State v Tinka [2013] PGNC 187; N5439 (25 November 2013)

N5439

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No.4 of 2012

BETWEEN:

THE STATE

AND:

KAA TINKA
Prisoner

Mt. Hagen & Minj: David, J
2013: 8, 22 & 25 October & 8 November

CRIMINAL LAW – homicide - manslaughter – co-wife killed by another – sentence on plea of guilty – 10 years -Criminal Code, Section 302

Cases cited:

Goli Golu v The State [1979] PNGLR 653
Rex Lialu v The State [1990] PNGLR 487
Lawrence Simbe v The State [1994] PNGLR 38
The State v Aipani Elekane, CR 405/2001, Unreported Judgment delivered at Wabag
Anna Max Marangi v The State (2002) SC702
The State v Clara John Gabriel (2003) N2378
Sakarowa Koe v The State (2004) SC739
Manu Kovi v The State (2005) SC 789
The State v Lossy Karapus (2009) N3640
The State v Anita Kelly (2009) N3624,
The State v Mala Jackson, CR No.448 of 2011, Unreported & Unnumbered Judjment of David, J delivered in Mt. Hagen on 13 October 2011
The State v Regina Mark, CR No.781 of 2011, Unreported & Unnumbered Judgment of David, J delivered in Mt. Hagen on 21 October 2011
The State v Gilbertha Kerowa, CR No.774 of 2009, Unreported & Unnumbered Judjment of David, J delivered in Mt. Hagen on 16 January 2012
The State v Helen Dominic, CR No.466 of 2013, Unreported & Unnumbered Judgment of David, J delivered on 9 August 2013 at Mt. Hagen,

Counsel:

Vasiti Mauta, for the State
Philip L. Kapi & Maryanne Job, for the prisoner

SENTENCE

8th November, 2013

1. DAVID, J: On Tuesday, 8 October 2013, the prisoner, Kaa Tinka appearing before me from custody was convicted upon entering a plea of guilty to a charge of manslaughter committed against the deceased, Lucy Tinka on 27 September 2011, at Kolgmulg village, Tambul-Nebilyer District in the Western Highlands Province contrary to Section 302 of the Criminal Code. On 16 December 2011, the prisoner was committed to stand trial in the National Court on a charge of wilful murder contrary to Section 299 (1) of the Code.
   
2. The primary issue for my consideration and determination is; what is the appropriate sentence for the prisoner?
   
3. The short facts presented to the Court for the purposes of arraigning the prisoner are these. At about 1:00 o'clock in the afternoon on 27 September 2011, the prisoner together with the deceased, Lucy Tinka, the other co-wife and their common husband were at a gathering at Kolgmulg village. The gathering was to sit with village elders to mediate over marital issues that had arisen between the prisoner, the deceased and their common husband. The prisoner was the first wife and the deceased the second wife. The gathering was to discuss the common husband's neglect of the prisoner and their 4 children. During the gathering, a disagreement broke out between the prisoner and the deceased. Frustrated, the prisoner walked to the deceased and stabbed her with a knife once in the chest area. The stabbing caused a fracture of 2 ribs and a penetration of the lung causing instant death. The prisoner was arrested the same day and formally charged for a count of wilful murder.
   
4. A post-mortem examination of the body of the deceased was conducted by a Dr. Jeffrey Tore, Medical Officer, at the Mt. Hagen General Hospital on 30 September 2011. The medical evidence comprising the affidavit of Dr. Tore sworn on 30 September 2011, the Post-Mortem Report prepared by Dr. Tore dated 27 September 2011 and the Medical Certificate of Death issued by Dr. Tore on 30 September 2011 reveals that the deceased aged 40 years was stabbed once on the left area of the chest
   
5. External examination revealed a single stab wound on the left posterior chest wall measuring 3 cm x 5 cm deep directed at 50 degrees laterally. The 5th and 6th ribs were broken and the lung cavity was involved. Internal findings confirmed that the 5th and 6th ribs were broken, the pleura and the lung tissue were pierced, 600 mls of free blood was in the lung cavity and the lung had collapsed. The depth of the wound and the injuries inflicted implied that a sharp object was delivered with force. The deceased died from severe left haemo-pneumothorax as a direct result of the stab wound.
   

6. The prisoner is from Kolgmugl village, Tambul-Nebilyer District in the Western Highlands Province and is aged about 35 years. She is originally from Paraka village, Tambul-Nebilyer District in the Western Highlands Province. The prisoner and the deceased are co-wives, both having a common husband. She was the first wife and the deceased the second wife. The deceased was aged about 40 years when she died. Until the incident, she was a homemaker and subsistence farmer residing at Kolgmulg. She is married and has 4 children, 3 males and a female. The first born male is in Grade 3, the second born male is in Grade 2 and the third born daughter is attending preparatory classes in Elementary School. She is the second born out of five siblings in her family. Her father passed away and is survived by her mother who is old. She has not received any formal education hence is illiterate. She is in good health. She is a baptized member of the PNG Bible Church. She voluntarily surrendered to the police after the incident on 27 September 2011 after which she was formally arrested and charged for killing the deceased. She has been in custody since that time and that works out to be 2 years, 1 month, 2 weeks and 3 days.

7. The prisoner has no prior convictions.

8. On her allocutus, the prisoner recounted the events leading up to the incident. She had a happy marriage until her husband brought the deceased to the village to be his second wife. Her house was burnt down during a fight in the village. Her husband only built a house for the deceased. She and the 4 children slept in other houses in the village for 1 year and 2 months and she was ashamed. She requested her husband to leave him and return to her own village with the children, but he would not allow them to leave. He requested her husband to build a house for them, but he did not listen. Three days prior to the incident, she felt too ashamed to be accommodated by others in the village any longer so she and the 4 children cooked and slept outside. She brought her brothers to the village to try and resolve her marital problem with her husband. The deceased was calling out to her in the presence of her brothers that she was sleeping well while she was sleeping outside with her children. Incensed by the deceased's antics, she took a knife and stabbed her. She did not intend to kill the deceased. Her husband was the source of the problem. She regretted causing the deceased's death which was unintended, but wrong in the eyes of God.

9. The pre-sentence report compiled by the Probation Service, Mt. Hagen reports, inter alia, that belkol of K4,000.00 cash was paid by the prisoner's relatives. Compensation has not been paid. The report reports that the prisoner did not have the financial capacity to pay compensation on her own and would certainly require assistance from her relatives to do that. The report also sets out the circumstances leading up to the commission of the offence. On the morning of the incident, the deceased had asked her husband why he was not building a house for her and the children and she had had enough of moving from house to house when the deceased intervened and berated her by saying "you will live like a flying fox and move from house to house" and danced in front of her. She got angry, took a knife from a small boy sitting next to her and stabbed the deceased. The report states that the prisoner is not a suitable candidate for probation supervision therefore recommends that a custodial sentence be imposed.

10. In mitigation, it was submitted that:

1. the prisoner pleaded guilty;
   
2. the prisoner is a first offender;
   
3. the prisoner expressed genuine remorse;
   
4. the prisoner cooperated well with the police;
   
5. belkol in the sum of K4,000.00 was paid;
   
6. this was a killing in a domestic setting where the prisoner was a victim of constant marital problems and neglect so the prisoner had to fend for herself and her children;
   
7. there was de-facto provocation because the prisoner reacted and stabbed the deceased immediately after the deceased told her that she would live like a flying fox and move from house to house and was dancing in front of her;
   
8. there was no pre-planning;
   
9. the prisoner stabbed the deceased once with a kitchen knife.
   
11. Ms. Job for the prisoner further submitted that a sentence be considered within the range of sentences recommended under the first and second category of the tariff for manslaughter cases recommended by the Supreme Court in Manu Kovi v The State (2005) SC 789 (the Manu Kovi guidelines).
    
12. Counsel also referred me to Rex Lialu v The State [1990] PNGLR 487 where the Supreme Court held, inter alia, that in sentencing an offender in manslaughter cases, the sentencing Court must have careful regard to the circumstances of death and the way in which death was actually caused.
    
13. By way of comparison, counsel invited the Court to consider The State v Lossy Karapus (2009) N3640. That was case involving a killing arising from a domestic setting. The prisoner killed her husband's girl friend by stabbing her with a kitchen knife. On a guilty plea to a charge of manslaughter, the presence of strong de-facto provocation as a result of the husband's infidelity, the prisoner being a first offender, the prisoner's expression of remorse, the prisoner had voluntarily surrendered to the police and cooperated with them, history of domestic abuse, payment of customary compensation, and a good character report, but aggravated by multiple blows directed at the deceased's body resulting in multiple wounds, the use of a kitchen knife to commit the offence, presence of some element of pre-planning, and prevalence of the offence, a sentence of 10 years imprisonment was imposed.
    

14. Counsel suggested that a sentence of 8 to 10 years or even less in the exercise of the Court's discretion would be appropriate.

15. Ms. Mauta of counsel for the State referred me to the sentencing guidelines for the offence of manslaughter set out in the Supreme Court decisions of Anna Max Marangi v The State (2002) SC702 and Sakarowa Koe v The State (2004) SC739 and submitted that I must consider and apply the guidelines prescribed there to determine the appropriate sentence in the present case.
    
16. In Anna Max Marangi, it was suggested that the following categories be used for uncontested manslaughter cases arising from killings in a domestic setting:
    

(a) application of force in an uncalculated manner, of a single blow, kick or punch on any part of the deceased's body: 3 to 7 years imprisonment;

(b) repeated application of vicious force, with or without an instrument or weapon, eg repeated kicks or punches applied to the head or chest with intention to wound or cause grievous bodily harm, or single or multiple knife wounds on a vulnerable part of the body, with other aggravating factors: 8 to 12 years imprisonment;

(c) application of direct force in a calculated manner with a weapon such as a knife, bush knife or axe: 13 to 16 years.

17. In Sakarowa Koe, the sentencing range for the three categories suggested in Anna Max Marangi was varied to cover all kinds of manslaughter cases with appropriate modifications and the tariff was increased, subject to the exercise of the Court's discretion. It was suggested that; for the first category, 7 to 12 years imprisonment; for the second category, 13 to 17 years imprisonment; and for the third category, 18 years to life imprisonment.
    
18. It was submitted that the aggravating factors in the present case were:
    
    1. a dangerous weapon (kitchen knife) was used in the killing;
       
    2. this was a vicious attack as is demonstrated by the injuries inflicted caused by one blow to the deceased's body and confirmed by the medical evidence.
       
19. Ms Mauta suggested that a sentence under the second category of Sakarowa Koe would be appropriate subject to the exercise of the Court's discretion to impose a sentence lower than or above that recommended.
    

20. Section 302 of the Code creates the offence of unlawful killing or manslaughter and prescribes the penalty for the offence. The maximum penalty is life imprisonment subject to the Court's discretion to impose a lesser determinative term under the various options available to the Court under Section 19 of the Code.

21. It is a trite principle of law on sentence that the maximum penalty is reserved for the worst case for the offence under consideration: Goli Golu v The State [1979] PNGLR 653.

22. The guidelines in Anna Marangi and Sakarowa Koe have since been superseded by the Manu Kovi guidelines which apply to sentences for manslaughter convictions whether they are entered on a plea or after a trial. They are reproduced below.

CATEGORY 1: 8 – 12 years

Plea: Ordinary cases. Mitigating factors with no aggravating factors.

No weapons 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.

CATEGORY 2: 13 – 16 years

Trial or Plea: Mitigating factors with aggravating factors.

Using offensive weapon, such as knife on vulnerable parts of body. Vicious attack. Multiple injuries. Some deliberate intention to harm. Pre-planning.

CATEGORY 3: 17 – 25 years

Trial or plea: Special aggravating factors. Mitigating factors reduced in weight or rendered insignificant by gravity of offence.

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.

CATEGORY 4: LIFE IMPRISONMENT

Trial or Plea (Worst case): 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 innocent, harmless person. Complete disregard for human life.

23. I consider that the present case does not fall under the worst category of unlawful killing or manslaughter cases. Rather, it falls under both the first and second categories of the Manu Kovi guidelines as some of the elements of these categories are present. I will now consider a sentence within the ranges recommended there which I will ascertain shortly after considering the factors in mitigation against those in aggravation and a number of comparable sentences.

24. I find that the factors which mitigate the offence in the present case are:

(a) the prisoner pleaded guilty;

(b) the prisoner was a first offender;

(c) the prisoner co-operated with the police;

(d) the prisoner voluntarily surrendered to the police after the incident;

(e) there was de facto provocation;

(f) this was a killing in a domestic setting which followed immediately after an argument between the prisoner and the deceased as co-wives;

(g) there was no pre-planning;

(h) belkol of K4,000.00 has been paid;

(i) until committing the offence, the prisoner had a good background;

(j) the prisoner expressed genuine remorse;

(k) the prisoner stabbed the deceased once with a kitchen knife.

25. I find that the factors which aggravate the offence in the present case are:

(a) a dangerous weapon (kitchen knife) was used in the killing;

(b) this was a vicious attack as is demonstrated by the serious injuries that were inflicted and confirmed by the medical evidence;

(c) the life of a 40 year old female was prematurely and unlawfully terminated;

(d) the deceased was unarmed;

(e) killing occurred when the prisoner's marital issues were about to be mediated at the village;

(f) the offence was prevalent in this region.

26. I have also considered the following manslaughter cases where convictions were entered on pleas of guilty.

27. In The State v Clara John Gabriel (2003) N2378, the prisoner killed her co-wife by stabbing her once with a kitchen knife to the right hand side of her neck. The prisoner had armed herself with a kitchen knife and set out to look for her husband and the deceased. When she met them, she argued with the deceased and the argument developed into a fight. The deceased did not put up a fight. She was unarmed. She was rushed to the Mt Hagen General Hospital, but died an hour later from uncontrolled loss of blood (haemorrhage) due to severe laceration to the major blood vessels including artery and vein. A head sentence of 10 years was imposed.

28. In The State v Aipani Elekane, CR 405/2001, Unreported Judgment delivered at Wabag, the prisoner stabbed her co-wife, on the neck with a knife. A head sentence of 12 years was imposed.

29. In The State v Anita Kelly (2009) N3624, the prisoner killed her co-wife by stabbing her once with a kitchen knife on the neck. She died from internal bleeding. The prisoner's husband had deserted the prisoner and her three children and went to live with the deceased at her village leaving the prisoner and her children to fend for themselves. The prisoner was a victim of domestic violence at the hands of her husband and the deceased. Armed with the kitchen knife, the prisoner went to the deceased's house at her village and following an argument that developed into a fight, the stabbing occurred. The deceased was unarmed. A head sentence of 13 years was imposed.

30. In The State v Mala Jackson, CR No.448 of 2011, Unreported & Unnumbered Judgment of David, J delivered in Mt. Hagen on 13 October 2011, the prisoner went after the deceased with a kitchen knife at the Kaiwe market. She suspected the deceased of being her husband's lover. When she found her, the deceased was watching a bingo game. The prisoner approached her from behind her and stabbed her from the back on her neck with the knife and ran away. The knife penetrated the neck cutting the main arteries in the neck and also pierced the right lung. The deceased was taken to the Mt Hagen General Hospital, but she died before arrival. A head sentence of 13 years was imposed.

31. In The State v Regina Mark, CR No.781 of 2011, Unreported & Unnumbered Judgment of David, J delivered in Mt. Hagen on 21 October 2011, the prisoner and the deceased were co-wives to a common husband. The prisoner was the second wife and the deceased the first wife. The co-wives did not have a harmonious relationship and had constant arguments. Following another confrontation, the prisoner stabbed the deceased on her neck with a knife she had in her possession and the deceased collapsed and became unconscious. She was taken to the hospital, but was pronounced dead on arrival. A head sentence of 13 years was imposed.

32. In The State v Gilbertha Kerowa, CR No.774 of 2009, Unreported & Unnumbered Judjment of David, J delivered in Mt. Hagen on 16 January 2012, prior to the incident, the prisoner was going around with the deceased's husband. During the night before the incident, the prisoner followed the deceased's husband to his village and stayed with him there. The deceased was living in another house in the village then. When she heard that the prisoner was with her husband in the village, she armed herself with a kitchen knife and went to the house and fought with her. The prisoner was not armed with any weapon. During the fight, the prisoner received some injuries. She tried to remove the knife from the deceased and held onto the blade. The deceased was holding the knife by the handle. The handle came apart resulting in the blade coming into the possession of the prisoner. The prisoner then struck the deceased on her neck with the blade and ran away. The incident happened at about 02:00 o'clock in the morning so she did not know which part of the deceased's body was struck with the blade. The deceased died as a result of the stab wound. The deceased's body was found sometime in the morning and later buried in the village. A head sentence of 13 years was imposed.

33. In The State v Helen Dominic, CR No.466 of 2013, Unreported & Unnumbered Judgment of David, J delivered on 9 August 2013 at Mt. Hagen, the deceased confronted the prisoner, her co-wife at her house whilst she was preparing the evening meal on the allegation that she had assaulted the deceased's son. An argument erupted between the two and the deceased hit the prisoner on the head with a stick. The prisoner then took out a kitchen knife and stabbed the deceased once in the mouth. The knife penetrated the tongue and ruptured one of the main blood vessels in the right side of the mouth. She again stabbed the deceased three times on the left side of her back. The deceased was taken to the Kudjip hospital, but succumbed to her wounds and died from loss of blood. A head sentence of 8 years was imposed.

34. In the present case, mitigating factors significantly outnumber those in aggravation.

35. It is a trite principle of law that each case must be decided on its own facts: Lawrence Simbe v The State [1994] PNGLR 38.

36. In my respectful view, considering the circumstances in which the killing occurred in the present case, I consider that a head sentence of 10 years to be served in custody and in hard labour is most appropriate for purposes of specific and general deterrence.

37. From the head sentence, I will deduct 2 years, 1 month, 2 weeks and 3 days for the time the prisoner has spent in pre-trial confinement leaving 7 years, 10 months, 1 week and 4 days to serve (the remaining term).

38. I do not propose to suspend any part of the remaining term.

39. The prisoner will serve the remaining term at the Baisu Correctional Institution subject to any remission of sentence for good conduct whilst incarcerated or the need for relocation done pursuant to the provisions of the Correctional Service Act.

40. I will immediately issue a warrant of commitment to enforce the sentence.

Sentenced accordingly.
____________________________________________________
P. Kaluwin, Public Prosecutor: Lawyer for the State
F. Pitpit, Public Solicitor: Lawyer for the prisoner