State v Wennis [2011] PGNC 216; N4661 (23 December 2011)

N4661

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1318 of 2010

THE STATE

V

SERAH JOE WENNIS

Lae: Batari J
2011: 6 October
: 23December

CRIMINAL LAW – Manslaughter - Sentence –– Accused stabbed deceased once with kitchen knife – Plea - Provoked assault – Mitigating factors - Domestic killing – Welfare of children – Relevance of where both parents not available - First time offender - 8 Years part suspended with conditions appropriate.

Cases Cited
Papua New Guinea Cases

Lawrence Simbe v The State [1994] PNGLR 38
Jack Tanga v The State
Antap Yala v The State
Anna Max Maranga v The State
Simon Kama -v- The State (2004) SC740
Manu Kovi v The State (2005) SC789
Lawrence Simbe v The State [1994] PNGLR 38
John Elipa Kalabus v The State [1988] PNGLR 195
The Public Prosecutor –v- Vangu'u Ame [1983] PNGLR 424

Overseas cases

R. v. Pickett (1986) 2 QR 441

On a plea of guilty to one count of unlawful killing, the following judgment was delivered on sentence.

Counsel

J. Done, for the State
C. Koi, for the Accused

SENTENCE

23 December, 2011

1. BATARI, J: Serah Joe Wennis, you have pleaded guilty to the crime of unlawful killing pursuant to s 302 of the Criminal Code. I must now pass sentence on you.

2. The facts supporting your charge are briefly that, between 7.00pm and 10.30pm of 9 May, 2010 you attended a Women's Day function at Awilunga Estate, 9 Mile in Lae, and after retiring to your house with your husband a heated argument ensued. As a result you fled to the road with your husband in pursuit. He attempted to punch you but you deflected the blow and at the same time, drew a 17cm blade kitchen knife. You swung the knife stabbing the deceased on his left chest. That attack brought about your husband's death.

3. A medical report by Dr. Kobby Bomareo of Angau Memorial Hospital confirmed that a 3cm by 17cm deep knife wound penetrating the heart and stomach caused severe bleeding, shock and death.

4. The intention to cause the deceased grievous bodily harm was apparent on the evidence. The facts to which you pleaded guilty also supported provocation which defence if pursued may possibly result in a conviction for manslaughter or a lesser offence of unlawfully causing grievous bodily harm. An acquittal on a defence of self-defence may even be possible. Be it as it may, I am satisfied that the plea to manslaughter is in order. You had the benefit of counsel and advice from your lawyer on that matter and that no application was made to change your plea.

5. Any form, type or category of unlawful killing is always the most serious breach of the criminal law. It is repugnant to the civil norm and abhorred by those who treasure the right to life in fellow human beings. And needless to say, any type of killing violates the sanctity of a God-given life. Hence, the ultimate punishment by death is prescribed by Parliament for wilful murder while the maximum penalty of life imprisonment is reserved for murder and manslaughter.

6. The indeterminate penalty of life imprisonment for manslaughter is not mandatory because of the operation of s. 19 of the Code which sets out different sentencing options the court can use and apply in the particular circumstances of each case. But one must start from the maximum penalty prescribed as a guide to the seriousness of the offence and the relative punishment to be imposed.

7. The court is also guided by settled principles from precedent cases that are applicable to the offence. In Rex Lialu v The State [1990] PNGLR, 487 the Supreme Court initially prescribed different categories of manslaughter killings. It also suggested sentencing guidelines for each category. The range of sentences suggested in that case has however been reviewed by the Supreme Court in a number of cases in Jack Tanga v The State [1999] SC 602, Anta Yala v The State [1996] SCR 69, Anna Max Marangi v The State SC 702. The Supreme Court in Simon Kama -v- The State (2004) SC740 took one step further to recommend revised guidelines for homicide cases. The following year the Supreme Court in the often cited case of Manu Kovi v The State (2005) SC789 prescribed another set of guideline for unlawful killing sentence.

8. I have had regard to those cases and the suggested guiding principle. I bear in mind that, sentences for manslaughter will normally be lower than sentences for murder except in the most serious cases where manslaughter is charged as a result of plea bargaining and any further reduction of sentence would be inappropriate. In the worst case of manslaughter killing, life imprisonment may be justified.

9. The increase in sentences has come about due to the escalation and growing trend of killings committed in varying type, form and degree of violence. In Manu Kovi v The State the Supreme Court suggested sentencing guidelines for 4 types of manslaughter killings as follows:

"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".

10. These prescribed guidelines reinforce and enhance the basic sentencing principle that the sentencing authority must have careful regard to the circumstances of death and the way in which death was actually caused. His Honour Kapi DCJ (as he then was) made this observation in a manslaughter killing case in Rex Lialu v The State (supra) at 497:

"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.'" as stated in R v Phillips [1985] CR APP (RS) 235 at 237.

11. This principle and approach was affirmed by the Supreme Court in Lawrence Simbe v. The State [1994] PNGLR 38 where a sentence of 14 years was imposed on the prisoner who killed the deceased by cutting open the (deceased's) rib-cage after he caught the deceased trying to entice his wife to have sexual relation with her.

12. In this case, you had retaliated and attacked the deceased in extreme provocation which unfortunately for you fell short of the legal defence. You did not rely on that defence. If you did, the charge of manslaughter was possibly preferred from a murder charge as a result of plea bargaining. Even so, that defence may still be open under the manslaughter charge which if it succeeds may reduce your criminal intent to the lesser offence of unlawfully causing grievous bodily harm or an acquittal on the defence of self-defence.

13. Be it as it may, I consider that, provocation is a major factor in mitigating your conduct. You were married to the deceased. The two of had joined others partying into the night in celebrating Mothers' Day. When you returned to your home, possibly drunk, you argued over the compensation money from your Maus Markham Settlement eviction. You then ran out of the house with the deceased in pursuit. He tried to punch you and you responded by stabbing him.

14. Your action bordered on self-defence. I am satisfied that you acted in the heat of the moment to stop the deceased from further assaulting you. Unfortunately you have stopped him forever from mistreating you and the law must now deal with you.

15. Your husband also had the right to live just like any other man, woman and child. No-one has the right to take that away from him. Unlawfully killing another person not only breaches the constitutional right to protection of life, but as you conceded in your own allocutus, you broke the law when you took the law into your own hands. I accept that you were provoked in the non-legal sense into reacting in the manner you did.

16. But there was ample time for you to desist from attacking the deceased. You chose unwisely.

17. You used a weapon, namely a knife. It is a notorious fact from the number of cases coming before this Court that, a knife is readily used in confrontations between parties over both minor and serious issues. Every time a knife is present whether deliberately or not, it becomes an instant weapon and someone is either seriously hurt or killed. Deaths have become all too common and frequent these days when knives are readily used against an opponent.

18. It is clear to me that, people are attacking their opponents with knives without the slightest regard for its consequential effect. They must by now know the consequences of breaking the law after all these years of governmental and Christian influences. Attitudes must change and common sense should prevail. People ought to embrace humility and restraint. Only then may we expect fewer cases of unlawful killings.

19. I now look at the facts that are in your favour. These are found in your personal circumstances and the circumstances surrounding the killing. The Presentence Report ordered from the CBC office is most helpful on this aspect and I commend Senior Community Corrections Officer Mrs. Namblu for the comprehensive report. I have considered those personal aspects and the community attitude the report covered.

20. You are a 39 year old mother of 8 year twins from your marriage to the deceased. The children accompanied their father's body to New Handover, New Ireland Province for burial and have since not returned. Your plan is to take the children back from their father's relatives.

21. You were educated to Grade 8 at Salamaua High School. At the time of the offence, you supplement your husband's income with earnings from informal sales and marketing. You have no prior conviction and this is your first offence. All these point to a good purposeful background.

Arrest and Custody

22. You were detained on or about 10 May 2010 following the killing and have been in custody since. Your custodial period will be deducted from the head sentence that I will shortly impose. Your early surrender and early admission of your fight with your husband have saved police and the State time and expenses to investigate your offence. That is clearly indicative of your co-operation and remorse from the beginning.

Plea of Guilty

23. A plea of guilty ought to result in some discount in practical terms. The final outcome in the sentence imposed ought to reflect the merit of pleading guilty. That effect can in itself be an incentive to plead guilty.

24. In the light of the increasing complexity and costly criminal trials at public expenses, it is important that, guilty persons when charged with offences be encouraged to enter honest pleas of guilty at the earliest possible time. (See R. v. Pickett (1986) 2 QR 441). The incentive must of course come from what is apparent on the final sentence of the Court.

25. A consideration to be had and the worth to be given to a plea of guilty will depend on a number of factors namely, but not exhaustive to: seriousness of the offence; circumstances of aggravation; special or exceptional factors in mitigation such as young age or advanced age of offender; medical fitness of the offender and other personal factors like good background, restitution, etc., remorse and contrition on the part of the offender.

26. On the other hand, there may be cases where a plea will have no effect at all on the outcome of the final sentence. In John Elipa Kalabus v The State [1988] PNGLR 195 late Kidu CJ suscinctly stated the principle in this way at p.195:

"When a case is a serious one such as wilful murder, murder, violent rape or violent armed robbery, a plea of guilty by itself deserves no credit."

27. I consider in the light of your early admissions, your expression of remorse, the circumstances of the offence and your lack of prior conviction that, your plea is a mitigating factor, which deserved credit on your sentence.

(iii) Remorse

28. You have expressed remorse in open court. That is supported by your plea of guilty and your conduct immediately following the offence. In the circumstances I accept your open statement of remorse is genuine.

29. The killing arose out of a domestic situation. The facts are similar to many cases this court has dealt with involving deaths within in marriages and de facto relationships. All too often, the basic cause of upheavals and discord in marriage relationships has always been jealousy, distrust infidelity and betrayal. One of the partners in the marriage and usually the husband is the cause.

30. In your case, it was the husband's conduct that contributed to the killing. But, your husband did not have to die. Your marriage problems can be resolved in a more civilized and lawful way. Nonetheless for the purpose of sentencing, your killing takes a special nature as being domestic related.

32. Manslaughter being a very serious crime of violence would rarely attract non-custodial sentence. And there is no special feature of your case that would call for consideration of a non-custodial sentence. That sentencing option is not open on the facts of your case.

33. The crime itself though serious is not the worst of its kind. It falls into the second category suggested in the case of Manu Kovi v The State. In this case, you stabbed the deceased on the chest. The suggested category or range of sentences is between 13 years and 16 years.

34. There is no question that you must be punished with a term of imprisonment calculated to sufficiently serve both the deterrent and retributive aspects of sentencing. In all the circumstances of your case, a sentence of 12 years is appropriate.

35. I have also considered on the strength and recommendation of the Community Corrections Office Presentence Report whether to suspend any part of the sentence. For this consideration, I bear in mind, your expressed desire to have your twin children returned to you.

36. What is not expressly stated by you or your lawyer, but should be considered is the welfare of your children and the deprivation of natural nurturing that only a biological mother can give. On this aspect, I am mindful of the caution by the Supreme Court in The Public Prosecutor –v- Vangu'u Ame [1983] PNGLR 424 that, what the effect of custodial sentence might have on the welfare of the children of an offender should not be allowed to outweigh the seriousness of the offence.

37. In this case, the real dilemma that faces you is whether, you would be able to see your children again. From my knowledge and taking judicial notice of the strong customary practices and norms of the New Handover tribe, it will not be a simple task for you to retrieve your children in the circumstances of this case. The chances are that you may never see the children again without personal sacrifices on your part to appease your husband's relatives under the New Handover custom.

38. In my view that is sufficient consideration for part-suspended sentence for the sake and welfare of the children. This should also lessen the hardship and anxiety you may endure from in satisfying the New Handover custom if you want to see the children again.

39. You are sentenced to 12 years imprisonment with hard labour. The sentence is reduced by the time spent in custody being, 1 year and 7 months. A further 5 years is suspended for you to serve on Probation after you have served the balance of 5 years and 5 months IHL.

40. The following Probation Orders will apply as a condition for suspension sentence:

1. within three days of your release you must report to Probation Office in Lae and appear in person at the National Court in Lae on the first call-over following your release;
   
2. you must reside at a place nominated by the National Court and nowhere else except with leave of the National Court;
   
3. you must live in Lae and must not leave Lae, or Morobe Province without the written approval of the National Court;
   
4. you must perform six hundred hours of unpaid community work in accordance with a program approved by the Court;
   
5. you must attend your local church every weekend for service and worship and assist the church in its community activities;
   
6. you must not consume alcohol or drugs;
   
7. you must keep the peace and be of good behaviour;
   
8. you must have a satisfactory probation report submitted to the National Court Registry at Lae every six months after the date of release from custody;
   
9. if you breach any of the above conditions, you shall be brought before the National Court to show cause why you should not be detained to serve the rest of the sentence.
   

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Public Prosecutor: Lawyers for the State
Paraka Lawyers: Lawyers for the Accused