State v Dolo [2021] PGNC 246; N9110 (20 August 2021)

N9110

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 179 OF 2021

THE STATE

V

JANET DOLO

Bomana: Berrigan, J
2021: 5^th June, 9^th and 20^th August

CRIMINAL LAW – SENTENCE – GUILTY PLEA – MANSLAUGHTER – S 302 of the Criminal Code - Killing of second wife by first wife – De facto provocation present – 10 years of imprisonment, partially suspended.

Cases Cited:

Manu Kovi v The State (2005) SC789
Goli Golu v The State [1979] PNGLR 653
The State v Tardrew [1986] PNGLR 91
The State v Frank Kagai [1987] PNGLR 320
Rex Lialu [1990] PNGLR 487
Lawrence Simbe v The State [1994] PNGLR 38
The State v Regina Jako (2010) N6799
The State v Roy (2015) N5968
The State v Baundo Nicholson (2016) N6442
The State v Merolyn Peter (2017) N6772
The State v Wenia Tony (2017) N6774
The State v Guina (2020) N8311
The State v Ellyn Jack (2021) N8989

References Cited

Sections 19, 302 of the Criminal Code (Ch. 262) (the Criminal Code)

Counsel

Mr D Digori, for the State
Mr A Peter, for the Offender

DECISION ON SENTENCE

20^th August, 2021

1. BERRIGAN J: The offender pleaded guilty to the manslaughter of Serah Kende, contrary to s. 302 of the Criminal Code, on the basis of the following facts, which were confirmed by the depositions.
   
2. Between 7am and 8am on 2 March 2020 at 8 Mile Roundabout on Hubert Murray Highway, National Capital District, the accused and the deceased, Serah Kende, had an argument. At the time of the offence both women were married to the same man, Nayson Kambe.
   
3. The argument developed into a physical fight between the two women, during which the deceased hit the offender on the head with a stone, drawing blood. The offender tried to get away and crossed the road but the deceased followed and ran after her from behind. When she caught up with the offender, the offender drew a small knife and stabbed the deceased near her neck, just above her right collar bone, penetrating downwards so that it punctured her lung. The deceased was rushed to Port Moresby General Hospital, but was pronounced dead on arrival.
   

Allocutus

4. On allocutus the offender said: Firstly, I would like to say thank you to God. Secondly, I would like to say sorry to this Court. Thirdly, sorry for breaking mother law and government law. I am sorry to the deceased, and her five children. That is the first offence I did. I apologise to her family. I did not plan it. I was walking towards the market and she followed me, that is where the incident happened. We were living at different homes. I apologise death took place because of my hand... I also apologise to my family. They were at the haus krai. They did very big things. I also apologise to the relatives of my husband. He is currently in prison. It is because of me and he is an innocent person. I ask this court to have mercy on me.
   

Sentencing Principles and Comparative Cases

5. The maximum penalty for manslaughter under Section 302 of the Criminal Code is life imprisonment.
   
6. In Manu Kovi v The State (2005) SC789 the Supreme Court suggested that manslaughter convictions could be put in four categories of increasing seriousness, as shown in the following table:
   

No	Description	Details	Tariff
1	Plea – ordinary cases – mitigating factors – no aggravating factors.	No weapons used – offender emotionally under stress – de facto provocation – killing in domestic setting – killing follows straight after argument – minimal force used – victim had pre-existing disease that caused or accelerated death, eg enlarged spleen cases.	8-12 years

2	Trial or plea – mitigating factors with aggravating factors.	Use of offensive weapon, eg knife, on vulnerable parts of body – vicious attack – multiple injuries – some deliberate intention to harm – some pre-planning.	13-16 years
3	Trial or plea – special aggravating factors – mitigating factors reduced in weight or rendered insignificant by gravity of offence.	Dangerous or offensive weapon used, eg gun, axe – vicious and planned attack – deliberate intention to harm – little or no regard for sanctity of human life.	17-25 years
4	Worst case – trial or plea – 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 harmless, innocent person – complete disregard for human life.	Life imprisonment

7. Whilst acknowledging in aggravation that a dangerous weapon was used, and the offence was prevalent, defence counsel submitted in mitigation that the prisoner is a first-time offender, who pleaded guilty, and has demonstrated remorse, paid compensation and saved court time. She asked the court to also take into account the presence of de facto provocation.
   
8. Defence counsel submitted that despite the use of an offensive weapon, the offence fell within the first category of Manu Kovi but that given the mitigating factors, a sentence of eight years would be appropriate, wholly or partly suspended. Counsel referred to the following cases:
   
   1. The State v Baundo Nicholson (2016) N6442, Lioso AJ: in which the offender and her husband 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, severing the main artery to the right leg. He died from loss of blood whilst being transported to the health centre. There was a history of violence by the deceased. She pleaded guilty to manslaughter and was sentenced to 10 years, less time spent in custody, leaving a balance of 7 years, 3 months, of which 6 years, 3 months was suspended, leaving 1 year to serve.
      
   2. The State v Wenia Tony (2017) N6774, Liosi AJ: The deceased and offender had a long history of fighting. The deceased would get drunk and assault the offender. The main reason for the arguments was that the deceased had brought another woman into the family home and chased away the offender and her six children. The offender and her children had to go and reside with other people in their village. One 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 offender pleaded guilty to manslaughter and was sentenced to 10 years, less time spent in custody. A further two years was suspended;
      
   100. The State v Roy (2015) N5968, Toliken J: the offender pleaded guilty to one count of murder. The offender and deceased were married and the deceased had suffered domestic violence at the hand of the deceased for five years. The offender refused to do the cooking and argued with the deceased. The deceased hit the offender with a stick on her shoulder and back. The offender stabbed the deceased on the left side of his chest with a kitchen knife, causing death. She was sentenced to 14 years, less 10 months spent in custody. A further 7 years, 2 months was suspended;
        
   4. The State v Guina (2020) N8311, Salika CJ: the offender pleaded guilty to murdering the deceased. Both women were married to the same man. Her husband had taken her son and did not let her know where they were. In the morning the offender went looking for her husband at the deceased’s house. She saw his vehicle at the house, and walked up the stairs and into the deceased’s bedroom where she, her husband and the deceased’s two children were, together with her own son. There was a struggle and in the course of this the offender stabbed the deceased in the left breast with a small kitchen knife, causing her death. She was sentenced to 12 years of imprisonment, less time spent in custody, leaving a balance of 10 years, 2 months and 2 weeks to be served;
      
   5. The State v Ellyn Jack (2021) N8989, Berrigan J: The offender had been living in a very abusive and violent marriage for three years from the time she was brought to Port Moresby from the village as a 19 year old. The deceased, who was drunk, verbally and physically assaulted the offender, whilst she was preparing breakfast for him and her family, in the presence of her children and niece, whilst she had her three month old baby strapped to her back. He accused her of cheating, spat beteljuice in her face and then assaulted her with a piece of 4 x 4 timber. She responded by walking towards him and trying to stab him in the arm with a knife. He tripped and fell and in the ensuing struggle she stabbed him once in the chest, causing his death. The offender cooperated with authorities and pleaded guilty to manslaughter at the first opportunity. She was sentenced to 9 years’ imprisonment, less 4 years, 3 months spent in pre-trial custody. The balance was wholly suspended.
      
9. The State submitted in mitigation that the offender acted spontaneously, that de facto provocation was present and that the offender cooperated with authorities and pleaded guilty, and is a first time offender. It says in aggravation that an offensive weapon was used on a vulnerable part of the deceased’s body, and the offence is prevalent. Whilst acknowledging that the offender pleaded guilty, the State submitted that remorse was limited as she had shifted blame to her husband and the deceased. That is not correct, the offender made it clear on allocutus that she took full responsibility. The State submitted that the offence fell between categories 1 and 2 of Manu Kovi and that a sentence of 10 to 15 years was appropriate.
   
10. In addition to Guina, the State referred to the following cases:
    
    1. The State v Regina Jako (2010) N6799, Cannings J: The offender was a co-wife of a man, sharing him as a husband with the victim. She and the victim were living in the same residence and had a history of quarrelling. They argued and the offender stabbed the victim three times with a kitchen knife and the victim died shortly afterwards. The offender pleaded guilty to manslaughter. She was sentenced to 12 years, less time spent in custody. Three years of the sentence was suspended;
       
    2. The State v Merolyn Peter (2017) N6772, Liosi AJ: the deceased and the offender were married to a common husband. There was occasional arguments regarding matrimonial duties including maternal and customary obligations. On the day in question the deceased approached the offender, an argument ensued which subsequently led to a fight during which the offender picked up a kitchen knife and stabbed the deceased on her right posterior skull or side of the face above the ear. She then swung the knife once on her back, just between the shoulder blades. The stab to the back punctured the deceased’s lower lobe of the left lung and heart. The deceased was rushed to the hospital but died on the same day due to massive internal bleeding as a result of the serious knife wound. The offender pleaded guilty to manslaughter and was sentenced to 10 years in hard labour, less time spent in custody. Three years of the balance was suspended.
       

Consideration

11. It is well established that the maximum penalty is reserved for the most serious instances of the offence: Goli Golu v The State [1979] PNGLR 653. This case is not in that category.
    
12. Having regard to the fact that this was a plea matter, that the offender was emotionally under stress, the killing occurred in a domestic setting, the presence of de facto provocation, and the killing occurred following an argument, together with the use of an offensive weapon on a vulnerable part of the body and the presence of some deliberate intention to cause harm, the case falls between category 1 and the lower part of category 2 of Manu Kovi, and thus the starting point is 8 to 14 years.
    
13. Section 19 of the Criminal Code provides the Court with broad discretion on sentence. Whilst guidelines and comparative cases are very relevant considerations, every sentence should be determined according to its own circumstances: Lawrence Simbe v The State [1994] PNGLR 38. In a case of homicide, careful regard must be had to the circumstances of death and the way death was caused: in Rex Lialu [1990] PNGLR 487.
    
14. The offender is 45 years of age from Batri Village in Kagua Erave District, Southern Highlands Province. She is in good health. She is the second wife to Naisen Kambe, who was also married to the deceased. This is her second marriage and she has four young children from her first marriage, who live in Lae with her sister and her former husband who have since married. Neither she nor the deceased have any children with Mr Kambe. She has no formal education.
    
15. In aggravation this case involved the use of an offensive weapon and clear intention to do some harm. This type of offense is increasingly prevalent.
    
16. Against these factors, however, the extenuating and mitigating circumstances must be taken into account.
    
17. In mitigation the offender is a first time offender. She is of prior good character.
    
18. The offender surrendered herself to police. She cooperated with police and authorities from the earliest stage and made admissions in her record of interview. She pleaded guilty at the first opportunity at the National Court.
    
19. I take this into account as reflecting genuine remorse, which she expressed during allocutus. I also take it into account from the perspective that it has saved the Court and authorities the time and cost of a trial.
    
20. The family of the deceased mourn her loss. They have accepted K100,000 bel kol money, which is less than the K500,000 demanded. They have advised Probation Services that the money was accepted to keep the peace in the village and they want a just sentence to be imposed on the offender.
    
21. The offender is a mature women. She was 44 at the time of the offence.
    
22. The impact of the offence on the offender has been and will continue to be grave. Any term of imprisonment will have a significant impact on the offender but this must be balanced against the nature and seriousness of the offence.
    
23. De facto provocation was clearly present in the immediate lead up to the offence. Both women were married to Mr Kambe. The deceased was the first wife and the offender the second. It seems that Mr Kambe spent most of his time with the offender and this caused ongoing tension between the two women. The evening before the offence Mr Kambe had returned to the offender after an argument between the two of them. The deceased became aware that he had gone back to the offender. It seems that she set out to find the offender the next morning and found her and her husband as they were walking to the market. It was not the offender who went out that morning looking for trouble. It was the deceased who sought out and found the offender that morning. An argument followed, which turned into a physical fight. It was the deceased who hit the offender over the head with a stone and then pursued her when the offender tried to get away and crossed the road. Whilst strong de facto provocation was clearly present, however, it was when the deceased caught up with her again that the offender removed a small knife from a scarf around her neck and stabbed the deceased deliberately in the neck, just above the right collar bone, with such force that it penetrated downwards and punctured the deceased’s lung.
    
24. Having regard to the general circumstances of the case, the personal circumstances of the offender, the aggravating, extenuating and mitigating factors, the submissions of counsel, the guidelines contained in Manu Kovi, and comparative cases, I sentence the offender to 10 years of imprisonment.
    
25. I exercise my discretion to deduct the time spent in custody to date.
    
26. The question remains whether any or all of the sentence should be suspended.
    
27. In The State v Tardrew [1986] PNGLR 91 the Supreme Court set out three broad, but not exhaustive, categories in which it may be appropriate to suspend a sentence, namely: where it will promote the general deterrence or rehabilitation of the offender; where it will promote the repayment or restitution of stolen money or goods; or where imprisonment would cause an excessive degree of suffering to the particular offender, for example because of bad physical or mental health. Suspension is not an act in leniency but a form of punishment that is to be served outside the prison system in the community interest to promote restitution or rehabilitation: The State v Tardrew [1986] PNGLR 91; The State v Frank Kagai [1987] PNGLR 320.
    
28. Probation Services does not regard the offender as suitable for probation. This is because the situation between the deceased’s family and her own is tense because the compensation payment of K100,000 is not regarded as enough and it is feared that there will be a tribal fight if she is released. Whilst compensation may be indicative of remorse, and may play an important role in bringing peace to the community, it must not interfere with the administration of justice. Let me be very clear. This matter is being dealt with by the Court and both the deceased and the offender’s families and their communities must respect and accept its decision. The Court’s decision on sentence will not be determined on the basis that compensation has or has not been paid, nor will it be dictated to by compensation demands.
    
29. In my view the offender has demonstrated good prospects for rehabilitation through her cooperation with authorities and her plea before this court. She has accepted responsibility for her actions. I do not regard her as a threat to the community. This must, however, be balanced against the very serious nature of the offence, and the need to ensure that the Court appropriately denounces such offences, and that the offender and others are deterred from committing similar offences in the future.
    
30. In the circumstances I make the following orders:
    
    1. The offender is sentenced to 10 years of imprisonment;
    2. One year, 5 months, 18 days spent in custody is deducted from time to be served;
    100. 2 years is suspended on the offender entering into her own recognisance to keep the peace and be of good behaviour;
    4. Leaving a balance of 6 years, 6 months, 12 days to be served in custody.
       

Sentence accordingly.
_______________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused