State v Anton [2012] PGNC 120; N4828 (22 October 2012)

N4828

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1539 OF 2010

THE STATE

V

NOELYN ANTON

Madang: Cannings J
2012: 3, 22 October

CRIMINAL LAW – sentencing – manslaughter, Criminal Code, Section 302 – sentence after trial – offender killed woman by striking her with bamboo stick

The offender was convicted after trial of the manslaughter of another woman in the course of a fight between the offender and the mother of the deceased that arose out of an allegation by the mother that the offender was having an affair with her husband (the deceased's father). The deceased came to the aid of her mother and the offender struck the deceased on the side of her body with a piece of bamboo, rupturing her spleen and killing her instantly.

Held:

(1) The starting point for sentencing for this sort of killing (use of offensive weapon on vulnerable part of body) is 13 to 16 years imprisonment.

(2) The circumstances leading up to the incident (the offender was unlawfully assaulted by the deceased's mother and she did not provoke that assault) and the nature of the incident itself (it was unplanned and a spur of the moment reaction to provocation provided by an unproven allegation of adultery) and the susceptibility of the deceased to this sort of injury (she had an enlarged spleen) were mitigating factors that warranted a sentence below the starting point range.

(3) A sentence of 10 years imprisonment was imposed. The pre-sentence period in custody was deducted and three years of the sentence was suspended due to a good pre-sentence report showing preparedness on the part of the deceased's relatives to reconcile with the offender.

Cases cited

The following cases are cited in the judgment:

Manu Kovi v The State (2005) SC789
The State v Asi Piro (2011) N4110
The State v Jenny Dei (2011) N4110
The State v Noelyn Anton & Lovelyn Mark (2012) N4785
The State v Regina Jako (2010) N4110

SENTENCE

This was a judgment on sentence for manslaughter.

Counsel

J W Tamate & J Morog, for the State
R C Pinggah, for the offender

22 October, 2012

1. CANNINGS J: The offender, Noelyn Anton, was convicted after a trial of the manslaughter of a 33-year-old woman, Makang Isaac, at Tobenam on Friday 19 February 2010. She is now before the court to be sentenced.

2. The deceased was the daughter of Anna Isaac and Isaac Dilol. She is from the place at which she was killed. The offender is from Dugulaba village, Manam Island. She had been living at the Tobenam care centre since the 2004 volcanic eruptions on Manam Island. She lived across the road from the Isaac family and the families knew each other well.

3. There was an incident at Daigul Market, 1.5 km from Tobenam, at 8.00 am on the morning of 19 February which triggered a second incident about an hour later, at Tobenam, resulting in Makang Isaac's death. In the first incident Anna Isaac confronted the offender and abused her loudly in public, accusing her of having an affair with her husband. There was no physical altercation at the market. The offender did not respond there to the insults.

4. Anna Isaac left the market and went home. The offender followed Anna Isaac to Tobenam and the second incident took place at the front of the Isaac residence. The offender confronted Anna Isaac and questioned why she was accusing her of having an affair with her husband. The pair had a heated argument. Quite a number of other people were present, including the offender's cousin Lovelyn Mark (who also faced trial for manslaughter but was acquitted). The argument escalated into a physical altercation between the offender and Anna Isaac, and the deceased rushed to the scene to assist her mother. During this time the offender introduced a piece of bamboo – 60 to 100 cm long and 8 to 18 cm in diameter – into the fight and used it to hit Anna on the head, causing her to fall. When the deceased entered the scene the offender swung the bamboo at her, striking her on the side of her body with such force that it ruptured her spleen and she died instantly. Further details of the offence are in the judgment on verdict, The State v Noelyn Anton & Lovelyn Mark (2012) N4785.

ANTECEDENTS

5. The offender has no prior convictions.

ALLOCUTUS

6. The offender was given the opportunity to address the court. She said:

I apologise to the court in the eyes of God and also to the family of the deceased and my own family. I did not mean to kill the deceased but accidentally she died. I have a child to care for and I am expecting another shortly. I ask the court to have mercy on me.

PRE-SENTENCE REPORT

7. Noelyn Anton is 26 years old and has eight siblings. Her parents are alive. Most of the family live at the Tobenam care centre, being unable to return to Manam because of continuing volcanic activity. She is married and has a five-year-old child. She has a grade 5 education and no formal employment record. Her health is sound. She is an active member of the Seventh-Day Adventist Church. The deceased's family and her own family have attempted reconciliation but negotiations were put on hold due to the court case. The deceased's family support the idea of a suspended sentence subject to payment of compensation including a pig, foodstuff and cash. The report concludes that she is suitable for probation.

SUBMISSIONS BY DEFENCE COUNSEL

8. Ms Pinggah submitted that the case fell within the first (least serious) category of the guidelines given by the Supreme Court in the case of Manu Kovi v The State (2005) SC789. Because of the mitigating factors (no prior convictions, spontaneous incident, de facto provocation, remorse, genuine attempts to reconcile, the offender's pregnancy) a sentence of no more than 12 years imprisonment should be imposed.

SUBMISSIONS BY THE STATE

9. Mr Morog agreed that this is a category 1 case according to the Kovi guidelines, but submitted that the sentence should reflect the fact that a weapon was used and that it was used with great force and that the offender was found guilty after a trial. A sentence of 12 to 15 years is sought.

DECISION MAKING PROCESS

10. 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 similar offences?
• step 4: what should the head sentence be?
• 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?

11. The maximum penalty for manslaughter under Section 302 of the Criminal Code 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?

12. In Manu Kovi v The State (2005) SC789 the Supreme Court suggested that manslaughter cases could be put in four categories of increasing seriousness, as shown in the following table.

SENTENCING GUIDELINES FOR MANSLAUGHTER

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

13. I do not agree with and am not bound by the submissions of both counsel that this is a category 1 case. The absence of a guilty plea and use of an offensive weapon (the bamboo stick) on a vulnerable part of the body mean that this is a category 2 case. The starting point is 13 to 16 years imprisonment.

STEP 3: WHAT SENTENCES HAVE BEEN IMPOSED FOR SIMILAR OFFENCES?

14. I refer to three recent Madang cases which are useful precedents. In The State v Regina Jako (2010) N4110 the offender pleaded guilty to unlawfully killing a co-wife of her husband. She and the deceased were living in the same residence and had a history of quarrelling. They argued and the offender stabbed the deceased three times with a kitchen knife and the victim died shortly afterwards. The sentence was 12 years imprisonment. In The State v Jenny Dei (2011) N4110 the offender was charged with wilful murder of her husband and at a trial was convicted of manslaughter after the court rejected a defence of self-defence because of use of excessive force. The circumstances leading up to the incident and the nature of the incident itself (the court having found that the deceased assaulted the offender first) were strong mitigating factors that warranted a sentence below the starting point range. The sentence was nine years imprisonment. In The State v Asi Piro (2011) N4110 the offender pleaded guilty to unlawfully killing her husband by stabbing him in the chest during the course of an argument. Immediately before he was stabbed the deceased had thrown a plate of food at the offender. A process of reconciliation with the deceased's relatives was well advanced. It was dealt with as a category 2 case under the Kovi guidelines but there were strong mitigating factors so a sentence below the starting point range was imposed: 10 years.

STEP 4: WHAT IS THE HEAD SENTENCE?

15. 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 at the bottom of or below the starting point range. The more aggravating factors present, the more likely the head sentence will be at the top of or 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.

16. Mitigating factors:

• it was a spontaneous, not planned, incident, a spur of the moment reaction to provocation provided by an unproven allegation of adultery;
• the offender had been unlawfully assaulted (verbally) by the deceased's mother;
• the offender struck the deceased only once;
• the deceased was susceptible to this sort of injury (she had an enlarged spleen), a fact which was not known to the offender;
• the offender has no prior convictions;
• she has expressed remorse;
• a process of reconciliation with the deceased's relatives has begun.
  

17. Aggravating factors:

I consider that there are no aggravating features of this case. However, I uphold the State's submission that the sentence must reflect the fact that the matter was taken to trial and that the 'discount' on the sentence that would have applied if the offender had pleaded guilty is not available.

18. The number and strength of the mitigating factors warrant a sentence below the starting point range of 13 to 16 years. Comparing this case to the three outlined earlier, it is less serious than Jako (12 years) but more serious than Dei (9 years) and of equivalent seriousness to Piro (10 years). The appropriate sentence is 10 years imprisonment.

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

19. Yes. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the head sentence, the whole of the pre-sentence period in custody, which is one year, two months, two weeks.

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

20. The most striking features of the pre-sentence report are that the offender and her family have commenced a process of peace and reconciliation with the deceased's family and that the deceased's family does not oppose a fully suspended sentence and has no objection to the offender returning to the care centre to live. The Community Correction and Rehabilitation Service states that the offender is suitable for probation. However, in my view, a fully suspended sentence for a homicide offence (even one such as the present where the offender has already spent more than a year in custody) must be reserved for special and exceptional cases and I do not think that this is such a case. A fully suspended sentence would have the effect of cheapening the value of human life. The offender must be imprisoned. Only by imposing a prison term will the court be able to signify the gravity of the offence. That said, because she has a sound pre-sentence report showing real prospects of reconciliation, three years of the sentence will be suspended on the following conditions. The offender must:

(a) appear in the National Court immediately prior to release from custody so that the conditions of the suspended sentence may be further explained;

(b) within three days after release from custody report to the Probation Office in Madang;

(a) participate in a reconciliation ceremony with the deceased's family, supervised and witnessed by the Probation Office, within three months after the date of release from custody and at the reconciliation ceremony:

• she must give K1,000.00 + 1 live pig + foodstuffs to the deceased's family; and
  
• the deceased's family must contribute foodstuffs;
  

(c) reside at a place approved by the National Court;

(d) not leave Madang Province without the written approval of the National Court;

(e) perform at least three hours unpaid community work in accordance with a program approved by the National Court;

(f) attend church every weekend for service and worship and assist the church in its community activities;

(g) not consume alcohol or drugs;

(h) keep the peace and be of good behaviour;

(i) have a satisfactory probation report submitted to the National Court Registry at Madang every six months after the date of release from custody;

(j) if she breaches any one or more of the above conditions, be brought before the National Court to show cause why she should not be re-detained in custody to serve the rest of the sentence.

SENTENCE

21. Noelyn Anton, having been convicted of one count of manslaughter under Section 302 of the Criminal Code, is sentenced as follows:

Length of sentence imposed	10 years
Pre-sentence period to be deducted	1 year, 2 months, 2 weeks
Resultant length of sentence to be served	8 years, 9 months, 2 weeks
Amount of sentence suspended	3 years
Time to be served in custody	5 years, 9 months, 2 weeks
Place of custody	Beon Correctional Institution

Sentenced accordingly.
_________________________
Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyers for the offender