State v Mema [2012] PGNC 21; N4602 (20 January 2012)

N4602

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 1058 OF 2011

BETWEEN:

THE STATE

AND:

ELISHA MEMA
Wewak: Kirriwom J.
2012: 20 January

CRIMINAL LAW – Manslaughter – Plea of Guilty – Special and extenuating mitigating factors – Compensation paid – Deceased provoked assault – unlawful retaliatory acts – youthful offender – sentenced to six years imprisonment – suspended five years on prisoner entering into good behaviour bond.

Cases cited:

Papua New Guinea Cases
Steven Loke Ume, Charles Patrick Kaona and Greg Wawa Karoa [2006] SC 836
Manu Kovi v The State (2005) SC789
The State v Saikoro Norman [1979] PNGLR 599
PLAR No 1 of 1980 [1980] PNGLR 326
The State v. Marawa Kanaio [1979] P.N.G.L.R. 319

Overseas Cases

Kaporonovski v. The Queen [1973] HCA 35; (1973) 133 C.L.R. 209
Sandra Lockett v Ohio State [1978] USSC 154; 438 US 586

Counsel
Mr Kupmain, for the State
Mr Fingu, for the Prisoner

JUDGMENT ON SENTENCE
20th January, 2012

1. KIRRIWOM J: The prisoner Elisha Mema is a young female aged 24 years who pleaded guilty to unlawfully killing the deceased Valentino Vitus on 5th August 2011 at Kuminim village, Wewak, East Sepik Province. The charge is brought under section 302 of the Criminal Code which attracts a maximum penalty of life imprisonment.
   
2. The deceased is related to the prisoner as cousin brother, his father and the prisoner's mother being related. The prisoner referred to the deceased as her brother. This is not uncommon in Papua New Guinea where first cousins are considered as brothers or sisters of the same blood line.
   
3. The prisoner struck the deceased with a piece of firewood on his head in order to immobilise him from further assaulting her, her sister and mother when he had already caused harm to her mother and herself that evening. The deceased was stunned by the blow and fell to the ground bleeding from the cut on his head. He died a day or so later when belated attempts to seek medical attention failed.
   
4. The deceased was upset with his aunt and her children including the prisoner who is the fourth born in the family of seven. They defiantly kept a piglet which the prisoner's elder sister found in the bush while on a gardening trip. The piglet was not from the wild but went missing from another villager who bought it from the deceased when his sow delivered. The deceased who learnt about its recovery asked them to return it to its rightful owner.
   
5. However, this request was not implemented as the prisoner's elder sister Maggie and their mother continued to keep it in their house and the deceased was incensed by their disobedience to his request.
   
6. On the night of 5th August 2011 about 9 or 10pm after drinking with friends and whilst under the influence of liquor he armed himself with a stick and took his quarrel to his aunt and his cousins. While his aunt was in her bedroom he entered the house by breaking down the door and assaulted her with the stick. The piglet was retrieved from the aunt and he took it to the owner.
   
7. Not satisfied with having repossessed the piglet to its rightful owner and the disturbance already caused at his aunt's place, he returned to them and continued his argument and picked on the prisoner.
   
8. The prisoner was standing outside their house with her elder sister and watching their mother nursing her bleeding leg that the deceased caused with his stick. As he arrived he threatened to kill his aunt and also threatened the prisoner with a stick in his hand. He then using his free hand assaulted the prisoner with open palm by slapping her hard on her ears three times. The prisoner fell to the ground on the third occasion and when she got up, according to one eye-witness, she was bleeding in one ear.
   
9. The prisoner said this was not the first time that the deceased had assaulted her and her sister. According to the deceased, the prisoner said, they were unwelcome in the village because he wanted them to go to their father's village. The deceased and his father and uncles were not happy that their sister who married an outsider continued to live in the village with her children. According to the prisoner, this issue has been an on-going concern with the prisoner and family and every time there was a little problem in the village that involved them, it would always trigger this argument.
   
10. The prisoner said that her elder sister Maggie had already suffered broken teeth from the deceased in the past outburst of violence towards them. She therefore knew that the deceased was not finished with her or her sister and mother as yet as he continued to display his antagonism towards them after flooring her to the ground. She picked up a piece of wood from under the house and gripping it firmly with both her hands she hit him on the head. She said she did so only to prevent him from causing her more harm because he was quite drunk and in the company of another person called Lawrence who stood there and looked on without making any move to stop him. However this person after she hit the deceased to the ground also turned on them and assaulted her and her family again.
    
11. The prisoner ran away from the village after she saw the deceased fall down and bleeding on his head. The deceased was assisted to another relative's house where they cleaned him up. At the same time some relatives retaliated on behalf of the prisoner and family and fought the deceased and his friends. One of them punched the deceased on his head and another hit him on his back with the flat side of a grass-knife.
    
12. Medical evidence showed on external examination laceration over the frontal scalp 7 cm in length and 0.5 cm wide upon opening the skull and there was massive left temporal subdural haematoma measuring 10 cm x 6 cm x 3 cm in dept. Medical conclusion as to cause of death is subdural haemorrhage secondary to blunt head trauma. There is therefore no question that the blow to the head by the piece of wood is the primary source of the injury causing internal bleeding in the brain that dried up and suffocated the brain from its normal function.
    
13. Mr Fingu submits that this case of unlawful killing falls under the first category of homicide described as manslaughter according to the sentencing guidelines in Manu Kovi v The State (2005) SC789. This category prescribes a sentencing range from 7 – 12 years imprisonment. The Supreme Court stated that sentences less than seven years must rarely be imposed except in the most exceptional cases.
    
14. The prisoner is a young single woman aged 24 years. She has four brothers and two sisters. Her father is deceased but survived by old mother who is now in her mid to late fifties. She completed Grade 8 at Bai Primary School in 2003 and thereafter attended vocational training to be a cook run by Evangelical Brotherhood Church (EBC) in Kukara, Western Highlands Province. She is a member of EBC faith.
    
15. For five years before this trouble she led a productive and industrious life as a volunteer teacher at Bai Vocational for which she was given K20 per month. She was on holiday in the village when this incident took place.
    
16. She was picked up by the Police and detained following the death of the deceased. She cooperated fully with the Police and gave detailed account of what happened thereby making police investigations easy. Her plea of guilty reflected her early admission of the offence which is spread all over her record of interview.
    
17. In Court, on allocutus, she expressed remorse and asked for forgiveness from the deceased's wife and children and his parents. She expressed that she acted in her own defence in the event that he could cause her more serious harm if she did not act quickly. She did not intend to kill him and she also felt the grief of being responsible for his death.
    
18. Mr Fingu submitted that there were exceptional circumstances in this case that called for this court to impose a sentence below seven years. He emphasised on the following mitigating factors:
    
    1. First offender with no prior conviction
    2. Pleaded guilty
    3. De facto provocation
    4. Object used to hit the deceased was not a lethal weapon such as axe or knife
    5. No premeditation, unplanned
    6. Cooperated with Police and surrounded
    7. Made early admission
    8. Expressed remorse
    9. Paid compensation of K5,000 in cash and a pig valued at K600.
       
19. Mr Fingu submits that these are special mitigating factors in this case apart from the ordinary mitigating factors that warrant it being given special consideration. He submits that at 24 years and single, she could be considered a youthful offender. But more so is that compensation was paid and accepted.
    
20. In addition Mr Fingu submitted that there are extenuating circumstances in this case that further make it necessary for the Court to treat it differently. Mr Fingu emphasizes on these established facts:
    
    1. The deceased brought this upon himself. He provoked the assault.
    2. Deceased assaulted her first.
    3. Deceased assaulted her mother and injured her earlier.
    4. This was not the first time for the deceased to exact his violence towards her and her family.
    5. He was drunk.
       
21. State generally agrees with the Defence submission on the sentencing range. However submits that a human life has been abruptly ended and the perpetrator must be punished with custodial term. He argues that sentence must be between 7 and 12 years.
    
22. Mr Fingu referred me to the death penalty case of Steven Loke Ume, Charles Patrick Kaona and Greg Wawa Karoa [2006] SC 836 where the Supreme Court discussed what constituted extenuating circumstances and the difference between mitigating factors and extenuating circumstances.
    
23. The Supreme Court said:
    

There is however a distinction between extenuating circumstances and mitigating factors. Although both have the same desired effect of reducing the punishment, extenuating circumstances relate to the circumstances of the offence which reduces or diminishes the gravity of the offence whereas mitigating factors are usually unrelated to the circumstances of the offence. In murder offences, a distinction must be maintained between these two matters because the weight to be given to these two matters may vary. In murder offences, as with all serious crimes of violence, the gravity of the offence determined in the light of relevant aggravating factors may reduce the weight to be given to extenuating circumstances and mitigating factors and in some cases, rendered completely irrelevant: John Elipa Kalabus v The State [1988] PNGLR 193.

24. After outlining seven different circumstances as set out in the Ohio State legislation referred to in the US Supreme Court case of Sandra Lockett v Ohio State [1978] USSC 154; 438 US 586 that warranted imposition of death penalty, the Supreme Court noted the exception where a determinate sentence was justified in these words:
    

The death penalty must be imposed unless after considering "the nature and circumstances of the offence and the history of the offence and the history, character and condition of the offender", the sentencing judge determines that at least one of the following mitigating factors is established by the evidence:

"(1) The victim of the offence induced or facilitated it.

(2) It is unlikely that the offence would have been committed, but for the fact that the offender was under duress, coercion, or provocation.

(3) The offence was primarily the product of the offender's psychosis or mental deficiency, though such condition is insufficient to establish defense of insanity."

25. Steven Loke Ume & Ors is discussing the worst case of homicide attracting the ultimate punishment of death. In this case I am considering the least serious case of homicide which attracts the second highest penalty of life imprisonment subject to section 19 and the guidelines in Manu Kovi –v- The State.

26. In my view if factors such as inducement and or provocation precipitated the offence even in a case of manslaughter, the prisoner must be entitled to greater benefit in sentencing if the Court was satisfied of the existence of extenuating circumstances and exceptional mitigating factors by according the prisoner the most lenient sentence.

27. This is the view that the Court was advocating in The State v Saikoro Norman [1979] PNGLR 599 a similar factual scenario like this where the young female accused struck her aunt in retaliation with the same stick she hit her with on the back who died due to rupture of the spleen. The prisoner was charged with manslaughter and the Defence counsel argued that the force used was not excessive, it was proportionate to the aunt's assault upon her. This case set the precedent where provocation was relied on as complete defence where assault was an element of the offence and the accused was acquitted.

28. The National Court's decision was subsequently upheld in SCR 81 of PLAR No 1 of 1980 [1980] PNGLR 326 where the Supreme Court refused to follow the High Court of Australia in Kaporonovski v. The Queen [1973] HCA 35; (1973) 133 C.L.R. 209; and also a National Court decision in The State v. Marawa Kanaio [1979] P.N.G.L.R. 319. Of course this case does not fall on all favours with Saikoro Norman but revisiting some of these landmark cases that changed the legal landscape and practice in our courts in appropriate cases as subtle reminder to new practitioners keeps the bar and the profession vibrant and alive to changing circumstances.

29. I agree with counsel for the prisoner that there are extenuating circumstances in this case that reduce the resultant effect of death arising from the prisoner's action almost excusing her altogether from criminal culpability. This is quite apart from her right to have a trial and run a defence of self-defence but she chose to plead guilty to manslaughter.

30. The deceased was not content to leave the issue to rest after returning the piglet to its rightful owner. He again returned to the family notwithstanding the fact that he had already drawn blood on his aunt's leg when he lacking respect and common decency broke down her door and entered her house and attacked her in the bedroom. He was acting under the influence of alcohol. When he returns to the family again he assaults the prisoner by slapping her hard on her ears causing her to fall to the ground. Again he draws the blood. This is not the first time he has treated them this way. Maggie lost some teeth from previous assaults and a pattern had developed where the deceased had a tendency to pick argument with them whenever it suits him.

31. In my view the blow that the prisoner delivered to the deceased's head was well deserved as she acted in order to prevent further harm upon herself, her sisters and mother. Women need protection from violent men. Where there are no decent men to intervene and stop a drunken man from assaulting a woman, the victim has the right to use such force as is necessary to defend or protect herself from her assailant even though her action may not amount to self-defence in law but good enough to afford a sentencing authority to give less punitive sentence.

32. More extenuating circumstances of this case is that there was compensation paid in the sum of K5,000 and a pig valued at K600. The compensation was received in good faith and yet the deceased's relatives destroyed the prisoner's home and properties. Considering who started this whole trouble, retaliation by the deceased's relatives went beyond common sense and logic.

33. Apart from the above, I consider the prisoner's youthful age of 24, industrious person in the community where she made herself more productive by giving her time to community as volunteer teacher at Bai Vocational Centre for only K20 per month. Many today won't work for such amount in any occupation. She is a first offender, cooperated with Police and made early admissions when questioned.

34. Both Pre Sentence Report and Means Assessment Report confirm the information given on allocatus and the submissions by the defence counsel on the payment of compensation. According to the Reports, compensation was paid after the deceased's family and relatives devastated the prisoner's home and properties and forcing the family out of the village. It is reported that the father of the deceased is still distraught over the loss of his son. Be that as it may, life must go on and one must move on as well and one must not continue to live in the past. This is one past that must definitely be left behind because the circumstances of the offence speak for themselves and the deceased's untimely demise must not wholly be blamed on the prisoner.

35. This is a domestic related killing and while such offences are prevalent in most parts of Papua New Guinea, this case falls at the lowest end of the scale. Based on the extenuating circumstances of the case and the mitigating factors I alluded to I sentence the prisoner to six years imprisonment. In the exercise of my discretion I suspend five years and order that she serve the suspended period on probation on condition of good behaviour and such other reporting conditions associated with her probation sentence for five years under the supervision of ESP Community Based Corrections Office and the prisoner shall serve one year in prison. I deduct time already spent in custody which is five months one week and five days.

36. The prisoner shall serve the remaining period of five months two weeks and two days before release to serve the balance on probation in the community.

Public Prosecutor: Lawyers for the State
Paul Paraka Lawyers: Lawyers for the Defence