State v Yomi [2008] PGNC 288; N5470 (16 October 2008)

N5470

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NO 348 0F 2008

THE STATE

V

JOYCE YOMI

Kimbe: Cannings J
2008: 13 August, 7, 16 October

CRIMINAL LAW – sentence – manslaughter – Criminal Code, Section 302 – guilty plea – offender killed a woman whom she suspected of having an affair with her husband – sentence of 14 years.

A woman pleaded guilty to manslaughter. She, in the company of others, assaulted a woman she suspected of having an affair with her husband, then stabbed and killed her.

Held:

(1) The starting point for sentencing for this sort of manslaughter (use of offensive weapon, vicious attack, deliberate intention to harm, some pre-planning) is 13 to 16 years imprisonment.

(2) A sentence of 14 years was imposed. The pre-sentence period in custody was deducted and 3 years of the sentence was suspended.

Cases cited

The following cases are cited in the judgment:

Manu Kovi v The State (2005) SC789
Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06
The State v Elizabeth Gul CR 375/2005, 09.05.05
The State v Henson Poponil (2008) N3433
The State v Hiliong Gunaing (2005) N2803
The State v Jacklyn Boni CR 786/2005, 08.09.05
The State v John Buku Kailomo CR 920/2005, 24.08.07
The State v John Loangesa CR 301/2000, 21.03.07
The State v Joseph Dion CR 71/2001, 20.05.05
The State v Kila Peter (2006) N3018
The State v Lien Kaingi CR 1119/2006, 19.12.06
The State v Michael Jim Gorogoro, CR 105/2006, 22.02.08
The State v Michael Langan Sapri (2008) N3434
The State v Steven Ruben CR 843/2007, 22.02.08

SENTENCE

This is a judgment on sentence for manslaughter.

Counsel

F Popeu, for the State
R Beli, for the offender

16th October, 2008

1. CANNINGS J: Joyce Yomi is a 37-year-old Morobe woman who has lived all her life at the Galai oil palm settlement near Kimbe. She has been married to her husband, Yomi Siwi, for more than 20 years. She suspected that her husband was having an affair with a woman called Linda Yehi, aged in her 30s and a nurse by profession. On the morning of 8 December 2007, she went to Linda Yehi's residence at the nearby Buvussi oil palm settlement. Joyce was accompanied by her daughter and three other women. They went there to confront Linda over the affair she was allegedly having with Yomi. They found Linda in conversation with another woman. They approached her and a fight broke out. While Linda was fighting with the four women who had accompanied her to the scene, Joyce pulled a knife from her bag, approached Linda from the back, and stabbed her, once, in the back. Linda died at the scene a few minutes later.

2. Joyce Yomi has admitted those facts. She has pleaded guilty and been convicted of manslaughter and she must now be sentenced.

ANTECEDENTS

3. The offender has no prior convictions.

ALLOCUTUS

4. The offender was given the opportunity to say what matters the court should take into account when deciding on punishment. She said:

I apologise to the court and to our country and the family of Linda Yehi, and my family and my husband's family, for what I have done. It is my first time to be before a court like this. My husband created this problem. He had not been good. I did not intend this death to happen. But it has happened. My husband has paid a big amount of compensation and also my family has contributed. My parents and their families have been forced off their blocks and they are now homeless. I am very sorry because the thing that I have done has caused my family to lose everything. I have children to look after and my husband is often away on business. I am sick too. I again apologise for what I have done. I ask the court to consider a non-custodial sentence so that I can look after my children.

OTHER MATTERS OF FACT

5. As the offender has pleaded guilty she will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06). In that regard, I will take into account that:

• The offender's husband has a history of committing adultery, which has caused ongoing marital problems.
• The offender surrendered to the police on the day of the incident.
• The offender co-operated with the police.
• Substantial compensation has been paid to the deceased's relatives (at least K15,000.00 cash).
• The deceased's relatives have taken retaliatory action against the offender's family.
  

PRE-SENTENCE REPORT

6. A pre-sentence report prepared by the Kimbe branch of the Community Based Corrections Service shows that Joyce Yomi has strong family support and is well regarded in the local community. She is an active member of the South Seas Evangelical Christian Church. Her husband, Yomi Siwi, concedes that he was having an affair with the deceased and has had similar relationships in the past. He admits that he caused the problem that has landed his wife in court. He does not want to see his wife put in jail. The report confirms that the offender and her family have suffered greatly because of the actions of the deceased's relatives. It concludes that Joyce Yomi is suitable for probation.

SUBMISSIONS BY DEFENCE COUNSEL

7. Mr Beli urged the court to take into account the guilty plea and the active co-operation with the police and the courts that the offender has displayed since committing the offence. A sentence of no more than 13 years would be appropriate, part of which should be suspended in view of the favourable pre-sentence report.

SUBMISSIONS BY THE STATE

8. Mr Popeu submitted this was a serious manslaughter case, especially in view of the involvement of others who assisted the offender in attacking the victim. A sentence of 10 to 13 years would be appropriate.

DECISION MAKING PROCESS

9. To determine the appropriate penalty I will adopt the following decision making process:

• step 1: what is the maximum penalty?
• step 2: what is a proper starting point?
• step 3: what sentences have been imposed for equivalent offences?
• step 4: what is the head sentence?
• step 5: should the pre-sentence period in custody be deducted?
• step 6: should all or part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

10. Under Section 302 (manslaughter) of the Criminal Code the maximum penalty is life imprisonment. The court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code.

STEP 2: WHAT IS A PROPER STARTING POINT?

11. 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 table 1.

TABLE 1: SENTENCING GUIDELINES FOR MANSLAUGHTER DERIVED FROM THE SUPREME COURT'S DECISION IN MANU KOVI'S CASE

No	Description	Details	Tariff
1	Plea – ordinary cases – mitigating factors – no aggravating factors.	No weapons used – offender emotionally under stress – de facto provocation – killing in domestic setting – killing follows straight after argument – minimal force used – victim had pre-existing disease that caused or accelerated death, eg enlarged spleen cases.	8-12 years
2	Trial or plea – mitigating factors with aggravating factors.	Use of offensive weapon, eg knife, on vulnerable parts of body – vicious attack – multiple injuries – some deliberate intention to harm – some pre-planning.	13-16 years
3	Trial or plea – special aggravating factors – mitigating factors reduced in weight or rendered insignificant by gravity of offence.	Dangerous or offensive weapon used, eg gun, axe – vicious and planned attack – deliberate intention to harm – little or no regard for sanctity of human life.	17-25 years
4	Worst case – trial or plea – special aggravating factors – no extenuating circumstances – no mitigating factors, or mitigating factors rendered completely insignificant by gravity of offence.	Some element of viciousness and brutality – some pre-planning and pre-meditation – killing of harmless, innocent person – complete disregard for human life.	Life imprisonment

12. In this case the offender used an offensive weapon – the knife – and it was a vicious attack, showing a deliberate intention to harm. There was also an element of pre-planning. The case falls within category 2 and the starting point is 13 to 16 years imprisonment.

STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED RECENTLY FOR EQUIVALENT OFFENCES?

13. Before I fix a sentence, I will consider manslaughter sentences I have handed down, where the offender has killed his or her spouse or a person whom the offender suspected of having an affair with their spouse. These cases are shown in table 2.

TABLE 2: SENTENCES FOR MANSLAUGHTER OF SPOUSE
OR PERSON SUSPECTED OF HAVING AFFAIR WITH SPOUSE

No	Case	Details	Sentence
1	The State v Hiliong Gunaing (2005) N2803, Kimbe	Guilty plea – stab wound causing death of wife – Laleki settlement, Kimbe – allegations of wife's infidelity.	15 years
2	The State v Jacklyn Boni CR 786/2005, 08.09.05, Kimbe	Guilty plea – juvenile offender hit deceased with stick, rupturing his spleen – argument over a small domestic matter.	8 years
3	The State v Elizabeth Gul CR 375/2005, 09.05.05, Kimbe	Guilty plea – offender was being assaulted by the husband and his sister – offender stabbed husband on his leg, claiming that he was being unfaithful.	10 years
4	The State v Joseph Dion CR 71/2001, 20.05.05, Kimbe	Trial – offender had fight with his wife on the back of a moving vehicle, causing her to fall from vehicle and die upon hitting road.	10 years
5	The State v Kila Peter (2006) N3018, Kimbe	Guilty plea – stab wound to the back causing death of husband – offender walked 2 km in middle of night and waited for husband who was with another woman.	12 years
6	The State v Lien Kaingi CR 1119/2006, 19.12.06, Kimbe	Guilty plea – offender stabbed and killed her younger sister, whom she suspected was having an affair with her husband – offender acted alone	10 years
7	The State v John Loangesa CR 301/2000, 21.03.07, Bialla	Guilty plea – offender assaulted his wife while drunk, kicking her in stomach – an element of de facto provocation.	12 years
8	The State v John Buku Kailomo CR 920/2005, 24.08.07, Kimbe	Trial – man assaulted his wife during a domestic dispute – she died of a ruptured spleen.	15 years
9	The State v Steven Ruben CR 843/2007, 22.02.08, Madang	Guilty plea – offender assaulted his wife by throwing paw paws at her during domestic dispute, killing her by rupturing her spleen	10 years
10	The State v Michael Jim Gorogoro, CR 105/2006, 22.02.08, Madang	Guilty plea – offender had argument with his wife over a family problem – she ran away, he followed her, then stabbed her once with a screwdriver, inflicting a fatal wound.	13 years
11	The State v Henson Poponil (2008) N3433, Kimbe	Guilty plea – man killed his wife by throwing a stone at her abdomen in the course of a domestic dispute, rupturing her spleen.	13 years
12	The State v Michael Langan Sapri (2008) N3434, Kimbe	Guilty plea – man killed his wife by kicking her in the abdomen in the course of a domestic dispute, rupturing her spleen.	12 years

STEP 4: WHAT IS THE HEAD SENTENCE?

14. To determine the head sentence I will focus on the starting point range of 13 to 16 years and assess the mitigating and aggravating factors. The more mitigating factors there are, the more likely the head sentence will be below the starting point range. The more aggravating factors present, the more likely the head sentence will be above the starting point range. It is not, however, only the number of mitigating and aggravating factors that determines the head sentence. The strength or weight to be attached to each of those factors is more important.

15. Mitigating factors are:

• there was an element of provocation provided by the husband's affair with the deceased;
• the offender surrendered to the police;
• she has cooperated with the police and the courts;
• substantial compensation paid;
• pleaded guilty;
• expressed remorse;
• first-time offender;
• a good community record and a favourable pre-sentence report.
  

16. Aggravating factors are:

• the offender acted in a group, in fact it was a surprise attack by a mob on a defenceless woman;
• she directly killed the deceased;
• the attack on the deceased was planned, as is evident from the mob attack and the fact that the offender had a knife in her bag when she went with her group to the deceased's residence.
  

17. In weighing all these factors I place great weight on the guilty plea and the full co-operation the offender gave the police. I also acknowledge the argument that the offender's husband caused the problem through a series of extra-marital affairs. However, there is a danger in regarding this as a weighty mitigating factor as it may tend to condone this course of action as a way of dealing with marital problems. The fact that the offender was in a group and staged what can only be regarded as a planned and surprise attack on an unarmed woman makes this an extremely serious case. Of the manslaughter cases referred to above the one that is closely comparable is Kaingi's case. The offender stabbed and killed her own sister whom she suspected was having an affair with her husband. The sentence in that case, where the offender acted alone, was ten years. I regard the present case as significantly more serious because of the mob attack and the planning that went into what happened. The sentence I impose in this case is 14 years imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

18. Yes. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment the whole of the pre-sentence period in custody, which is three months

STEP 6: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

19. The favourable pre-sentence report, showing that the offender has a good community record and that she and her husband have made a genuine attempt to compensate the deceased's family, means that there is a case for suspension of the sentence. But not all of it. Fully suspended sentences for homicide cases must be reserved for the most exceptional and unusual of cases; and this is not such a case. No one should lose sight of the fact that a life has been lost, tragically and needlessly. I will suspend three years of the sentence, on the following conditions:

(a) must reside at a place notified to the Probation Office and nowhere else except with the written approval of the National Court;
(b) must not leave the Province in which she resides without the written approval of the National Court;
(c) must perform at least six hours unpaid community work each week at a place notified to the Probation Office under the supervision of her Ward Councillor;
(d) must attend her local Church every weekend for service and worship and submit to counselling;
(e) must report to the Probation Office on the first Monday of each month between 9.00 am and 3.00 pm;
(f) must not consume alcohol or drugs;
(g) must keep the peace and be of good behaviour;
(h) must have a satisfactory probation report submitted to the National Court Registry every three months after the date of sentence;
(i) if the offender breaches any one or more of the above conditions, she shall be brought before the National Court to show cause why she should not be detained in custody to serve the rest of the sentence.

SENTENCE

20. Joyce Yomi, having been convicted of one count of manslaughter, is sentenced as follows:

Length of sentence imposed	14 years
Pre-sentence period to be deducted	3 months
Resultant length of sentence to be served	13 years, 9 months
Amount of sentence suspended	3 years
Time to be served in custody	10 years, 9 months
Place of custody	Lakiemata Correctional Institution

Sentenced accordingly.
__________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender