State v Simeon [2015] PGNC 5; N5855 (13 February 2015)

N5855

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 126 OF 2011

BETWEEN:

THE STATE
Applicant

AND:

HENNY SIMEON
Offender

Mendi: Kassman, J
2013: 21st October
2014: 10th June 10
2015: 13th February

CRIMINAL LAW – Criminal Code Section 302 – Manslaughter – husband attacked wife (offender) who stabbed husband in chest – immediate surrender to police and confessed to crime – plea of guilty – no premeditation - first time offender – genuine expression of remorse – customary compensation accepted – sentence of seven years – time in custody deducted.

Cases Cited:

Manu Kovi v The State [2005] PGSC SC789
Goli Golu v. The State [1979] PNGLR 653
State v Catherine Iwai Taisa [1999] PGNC 111; N1909

Legislation Cited:

Criminal Code Act Sections 302 and 19

Counsel:

Ms Luben, for State
Ms Koek, for Accused

DECISION ON SENTENCE

13th February, 2015

1. KASSMAN J: This is the court's decision on sentence following a plea of guilty by Henny Simeon ("Simeon") to a charge of manslaughter pursuant to Section 302 of the Criminal Code.
   
2. The Indictment presented stated "Henny Simeon of Nenga Village, Southern Highlands Province stands charged that she on 2 April 2010, at Mendi in Papua New Guinea unlawfully killed one POSU SOLU."
   
3. The statement of facts presented by the State, to which the offender pleaded guilty, were that the deceased Posu Solu and Simeon were married but were not living together at that time of the incident. Simeon was living at Mobil Settlement at the end of the Mendi Airport. At around eight o'clock in the night on 2 April 2010, Simeon was peeling potatoes using a kitchen knife in preparation for dinner. The deceased visited her and an argument arose between them which immediately lead to a physical confrontation. In the course of the fight, Simeon stabbed the deceased in his left chest with the kitchen knife she was holding. The knife pierced the deceased's left lung and as a result he died. The State alleges there was no intention on the part of Simeon to cause the death of the deceased or to cause bodily injury but the State says Simeon unlawful killed the deceased.
   
4. The Post Mortem Report from the Mount Hagen General Hospital confirms Dr Michael Dokup conducted the autopsy on 7 April 2010 and he states "External Examination – Chest – Lateral (left) aspect with 8cm wound open and ribs exposed at the level of 5th, 6th intercostals space." And "Internal Findings – Chest – Left lung parenchiyme necrotic with very foul smelling fluid in the pleural cavity" and "Abdomen – penetrating injury in the 6th Inter-costal space." Dr Dokup concludes "Death from Hypovolumic Shock with associated septicemia due to pus in the left lung and pleural cavity."
   
5. Section 302 of the Criminal Code provides:
   

"(1) A person who unlawfully kills another under such circumstances as not to constitute wilful murder or murder or infanticide is guilty of manslaughter. Penalty: Subject to section 19, imprisonment for life."

6. This court is tasked with the authority and responsibility to impose punishment where wrongful conduct is found to have occurred without lawful excuse. The punishment must be fitting of the wrongful action and all relevant circumstances and should also serve as a warning or deterrence to any member of the public that they must at all times act lawfully and with respect for the safety, dignity and life of fellow human beings.
   
7. Counsel for the State relied on a written submission filed 11 November 2013. Counsel for Simeon relied on affidavits of Simeon, Jude Epi and Cecelia Koek and a written submission all filed 30 May 2014. These affidavits provided further basic facts which were not opposed by the State. The court also had the benefit of a Pre–Sentence Report filed 12 November 2013.
   
8. Simeon was married to Posu for about six years and they lived together at Posu's village until a year before the offence when Posu took in a second wife. Simeon left the matrimonial home to live with a family member on the outskirts of Mendi town. Posu would visit Simeon occasionally seeking her return to live with Posu and on most of those occasions they would both argue and Posu would assault Simeon but there was no evidence called of such claims by Simeon.
   
9. Simeon swears she is twenty five years old. Simeon did not receive any formal education but like many people in her circumstances, she survived on produce from gardening and income from the marketing of some of that garden produce and other informal marketing activities. Simeon has no children of her own but is reported to have adopted a young child a short time before the offence. That child is reported to be five years old. There was no evidence called of the status of that adoption and it will be assumed that the child has been taken care of by family since Simeon was taken into custody.
   
10. Jude Epi swears he is married to Simeon's elder sister and was a major contributor to the compensation payment made by Simeon's family to Posu's family on 17 March 2013 comprising Twelve Thousand Six Hundred Kina cash and eighty live pigs and that was witnessed by the Mendi/Munihiu Peace & Good Order Committee. Simeon also presented medical records that state she suffers abdominal pains and is receiving treatment for that. There is no serious submission that continual custody will be to her detriment. Much of this is presented in the Pre-Sentence Report which also expresses concern that there remains the high risk of retaliation if Simeon does not serve a custodial sentence. The major reason being their compensation demand was not fully met by Simeon's family.
    

Mitigating factors

11. In Simeon's favour are the following factors. Simeon pleaded guilty saving the prosecution and the court the time and expense of a trial. Simeon has no prior conviction. The State concedes there was no premeditation and the killing took place following prior repeated assaults suffered by Simeon at the hands of the deceased and on the fatal day, all within a domestic setting.
    
12. Simeon genuinely expressed remorse and this was consistent with her conduct from the day of the incident. She immediately surrendered to police with the help of her family. In the record of interview conducted a month after the incident, Simeon told the truth about the incident and admitted holding the kitchen knife which pierced the deceased's chest in a scuffle. This was consistent with her confessional statement. These documents were tendered by the State without objection.
    
13. Simeon's family have paid compensation in a customary practice which was accepted by the family of the deceased although the amount paid did not meet the demands set. This ceremony was witnessed by a respected authority which is tasked to bring competing parties together to restore peace and order. This turned out to be a success with the families of the deceased and Simeon allowing the law to deal with matter and for Simeon to face the consequences of her crime.
    

Aggravating factors

14. There was also agreement that the following aggravating factors were present. There was the use of a dangerous weapon being a knife which led to the loss of life of another human being. The offence of manslaughter is prevalent in the community and the country.
    

Case law

15. The Supreme Court said in Goli Golu v. The State [1979] PNGLR 653 that the maximum penalty should be reserved for the worst type of cases in terms of the facts and circumstances leading up to, during and following the crime.
    
16. The Supreme Court in Manu Kovi v The State [2005] PGSC SC789 outlined sentencing tariff for homicide offences of manslaughter, murder and wilful murder, the schedule is attached to this judgment.
    
17. The State submitted the facts and circumstances of this case fall into Category 1 and 2 and attracted a sentence within the top range of category 1 and the lower range of category 2. The State submitted the head sentence at twelve to thirteen years with no reduction for the mitigating factors but only for time spent in custody awaiting trial and sentence.
    
18. Counsel for Simeon submitted a head sentence of eight to ten years and time in custody of four years be deducted and the balance of the term fully suspended on condition that Simeon be of good behaviour. Counsel relied on the judgment of the National Court in State v Catherine Iwai Taisa [1999] PGNC 111; N1909. Certain relevant parts of that judgment are repeated below.
    

"The prisoner's husband was having an affair with the deceased. She learnt about this somehow and on the day of this trouble she saw them together amongst a gambling crowd at the Kunai Club, Fimito Road, Goroka. She walked up to the deceased and stabbed her in the back once with a kitchen knife. The deceased was rushed to the hospital but died due to excessive loss of blood. The prisoner's explanation was that the deceased was ruining her marriage and the well being of her children by fooling around with her husband and she wanted to inflict some pain on her and not cause her death. She said she was sorry that the end of what she intended to do had turned out to be far more serious than what she had intended or anticipated."

"The prisoner is aged about 30 years. She is from Kawaina village, Okapa, Eastern Highlands Province. She is married with four children, the oldest is 8 years and the youngest is 9 months old. She has not had the benefit of a formal education but she was once employed as a house-girl with the Australian High Commission in Port Moresby. Her lawyer has urged upon me to take the following mitigating factors in her favour: 1. She had pleaded guilty to the charge thus saving the State and the Court unwarranted expense. 2. She is a first offender. 3. She had expressed remorse."

"In all the circumstances of this case, I sentence the prisoner to six years imprisonment. I suspended two years of the total period and place her on probation if she pays K1,500 cash compensation and one live pig to the family of the deceased before 31st December 1999. That would then leave her four (4) years to serve. I deduct five months she already spent in custody awaiting trial. She will have to serve the balance of 3 years and 7 months. This is only conditional upon her paying K1,500 cash and one live pig compensation to the family of the deceased."

19. I set the head sentence at ten years. A dangerous weapon was used and this crime is prevalent in the community. This was not a planned attack. Simeon was attacked by the deceased in her home. The medical report states there was just one stab wound to the chest and that was consistent with Simeon's evidence which she gave to police at the first available opportunity. Her expression of remorse was genuine and her honesty and cooperation with police investigations was consistent throughout with her admission contained in her confessional statement. This was followed by her admission of guilt when the State presented the indictment formally charging Simeon for her crime. Further, a substantial payment of compensation was made within three years of the incident.
    
20. I also note Simeon has faithfully waited in custody awaiting trial and sentence. Simeon remained in remand despite a number of major mass breakouts of prisoners and remandees over the last three years at Bui-Iebi presenting her with the opportunity to escape from lawful custody. Although no actual evidence was tendered in this regard, I have been resident judge for the Southern Highlands Province for the last four years and I make these observations from my knowledge of the prison escapes reported in court and from my conduct of sittings of crimes call-overs conducted in Mendi National Court in that period.
    
21. These substantial mitigating factors must be reflected in the penalty. Simeon is granted a reduction of three years from the head sentence. Simeon's sentence is set at seven years.
    
22. Simeon has remained in custody since her voluntary surrender to the Mendi Police Station on 12 April 2010. To today, this is a period of four years nine months and 28 days. That period is deducted from the sentence of seven years.
    
23. Simeon will from today serve the balance of her sentence of two years three months and two days at Bui-Iebi Corrective Institution outside Mendi.
    
24. This is another unfortunate case of the loss of a life arising from differences in a marriage being left unresolved or unattended. Another victim in this is the child adopted by the offender who is now left for more years without the care of her mother who will remain in prison to serve the balance of her sentence. There is dire need for more programs and campaigns or awareness to assist people facing such issues with basic skills in conflict management. Government, churches and skilled non-government organisations must increase their efforts in addressing this very basic need along with awareness on avenues for the resolution of matrimonial disputes. In these modern times, customary practice seems to focus on appeasing waring families or clans or tribes with compensation or bell-kol following loss of life and property after the matrimonial dispute has spiralled out of control. Appropriate government service providers must become more visible and active in their work along with church organisations and civil society generally.
    
25. The formal orders of the Court are:
    
    1. A sentence of seven (7) years imprisonment is imposed.
       
    2. Time in custody of four (4) years nine (9) months and twenty-eight (28) days is deducted from the sentence of seven years.
       
    100. Henny Simeon will serve the balance of the term of imprisonment at two (2) years three (3) months and two (2) days at Bui-Iebi Corrective Institution, Mendi, Southern Highlands Province.
         

Judgment accordingly:
___________________________________________________________

Office of the Public Prosecutor: Lawyer for the State

Office of the Public Solicitor: Lawyer for the Offender

Catherine Iwai Taisa [1999] PGNC 111; N1909

SCHEDULE

SENTENCING TARIFF FOR MURDER OFFENCES

CATEGORY	WILFUL MURDER	MURDER	MANSLAUGHTER
CATEGORY 1	15 – 20 years	12 – 15 years	8 – 12 years
Plea. - Ordinary cases - Mitigating factors with no aggravating factors	- No weapons used - Little or no pre-meditation or pre-planning - Minimum force used - Absence of strong intent to kill	- No weapons used - Little or no pre-planning - Minimum force used - Absence of strong intent to do GBH	- No weapons used - Victim emotional under stress and de facto provocation e.g. killing 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	20 – 30 years	16 – 20 years	13 – 16 years
Trial or Plea - Mitigating factors with aggravating factors	- Pre-planned. Vicious attach - Weapons used - Strong desire to kill	- No strong intent to do GBH - Weapons used - Some pre-planning - Some element of viciousness	- Using offensive weapon, such as knife on vulnerable parts of body - Vicious attack - Multiple injuries - Some deliberate intention to harm - Pre-planning
CATEGORY 3	Life Imprisonment	20 – 30 years	17 – 25 years
Trial or plea - Special aggravating factors - Mitigating factors reduced in weight or rendered insignificantly by gravity of offence	- Brutal killing. Killing in cold blood - Killing of innocent, defenceless or harmless person - Dangerous or offensive weapons - Victim young or old - Pre-planned and pre-mediated - Strong desire to kill	- Pre-planned. Vicious attack - strong desire to do GBH - Dangerous or offensive weapons used e.g. gun or axe - Other offences of violence committed	- 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	DEATH	LIFE IMPRISONMENT	LIFE IMPRISONMENT
WORST CASE Trial or Plea - Special aggravating factors - No extenuating circumstances - No mitigating factors or mitigating factors rendered completely insignificant by gravity of offence		- Pre-mediated attack - Brutal killing, in cold blood - Killing of innocent, harmless person - Killing in the course of committing another serious offence - Complete disregard for human life	- Some element of vicious and brutality - Some pre-planning and pre-meditation - Killing of innocent, harmless person - Complete disregard for human life