State v Mara [2010] PGNC 140; N4133 (23 September 2010)

N4133

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NO 33 OF 2009

THE STATE

V

ELIS NEMA MARA

Min: Makail, J
2010: 21st & 23rd September

CRIMINAL LAW - Plea - Sentence - Manslaughter - Domestic setting - Prisoner - Wife - Victim - De-facto partner of prisoner's husband - Presence of strong de-facto provocation - Prevalence of offence - Custodial sentence appropriate - Personal and public deterrence - 12 years imprisonment imposed less time spent in pre-sentence custody - Criminal Code, Ch 262 - Sections 19 & 302.

Cases cited:

The State -v- Josephine Las Ninjipa: CR No 1314 of 2009 (Unnumbered & Unreported Judgment of 23rd September 2010)
The State -v- Anita Kelly (2009) N3624
Manu Kovi -v- The State (2005) SC789
The State -v- Carol Alfred (2009) N3602
The State -v- Lossy Karapus (2009) N3640

Counsel:

Mr M Ruari, for the State
Mr C Kos, for the Prisoner

SENTENCE

23rd September, 2010

1. MAKAIL, J: The prisoner is from Keltiga village in Mt Hagen Central and has pleaded guilty to killing another woman at Kuipul village in Aviamp on the night of 12th September 2008 contrary to section 302 of the Criminal Code, Ch 262. She found her husband and the deceased together and fought with the deceased. The deceased was armed with a kitchen knife and she wrestled it from her. She stabbed her on the right back and the kitchen knife penetrated the back and punctured the right lung. The deceased lost a lot of blood and died. The offence carries a prescribed maximum penalty of life imprisonment. However, the Court is given wide discretion to impose a lesser penalty by virtue of its powers under section 19 of the Criminal Code, Ch 262.

2. I have considered the facts and submissions of both counsel, including the prisoner's statement on her allocutus and I think this is a straight forward case. Earlier this morning, I delivered a decision on sentence the case of The State -v- Josephine Las Ninjipa: CR No 1314 of 2009 (Unnumbered & Unreported Judgment of 23rd September 2010). It was a killing from a domestic setting like in this case. I will repeat what I said in that case here for the benefit of the prisoner. This is another one of those unfortunate cases where someone's life has been unnecessarily and prematurely terminated by another. The sanctity of human life is more precious and valuable than gold or silver and no amount of compensation or remorse can compensate it. A death is a death and a killing is a killing. A person's life is lost forever. It cannot be recovered or returned: see The State -v- Anita Kelly (2009) N3624 at p 9.

3. I accept the submissions of the counsel for the prisoner that this is not a worst case of manslaughter. That means the prescribed maximum penalty of life imprisonment is inappropriate in this case because it is trite law that the maximum penalty is reserved for the worst case under consideration. On the facts and noting the presence of aggravating and mitigating factors, I consider this case falls between the first and second categories of manslaughter cases as per the sentencing guidelines in Manu Kovi-v- The State (2005) SC789.

4. In the first category, a sentence of between 8 and 12 years imprisonment is appropriate where the prisoner pleads guilty, no weapon is used in the killing, the prisoner is emotionally under stress, there is presence of de-facto provocation, the killing arises from domestic setting, following immediately after an argument, there is minimal force used and the victim has pre-existing disease that caused or accelerated the death. In the second category, a sentence of 13 to 16 years imprisonment is appropriate. In this category, it may be a not guilty plea or a guilty plea case with presence of both mitigating and aggravating factors such as use of offensive weapons, eg knife on vulnerable parts of body, vicious attack, multiple injuries, some deliberate intention to harm and some pre-planning.

5. In the present case, there are a number of mitigating factors present. They are:

- Plea of guilty, thus saving time and money to conduct a trial;

- First offender with no prior convictions;

- Apology and remorseful to God, the Court and the relatives of the deceased;

- Single blow from a kitchen knife;

- Single wound;

- Presence of strong de-facto provocation;

- Constant abuse by husband; and

- Desertion by husband.

6. In addition, I take into account that the prisoner is from Keltiga village and is 36 years old. She was married to the deceased immediately preceding his death for 11 years and has four children. Three of them are aged between 3 and 10 years while the fourth is 2 years old, having been born at Baisu remand centre during her detention. That child is currently living with her at Baisu remand centre. She has no formal education or job. She relies on her husband for daily sustenance and up keep. According to her affidavit sworn on 21st September 2010, she said and I accept that her line had paid customary compensation of K12,000.00 and 20 pigs to the deceased's line. Finally, she has been in custody for 2 years and 1 week.

7. On her allocutus, she said and I accept that her husband works at a coffee plantation and earns good pay but squanders it, especially on the deceased and leaves her and the children without financial support. When she asks for money, he bashes her up. At the material time, he brought the deceased to the house of a relative of his in the village. She caught up with them at the relative's house and attacked the deceased. She said she intended to "give some pain" to the deceased when she attacked her but unfortunately she died.

8. The aggravating factors are:

- Prevalence of the offence;

- Use of kitchen knife;

- Some element of pre-planning; and

- Some element of deliberate intention to harm.

9. I look at past cases to guide me to reach an appropriate sentence which would be fair and proportionate to the offence. Three that immediately come to mind are, The State -v- Carol Alfred (2009) N3602, Anita Kelly (supra) and The State -v- Lossy Karapus (2009) N3640 which were decided by me last year. The fourth one is Josephine Las Ninjipa (supra). In Carol Alfred's case (supra), I sentenced the prisoner to 10 years imprisonment because the mitigating factors out weighed the aggravating factors. It was a killing from a domestic setting. The prisoner killed her husband who was a policeman at Yame village in Kagua of Southern Highlands Province. She stabbed him with a kitchen knife on his thigh during a fight. He lost a lot of blood and died. The deceased assaulted the prisoner because she failed to prepare dinner for him. I found that the killing was accidental and there was no pre-planning. She and her line paid customary compensation of K15,000.00 and 40 pigs to the line of the deceased.

10. The Anita Kelly's case was, in my view more serious than Carol Alfred's case (supra). It was also a killing from a domestic setting. This is because the prisoner stabbed a co-wife of her husband with a kitchen knife on the neck and she died. It was a surprise attack with some element of viciousness and pre-planning. There was also presence of very strong de-facto provocation and history of domestic violence and wife abuse of the prisoner by her husband. Her husband deserted her and the children. She had to fend for herself and the children. I sentenced her to 12 years imprisonment.

11. Thirdly, Lossy Karapus's case (supra), was also a killing arising from domestic setting. The prisoner killed the girl friend of her husband by stabbing her with a kitchen knife as a result of the husband's infidelity. It was a guilty plea and there was strong de-facto provocation as a result of the husband's infidelity but there were multiple blows resulting in multiple wounds and some element of pre-planning. A 10 years imprisonment sentenced was imposed.

12. Finally, in Josephine Las Ninjipa's case (supra), I sentenced the prisoner to 9 years imprisonment because I was satisfied that the mitigating factors out weighed the aggravating factors. It was a killing from a domestic setting. She killed her husband by stabbing him with a kitchen knife during a fight at Komun market in Anglimp on the evening of 22nd July 2009. The killing arose from a domestic argument between her and her husband over money. At that time, she was selling food and other items at the market. Her husband was drunk, walked up to her and started an argument. He assaulted her. She retaliated and stabbed him on the chest with the kitchen knife. He lost a lot of blood and died.

13. She pleaded guilty, first offender with no prior convictions, apologized and remorseful, it was single blow from a kitchen knife resulting in a single wound, there was presence of strong de-facto provocation because of constant abuse by deceased, there was no pre-planning did not deliberately intend to harm him. The two aggravating factors were prevalence of the offence and use of kitchen knife.

14. In the present case, I find this case more serious than Carol Alfred's case (supra) because of the presence of those aggravating factors above. I consider it similar in many respects to the case of Anita Kelly's case (supra). I said similar in many respects because like in Anita Kelly's case (supra), the prisoner in the present case killed her husband's lover by stabbing her with a kitchen knife during a fight. In both cases, their husbands were the instigators of the fight. In this case, the prisoner caught her husband and the deceased together at a relative's house and attacked the deceased. A fight ensured where the prisoner wrestled the kitchen knife from the deceased and stabbed her once on her back. It was a deep penetrating wound because the kitchen knife ended up puncturing the right lung, causing massive internal bleeding and death. To my mind, this demonstrates some element of viciousness and pre-planning by the prisoner and I do not believe, she intended to simply cause pain to the deceased. In my view, it was not accidental as in Carol Alfred's case (supra).

15. The present case is also similar to Lossy Karapus's case (supra) where there was history of infidelity by the prisoner's husband with the deceased and desertion. The prisoner in that case had to fend for herself and her children. I consider husband's infidelity and desertion as strong mitigating factors operating in her favour.

16. Taking all these mitigating and aggravating factors into account, and the sentences I have imposed in the cases of Carol Alfred (supra), Anita Kelly (supra), Lossy Karapus (supra) and Josephine Las Ninjipa (supra), I consider a sentence of 12 years appropriate in the circumstances. It will act as a personal deterrence and also a public deterrence to those likely offenders out there. It will send a strong message to them that people who commit this offence can be put into prison for a very long time. As she has spent 2 years and 2 weeks in pre-sentence custody, that period is deducted from the head sentence of 12 years and that leaves a balance of 9 years, 11 months and 2 weeks to serve at Baisu prison. A warrant of commitment in those terms will be issued in due course.

Sentence accordingly.

____________________________________
Acting Public Prosecutor: Lawyers for the State
Paul Paraka Lawyers: Lawyers for Prisoner