State v Panta (No.2) [2013] PGNC 111; N5287 (23 May 2013)

N5287

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR 477 OF 2010

THE STATE

V

EDWARD PANTA
(No2)

Alotau: Toliken AJ
2012: 20th September
2013: 19th March, 23rd May

CRIMINAL LAW – Sentence – Manslaughter – Trial – Accused killed wife with a galvanised digging pipe – Single wound - Bounded hands and legs with nylon rope and dumped body in the ocean – Body never found - Expression of remorse – first time offender – De facto provocation - Use of weapon – No respect for life – Sentence of 15 years less time spent in pre-trial custody – Criminal Code Act Ch. 262, s 302

Cases Cited

Kesino Apo v The State [1988] PNGLR 18.
Rex Lialu v The State [1997] PNGLR 487
John Kapil Tapi v The State (2000) SC635
Manu Kovi v The State (2005) SC 789
The State v Joe Rex Kum, CR 55/2009, 08.04.10
The State v Regina Jako (2010) N4110
The State v Jenny Dei (2011) N4260

Counsel

D Kuvi and R Auka, for the State
G Pipike and N Wallis, for the accused

JUDGMENT ON SENTENCE

13th May, 2013

1. TOLIKEN AJ. Edward Panta, you were indicted originally with one count of wilful murder under Section 299 of the Criminal Code Act Ch. 262 (the Code). However, on the 19th of March 2013, after trial, I returned an alternative verdict against you for the unlawful killing of your wife Julie Asela on the 12th day of October 2009 at Motorina Island, Milne Bay Province. This is an offence under Section 302 of the Code (manslaughter).
   
2. The offence of manslaughter carries a maximum penalty of life imprisonment, subject to the Court's discretion under Section 19 of the Code.
   

THE FACTS

3. The relevant facts upon which I am going to sentence you are as follows.
   
4. At the material time you were the Community Health Worker (CHW) at the Aid Post on Motorina Island. You lived with your family within the grounds of the Aid Post.
   
5. On Sunday, 11th of October 2009, your wife (deceased) had belted her younger daughter, Margaret Wilson for bringing a young man, Stanley Boro into your house and sleeping with her there.
   
6. On your wife's request you reported the matter to the Village Peace Officer. That afternoon, Stanley Boro returned with two of his brothers to sort out the matter. The Peace Officer, however, did not turn up so they ended up having a heated argument with the deceased instead. You stopped them but your wife was not happy with you as she felt that you were not interested in the matter and therefore did not do anything about it.
   
7. Sometime in the early hours of Monday, 12th of October 2009, the deceased, still very upset with you and the whole incident had an argument with you. Your wife armed herself with a bush knife and chased you around the house and the Aid-post premises. At one time you ran back to house and picked a galvanized digging pipe from the veranda. You jumped off the veranda with your wife in tail. You then swung the pipe at her purportedly to ward off a blow from the knife. In the process you hit her on the right side of her chest.
   
8. I rejected your defence at the trial as it was raised only when your counsel opened your case thus denying the State the opportunity to put appropriate questions to its witness.
   
9. However, when you realised that you had injured the deceased you tried to find out what her injuries were but she kept on running away from you. At that point in time you went back into the house to attend to your infant who was crying. You woke up your eldest step-daughter Rose and told her that her mother (the deceased) had gone to the neighbouring village of Panaiwan and that you would follow her there. You told Rose to lock the door after you. After a while you returned and told Rose that you could not find the deceased and that she may have gone to Panania instead. You then told Rose that you will go and look for her at Panania. You then left and again instructed Rose to again lock the door.
   
10. When you came out you found the deceased lying on the beach and observed that she was dead. Worried about what might happen to you when the deceased's relative found out you tied her hands and legs with a nylon rope. You then tied two rocks to her bound hands, put her body into a canoe, paddled out and dumped the body in the ocean.
    
11. You returned around daybreak to find your daughter weeping on beach for her mother. You pretended to weep with her telling her that her mother had been raped while at the same time trying to rub of drag marks off the sand.
    
12. The matter was reported to the Misima Police. They came the next day and unsuccessfully searched for the deceased. After the end of the search you were apprehended and confessed to killing your wife and of dumping her body at sea.
    
13. The body has never been found. As such there is no way of knowing the exact injuries you inflicted on the deceased.
    

ALLOCUTUS

14. You apologised to the State and the Court and thanked the State for providing for you during your period in remand. You said you have 8 children from two different mothers (wives) – 3 from the first and 5 from the second (the deceased). Before your arrest you were a public servant of 25 years. After your arrest everything that you owned was destroyed by your deceased wife's relatives. There was nothing left behind for your children.
    
15. You said that you have been informed that four (4) of your children are now out of school. Your 15 year old daughter has left school and has married at very young age. An older daughter had also left school and is now supporting herself from prostitution. The other four (4) are not living together in one place – scattered everywhere, living with friends and wantoks.
    
16. Three children from the first wife are in school but do not live with her because of their step-father. They are also living with friends and relatives. You are deeply concerned about their welfare and future should you be held further in custody. You are worried about their education. You therefore asked for probation so that you could be re-employed in your previous job and reconcile with the deceased's family and relatives.
    

SUBMISSIONS

17. Your lawyer submitted strongly on your behalf that an appropriate sentence for you should be 10-12 years. He asked court to consider the following mitigating factors:
    
    • You expressed remorse
    • There was some de facto provocation in that the deceased had quarrelled with you and this led to her demise
    • You are now 54 years old, an old man now by PNG standards
    • The welfare of your children has been greatly affected by your crime
      
18. Counsel cited the case of 17 – 25 years and submitted that your case falls under category 2 of the tariffs set in the case of Manu Kovi v The State (2005) SC 789. He conceded that there are aggravating as well as mitigating factors present in your case – there was use of a weapon.
    
19. He also cited cases decided after Manu Kovi (supra) which basically followed it. Sentences have ranged between 9 – 13 years
    
20. Counsel was particularly concerned about your age – 54 years – given the fact that average national life expectancy of 65 years. Hence, he submitted that any sentence above 10 years would be deemed to be a life sentence.
    
21. He submitted that your children are more-or-less now parentless. The Court should therefore partly suspend any sentence it will impose for their sake. He said that while you may be punished for your crime your children should not be punished by any long period of imprisonment of you.
    
22. He said that some crimes like yours are not planned and there is barely time for offenders like you to carefully think out the consequences that may flow from one's actions.
    
23. Finally he asked that the period that you have spent in pre-trial custody since your arrest on 13/10/09 – works out to be 3 years, 7 months and 27 days - be deducted from the sentence.
    
24. Mr. Auka for the State, on the other hand also strongly submitted that this is a very serious case. He argued that you had no regard for life in that after killing your wife you dumped her body in the sea. He said that you were a liar from the outset – that you had not been truthful hence your initial indictment for wilful murder.
    
25. He said that the National Court has again and again noted that manslaughter cases have increased and therefore there should not be any room for probation for you. The penalty should start from a custodial sentence (Rex Lialu v The State [1997] PNGLR 487; Kesino Apo v. The State [1988] PNGLR 182)
    
26. On your plea on behalf of your children counsel said that you should have thought about that before you committed this crime. In any case this is an excuse that is increasingly becoming popular.
    
27. He said you are a very educated man and while he appreciated that the incident happened during a short period of time you ought to have thought about your children then.
    
28. Citing Rex Lialu (supra) for authority counsel asked the court to consider the nature and frequency of the attack. He invited me to infer from the evidence that you attacked the deceased viciously and that strong force was used. He said this can be drawn from the amount of blood found on the scene of the crime. Unfortunately this is a bodiless case hence it is not possible for us to determine what injuries and the nature thereof that were sustained by the deceased. You dumped the body in the sea so that no one could have seen the injuries. Nevertheless this was a very serious killing.
    
29. Counsel said that in the circumstances only you yourself know what really happened. And you hid this from the system and refused to disclose it to the State and even your children.
    
30. On what should be an appropriate sentence for you, counsel submitted that this was a vicious attack where you showed complete disregard for human life let alone the body of your deceased wife. This he said is a serious aggravating factor against you.
    
31. He asked for a sentence between 20 – 25 years.
    

THE LAW

32. Manslaughter is provided by Section 302 in the following terms:
    

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.

33. The leading authority for sentencing for manslaughter remains Rex Lialu v The State (supra.). There the court (Kapi DCJ, Hinchliffe, Jalina JJ) held, among other things, that the sentencing court must carefully regard the circumstances of death and the way in which death was actually caused. These may include:

(i) the nature and frequency of any attack or assault;

(ii) whether the injury which caused the death arose directly from an attack or assault or was caused by, for example, falling on an object;

(iii) whether the injury was caused by the person or by a weapon;

(iv) whether there was deliberate intention to harm;

(v) whether there was provocation in the non-legal sense;

(vi) whether the deceased had a thin skull, and

(vii) whether the deceased had an enlarged spleen.

33. In that case the appellant appealed against his 6 ½ years sentence for manslaughter. The deceased died as a result of being punched by the appellant to the head and falling on to the hard surface of the bitumen. In the circumstances the Supreme Court reduced the sentence to 4 ½ years.
    
34. Sentences have steadily increased over the years, reflecting at most the ever increasing prevalence of this type of killings.
    
35. In John Kapil Tapi v The State (2000) SC635 (Kapi DCJ, Injia, Sawong JJ.) the appellant appealed against his sentence of 16 years. There, the appellant, armed with a bush knife went searching for his estranged wife (deceased) and her relatives intending to cause them harm. Arriving at the deceased's village he hid himself and waited until it was dark and then went and waited outside the deceased's mother's house. He laid in ambush and when the deceased came out of the house he cut her on the hand with the bush knife nearly severing the hand. She fell down and he then cut her a second time on the neck. She died from a massive blood loss as a direct result of the cuts she sustained. The court did not think that the sentence was excessive in the circumstances. It dismissed the appeal and confirmed the sentence.
    
36. Manu Kovi v The State (supra) has for some time now been the leading case for homicide offences, providing sentencing tariffs for the different offences such as wilful murder, murder and manslaughter.
    
37. The tariffs for manslaughter are as follows:
    

Category	Circumstances	Tariff
1	Plea. No weapon used. Victim emotional under stress and de-facto provocation e.g. killings in domestic setting. Killing follows immediately after argument. Little or no preparation. Minimal force used. Victim with pre-existing diseases which caused or accelerated death e.g. enlarged spleen cases.	8 – 12 years
2	Trial or Plea. Using offensive weapon, such as knife on vulnerable parts of body. Vicious attack. Multiple injuries. Some deliberate intention to harm. Pre-planning.	13 – 16 years
3	Trial or plea. Dangerous weapons used e.g. gun or axe. Vicious and planned attack. Deliberate intention to harm. Little or no regard for safety of human life.	17 – 25 years
4	Trial or Plea. Some element of viciousness and brutality. Some pre-planning and premeditation. Killing of innocent, harmless person. Complete disregard for human life.	Life imprisonment

38. In The State v Joe Rex Kum, CR 55/2009, 08.04.10, (Cannings, J.) the offender was charged with the murder of a relative but was convicted after a trial for manslaughter instead. He killed the deceased by kicking him on the side of his body, rupturing the spleen. The facts were similar to the present case in that the offender relied on self-defence which was rejected because the offender used excessive force. However the court found that the deceased assaulted the offender first and most of the elements of the defence were satisfied. The sentence imposed was ten years imprisonment.
    
39. 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 imposed was 12 years imprisonment.
    
40. In The State v Jenny Dei (2011) N4260 the offender was charged with the wilful murder of her husband. After trial, though, he was convicted of manslaughter instead. It was held that (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 and (2) 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. A sentence of 9 years imprisonment was imposed. The pre-sentence period in custody was deducted and none of the sentence was suspended.
    

CURRENT CASE

41. Let me now turn to the circumstances of your case. Firstly I find the following mitigating factors in your favour.
    
    • You are a first time offender
    • You expressed remorse for your crime
    • There was some element of de factor provocation
      
42. I, however, find the following aggravating factors against you:
    
    • Use of offensive weapon
    • Act of tying up the deceased and dumping her body in the sea, whether alive, unconscious or dead is a factor that I also take to have aggravated your offence.
      
43. Counsel for the State urged me to imply or infer that your attack on the victim was vicious and that strong force was used though he readily conceded that there is no telling that this was indeed the case due to the fact that you deposed of the body.
    
44. From the facts it may be inferred that some amount of force was used. In fact in my reasons on verdict I remarked that you might have used considerable force for the digging pipe (which had a round edged point) to have penetrated the deceased's body. However, whether I can infer that the attack was vicious is probably bordering on conjecture.
    
45. There is, however, no doubt in my mind that you displayed total disregard for the life of the deceased. Fair enough she may have already been dead by the time you got to her and you may have been overborne by the fear of what might happen to you should her relatives were to have found her body in the condition she was in, hence you tied her up and went on to dump her body in the sea. So not only did you kill your wife you also denied her a decent burial.
    
46. What then should be an appropriate sentence for you in the circumstances?
    
47. Your case displays characteristics of both Category 1 and 2 of the Manu Kovi guidelines in that this was a case where there was some de facto provocation after a somewhat extended argument with the deceased. There obviously was no pre-planning but an offensive weapon was used with some degree of force. The facts established a single wound only but I do take into account as I said what you did to the body after you killed the deceased.
    
48. In the circumstances, if I were to apply the Manu Kovi tariffs - which I do not need to apply, given my unfettered sentencing discretion under Section 19 of the Code – your case should attract a starting point of between 13 – 16 years. I fix a starting point of 15 years.
    
49. Taking your mitigating and aggravating factors into account I think that an appropriate sentence for you will be 15 years.
    
50. Domestic killings have and continue to rise despite the increasing sentences that have been imposed by the courts lately. Hence appropriately high sentences must be imposed principally to denounce this type of behaviour – killings in the domestic setting - for which this country unfortunately ranks amongst the worst in the world, and to exact respect for the law and respect for the sanctity of life.
    
51. So your sentence must serve also to punish you personally and also to deter you and others who might be similarly disposed.
    
52. You have pleaded for a suspended sentence or for probation out of your concern for your 8 children. Unfortunately you ought to have thought about them before you committed this offence. There is no denying that they will suffer immensely, particularly those born to the deceased, now they will be deprived of both parents. In fact they are already suffering as you told the court and that is of no fault of their own.
    
53. I therefore impose a sentence of 15 years imprisonment with hard labour. And for the above reasons there will be no suspension as suspension or probation here is entirely inappropriate in my view.
    
54. However, I shall deduct from the sentence the period you spent in custody awaiting your trial and sentence, which, to date is exactly 3 years and 7 months.
    
55. You shall therefore be imprisoned for a period of 11 years and 3 months at the Giligili Corrective Institution.
    
56. Ordered accordingly.
    

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The Public Prosecutor: Lawyers for the State
Paraka Lawyers: Lawyers for the Prisoner