State v Pau [2021] PGNC 483; N9224 (11 October 2021)

N9224

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1149 OF 2019

STATE

V

MARCIA PAU

Waigani: Wawun-Kuvi, AJ
2021:  17^th September, 5^th & 11^th October

CRIMINAL LAW-SENTENCE-Criminal Code, s 302, Manslaughter-Domestic Setting-Use of knife-single stab wound to the chest- de facto provocation

Cases Cited

State v Dolo [2021] PGNC 246; N9110
State v Kande [2021] PGNC 251; N9104
State v Eroane [2021] N9028
State v Kapoi [2021] PGNC 181; N9021
State v Robin [2021] PGNC 165; N9022
State v Kolokolo [2021] PGNC 74; N8849
State v Simon (2021) Cr No 94 of 2019 (11 February 2021 in PNG sentencing database)
Warome v State [2020] PGSC 63; SC1973
State v Guina [2020] PGNC 91; N8311
State v Koli [2012] PGNC 372; N4620
State v Waieng [2017] PGNC 126; N6775
State v Peter [2017] PGNC 124; N6772
State v Uraro [2012] PGNC 298; N5164
State v Mara [2010] PGNC 140; N4133
State v Jako [2010] PGNC 119; N4110
State v Karapus [2009] PGNC 59; N3640
State v Kelly [2009] PGNC 34; N3624
Kumbamong v The State [2008] SC1017
Manu Kovi v The State [2005] PGSC 34; SC789
Marangi v The State [2002] PGSC 15; SC702
Allan Peter Utieng v The State (2000) SCR No 15 of 2000
Public Prosecutor v Vangu’u Ame [1983] PNGLR 424
Public Prosecutor v Thomas Vola [1981] PNGLR 412
Goli Golu v The State [1979] PNGLR 653

Reference

Criminal Code, Ch 262, section 302

Counsel
Mr Dale Digori, for the State
Mr Jerome Sioni, for the Defence

SENTENCE

11th October, 2021

1. WAWUN-KUVI, AJ: The offender was a 35-year-old mother of five at the time of the offence. The deceased 18 years old. The deceased was the daughter of a neighbor. The offender treated her like a daughter. Her oldest children are around the same age as the deceased.
   
2. The unfortunate and tragic events transpired because of an affair between the deceased and the offender’s husband.
   
3. The offender after waiting weeks for financial assistance from her husband went to his living quarters at the Kuima Security compound at Taurama. On arrival she saw the deceased living with her husband. The deceased fled on seeing the offender. Fueled by suspicion, she returned four days later. She discovered the deceased again at her husband’s quarters. The deceased again ran off. This time the offender gave chase. A decision that would change her life. The offender eventually caught up with the deceased. A physical altercation ensured, and the deceased was stabbed.
   
4. The deceased was rushed to the hospital however, she succumbed to her injury and died.
5. I now must decide what sentence, the offender should receive for the tragic and unfortunate death of this young woman.
   

Purpose of Sentencing

6. In considering the offender’s sentence, I remind myself of the purpose of sentencing which includes but is not limited to, considerations such as punishment of the offender, rehabilitation, specific and general deterrence, communicating clearly that the community and society does not condone the offender’s conduct and in cases of violent and serious offences for the protection of the community.
   

The Charge

7. The offender pleaded guilty to the charge of Manslaughter pursuant to section 302 of the Criminal Code.
   

Penalty

8. The maximum penalty is life imprisonment. The penalty is subject to section 19 of the Code.
   
9. I remind myself that the maximum penalty is reserved for the most serious case: Goli Golu v The State [1979] PNGLR 653.
   
10. In Manu Kovi v The State (2005) SC789 the Supreme Court provided guidelines in manslaughter convictions. The guidelines do not bind the Court in the exercise of its discretion.
    

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

11. The factors in this case appear to place it within the higher end of category one (1) and the lower end of category two (2). However, as stated the guidelines help when this Court considers the appropriate sentence, but it is the peculiar circumstance of this case that will be the relevant consideration,

Submissions

12. Defence counsel submits for a sentence of 8 years. That the whole of the sentence be suspended, and the offender be placed on a good behavior bond similar to the cases of The State v Kande [2021] N9104 and Kumbamong v The State [2008] SC1017.
    
13. It was further submitted by the defence that whilst the Supreme Court has provided guidelines for homicide cases, another Supreme Court decision in Kumbamong v The State [2008]^[1] has held that the guidelines appear to place restrictions on the unfettered discretion of the National Court in sentencing.
    
14. Defence counsel submitted that the Court should take into account that the deceased was responsible for her own demise. That she had provoked the offender by sending text messages insulting her and blaming her for the problems in the marriage whilst she stood outside her husband’s living quarters, that she was fore warned on several occasions and that the deceased was aware that the offender’s husband was married and had five children.
    
15. The Defence have relied on the following comparative cases.
    
16. The State v Kande [2021]^[2]: The offender pleaded guilty to the manslaughter of her fiancé. She was eight months pregnant to the deceased at the time of the offence. There was a plan for the offender and the deceased to meet with their relatives. That did not eventuate because the deceased to not turn up. At around 8.00 pm the deceased went to see the offender. He was intoxicated. After some discussion an argument erupted between them. The deceased physically assaulted the offender and knocked her to the ground. The victim ran to the house for safety and then returned armed with a knife because the deceased was calling out her name. Another argument ensued which resulted in the offender stabbing the deceased in his left thigh. The offender and the deceased continue to struggle and fight. During the struggle, the deceased gave his back to the offender. She stabbed him in the back. The knife penetrated the left lung. The offender ran off but was found by her relatives who accompanied her to take the deceased to the hospital. He died whilst be treated at the hospital. The Court consider that the case fell into a range of 8 to 14 according to the Manu Kovi guidelines. The reason being that it was a plea matter, the offender was under emotional stress, the killing occurred in a domestic setting, the presence of de facto provocation, the killing occurred following an argument, the use of a weapon on a vulnerable part of the body and the presence of some intention to cause harm. There was strong de facto provocation which was not disputed by the State in that the deceased was drunk and was attempting to force the offender off the road to have sexual intercourse. When she had refused, he assaulted her and knocked her to the ground. The deceased was a professional sportsman, and the offender was 8 months pregnant. The act of the offender grabbing the knife and returning was viewed within the context of facts as was found in the depositions. That is the offender had already fled to safety, but the deceased had demanded that she come out. The offender had paid compensation with the assistance of relatives. This was taken a sign that she had taken steps to reconcile with the deceased relatives. Court imposed a sentence of 8 years imprisonment. The offender was in custody for 3 years. Time spent in custody was deducted. The balance of the sentence was suspended.
    
17. Warome v The State [2020]^[3]: This was an appeal against a sentence of 10 years for a guilty plea to manslaughter. The appellant’s husband was missing from the family home for four consecutive nights and days. It was her husband’s pay week and he had left his prolonged absence without any explanation had caused her distress, discomfort, and anxiety. Sometime between 9.00 pm and 10.00 pm she went in search for her husband. She went to his uncle’s house and opened a locked door to a room. She has taken the knife from the kitchen to open the door. She turned on the light to find in surprise her husband naked in bed with another woman. She stabbed the woman once in the left breast and on the hand. She also punched her husband before she escaped. The sentence of 10 years was confirmed. However, the Supreme Court found that because the sentencing court did not take in consideration the conduct of the husband, which was a significant and strong mitigating factor, suspended 3 years of the sentence. The Supreme Court having suspended the sentence on that basis cautioned that the approach that was taken was not intended to set a precedent as each case must be determined according to their own peculiar facts and circumstances.
    
18. The State v Koli[2012]^[4]: The offender was sentenced to 8 years imprisonment for causing the death of her husband. A charge that she pleaded guilty to. The offender demanded that the deceased return K10.00 because it was money she was saving for the children’s school fees. An argument ensued and the deceased picked up a Bamboo stick and hit the deceased twice. The offender took refuge from a bystander who stopped the fight. The offender walked away and the deceased followed her striking her with the bamboo twice more. The offender turned around and stabbed the deceased in the chest. He died at the hospital. The pre-sentence custody of 8 months was deducted leaving the balance to be served.
    
19. Kumbamong v State [2008]^[5]: the Supreme Court partially upheld an appeal against a sentence of 9 years, by wholly suspending the balance after deducting the pre-trial and post-conviction period of 2 years, 1 month in detention. The offender went looking for her husband at the deceased’s residence. When she got there, she found the deceased seated on a chair in the living room of her house drinking coffee. The offender suggested that the deceased go and live with her and her children in her house so that their husband could look after all of them under the one roof. Rather than giving any consideration to the proposal, the deceased verbally insulted the offender and then armed herself with a knife that was there on the table and start to attack the offender. On realizing she had no way of escaping, the offender wrestled the knife from the deceased, and stabbed the deceased on her head and back many times causing the deceased to collapse and die instantly. She pleaded guilty to manslaughter.
    
20. The State submits that the circumstances of the case indicate that it falls between category 1 and 2 of the Manu Kovi guidelines. It is submitted that a term of imprisonment between 10 and 14 years is appropriate.
    
21. The State also refers to the case of Warome v The State [2020]^[6] and additional the following cases.
    
22. State v Guina [2020]^[7]: This was a plea to the charge of murder. The deceased and the offender were married to the same man. Whether the deceased was aware of this fact it was not stated. The offender went searching for her husband and son. She found her husband with the deceased and their two children aged 2 years and 2 months. A struggled ensued and the deceased was stabbed in the left breast with a kitchen knife. The knife had penetrated her heart. The offender was sentenced to 12 years imprisonment. Time spent in custody was deducted.
    
23. State v Peter [2017]^[8]: The offender pleaded guilty to the manslaughter of her co-wife. The deceased is the first wife, and the offender is the second wife. The relationship was not a happy one. The deceased would at times leave the family home and her children to the care of the offender. Their husband would go and bring her back. On the date in question, the deceased started an argument with the offender. A fight ensued. During the fight, the offender picked up a knife and stabbed the deceased on the right side of her head above the ear. She then stabbed the deceased on her back which penetrated her left lung and heart. The offender was sentenced to 9 years imprisonment. Time spent in custody was deducted and 3 years of the balance was suspended.
    
24. State v Jako [2010]^[9]: The offender pleaded guilty to the manslaughter of her co-wife. Both women were living with their shared husband at the time of the offence. They had a history of quarrelling. On the date of the offence, the offender stabbed the victim with a kitchen knife three times on her body. She was sentenced to 12 years imprisonment. Time spent in custody was deducted and 3 years of the balance was suspended.

Comparative Cases

25. I have also found the following cases to be of assistance.
26. State v Dolo [2021]^[10]: The offender pleaded guilty to the manslaughter of her co-wife. She stabbed the deceased in the neck causing her death. The offender and the deceased had an argument which led to a physical altercation. The deceased struck the offender on the head with a stone. The offender crossed the road to get away. The deceased followed her. When she approached the offender, the offender took out a small kitchen knife and stabbed her once in the neck. The deceased died because of the injuries sustained. The offender was sentenced to 10 years imprisonment. 2 years of the sentence was suspended.
    
27. State v Kapoi [2021]^[11]: The offender pleaded guilty to the manslaughter of her de facto husband. She stabbed the deceased with a knife in the back. The offender and the deceased were in an argument when the offender told the deceased to pack his belongings and leave. The statement angered the deceased who stormed towards the offender with his fist clenched. The offender who was armed with a knife stabbed the deceased in the back as he attempted to walk away. The offender was sentenced to 11 years imprisonment. 3 years of the sentence was suspended.
    
28. State v Robin [2021]^[12]: The offender pleaded guilty to the manslaughter of her co-wife. She stabbed the deceased in the back with a knife. The offender and the deceased were married to the same man, and all were living in the same accommodation. The women argued over space. The deceased struck the offender on the head with a bilum, causing the offender to fall. The deceased then ran off. The offender ran after the deceased. The deceased tripped and fell. The offender stabbed her on her back whilst she was on the ground. The offender was sentenced to 12 years imprisonment. Three years of the sentence was suspended.
    
29. State v Kolokolo [2021]^[13]: The offender pleaded guilty to the stabbing her de facto husband. He died because of the injuries. She had an argument with him over suspicions of an extra marital affair. She stabbed him on both legs as he was walking away from the argument. She was sentenced to 10 years imprisonment. 2 years of the sentence was suspended because of the payment of compensation.
    
30. State v Simon (2021)^[14]: The offender pleaded guilty to stabbing his wife once in the back resulting in her death. The deceased was returning home when she met the offender along the road. They had an argument. During the argument, the offender stabbed the deceased once in the back. He was sentenced to 12 years imprisonment.
    
31. State v Waieng [2017]^[15]: the offender pleaded guilty to the manslaughter of her husband’s girlfriend. She had suffered 8 years of fighting and arguments over her husband’s continued relationship with the deceased. She and her husband had four children. Her husband would often leave them without support and go live with the deceased. She had obtained a preventive order for the Village Court against them. That order did nothing to stop the relationship. She then went to the District Court to file for Adultery. She withdrew the case because of threats from her husband. She then sought the assistance of the Welfare Department. On the day of the offence, she went in search of her husband because he failed to return home the previous night. She saw the deceased and they argued. An argument led to a fight. The offender produced the knife she was armed with and stabbed the deceased twice in the back and once in the chest. The deceased died because of those injuries. Compensation was paid. The offender was sentenced to 10 years. Time spent in custody of 2 years was deducted. 2 years of the balance was suspended.
    
32. State v Mara [2010]^[16]: the offender pleaded guilty to the manslaughter of her husband’s girlfriend. She has discovered her husband with the deceased. She fought with the deceased. The deceased was armed with a knife. The offender wrestled the knife from the deceased and stabbed her once in the back which penetrated her lung. The deceased died from the injury she sustained. Compensation was paid. She was sentenced to 12 years imprisonment. Time spent in custody of 2 years was deducted. No part of the sentence was suspended.
    
33. State v Karapus [2009]^[17]; The offender pleaded guilty to the stabbing of her husband’s 17-year-old girlfriend. Her husband had abandoned her, and she was left to raise four children on her own. On the day of the offence, she returned from the garden carrying food and her baby when the deceased insulted her and made obscene gestures at her. She has taken the matter to the village court, but her husband and the deceased would not turn up. The deceased mother and father were pushing for the deceased to marry her husband. She took out a knife and stabbed the deceased three times on her body. The deceased died as a result. She was sentenced to 10 years imprisonment.
    
34. State v Kelly [2009]^[18]: The offender pleaded guilty to the manslaughter of her co wife. Offender is the first wife, and the deceased is the second wife. The husband abandoned the offender and their three children and went to live with the deceased in the deceased village. Prior to the date of the offence the offender had a heated argument with the deceased and their husband. On the date of the offence, the offender armed herself with a kitchen knife and went to the deceased home. An argument ensured. The argument led to a fight. During the fight, the offender stabbed the deceased in the neck. The deceased died as a result. The offender was sentenced to 12 years imprisonment. Time spent in custody was deducted. No part of the sentence was suspended.
    
35. Marangi v The State [2002]^[19] : This was an appeal on sentence. The appellant suspected the deceased of having an affair with her husband. She flew from her village to her husband’s residence. She found the deceased lying on the couch watching TV. The deceased was seven months pregnant. She stabbed the deceased twice in her chest. The sentence of 9 years was confirmed.
    
36. These cases and the cases cited by counsels demonstrate a break down in the family structure and the extent of moral decay in our society. Women continue to die, and women continue to go to prison. Their children left motherless with no sense of direction or guidance. These are the children that go on to become mothers and fathers.
    
37. Whilst there are many laws that are available to assist women such as the offender, the relevant bodies and organizations that are the custodians of those laws are not enforcing them to the extent needed to curb such violence. An example of one such law is the Lukautim Pikinini Act 2015. Section 79 criminalizes a parent’s failure to comply with the directions of the Director of Welfare to provide amongst other things adequate nutrition, immunization, clothing, shelter, education and guidance and medical attention. Another law is section 91(1) (a) of the Liquor (Licensing) Act (Chapter 312), which empowers the District Court on application to order an employer to deduct the salary of an employee who is a habitual drinker such monies as needed and be paid to his or her family. The District Court may also make any additional orders that are necessary for the welfare of the wife and children.
    
38. However, whether it is resourcing, lack of awareness or political will, in Port Moresby unlike some other provinces, there are far greater legal avenues and resources available to women like the offender. Especially for educated women like the offender.
39. The factual background of this case is the same as the case of the State v Karapus [2009]^[20]. Both husbands got themselves involved in improper relationships with children forgoing their fatherly duties. I do not use the term children loosely. The Lukautim Pikinini Act and the United National Convention on the Rights of the Child which Papua New Guinea ratified defines a child as a person under the age of 18. Both men lured underage girls into relationships for their own selfish desires. To call the deceased, anything other than children would be to minimize the depraved actions of the offenders’ husbands. State v Karapus [2009] is however distinct in this sense, the offender had filed village court proceedings against her husband and the deceased on two occasions. They had failed to appear and in one proceeding the offender was ordered to pay compensation for laying baseless accusations against the deceased. She was 27 years old and had four children, uneducated and a villager. Her husband had provided money from his salary but ceased to do so. She toiled the land to support herself and her children. On the date of the offence, she was returning from the garden. It was raining. She had a baby in one hand and an umbrella in another. On her back was a bag laden with vegetables. The deceased who was walking with a friend made rude and obscene gestures at her. The deceased told her that she would go and see her husband for food. The offender also suffered from domestic violence.
    
40. The case of State v Waieng [2017]^[21] also bears some similarities to the present case. The neglect of the offender and the children over the husband’s mistress. That the offender went searching for her husband and instead found the deceased and that the offender was the present who produced the knife. However, like State v Karapus [2009], the offender in Waieng, attempted to find amicable and legal avenues to seek redress and all those avenues failed her.
    
41. In the present case, the offender is well educated and a teacher. The deceased is the neighbor’s daughter. From the victim impact statement and the Pre-Sentence Report, her family was looking for her. She was only in Grade 7. When the offender saw the deceased the first time outside her husband’s quarter’s she did not report her sighting to the deceased family, she did not report her husband to the police or take other legal avenues. Rather she returned four days later to confront the deceased. Whilst I accept that the deceased texted her some inflammatory messages based on her statements in the Record of Interview, she continued to sit outside the container home when she could have walked away, she chased after the deceased when she could have just walked away, and she was the one who introduced the knife into the altercation when she could have just argued or fought with her hands.
42. Defence counsel had submitted that the Court impose sentences the same as The State v Kande [2021] N9104 and Kumbamong v The State [2008] SC1017. In both cases, the offenders had spent some time in custody prior to their sentences. In the present case, the offender spent about a week or so in police custody when the National Court had granted bail. The factual background that gave rise to the sentence in State v Kande [2021] are quite distinct to the present case. State v Kande involved an offender who was heavily pregnant and was beaten by her elite sportsman husband for refusing to have sex on the side of the road. Her and her family had paid considerable compensation which was taken as a sign of reconciliation with the deceased family. Kumbamong v The State is distinct as well because the deceased was the person who grabbed the knife and proceeded to stab the offender. Seeing that she had no way to escape, the offender struggled for the knife, managed to get it off the deceased and used the same knife to stab the deceased. She has also made attempts to reason with the deceased prior to altercation.
    
43. As to defence counsel submission that the Manu Kovi guidelines appear to place restrictions on sentencing discretion, I take the statement at paragraph 72 by the Supreme Court in Kumbamong v The State not in isolation but in the context of the whole case as it was before the Supreme Court. Guidelines are only guidelines. It is the same as identifying comparable cases, whilst they assist, the sentencing court must return to the factors that are peculiar in the case before it.
    

Factors in Aggravation

44. Factors in aggravation are that human life has been lost more particular a young girl who was still attending primary school, the use of a knife on a vulnerable part of the body and the prevalence of the offence.

Factors in Mitigation

45. Factors in mitigation are that the offender is a first-time offender, her plea of guilty, cooperation with police, that she was under emotional stress and de facto provocation.
    
46. The emotional stress in no doubt was caused by her husband’s infidelity. This I accept is a factor in mitigation.
    
47. Whilst defence counsel has submitted that it is mitigating that the offender is willing to offer a piece of land to the deceased relatives, a wiliness to offer is not a factor in mitigation. This is considered in light of the fact that it has been 3 years since the commission of the offence. The offender’s husband has also not taken responsibility on his part and did not meet any expenses in relation to the deceased death. Contrary to submissions, there was no offer to give a house.
    
48. As to K52, 000 worth of carpentry tools being stolen, I find that the amount is exorbitant and exaggerated. I do accept that some properties were stolen or damaged following the death of the deceased but not to the extent claimed.

Personal Particulars

49. The offender is now 38 years old. She is married to Daniel Haro. They have five children, the first is a 19-year-old female in Grade 10, the second is an 18-year-old female in Grade 10, the third is a 15-year-old female in Grade 8, the fourth is a 13-year-old male in Grade 6 and the fifth is an 8-year-old male in Grade 1.
    
50. She is a senior teacher. Her education history demonstrates her perseverance to better her life. She completed Grade 10 at Tairoa High School, Eastern Highlands in 1999. She then self-sponsored to the Coronation College in Lae where she obtained a Basic Secretarial Certificate in 2000. She then went on to enroll in Aiyura National High School to compete Grade 11 and 12 three years later. In 2009 she attended the Sonoma Adventist College and attained her Diploma in Teaching.
    
51. She has been teaching in a school in National Capital District after gaining her Diploma.

Allocutus

52. The offender said in Allocutus:

Firstly, your honour I thank the heavenly father for his protection for us today, Secondly, I say sorry for breaking the law of the Government. Thirdly I thank the Court for the Court’s time and for the Court. And fourthly I thank my lawyer and the public prosecutor’s lawyer for their time and effort. Fifthly I want to say sorry to the family of the deceased. I would not have done that but the deceased I looked after her and took care of her like a daughter and somehow the incident happened, and I am very sorry. Lastly, I was to inform the Court that I am a senior teacher and the Koki Primary School, and I look after five classes and my class I look after sixty students. I am also involved in Church activities and look after pathfinders with the children.

53. I do not find that there is a genuine expression of remorse for the death of the deceased. Whilst the offender accepts that she has broken the law, she shifts the responsibility of her actions back to the deceased.

Pre-sentence Report

54. The Probation Officer interviewed the offender, her husband, the Head Teacher of Koki Primary School, and the deceased brother. A character reference was provided to the Probation Officer. The reference is from a Pastor Rex Koi. A typed statement was also given to the Probation Officer purportedly written by the offender’s children.
    
55. The offender and her family were previously residing at Morata 1 where they had bought land. However, because of the offence, they moved to Gini-Gini Settlement, Konedobu to reside with her in-laws.
    
56. Her parents are deceased and were simple villagers. The offender and her siblings were raised from the subsistence income generated by their parents. She is the fourth child and the only female in a family of five children. Three of her brothers are deceased. The youngest brother lives in the village.
    
57. The offender stated that since she married her husband in 2002 up until the time of the offence, he had been unfaithful. His attituded her compelled her to obtain further educational qualifications to enable her to care for the children.
    
58. Daniel Haro, the offender’s husband apologized for his actions and stated that he was responsible for his wife’s actions. He said that he would assist his wife to pay compensation to the deceased relatives if the Court Ordered. He further states that his wife is the only bread winner for the family.
    
59. Margaret Mero is the Head Teacher at Koki Primary School. She states that the offender performed well in her duties and was promoted to Senior Teacher in early 2021. As Senior Teacher she is responsible for four other teachers. She teaches a class of 60 which has now decreased to 54. She gets along with other staff, manages her students’ academic performance, and has a good attendance record.
    
60. Joseph Fonny is the brother of the deceased. He confirms that the deceased family and the offender’s family were family friends. He states that the offender and her husband treated the deceased as a daughter. The offender’s husband took the deceased away without their knowledge. She was missing for three (3) months before the family learnt of her death. The deceased was a young girl in school when the offender’s husband kidnapped her and hid her from the family. He said his family members are unemployed but had salvaged together K20, 000.00 to repatriate the body. He wants the offender’s husband to reimburse that money. This is to pay back money given by relatives. As for the offender, he pleads with the Court to punish her to life imprisonment for the loss of his sister. Four other relatives who had accompanied the deceased brother expressed the same sentiments.
    
61. The Character Letter is addressed to whom it may concern. It is unclear whether the author was informed as to purpose of the letter or whether the letter was specifically acquired for the sentencing. The letter basically states that the offender is a member of the Gini-Gini Seventh-Day Adventist Church. She is the Children’s Ministry Director and teachers the pathfinders’ children aged 6-15. The author affirms that she is faithful and honest.
    
62. The letter purportedly written by the offender’s children is typed and contains all their signatures. It is submitting that based on the International Convention on the Rights of the Children and the needs of the children the Court must give a non-custodial sentence. The contents and the language in which it was written clearly depicts that it was not written by the offender’s children.
    
63. Whilst that has been said, I have no doubt that the impact of the offence will be grave on the offender and her family. That any incarceration will significantly impact the offender’s family especially her children, who she will be separated from. I, however, am reminded that only in very extreme circumstances does the impact on family is not generally a consideration on sentence: Allan Peter Utieng v The State (2000) SCR No 15 of 2000 and the Public Prosecutor v Vangu’u Ame [1983] PNGLR 424.

Victim Impact Statement

64. Joseph Fonny is the brother of the deceased. He is 25 years old and a Nursing Student. He states that the deceased was taken away from her family without their knowledge or consent. She was missing for 3 months. They only found her when they went to the Morgue at 3 Mile.
    
65. The deceased was only a child in Grade 7 when she was killed. His family feels a loss not of her unreached protentional but also the loss of an investment.
    
66. As in the Pre-Sentence Report, his family and relatives had spent about K20, 000.00 to repatriate the deceased body to Okapa in the Eastern Highlands Province.
    
67. His family asks that the offender serve a custodial sentence and that nothing the offender says will take away the pain and loss they feel.

Suspension

68. I remind myself that the same factors that reduced a sentence cannot be the same factors to consider in suspension: Public Prosecutor v Thomas Vola [1981] PNGLR 412.
    
69. Sentencing is a community approach. Independent and impartial views must be obtained from the members of the community that the offender resides in. The Head Teacher and the Church pastor speak favorably of the offender.
    
70. She oversees the children’s pathfinder’s ministry other than being a teacher by profession. She now appears to be a well respected and contributing member of her community.
    
71. The information in the Pre-Sentence Report indicate that the offender is possess a good character and contributes to her community and society. Coupled with the factor that she is a first-time offender this demonstrates prior good character.
    
72. This is weighed against the deceased families’ views. The offender and her husband did not take any responsibility over the repatriation of the deceased body. This case is taken on its own peculiarity. The deceased was attending Grade 7 in primary school when she was taken away by the offender’s husband. Her family was searching for her until they found her body at the Morgue. She was there because the offender caused her death. The deceased family incurred significant cost to repatriate the body back to the Eastern Highlands. She had her whole future ahead of her. They asked that the offender be imprisoned.
    
73. There has only been an offer both from the offender’s husband and the offender to pay compensation. Three years later and no proactive steps have been taken to foster reconciliation. Especially when both families are from the Eastern Highlands, the geographical closeness of their villages and were once good friends. I hate to think of the consequences had this killing been in the Eastern Highlands and not the National Capital District.
    
74. This is not a case where the offender’s personal circumstance can override the need for public deterrence or where a prison sentence may be avoided. Tress Kumbamong and State v Kande are very distinct as discussed already. Additionally, both women were first assaulted to a serious degree but forgo possible defences.
75. Considering these factors, I find that a partial suspension is appropriate rather than a wholly suspended sentence.

Consideration

76. This case is a case that has become prevalent in our society. Numerous Courts have expressed sentiments over offences committed in domestic settlings resulting from extra martial affairs.
    
77. This Court does not ignore that the present offence occurred due to the emotional stress that the offender was place under. The deceased is a neighbor’s daughter. According to the depositions the offender’s husband formed a relationship with the deceased when she was still in primary school. This is a demonstration of her husband’s depraved behavior. He not only entered a relationship with the neighbor’s daughter but with a child in primary school; a child around the same age as his own daughters; a child that he and the offended regarded as a daughter. Whilst the defence counsel’s submission was centered around victim blaming, it is not ignored that the deceased was a child being abused by an adult male. The male that is responsible for all the events because of his lustful desires to covert a child. The male that decided not to support his wife and children. Nothing has changed since the Supreme Court case of Thress Kumbamong with the call for Parliament to legislate and hold husbands accountable for their selfish and self-centered actions that cause much harm to our families.
    
78. However, everyone must take responsibility for their own actions. The offender decided to engage in the altercation with the deceased and to arm herself with a knife. Her decision resulted in the death of the deceased.
    
79. The offender in the Pre-Sentence Report says that she is a Christian and responsible for the pathfinder’s ministry, a child education ministry in the SDA or Seventh Day Adventist Church. Teaching children she knows quite well that the bible prohibits the taking of the life of another, it is the commandment. She should also know, as any other Christian should know that we are given free choice.
    
80. Whilst I accept that sentencing is about preventing reoffending, it is also about general deterrence. Sentences must be such that like minded individuals will know that resorting to violence is not the only way to solve problems. The Offender educated as she was decided not to take any legal steps to redress her problem but decided to confront the deceased.
    
81. As such considering all the factors that I have alluded to in this judgement, I find that the appropriate sentence, is 12 years.
82. I have considered whether the sentence should be suspended, and I have given thought to the statement in Thress Kumbamong at paragraph 60 which states:

"It is erroneous to treat the suspension of sentence for imprisonment as merely an exercise in leniency. Because such order is made in the community interest and is generally designed to prevent re-offending which a prison sentence, standing alone, seldom does. A person so released as an obvious incentive not to re-offend. Therefore, there should be no misconceptions as to what will occur if he does. From time to time, persons charged with more serious offences may be dealt with in this manner by reason of good character, the court’s view that there will be no re-offending, that treatment is required outside prison and, at times, by reason of the fact that the court believes that a particular offender will be positively damaged by immediate incarceration."

83. Whilst I agree with this principle, a life has been lost, the offender must take individual responsibility, and a message must be sent that there are better ways to resolve problems rather than resort to acts violence.
    
84. The Probation Report is in support of suspension and shows prior good character. From the head sentence, five years is suspended. Once she serves the balance of her sentence she shall be released and will be placed on a good behavior bond without surety for three years to keep the peace.
    
85. The balance will be served at the Bomana Correctional Institution.

Orders

86. The Orders are as follows:
    1. The offender is sentence to 12 years imprisonment.
    2. 5 years is suspended, and the offender is placed on good behavior without surety for 3 years.
    3. The offender shall serve 7 years at Bomana Correctional Institution in light labour.
    4. Bail is refunded.

________________________________________________________________
Office of The Public Prosecutor: Lawyer for the State
Twivey Lawyers: Lawyer for the Defence

---

^[1] supra
^[2] N9104
^[3] PGSC 73; SC1991
^[4] PGNC 373; N4620
^[5] PGSC 51; SC1017 (29 September 2008)
^[6] supra
^[7] PGNC 91; N8311 (4 May 2020)
^[8] PGNC 124; N6772 (21 April 2017)
^[9] PGNC 119; N4110 (22 April 2010)
^[10] PGNC 246; N9110 (20 August 2021)
^[11] PGNC 181; N9021 (13 August 2021)
^[12] PGNC 165; N9022 (18 June 2021)
^[13] PGNC 74; N8849 (26 February 2021)
^[14] Cr No 94 of 2019 (11 February 2021 in PNG sentencing database)
^[15] PGNC 126; N6775 (21 April 2017)
^[16] PGNC 140; N4133 (23 September 2010)
^[17] PGNC 59; N3640 (22 May 2009)
^[18] PGNC 34; N3624 (21 April 2009)
^[19] PGSC 15; SC702 (8 November 2002)
^[20] PGNC 59; N3640 (22 May 2009)
^[21] supra