State v Tony [2017] PGNC 125; N6774 (21 April 2017)

N6774

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 388 OF 2016

BETWEEN:

THE STATE

V

WENIA TONY
Defendant

Kundiawa: Liosi, AJ

2017: 23^rd February & 21^st April

CRIMINAL LAW – Sentence – Manslaughter – Criminal Code S.302 & 19 – Deceased adult male – Death arose from domestic dispute setting – Knife wounds to left hand and leg – Provoked assault – Mitigating and Aggravating factors considered – Sentence of 10 years imposed partly suspended on conditions

Cases Cited:

Goli Golu -v- The State [1979] PNGLR 653
Manu Kovi -v- The State [2005] SC 789
Kali Mari -v- The State [1980] SC 175
State -v- Muli (No.2) [2016] N6325
State -v- Warape [2013] N5197
State -v- Carol Alfred [2009] N3602
State -v- Baundo Nicholson [2016] N6442
The State -v- Hendere Roy [2015] N5968
Public Prosecutor -v- Don Hale [1998] SC 564
State -v- Drekore Yuana Peter [2000] N1973
Thress Kumbamong -v- The State [2008] SC 1017

Counsel:

C. Kos, for the State
M. Yawip, for the Offender

SENTENCE

21^st April, 2017

1. LIOSI AJ: On 22^nd February 2017, I convicted the offender on 1 count of unlawful killing of one Tony Welo under s.302 of Criminal Code after pleading guilty to the crime and after satisfying myself from the depositions presented by the State that the charge was sufficiently made out against her.

Brief Statement of facts

2. The deceased and the offender are husband and wife. They have been married for many years and have (6) children between them. The marriage between the offender and the deceased was an unhappy one. On numerous occasions they would argue and fight and the deceased would get drunk and assault the offender. The main reason for the arguments and fights was that, the deceased had brought another woman into the family home and had chased away the offender and the children. The offender and her children had to go and reside with other people in their village.

3. On the 30^th of March 2014 at Waiyo village, Karamui at around 11 pm in the night, the deceased got drunk and went to the house where the offender and the family were sleeping and shouted for her. The offender, thinking the deceased would assault her again armed herself with a bush knife and stood inside the house. The deceased in attempting to get into the house walked up the steps onto the veranda broke open the timber wall near the door and struggled to get into the house. Knowing that she would be assaulted if the deceased got into the house, the offender swung the bush knife at the deceased’s left hand and legs to prevent him from coming into the house. The cuts were so serious that the deceased died on the same night due to massive loss of blood.

The Law

4. Section 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.”
5. I will now have to determine an appropriate penalty for you. The first issue to decide is whether the circumstances of your case justify the imposition of maximum penalty of life imprisonment. If not I must impose a sentence that is warranted from the circumstances of your case.

6. For that to be done, several matters need to be considered. I will need to consider your personal particulars, your allocatus, submissions by your lawyer, the circumstances under which you committed the offence, mitigating and aggravating factors, the purpose of sentencing for this offence, comparable judgments and what the Supreme Court has said about this offences.

7. You are 46 years of age and a member of the Lutheran Church and you have been married to the deceased for 22 years. You are from Waiyo village in the Karamui Nomane District and you are a villager with no formal education. You have 6 children from your marriage to the deceased. Two are already married whilst the rest are in the village. You have been in custody for 2 years 10 months.

Allocatus

8. On allocatus you said sorry to God, to the Country’s Constitution, to the lawyers, the deceased family, your family and to your children. You said out of your marriage, you had six (6) children. It was an unhappy marriage as he had another wife. Fighting and assaulting you was normal and regular. You say he eventually sent you away with the children to your family. In 2012 after leaving separate for 10 years he brought you back with the children. He then started having an affair with another woman so he sent you away again for another five (5) months. You were living in that house until the incident that night. You said that after so many assaults, you were scarred of your life when he came and started screaming your name that night. Consequently, you picked up a bush knife which you normally put at the door. When he tried to get inside you swung it to protect yourself. After you cut him you ran away but later surrendered yourself to the Police.

9. Your counsel submits that although the maximum penalty is life imprisonment, s.19 of the Criminal Code provides a discretion and various sentencing options available to the court. The provision gives a discretion to the court to impose penalties according to circumstances of each particular case. It is also the law that maximum penalties are reserved for the worst category cases. Goli Golu -v- The State [1979] PNGLR 653.The sentencing guidelines in Manslaughter cases are clearly set out in Manu Kovi -v- The State [2005] SC789.
10. He submits that this case falls within category two (2) of Manu Kovi’s case and therefore the starting point is 13–16 years imprisonment.

Mitigating factors

11. Mr. Yawip submitted in mitigation the following. The prisoner entered an early guilty plea. In Kali Mari -v- The State (1980) SC 175, the Supreme Court held that where a person is arrested and immediately cooperated with Police by pleading guilty this warranted a substantial mitigation.

12. He further submitted that there was defacto provocation and the killing occurred in a domestic setting. The marriage was not a happy one and even after the deceased got married to another woman he still continued to assault the offender. Out of the previous assaults the offender had sustained a fractured arm and lost two (2) teeth. The continuous assault and abuse prompted other members of the community who advised the offender to cripple him by cutting off his tendons. That is what she tried to do with unfortunate consequences.

13. Counsel further submitted in mitigation that the offender pleaded guilty, she is a first time offender and the offence was committed out of stress, despair and anger associated with constant abuse. The defense submits an appropriate sentence would be within 10-13 years.

Comparable Verdicts

14. The defence counsel also cited two (2) cases to assist the Court. In the case of the State -v- Muli (No.2) [2016] PGNC 130; N6325, the prisoner had a history of being assaulted by the husband. Two days before the deceased death, she was again badly assaulted. On the third day, she used a wheel Spanner to hit the husband and killed him. She was sentenced to 9 years. In the State -v- Warape [2013] PNGC 305; N5197, the prisoner stabbed the wife on the thigh and the vaginal area. He was found guilty after the trial and the Court sentenced the offender to 16 years imprisonment in hard labour.

State Submissions

15. The State submits the sanctity of human life is more precious than anything. That should be the underlying factor to guide the court in its assessment of an appropriate sentence. It submits the following aggravating factors:

• The offender used a weapon, namely a bush knife to attack the deceased that fateful night of 30^th March, 2014.
  
• The attack was vicious. There were multiple cuts to the hands and feet of the deceased, which resulted in the deceased dying on the same night of the incident.
  
• The offender waited for the deceased armed with a bush knife which suggest that there was premeditation. That is, she has planned to do grievous bodily harm to the deceased;
  
• The crime of unlawful killing in a domestic setting is prevalent in this country. This case is just another example of an unlawful killing case and adds to the already long list of unlawful killing cases dealt with by the Court. It is an indication that no matter the increase in the sentences imposed by the Court, there is no deterrent effect on the people, like this offender.
  

16. The sentencing guidelines are set out in Manu Kovi -v- The State (supra). The State submits the case falls into the second category of Manu Kovi giving the sentence range of 13–16 years.

17. The State has also cited a number of comparable judgments: In the State -v- Baundo Nicholson [2016] N6442 (25 July 2016), the deceased was the offender’s husband. They had a quarrel over money. The argument led to a fight during which the prisoner stabbed the deceased on the right thigh with a kitchen knife. The knife penetrated the main artery to the right leg causing the deceased death from loss of blood whilst being transported to the hospital. There was a strong element of de facto provocation in that there was constant abuse of the prisoner’s pay packet. A sentence of 10 years partly suspended with conditions was imposed.

18. In the State -v- Carol Alfred [2009] N3602, the Court imposed 10 years imprisonment on the offender’s guilty plea for unlawfully killing her husband after an argument. This was another case of husband and wife situation. The offender stabbed her late husband, a policeman with a kitchen knife after an argument. The husband had accused her of not preparing dinner for him that evening when he returned home. One of the compelling mitigating factors that persuaded the Court to impose a sentence of 10 years imprisonment is that, the offender was a victim of domestic violence and wife beating at the hands of her late husband for a long time. The other reason is that, the killing was accidental as the offender stabbed her late husband on his left upper thigh when they wrestled each other during the scuffle.

19. In the State -v- Hendere Roy [2015] N5968, The offender in that case was charged with murder after she killed her husband over an argument in relation to cooking arrangements. A single stab wound to the chest with a kitchen knife pierced the lung and heart. She was sentenced to 14 years in light labour, of which 7 years and 2 months were suspended and for her to serve 6 years. A special mitigating factor was that the prisoner was subjected to domestic abuse and violence for over 5 years.

20. The present case is typical of a dispute arising from a domestic setting. It is a classic example of what a polygamous marriage can do to the sanctity of marriage and the family unit. In this case the offender was happily married to the deceased for 22 years. The husband then decided to find a second wife for himself. He brings her home and settles her in the family home and chases the offender and the children out of the house. The offender and the children move from house to house in the village like nomads. No doubt, she had every right to speak out against the cruelty and inhumane treatment that had besieged her and her children as a result of the deceased’s infidelity and act of desertion. As if that was not enough he continued to abuse and assault her every time he got drunk. Ultimately, it ended at the cost of the deceased’s own life. The State submits a sentence of 12 years should be imposed.

21. Deciding what an appropriate sentence for you was not easy. This is hard because the victim herein was not an innocent defenceless man. The evidence herein was that your 22 years of marriage to the deceased was a very unhappy one and was punctuated by violence and abuse out of which you were always on the receiving end.

22. There is no question that you will have to pay the price for taking your husband’s life. On the authority of Manu Kovi’s case you should be sentenced to 13-16 years. Your mitigating factors are strong particularly considering the abuse you went through which would have been both physical and psychological and ultimately traumatic.

23. Sentences imposed by the courts have not deterred this type of killings. In the State v Drekore Yuana Peter N1973 His Honour Kirriwom J said the problem of killing in domestic settings is “deeply rooted” and cannot be addressed by “simply penalising and incarcerating the already overly abused and battered wives who have the misfortune to go overboard in their emotional reaction by causing the death of another.”

24. The Supreme Court in Thress Kumbamong v. The State [2008] SC1017 said that a distinction ought to be made between the real criminals who ought to be removed from society and those who should not. It said –

“The Courts need to re-examine and identify cases that require imprisonment for the protection of the society and the cases that do not warrant imprisonment but correction outside the prison system. This is not a new thing. The courts have been doing that for centuries but have failed to guarantee safer societies. What is new, however, is the question of what should be the primary focus of criminal sentencing and the suggested answer of correction and rehabilitation and not necessarily imprisonment in prisons. Adopting such an approach would enable the courts to address that which matters most, which is the emotional needs of an offender and the society as a whole for a safer society.”

25. With this observations in mind and the circumstances under which you committed the offence on the authority of Manu Kovi, I fix a starting point at 12 years. Given the circumstances, I view your head sentence to be 10 years. I therefore sentence you to 10 years imprisonment in hard labour. I deduct 3 years for the time you spent in pre-trial custody. This leaves a balance of 7 years. Should any of this be suspended?

26. The Court does have a wide discretion to suspend a sentence. However that discretion must be exercised according to proper principles. The Supreme Court in Public Prosecutor v. Don Hale (1998) SC 564 held that a sentence may only be suspended if it is supported by a favourable pre-sentence report where the community has shown a willingness to assist in rehabilitating or supervising the prisoner.

27. Noting the above, s.19 of the Criminal Code nonetheless still gives a wide discretion to the Court to exercise the power of suspension. Although s. 19 (f) does not appear to provide any provision for total suspension it authorises partial suspension only in appropriate circumstances.

28. You have been a prisoner and a victim yourself given the trying circumstances under which you lived for many years. In my view you do not deserve to be incarcerated for a long time but rather to be corrected outside the prison system as held in Thress Kumbamong’s case.

Reasons for Decision

29. All the comparable cases cited by counsels arose out of domestic abuse and violence resulting in the killings. Apart from the case of Hendere Roy who was charged for murder, the others were charged with manslaughter.

30. In the above case, there was a Pre-sentence report filed which was greatly in support of a partial suspended sentence as well as payment of compensation. In this case there was neither a pre-sentence report nor compensation payments. Therefore the punishment I impose will reflect the absence of this two factors.

31. Nevertheless, pursuant to s.19 (f) of the Criminal Code, I suspend two (2) years of the remaining 7 years sentence. You will therefore serve 5 years of the resultant 7 years sentence.

Ordered accordingly,
______________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner