State v Babaina [2018] PGNC 210; N7313 (20 June 2018)

N7313

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
CR NO 831 OF 2017

THE STATE

V

PHILIP GIBSON BABAINA

Kimbe: Miviri AJ
2018 : 08^th 20^th June

CRIMINAL LAW – Plea –Manslaughter- S302 CCA – stabbed deceased with knife– domestic argument – injury to lung & heart – unlawful act – first time offender – prevalent offence – sanctity of life – strong punitive sentence.

Facts

Prisoner stabbed his wife with a knife in the lung and heart killing her in the course of domestic argument.

Held

1. Plea bargaining should not defeat the Justice of the case.
2. Ultimate authority of legislature not defeated.
3. Protection and sanctity of life
4. 18 years IHL less time in custody deducted.
   

Cases sited:
Thress v Kumbamong v. The State (2008) SC1017
The State v Avia Aihi (N0.3) [1982] PNGLR 92.
The State. v Lawrence Simbe [1994]PNGLR 38
The State v Lilu, [1988] PGNC 60 [1988-89] PNGLR 449
The State v Manu Kovi [2005] PGSC 789 (31. May 2005)
The State v Marangi [2002] PGSC 15; SC702
The State v Miva [2006] PGNC 103; N3454 .
The State v Paugari [2011] PGNC 159 N4438

Counsel:
L. Jack, for the State

D. Kari, for Defendant

SENTENCE

20^th June, 2018

1. MIVIRI AJ: This is the sentence of a man who pleaded guilty to stabbing his wife fatally in the lung and heart killing her.

Brief Facts on arraignment

2. Prisoner is the husband of the deceased Veronica Leo Akia. Their marriage was not so good and they had problems which resulted in violence. Veronica Leo Akia sought refuge from the continuous violence and assaults in early March 2015 fleeing from the prisoner and staying with her sister in Morokea village. Prisoner followed locating her there on the 24^th April 2015. The next day 25^th April 2015 he followed her to a creek and stabbed her with a knife penetrating the left lung and heart from which she bled to her death.
   
3. He unlawfully killed her contravening section 302:
   
   • (1) A person who unlawfully kills another under such circumstance as not to constitute wilful murder, murder, or infanticide is guilty of manslaughter.
     

Penalty: Subject to Section 19, imprisonment for life.

Plea

4. Prisoner pleaded guilty accepting liability unconditionally what his actions brought about. There was no defence in law applicable either of provocation or self defence. It was a clear case of prisoner being armed with a knife and stabbing an unarmed woman who was in no position to defend herself as she also had their young child in her arms at the time that she was stabbed. It was the pinnacle of the continuous violence that befell and haunted their marriage. After he had caused the injury upon her seeing her peril with the knife still imbedded in her back he took the young child from her arms and went and left the child with the sister of the deceased and then fled into town.
   
5. This is not the common facts of Manslaughter that this court sees as in Lilu, The State v [1988] PGNC 60 [1988-89] PNGLR 449 where there was one punch with the deceased falling back wards cracking his skull on the pavement and dying as a result from internal head injuries emanating. This is a stabbing with a sharp knife that is left imbedded in the body of the deceased. It would appropriately be a case of murder or even wilful murder in the light of the stabbing to the heart and lung rather than Manslaughter. It is the subject of Plea bargaining but where the gravity and seriousness of the offence outweighs the court must do justice given the facts. It will not ignore what is due on the facts because the ultimate authority is the legislature whose imprint is the maximum that is prescribed under the particular section or provision. Here the maximum is life imprisonment. Tariff and range will enforce consistency but individual facts and circumstance will not be ignored to dispense justice in a particular case as is here, Thress v Kumbamong v. The State (2008) SC1017. In State v Paugari [2011] PGNC 159 N4438 before the Deputy Chief Justice were three defendants involved in murder and his honour was of the view that the courts should not be bound by the range suggested either by the Supreme Court or the National Court. That the discretion of the court must not be watered down that the prisoner who instigated must receive the higher sentence. In my view given the facts and circumstances this is applicable here. And I apply it in the determination of an appropriate sentence against the Prisoner.
   

Issue

6. What is an appropriate sentence for the prisoner?
   
7. The maximum penalty prescribed by section 302 is life imprisonment. Given its facts and circumstances a determinate term of years was appropriate it did not add up to be the worst case of its kind so that the maximum penalty was warranted, Avia Aihi v The State (N0.3) [1982] PNGLR 92. But a life was unnecessarily taken here depriving two very young children aged 2 and 1 year old of their mother including relatives and immediate family of a loved one. She was aged 22 years old at the time of death clearly had a long life ahead. He was 25 year old man with no prior criminal record except that he had escaped whilst in custody for this manslaughter and was serving 5 years IHL. This is further defiance of the authority of the rule of law which cannot be ignored in the determination of an appropriate sentence. He explained that he did so to help his father pay for the compensation made of the deceased by her relatives. Which was contrary to Police when they rearrested him, he was with a new wife at a secluded location when apprehended. He was educated to grade 6 Kimbe Primary School 2004 and was employed by Dekenai roads and bridges Construction as a labourer 2015. Other than that he was assisted by his parents who gave him K60 to a K100 for his share of sale of cocoa. I consider and accord just the particulars set out in the presentence and means assessment reports in the determination here and give due weight and regard.
   
8. Partners in relationship or marriage needed to be respectful exercise restraint to revert to violence and illegality against one another. It is not easy to make life as married persons but that is not a licence to revert to illegal acts to settle a dispute in that life. Life is lived once and it is a very prevalent offence despite the stern and often punitive sentences that have been imposed by this court. Here it was a climax of the violence that was in that marriage leading eventually. The law has many avenues for the settlement of disputes within the marriage. And these must be resorted to not as is the case here. It is an offence that must deter persons with similar inclinations that the law will deal with such behaviour sternly and punitively.
   

Mitigation

9. The plea of guilty was in favour of the prisoner. It reflected that he took responsibility for his actions. He realized the wrong that he had committed upon the deceased and upon their children and immediate relatives. It was a sign of intent to amend. Defence counsel made application for presentence and means assessment reports to be furnished to court in this regard. Both reports are before the court in the consideration here to determine an appropriate sentence. And all material particulars of that report are considered appropriately. Materially K8000 was confirmed as being paid by the prisoner and his immediate relatives to the deceased parents. It did not bring back the deceased but was an indication of intent to restore relationship and normalcy between the families on either side. Importantly now that the children of the marriage were left behind their settlement was important for the continuation of this relationship. And importantly also stop refuelling an already volatile situation.
   

Aggravation

10. The kitchen knife or any knife in the domestic setting has now become a lethal weapon used with viciousness unnecessarily stuffing out life. The potential of this weapon present in every home and place of abode will be addressed with a sentence that will deter and punish. This is not to say that the prisoner be made an example for all others. He will be sentenced on the basis of his own facts and circumstances set out here.
    
11. Here there is no preparedness as in Manu Kovi v the State [2005] PGSC 789 (31. May 2005) but persistence and perseverance where the prisoner followed the deceased wife to where she had taken refuge and inflicted the injuries. Which were very fatal as they were to the heart and the lung both vital organs of the body. These being vital organs of the body chances of survival from the injury were very minimal to nothing as happened here. Yet another case of a husband and wife with the former taking the life of the latter.
12. Counsel have conceded in accordance with Manu Kovi (supra) that the case fell into the second category of manslaughter cases of 13 to 16 years in that, there was use of an offensive weapon a knife to the heart and the lung of his wife. It was a vicious attack from his record of interview question 18, “Than what type of weapon that you had used in stabbing your wife to death? A. I used a Kiwi type Kitchen Knife. It’s a short black handled small knife. Where is that small knife now? A. That knife still stuck to the body of the deceased and I quickly removed the baby from her and ran to the house and handed the child to the little sister of my wife and I escaped to Kimbe Town.” A cowardly attack of a defenceless woman who stood no chance of survival. The fact that she had their youngest child in her arms did not deter him from executing the blow with the knife. She was at his mercy. And as set out initially in this judgement the sentence will be in accordance with the facts and circumstances, tariff and range will be one of the matters in consideration of appropriate sentence.
    
13. Given this fact it is my view that the sentence must reflect the gravity of that offence depicted by its own facts and circumstances, Lawrence Simbe v The State. [1994]PNGLR 38 that was a murder case but the principle is relevant also to Manslaughter or any other case for the same, fundamental it shows out the reality of section 35 of the Constitution the right to life in everyday life. Here young children of the deceased are deprived of a parent through no fault of theirs. And the grandparents are deprived of their daughter at the prime of her life at 22 years of age. The prisoner will bear it in his life that he killed the mother of his children.

Sentencing trend tariff

14. The sentencing trend and tariff guided by Manu Kovi (supra) was followed in the case of State v Miva [2006] PGNC 103; N3454 (24 October 2006). There, prisoner was sentenced to 16 years for manslaughter. It was a case where it was a domestic argument between husband and wife and relatives taking sides. Prisoner had pulled the bush knife off the deceased and cut him on his head killing him. A first time offender who had pleaded guilty remorse with tangible evidence thereof.
    
15. In Marangi v State [2002] PGSC 15 ; SC702 (08 November 2002), the prisoner appealed to the supreme court against 9 years imposed by the National Court for Manslaughter contending it was excessive she had pleaded guilty. The court dismissed the appeal and confirmed the sentence that was imposed. It reasoned that, “We endorse His Honour’s emphasis on the use of a knife as a lethal weapon to kill another person as unacceptable under any circumstances. To our knowledge, there are increasing instances of manslaughter and murder killings coming before the Courts in which a knife is used to settle domestic differences, with fatal consequences. The use of readily available kitchen knife to settle one’s domestic grievances is prevalent in this country. It is becoming a silent lethal weapon, far more dangerous than other potentially dangerous weapons like axes, bush knives or even guns. The reason for this is because the knife is readily available, it can be easily concealed, and used on unsuspecting unarmed victims who are usually taken by surprise, and used in a calculating and precise manner, that the human body is easily penetrated and vital organs are damaged or even severed. It seems to us that more lives are being lost in this country today from the use of the knife than with any other weapon. Therefore, a strong punitive and deterrent sentence is required.” This is adopted in the determination of appropriate sentence here.
    
16. Here the attack is persistent even to the extent of seeking out the wife deceased who has sought refuge to quell and avoid the violence exerted upon her by the prisoner. Who is undeterred and perseveres seeking her out to exert leaving the knife still imbedded in her back. Then picking up the baby and handing to a younger sister of the deceased and running away to Kimbe. His plea does not outweigh that fact. It is an offence that must be sentenced at the higher end of the tariff because of its gravity and seriousness.
    

Sentence

17. What is particularly serious against the prisoner is that he leaves the knife imbedded within the deceased’s body, gets their child out of her hands, leaves child with the younger sister of the deceased and runs away to Kimbe. But in his favour is the guilty plea to this serious charge benefit of which is accorded in his sentence. I find no extenuating circumstance to parallel the sentence which I consider is proportionate to the gravity of the offence here which is 18 years IHL less time spent in custody, balance to be served in Jail. This sentence is cumulative because the offence is separate by time, date, location and victim. It will be served cumulatively to any other sentence that the prisoner is currently serving.
    
18. The prisoner is sentenced to18 years IHL less time in remand.
    

Sentenced accordingly.
________________________________________________________________
Public Prosecutor : Lawyer for the State
Public Solicitors : Lawyer for the Defendant