehaviour of the deceased, attacked her in quite a vicious way."

In the same case, Wilson J directed his mind to the same issue (at 618):

".....it must be said that the accused viciously assaulted the deceased. The appellant is not entitled to the leniency that may be shown to those who commit the crime of manslaughter in a sudden or momentary outburst."

Applying these principles to this case, I find that the appellant met up with the deceased by chance and the whole argument was started by the deceased uttering some words to the appellant’s wife. I also find that this was not a vicious attach. The attack on the deceased in Norris’s case was more serious." (my emphasis).

I agree and apply those principles to arrive at a fair sentence in the present case. I also add and take the following matters into account:

(i) Was there a third party involved?

(ii) If a third party is involved, what role(s) did he play in furtherance of the assault by the accused prior to death?

(iii) How much blame should be given to third party and what weight is to be given in mitigation.

In the present case there is no pre-mediation but there is evidence of previous confrontation between the prisoner and the deceased. Although there is no direct involvement of the husband, there is evidence that the husband tried to solve the previous dispute and confrontation by taking it away from the hands of the police and the prisoner refused compensation thus there is provocation in the non-legal sense. There is good reason for saying this and that is, the husband did not realise that he is a party to the original dispute and by taking it away from the police, he is seen by the prisoner as supporting the deceased and his fifth wife so that they will not be charged by the Police for attacking the prisoner some three years ago. That may be the reason why prisoner refused compensation when it was offered. This problem arose from a marriage dispute and the problem in essence is that there are too many wives. Therefore the "well being" of the spouses have to be well understood both in the customary sense and the changing role that custom used to play for having more then one wife. The question is how does one harmonise the current situation of changing norms and custom to allow for such a custom to continue because not to do so would result in more deaths of either wives, girlfriends, boyfriends and husbands.

In the present state of affairs in Papua New Guinea I am of the view that polygamous marriages will always create disputes of wide ranging nature and sometimes end in break-ups or deaths because it lacks the "bonus fidei" or "the bond of love".

It has been submitted by the Defence Counsel that the burden of paying compensation has been shifted to the relatives of the prisoner in the sum of K20,000, 40 pigs and 3 cassowaries. This again is not custom. If it is a custom that a man can marry many wives, he should be also bound by custom to accept the responsibilities that go with it and that is to pay compensation for whatever wrong done by his wife. This is because once bride price is paid the wife will become part of his clan by having children to increase his clan members, looking after pigs and now entering into cash economy to increase the wealth of the clan, and so on. His Honour, Injia, J in The State v Margaret John (No. 1) N. 1326 dated 20th April 1995 said:

The custom of compensation in homicide cases or any other serious criminal offence is common throughout the country and in particular throughout the entire Highlands region. It is paid by the offender and his relatives to the victim or the victim’s relatives in various forms and varying amounts. The more serious the offence; the larger the compensation paid. Also the larger the compensation to be paid; the more the people involved. In serious cases like murder, amounts of compensation are quite large and naturally, the whole clan, village or relatives of the offender are involved in contributing to the payments. Where a wife is the offender, the husband is obliged to pay compensation for his wife’s wrong - doing, whether or not the husband is at fault in causing or contributing to his wife’s wrong-doing. Where the husband is at fault, there is every reason for him to pay compensation.

I am therefore of the view that the husband should be responsible in the first place for bringing this about by marrying five wives and not one.

I have considered and taken all these factors into account on sentence. However, I consider the present case is a serious one which warrants a severe custodial sentence.

I therefore sentence the prisoner to 8 years. I deduct the time she spent in custody, a period of 6 months and 12 days as of today. Prisoner will serve 7 years 5 months and 18 days.

______________________

Lawyer for the State: PUBLIC PROSECUTOR
Lawyer for the Accused: PUBLIC SOLICITOR