State v Alfred [2009] PGNC 29; N3602 (26 March 2009)

N3602

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1008 OF 2008

THE STATE

V

CAROL ALFRED

Mendi: Makail, J
2009: 23 & 26 March

CRIMINAL LAW - Sentence - Manslaughter - Deceased adult male - Death arose from domestic dispute setting - Stab wound - Left upper thigh of deceased - Use of kitchen knife - Death caused by loss of blood from stab wound - Mitigating and aggravating factors considered - Mitigation factors out weigh aggravating factors - Sentence of 10 years imposed - Criminal Code - Sections 19 & 302.

Cases cited:
The Public Prosecutor -v- Panikuiaka Nopi [1979] PNGLR 536
Rex Lialu -v- The State [1990] PNGLR 487
Anna Max Maringi -v-The State (2002) SC702
Manu Kovi -v- The State (2005) SC789
The State -v- Kila Peter (2006) N3018
The State -v- Kopol Hiol:CR No 538 of 2008 (Unreported & Unnumbered Judgment of 12 May 2008)
The State -v- Nande Garaipe: CR No 227 of 2008 (Unnumbered & Unreported Judgment of 16th May 2008)
The State -v- Ronnie Kipol Pona: CR No 508 of 2008 (Unnumbered & Unreported Judgment of 16th May 2008)
The State -v- Yuanis Ipiri (2008) N3512
The State -v- Juvenile "D" (2008) N3508
The State -v- Philipa Kawage: Cr No 1386 of 2006 (Unnumbered & Unreported Judgment of 12th May 2008)
The State -v- Tauseng Bange: CR No 973 of 2007 (Unnumbered & Unreported Judgment of 10th November 2008)

Counsel:
Mr. J Waine, for the State
Mr. F Kirriwom, for the Offender

SENTENCE

26 March, 2009

1. MAKAIL J: On 23rd March 2009, I convicted the offender on one count of unlawful killing (manslaughter) of one Pius Fidelis under section 302 of the Criminal Code after she pleaded guilty to the crime and also after having satisfied myself from the depositions presented by the State that the charge has been sufficiently made out against her.

BRIEF ALLEGATIONS FACT

2. The brief allegations of fact put to her on arraignment, and on which she pleaded guilty are these; the deceased is her late husband and a policeman. On 30th June 2007, at about 6:30 pm at Yame village, Kagua of the Southern Highlands Province, the offender was in the house when the deceased arrived. An argument arose between them. The deceased accused the offender of not preparing dinner for him. A fight followed the argument whereby in the course of the fight, the deceased took a torch and hit the prisoner on her left forearm and also on her head. She was badly injured and in the ensuring scuffle, she accidentally stabbed the deceased with a kitchen knife she had in her possession. The kitchen knife pierced the left upper thigh of the deceased, severing the muscle and blood vessels. As a result of the stab wound, the deceased lost a lot of blood and died at the hospital.

3. The fight between the offender and the deceased was not a one off incident but rather one of the many instances where they would fight and the offender would receive injuries. She was a victim of constant abuse by the deceased.

ALLOCUTUS

4. On her allocutus, she says that she is very sorry to the Court for committing the offence. She is also very sorry to God for committing this offence. She is also very sorry for the line of the deceased for the passing away of the deceased. She acknowledges the grief and pain that has befell the line of the deceased as a result of her actions. She says that she is a young woman and first offender. She further says that she did not mean to kill the deceased. It was an accident as the stabbing occurred during the fight. She says that the deceased was the first to assault her with a torch where she received injuries to his left forearm and head.

5. She also says that she and her line paid a hefty compensation of K15,000.00 and 40 pigs to the line of the deceased. She says that she is indebted to her own line for assisting her to pay compensation and it will be very difficult for her to repay them. Finally, she asks for leniency.

THE LAW

6. 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 or infanticide is guilty of manslaughter.

Penalty: Subject to Section 19, imprisonment for life".

7. The prescribed penalty for the crime of manslaughter pursuant to section 302 of the Criminal Code is life imprisonment. Depending on the factual circumstances of a case under consideration, the Court can either impose the prescribed maximum life imprisonment or a lesser sentence. This Court is vested with such sentencing discretion under section 19 of the Criminal Code.

OFFENDER’S SUBMISSIONS

8. In the present case, Mr. Kirriwom of counsel for the offender first gives an account of the offender’s personal details as follows:

* The offender is from Yame village, Kagua of the Southern Highlands Province;

* She is 24 years old;

* She is educated to Grade 10 at Kagua High School;

* She is a member of the Catholic Church;

* She was previously married to the deceased but now a widow; and

* She does not have any children from the marriage to the deceased.

9. Secondly, in mitigation, Mr. Kirriwom points to the following as mitigating features operating in favour of the offender, thus justifying a lesser sentence than the maximum of life imprisonment, which are:

* The offender has pleaded guilty to the charge, thus saving the Court’s time and money to hold a full trial to determine her guilt;

* She is a first offender, as she has not been in trouble with the law before the commission of the offence;

* She has expressed remorse for committing this offence. She said sorry to the Court, to the deceased and his line and also to her own line;

* She and her line had paid compensation of K15,000.00 cash and 40 pigs to the deceased’s line;

* She has been a victim of constant abuse by the deceased; and

* She has spent 1 year and 8 months in pretrial custody and this period of time should be deducted from the head sentence.

10. Mr. Kirriwom stresses that the offender has been a victim of constant abuse and domestic violence where she had received serious injuries at the hands of the deceased. He says that though this factor does not exonerate the offender, the Court should take that into account as a special mitigating feature of this case apart from the compensation given to the line of the deceased.

11. He submits this case cannot be categorized as a worst case of manslaughter. It is said that the maximum penalty is usually reserved for the worst cases and this case is not one, of which the maximum penalty should be imposed. He refers to Rex Lialu -v- The State [1990] PNGLR 487, where the Supreme Court held inter alia that in sentencing an offender in manslaughter cases, the sentencing Court must have careful regard to the circumstances of death and the way in which death was actually caused. The factors are:

* the nature and frequency of attacks or assault;

* whether the injury causing death was a direct result of falling on any objects;

* whether the injury was caused by the accused or a weapon;

* whether the harm caused was the result of a deliberate intention to cause that injury;

* whether there was provocation in the non legal sense; or

* whether the deceased had a thin skull or an enlarged spleen.

12. In the instant case, he submits that there is no evidence of any deliberate intention to cause death to the deceased nor was there any premeditation on the part of the offender. The facts in the present case show that the offender was struggling with the deceased in a fight and swung her hand with the knife and stabbed the deceased on the left upper thigh.

13. Finally, in respect of the sentencing tariffs set by the Court in past cases of manslaughter, he refers to Manu Kovi -v- The State (2005) SC 789. He submits that given the presence of mitigating features in this case, this case falls under category 1 where a sentence of 8 to 12 years imprisonment maybe imposed on the offender. He further submits that this is only a guideline but the Court has discretion under section 19 of the Criminal Code to impose a lesser sentence and asks for a sentence between 6 to 8 years would be fair and reasonable in the circumstances of this case.

STATE’S SUBMISSIONS

14. Mr. Waine of counsel for the State submits that there are present aggravating factors. First, the death arose from a domestic violence as a result of a domestic dispute. It was a fight between husband and wife over the wife’s failure to prepare dinner for the husband. Secondly, a kitchen knife was used. It is a dangerous weapon when it is used against another person and this is only aggravates the circumstances of the offender’s case. Thirdly, he submits that the sentencing tariffs for unlawful killing have increased over the years as a result of the prevalence of the offence. This is despite the tireless efforts by police in trying to apprehend and charge people like the offender so that they could be dealt with by the Court. He acknowledges that the maximum penalty for unlawful killing is life imprisonment subject of course to the Court’s discretion to impose a lesser sentence under section 19 of the Criminal Code.

15. Fourthly, in respect of the issue of compensation, he submits that the offender has not presented any evidence before the Court to show that she and her line di d pay compensation to the line of the deceased. As such, the Court should ignore it.

16. Finally, he submits that this case falls under category 2 of the case of Manu Kovi (supra). That means that the sentence should be between 13 and 16 years where there was use of an offensive weapon, namely a knife and the deceased was stabbed at the vulnerable part of the body, namely the left upper thigh which resulted in severing of the muscles and blood vessels.

17. In the circumstances, he submits that the Court should impose a sentence between 15 and 16 years on the offender.

REASONS FOR DECISION

18. I generally agree with both counsel’s submissions that whilst section 302 of the Criminal Code gives the Court power to impose a sentence of life imprisonment for the crime of manslaughter, there is discretion given to the Court under section 19 of the Criminal Code to impose a lesser sentence. I also agree with their submissions that whilst the Supreme Court has set some guidelines for the Court to follow in sentencing offenders found guilty of manslaughter, the Court is also entitled to decide each case on its own peculiar circumstances.

19. To begin the exercise to determine what would be the appropriate sentence to impose on the offender, I must state here for the record that offences of unlawful killing have been a common occurrence and which this Court has been inundated with from time to time. Unlawful killing is the premature termination of one’s life by another. The offender in this case must be reminded that she is responsible for the death of the deceased, no matter how accidental it was. There is only one life to live and once it’s gone, it’s gone! But offenders like her will live with the guilt and shame for the rest of their lives.

20. I made an interesting observation last year where I commented on unlawful killing cases arising from domestic disputes in the case of The State -v- Philipa Kawage: Cr No 1386 of 2006 (Unnumbered & Unreported Judgment of 12th May 2008) at p 7 of the judgment these:

"The most common cases of unlawful killing arise from cases of domestic setting such as extra marital affairs, polygamous marriages and de facto relationships where most often than not, two women either single or married get entangled and embroiled in the dispute over the right of ownership of one man".

21. In Philipa Kawage’s case (supra), the offender was convicted on her guilty plea and sentenced to 13 years imprisonment at Buihebi CIS. She had stabbed her late husband, a police officer and at the material time, Commander of Mobile Squad, based at Tari. The offender did that after finding out that her late husband had taken a second wife and was living with that woman in Tari whilst she and her 4 children were living in Port Moresby. She traveled up to Tari and confronted her late husband outside the house at Enobi Police Barracks on 13th April 2006. An argument erupted between the two of them where the offender armed herself with a kitchen knife and attempted to stab him. A struggle took place and the offender was over powered by her late husband and fell down. As she came to a sitting position, with her back to her late husband, she swung the kitchen knife around her back and it struck her late husband’s right groin. The blow severed one of the main blood vessels which led to heavy bleeding and eventual demise of her late husband even though he was rushed to the hospital for treatment.

22. In Philipa Kawage’s case (supra), I sentenced her to 13 years imprisonment after I found one factor operating in her favour and that was, the root cause of the problem was her late husband’s extra marital affair. I also accepted that she acted in the way she did because she was upset, angry and frustrated that her husband had been unfaithful and betrayed her marriage. There was de facto provocation. The second factor that operated in her favour was that she pleaded guilty, thus saving the Court’s time and money to conduct a trial to determine her guilt. The next factor was that she was a first offender. The other factor which operated in her favour was that, her line paid a hefty customary compensation to her late husband’s line. It was K13,000.00, 18 pigs and 1 goat. The other favourable factor was that she did not intend to kill him as it was accidental and finally, she had 4 children to look after.

23. I had found two factors operating against her. The first was, she had used a kitchen knife to stab her late husband. The second one was, the offence of manslaughter is prevalent in the country, especially in cases arising from domestic setting.

Also in Philipa Kawage’s case (supra), I had the opportunity to consider the cases of Anna Max Maringi -v-The State (2002) SC702, Sakarowa Koe -v- The State (2004) SC 739 and Manu Kovi’s case (supra). First, in Anna Max Maringi’s case (supra), the Supreme Court summarized previous cases on manslaughter in a domestic context, under three broad categories as follows:

"The current range of sentences for uncontested manslaughter cases in a domestic setting as set out in the above three cases and other cases range from four (4) years to sixteen (16) years imprisonment. There are 3 categories of sentences within this range.

"The first category relates to cases which come in the lower end of this range. These cases involve application of force in an uncalculated manner, such as a single blow, punch or kick on any part of the deceased’s body. For instance, single or multiple kick or punch causing rupture of the spleen. This kind of killings attract sentences between three (3) and seven (7) years. Cases where the deceased has pre-existing disease which accelerated or contributed to the death such as enlarged spleen are treated as less serious than death of a normal person and they attract sentences in the lower end of this scale: Public Prosecutor -v- John Mela SCRA 17/01, Unpublished Supreme Court Judgment dated 28th June 2001.

The second category relates to cases which fall in the middle part of this range. These cases involve repeated application of vicious force, with or without the use of an instrument or weapon, such as repeated kicks and punches applied to the head or chest with deliberate intention to wound or cause bodily harm. An example is Jack Tanga’s case. Death caused by single or multiple knife wounds applied on the head, chest or abdomen or any other vulnerable part of the body, without any other special aggravating factors, also come under this category. Unintentional killings which come under this category attract sentences between 8 and 12 years.

The third category relates to cases which fall on the top end of this range. Those cases involve application of direct force in a calculated manner, on the body using a weapon such as a knife, bushknife or axe inflicting serious bodily injuries, such as piercing vital organs or severing vital parts of the body. Death caused by chopping the neck, legs and arms with an axe or bushknife are examples of this kind of killing. Death caused by single or multiple (knife) stab wounds on the head, face, neck, chest or the abdomen if accompanied by other special aggravating factors may also fall under this category. This kind of killing attracts sentences between 13 and 16 years. An example of this type of killing is John Kapil Tapi -v- State (2000) SC 635. The case of Antap Yala (1994) CRA No. 64 of 1994 Unnumbered and Unreported Supreme Court judgment of Amet CJ Salika and Injia J dated 31 May 1996 Mt Hagen SCR 69/96, could also come under this category although the sentence imposed in that case was 10 years.

As to which of these categories a particular case falls into, depends principally on the viciousness of the assault, the manner in which the injuries were inflicted and the seriousness of those injuries which caused death.

It is worth noting that killings which come under the second and third categories may well constitute murder or even willful murder, if the necessary intentions to either cause grievous bodily harm or kill are present . . .

In our view, the sentences commencing with Antap Yala, marks a significant increase in the sentences imposed in manslaughter cases since the case of Rex Lialu. Prior to Rex Lialu, manslaughter sentences ranging between three (3) and six (6) years were common. But those kinds of sentences are no longer appropriate nowadays . . ."

24. Secondly, in Sakarowa Koe’s case (supra), the Supreme Court discussed the above categories and correctly extended the same tariff to apply to all types of manslaughter cases. The Court then suggested the tariff for each category to be increased as follows:

"...we suggest that the sentencing tariffs be in terms of seven (7) to twelve(12) years in the first category, thirteen (13) to seventeen (17) years in the second and eighteen (18) years to life imprisonment in the third category... At the same time, the National Court still has the discretion to impose a less than what we have recommended in exceptional cases where very good mitigating factors exist..." (Underlining is mine).

25. Thirdly, in the most recent Supreme Court case of Manu Kovi (supra), the Supreme Court mentioned three special mitigating factors which might impact on the sentence. These are; the offender’s very young age or very old age, poor health and payment of customary compensation. In Manu Kovi’s case (supra), the Supreme Court in using the range of sentences noted in Anna Max Marangi’s case (supra) as a guide, suggested the following tariff:

"1. In an uncontested case, with ordinary mitigating factors and no aggravating factors, a starting point of 7 years up to 12 years. A sentence below 7 years should be rarely imposed except in exceptional cases where there are special mitigating factors.

2. In a contested or uncontested case, with mitigating factors and aggravating factors, a starting point of 13 - 16 years.

3. In a contested or uncontested case, with special aggravating factors and mitigating factors whose weight is reduced or rendered insignificant by the gravity of the offence, 17 - 25 years.

4. In contested and uncontested case with special aggravating factors - Life imprisonment for the worst cases. The presence of mitigating factors is rendered insignificant by the gravity of the offence. These are cases which involve viciousness, some pre-planning, use of a weapon and complete disregard for human life".

26. In the end, I found that the mitigating factors outweighed the aggravating factors and that was how I arrived at a sentence of 13 years imprisonment for the offender.

OFFENDER’S CASE

27. The question is; which category does the offender’s case fall under based on the guidelines set in Manu Kovi’s case (supra)? To my mind, there are many factual similarities between the present case and that of Philipa Kawage’s case (supra). I take this time to highlight them because in my view, they go to guide me in deciding which category this case falls under in the Manu Kovi’s case.

* In both cases, the deceased are policemen, late Mr. Kawage based at Tari and late Mr. Fidelis, based at Kagua;

* In both cases, the offenders were married to policemen;

* In both cases, the offenders stabbed the deceased with a kitchen knife at the right groin and left upper thigh;

* In both cases, the offenders were charged with manslaughter;

* In both cases, the offenders pleaded guilty;

* In both cases, the offenders are first offenders;

* In both cases, the offenders and their line paid hefty customary compensation to the line of the deceased;

* In both cases, the offenders accidentally stabbed the deceased;

28. The different factual matters between this case and that of Philipa Kawage (supra) are:

* In this case, the offender has no children from the marriage unlike Philipa Kawage’s case (supra) where she has 4 children;

* In this case, the offender was a victim of constant domestic abuse and violence while in Philipa Kawage’s case (supra), the offender’s late husband had an extra marital affair;

* In this case, it is not suggested that the offender acted under a de facto provocation, where as in Philipa Kawage’s case (supra), she acted under a de facto provocation in the sense that he was upset and betrayed by her late husband’s extra marital affair;

* In this case, the offender and the deceased argued over the offender’s failure to prepare dinner for the deceased whilst in Philipa Kawage’s case (supra), the offender attacked her late husband over his extra marital affair’s activity.

29. I take into account the relevant matters set out by the Supreme Court in Rex Lialu’s case (supra) which Mr. Kirriwom refers in his submissions, in addition to mitigating factors present in this case. In line with the matters set out in Rex Lialu’s case (supra), I find that, first the offender wounded the deceased with a kitchen knife. Secondly, the kitchen knife struck a vulnerable part of the body of the deceased. According to the Medical Report of Dr Nolpi Tawang of Mendi General Hospital dated 06th July 2007, the local examination revealed, "Left thigh-upper third lateral aspect-7-8 cms wide & 19-21 cms deep, Penetrating wound severing the thigh muscle and blood vessel. Blood clots seen about 1-2 litres". In my view, the report of Dr Tawang is consistent with the injury of the deceased. It is no wonder, the deceased died from heavy bleeding as confirmed by Dr Tawang.

30. I also find that the killing followed an argument over the offender’s failure to prepare dinner for the deceased but occurred during the fight. In other words, the death arose from a domestic dispute, but not related to any extra marital activity of the deceased. I further find that the killing was accidental and there was no preplanning. Further more, I find that the offender struck once at the deceased with the kitchen knife.

31. These factors have persuaded me to hold the view that this is not a worst case of manslaughter and leads me to uphold Mr. Kirriwom’s submission that the offender’s case falls into the first category of manslaughter cases in the Manu Kovi’s case (supra) which would attract a sentence between 8 and 12 years imprisonment. And so, I will consider a sentence between 8 and 12 years imprisonment and will settle on a term after I consider each of the mitigating and aggravating factors in her case.

32. I take into account the mitigating factors operating in the offender’s favour as neatly pointed by Mr. Kirriwom in his submissions, and accepting them as factors favourable to her, I do not wish to repeat them here because, I have already set them out in detail above.

33. But the two mitigating factors which I wish to dwell on a bit are; the customary compensation and the offender’s history of domestic violence and abuse. In relation to compensation, as I said above, I accept that it is a mitigating factor. That means that I must reject Mr. Waine’s submission that there is no evidence from the offender or anyone to prove that customary compensation was paid to the line of the deceased. The offender has said on her allocutus that she and her line paid hefty customary compensation of K15,000.00 and 40 pigs to the line of the deceased. The State has not denied this except to object on the basis that there is no evidence to support what the offender has said. That being so, I am prepared to give the offender the benefit of the doubt, and accept her statement that customary compensation was paid to the line of the deceased.

34. Proceeding on this premise, I consider that the customary compensation was a substantial one as it comprised of K15,000.00 and 40 pigs and would hold that as a special mitigating factor in her favour. As the Supreme Court said in Manu Kovi’s case (supra) at pp 7 and 8 of the judgment:

"Compensation for physical and non-physical injury to a person wrongfully inflicted by another person(s) is widely practiced in many PNG traditional societies. Compensation for injury or damage to personal property is also widely practiced in traditional societies in PNG. Indeed compensation for personal injury and injury to personal property is a universal principle.

Compensation for the loss of human life caused by wrongful actions of another person(s) is practiced in many traditional societies of PNG and more particularly in the Highlands region. It is also a universal principle. Modern nations including Papua New Guinea embrace the principle in statutes which recognize actions such as estate claim, solatium, etc.

Compensation is a relevant mitigating factor. Whilst the Courts acknowledge that compensation should not be used to pay for crime and that no amount of remorse or compensation will restore loss of life, it is an important mitigating factor. The amount or value of compensation will vary depending on the special circumstances and values of each traditional society. The weight to be given to compensation by the Court will also vary depending on different factors involved such as the existence of custom of compensation for death wrongfully caused, request or demand for compensation made by the deceased’s relatives and response given by the deceased’s relatives, the amount or value offered and accepted, expression of genuine remorse accompanying the payment, the amount the offender himself has paid or contributed, promptness of the response or payment, cessation of animosity and restoration of peace between the two sides of the conflict and so on.

In order for compensation to be regarded as an ordinary or special mitigating factor, two important indicators are the form and amount or value of compensation paid. Payments in the form of money are almost indispensable in modern times.

Valuable personal property such as pigs and foodstuff is common. Some societies use land. The use of living human life, as a form of compensation, used in some traditional societies in PNG, even in modern times, is now outlawed.

The amount or value of compensation often varies. In terms of money, it is difficult to fix any specific amount or figure for compensation but some guidance may be obtained from the maximum amount of compensation prescribed under the Criminal Law (Compensation) Act 1991, which is K5,000. Despite the limit fixed by the Act, cases before the Courts show that compensation of amounts in excess of K10,000 are common in homicide cases5. In our view, compensation amount or to the value of between K5000 and K10,000 or over is a substantial payment which would take the payment out of the "ordinary mitigating factor" category and place it in the "special mitigating factor" category". (Underlining is mine).

35. The payment of customary compensation is a sign of the offender’s acceptance of criminal responsibility for the wrong she has done and also a sign of forgiveness by the line of her late husband. This principle was set out in the Supreme Court case of The Public Prosecutor -v- Panikuiaka Nopi [1979] PNGLR 536. That was a case of wilful murder of the offender’s 18 months old baby after she attempted suicide because of a long history of domestic violence by the husband.

36. On appeal by the Public Prosecutor on the adequacy of sentence of where the National Court released her after three months in pre trial custody, one of the Supreme Court Judges, His Honour Saldanha J, held that the circumstances of the offender since the sentence including release from custody, forgiveness by the husband, re establishment in the family, the advantages both to the community and for her to allow herself to pose no danger to the community at large outweighed a custodial sentence.

37. Thus, I take into account as a special mitigating factor, the payment of customary compensation between the offender’s line and the deceased’s line as a symbol of peace and the offender’s acceptance of criminal responsibility and also forgiveness by the line of her late husband.

38. In relation to the offender’s history of domestic violence and abuse, I note that the State concedes that there had existed a history of domestic violence and abuse. The offender had been constantly abused by the deceased. The argument and the fight between the offender and the deceased on 30th June 2007 was one of the many instances of abuse by the deceased on the offender. In my view, whilst the offender is a victim of domestic violence and abuse, it does not exonerate her, but I will treat it as a special mitigating factor operating in her favour, but I will say a little more on this factor at the end of the decision.

39. Against those factors operating in her favour, I take into account the State’s submissions that there are aggravating factors present in her case which operate against her.

40. First, she had used a weapon, namely a kitchen knife to wound the deceased. She wounded him with a kitchen knife just like the offender in the case of The State -v- Kila Peter (2006) N3018 where the offender stabbed her late husband on his back and he died as a result of heavy bleeding. It was a case of domestic killing because the deceased had abandoned the prisoner and child and gone off to live with another woman. On her guilty plea, His Honour Cannings J, sentenced her to 12 years imprisonment but allowed her to apply for suspension of part of the sentence if a good report is made by the Correction and Rehabilitation Service Officer during service of her prison term.

41. As I said in The State -v- Kopol Hiol: CR No 538 of 2008 (Unreported & Unnumbered Judgment of 12 May 2008), a case of grievous bodily harm of the victim with a bush knife, on pages 11 and 12: "I think even picking up a bush (kitchen) knife for that matter every time an argument starts is a practice that should be discouraged by the use of the Court’s sentencing policy".

42. In this case, I note that there was a single blow of the kitchen knife. The kitchen knife struck the deceased on his left upper thigh. To my mind, although that part of the deceased’s body is not the abdomen and head, it is still a vulnerable part of the human body because the kitchen knife severed the muscle and blood vessels on the thigh, causing heavy bleeding. I repeat what I said above in relation to the report by Dr Tawang stating the cause of death of the deceased.

43. Secondly, the crime of unlawful killing is prevalent in this province, and in this part of the region of the country. Last year alone, I dealt with 5 unlawful killing cases. They are:

* The State -v- Nande Garaipe: CR No 227 of 2008 (Unnumbered & Unreported Judgment of 16th May 2008), a case where the prisoner pleaded guilty to a charge of murder. The offender attacked the deceased by striking the deceased on his head twice with a stone, resulting in the fracture of the skull. The offender was sentenced to 17 years in prison.

* The State -v- Ronnie Kipol Pona: CR No 508 of 2008 (Unnumbered & Unreported Judgment of 16th May 2008). In that case, the offender, a co wife killed a co wife after an argument over a sugar cane by stabbing the deceased once with a kitchen knife. She was sentenced to 17 years in prison.

* The State -v- Yuanis Ipiri (2008) N3512 & The State -v- Juvenile "D" (2008) N3508. In these two cases, the offenders are father and son. Each pleaded guilty to unlawfully killing their own blood relative when they caught him "red handed" stealing their garden food from their garden. They badly assaulted him and chopped him with a bush knife. He died as a result of loss of blood. The father was sentenced to 10 years imprisonment and the son to 8 years imprisonment.

* The State -v- Tauseng Bange: CR No 973 of 2007 (Unnumbered & Unreported Judgment of 10th November 2008), another one of those cases arising from a domestic setting where the offender, suspected her husband of having an extra marital affair, followed her husband and his lover, the deceased to their own house in the night and confronted them. An argument arose between the offender and the deceased followed by the offender attacking the deceased by stabbing her on the chest once with a kitchen knife and she died. She was sentenced to 16 years in prison.

44. It is anyone’s guess if one wants to count the other cases of unlawful killing dealt with by other judges for that year and before that. But one thing is certain; the number will far exceed what I had dealt with last year. This is not a very good indication at all, of our country’s law and order situation. The use of weapons or dangerous objects such as bush knives, kitchen knives and so on, to kill another person is prevalent. This case is one of them, which I will add to the long list of past cases of unlawful killing. Thus, I will hold this factor against the offender.

CONCLUSION

45. In all the circumstances of the case and weighing those factors in the offender’s favour and those against her, I consider that the factors in her favour outweigh those against her. As I have pointed out above, there are many factual similarities between the present case and that of Philipa Kawage’s case (supra) which I have taken the liberty to highlight above. The sentence I imposed on Philipa Kawage was 13 years but I will not do that in this case. The offender’s history of abuse at the hands of the deceased persuades me to impose a sentence less than 13 years. It is a factor which was not present in Philipa Kawage’s case (supra), but in holding this view, I do not for once say that what she did was justified. It remains a special mitigating factor which leads me to consider a sentence between the range of 8 and 12 years as suggested in the Manu Kovi’s case (supra).

ORDERS

46. In the end, I consider that 10 years would be appropriate and I so order. The time spent in pretrial custody shall be deducted accordingly. The formal orders are, the offender is sentenced to 10 years imprisonment in hard labour for the unlawful killing of one Pius Fidelis, on 30th June 2007, less 1 year and 8 months for pretrial custody, leaving a balance of 8 years and 4 months to serve at Buihebi Corrective Institute.

A warrant of commitment will be issued shortly.

Sentence accordingly.

_____________________________________________
Acting Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Offender