State v Kumbi [2021] PGNC 570; N9296 (15 November 2021)

N9296

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 939 OF 2019

STATE

V

JOE KUMBI

Waigani: Wawun-Kuvi, AJ
2021:  11^th October, 11^th &15^th November

CRIMINAL LAW-SENTENCE-Criminal Code, s 302, Manslaughter-Domestic Setting-Prisoner kicked his wife causing her to fall and knock her head on the ground- Deceased died as a result of the assault by the prisoner.

Cases Cited

State v Namaliu [2020] PGNC 234; N8506
The State v Mano (2019) N8238
State v Wambura [2017] PGNC 318; N6967
State v Pilota [2015] PGNC 39; N5963
State v Narogi [2014] PGNC 170; N5798
State v Bekeram [2011] PGNC 344; N4319
State v Gunan [2011] PGNC 342; N4317
State v John [2010] PGNC 130; N4116
State v Dubun [2010] PGNC 118; N4109
State v Kududu [2010] PGNC 117; N4108
State v Ruben [2008] PGNC 263; N3941
State v Kailomo [2007] PGNC 212; N5023
State v Arimin [2007] PGNC 129; CR 290 of 2007 (28 March 2007)
State v Kaparo [2007] PGNC 79; N3189
Walus v State [2007] PGSC 4; SC882
State v Walus [2005] PGNC 147; N2802
State v Lavin [2004] PGNC 143; N2607
State v Karo [2004] PGNC 171; N2600
State v Mana [2003] PGNC 125; N2367
Public Prosecutor v Thomas Vola [1981] PNGLR 412
Goli Golu v The State [1979] PNGLR 653

Reference

Criminal Code, Ch 262, section 302
Counsel

Ms Gretel Gunson, for the State
Ms Rachael Mangi, for the Defence

SENTENCE
15th November, 2021

1. WAWUN-KUVI, AJ: The offender was 26 years old at the time of the offence. He was married to the deceased. They had no children and were just starting their married life. The death of the deceased arose out of a domestic dispute. A dispute that was so trivial that should not have otherwise resulted in the deceased death. The deceased argued with the offender accusing him of having affairs with other married women in their community. The offender told the deceased to calm down as she started to raise her voice. She did not accede to his request. He slapped her and then kicked her. She fell and hit her head hard on the ground. She died because of the injuries she sustained.
   
2. I must decide what sentence, the offender should receive for the tragic and unfortunate death of his wife.

Purpose of Sentencing

3. 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

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

Penalty

5. The maximum penalty is life imprisonment. The penalty is subject to section 19 of the Code.
   
6. I remind myself that the maximum penalty is reserved for the most serious case: Goli Golu v The State [1979] PNGLR 653. This is not such a case that would warrant the maximum.
   
7. 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

8. The factors in this case appear to place it at the mid-range of category 1 of the Manu Kovi guidelines. However, as stated the guidelines assists when this Court considers the appropriate sentence, but it is the peculiar circumstance of this case that will be the relevant consideration,

Submissions

8. The defence submit for a sentence between 7 and 10 years. It is submitted that the aggravating features are that the offence is prevalent and that it was the accused actions that caused the death of the deceased. The defence argue that the extenuating factor is that this was a domestic argument in which the offender did not anticipate that death would occur.
   
9. I do not accept the argument by the defence that because death arose out of a domestic setting, it is a matter that should act in favor of the accused. On the contrary, considering the prevalence of domestic disputes that lead to bodily harm and death in this country, it is a factor that acts against the accused. It is also aggravating in the context that it is a violation of the trust and security that exists in the marriage: State v Namaliu [2020] PGNC 234; N8506 (17 September 2020).
   
10. In mitigation, the defence contend that the offender pleaded guilty, there was no pre-meditation, no weapon used, the offender is a first-time offender and there was de facto provocation.
    
11. The defence refer to the following comparable cases:
    
    • (a) State v Wambura [2017] ^[1], Batari J: The offender pleaded guilty to causing his brother-in-law’s death. He had no prior convictions. The offender and the deceased were drinking together. They argued. The deceased pushed the offender. The offender punched the deceased several times on the head. The deceased fell and died. The prisoner was sentenced to 7 years imprisonment less time spent in custody;
      
    • (b) State v Dubun [2010]^[2], Cannings J: The offender pleaded guilty to causing his wife’s death. He had no prior convictions. He argued with his wife over some domestic matters and kicked her on her buttocks. Her spleen ruptured. She died as a result. He was sentenced to 12 years imprisonment. 3 years was suspended. Time spent in custody was deducted. He was ordered to serve the balance. Whilst there was a submission that the whole of the sentence be suspended, the Court stated that to wholly suspend would have the effect of cheapening the value of human life;
      
    • (c) State v Arimin [2007]^[3], Davani, J: The offender pleaded guilty to causing his wife’s death. He accused her of having extra martial affairs. He punched her and then used a stick to hit her on multiple parts of her body. She died from a ruptured spleen. The offender was sentenced to 12 years imprisonment less time spent in custody. The Court stated that “wives should be treated with the same respect and care that she gives to her husband. A death from beatings received must be punished by society in this case, a prison sentence”;
      
    • (d) State v Lavin [2004]^[4] ,Sevua J: The offender pleaded guilty to causing his wife’s death. He had no prior convictions. They argued over a fish. The deceased accused the offender of being greedy and continued to nag him. The offender became angry and slapped her on the mouth and kicked her once. She fell. She died from a ruptured spleen. He was sentenced to 10 years imprisonment less time spent in custody.
      
12. The State submits that an appropriate sentence is in a range between 8 and 12 years.
    
13. The State submits that a life has been lost and cannot be replaced. Reliance is placed on the case of The State v Rex Lialu [1988-89] PNGLR 449 adopted in State v Wambum (2002) PGNC 37; N2311.
    
14. It was also submitted that the attack was vicious and that the deceased was defenseless.
    
15. In mitigation, the State submits that the offender has no prior convictions and has expressed remorse.
    
16. The State submits the following comparable cases:
    
    • (a) State v Kaparo [2007]^[5], Cannings J: Two offenders pleaded guilty to cause their brother-in-law’s death. Both offenders had no prior convictions. The deceased is married to their sister. The offenders were angry that the deceased was having an affair with their other sister. One offender assaulted and kicked the deceased. The other assisted. The deceased died because of the injuries he sustained from the attack. Both offenders were sentenced to 12 years imprisonment, less time spent in custody and 2 years of which was suspended;
      
    • (b) State v Walus [2005]^[6], Cannings J: This was a trial. The deceased had an argument with the offender’s wife. The women are cousins. The offender’s wife then reported the argument. The offender walked over to the deceased house. She was sitting on the steps. The offender punched her on the side of her face causing her to fall on the ground. She broke her neck and her spleen also ruptured when the offender kicked her whilst she was on the ground. He was sentenced to 18 years imprisonment. The case went on appeal in Walus v State [2007] PGSC 4; SC882 (23 February 2007) where the Supreme Court upheld the sentence of 18 years.
      
17. The State also relies on State v Kaparo[2007]^[7].
    
18. Additionally, I have found some comparable cases where death occurred following a domestic dispute, no weapons used and was caused because of the offender’s actions:
    
    • (a) State v Pilota [2015]^[8], Toliken J: The offender pleaded guilty to causing the death of his wife. He was 27 years old at the time of the offence. He had one child with the deceased. He had earlier on assaulted his wife. She swore him in front of his friends. He pulled her into the living room and slapped her twice on both cheeks and kicked her once on the buttocks. She died from a ruptured spleen. He was sentenced to 11 years of imprisonment, less time spent in custody, two years of which was suspended upon conditions;
      
    • (b) State v Narogi [2014]^[9], Cannings J: The offender pleaded guilty and was a first-time offender. He returned home from the garden to find his wife telling stories with neighbors. He was angry because she was playing cards and not taking care of their baby. He slapped her. She fell. He then kicked her causing her spleen to rupture. He was sentenced to 12 years less time spent in custody;
      
    • (c) State v Bekeram [2011]^[10], Cannings J: the offender was convicted following of a trial for the manslaughter of his wife. He was angry with his wife for being away for a week and assaulted her when she returned. She died from the injuries she received from the assault. He was sentenced to 14 years’ imprisonment, less time spent in custody;
      
    • (d) State v Gunan [2011]^[11], Cannings J: the offender pleaded guilty to causing his wife’s death. They argued over some domestic issues. He had no prior convictions. She died as a result of a ruptured spleen and a fracture to her neck. He was sentenced to 12 years’ imprisonment, less time spent in custody, four years of which was suspended;
      
    • (e) State v John [2010]^[12], Cannings J: the offender pleaded guilty to causing his mother’s death. She was sitting with other women when the offender approached her without warning. He slapped her and kicker her in the abdomen. She died from a ruptured spleen. He was sentenced to 12 years imprisonment less time spent in custody, 3 years of which was suspended on strict conditions;
      
    • (f) State v Kududu [2010]^[13], Cannings J: the offender pleaded guilty to causing his wife’s death. She argued with him over domestic matters. He hit her with an open hand three times in the back. She died from a ruptured spleen. He was sentenced to 12 years’ imprisonment, less time spent in custody;
      
    • (g) State v Ruben [2008]^[14], Cannings J: The offender pleaded guilty and was a first-time offender. He woke up in the early hours of the morning complaining of mosquito bites. He argued with his wife over not sleeping in the mosquito net. He threw an unripe pawpaw at her. It hit her on the side causing her spleen to rupture. He was sentenced to 10 years imprisonment less time spent in custody;
      
    • (h) State v Kailomo [2007]^[15], Cannings J: The offender was convicted after a trial. He punched his wife once in the stomach after a domestic argument. She died because of a ruptured spleen. He was sentenced to 15 years imprisonment less time spent in custody.
      
19. The above cases demonstrate that in guilty pleas with no prior convictions, the sentences are lower and range between 7 and 12 years.
    
20. I have also had regard to comparable cases where the offenders have punched and caused the deceased to fall or hit their head. The offences did not arise out of domestic settings. The cases were guilty pleas, and the offenders had no prior convictions:
    
    • (a) The State v Mano (2019) N8238, Kaumi J: The offender pleaded guilty for causing the death of the deceased. He and the deceased were drinking. He left the house to attend to an errand. Upon his return he heard the deceased calling out his wife’s name. This angered him and he kicked the deceased in the chest causing him to fall and hit his head hard on the cement floor. The deceased died as a result. The offender was sentence to 8 years of imprisonment, less time spent in custody. He was ordered to serve 3 years and the balance was suspended on conditions;
      
    • (b) State v Karo [2004]^[16], Kandakasi J (as he then was): The offender pleaded guilty and was a first-time offender. He worked as a security guard at a club. The deceased was drunk and attempted to walk into the club without paying the gate fee. There was an argument which led to a fight when the deceased was denied entry. The deceased punched the offender on his ear. The offender then punched the deceased causing him to fall. He then grabbed the deceased and threw him out of the date. The deceased land on a hard surface, causing his spleen to rupture. The offender was sentenced to 8 years imprisonment less time spent in custody;
      
    • (c) State v Mana [2003]^[17], Kandakasi J (as he then was): The offender pleaded guilty and was a first-time offender. The deceased persistently questioned another person as to his reasons for buying the offender beer. The offender told him to stop. He then slapped the deceased on the face. The deceased fell hard on the concrete floor. The offender attempted to resuscitate the deceased. The deceased died because of the injuries he sustained from falling on the concrete floor. Both the offender and the deceased were drunk. The offender was sentenced to 8 years imprisonment less time spent in custody.

Factors in Aggravation

21. Factors in aggravation are that a life has been lost and cannot be restored. The offence happened in a domestic setting.

Factors in Mitigation

22. Factors in mitigation are that the offender is a first-time offender and his plea of guilty. There was minimal force used and no weapon was used.
    
23. There was also an element of de facto provocation. The deceased was calling the names of married women in the community alleging that the offender was having sexual relations with them. No doubt this not only caused the offender embarrassment but fear of retaliation from the husbands of those women. Whilst I do accept that it mitigates his sentence, it no doubt excuses his actions.

Personal Particulars

24. The offender is now 29 years old. He lived at Tete Settlement at Gerehu, National Capital District. He is from Purani Village, Koroba, Hela Province. He was fostered by a Goilala family. He relied on his foster family for financial support.
    
25. His biological parents are alive. They are separated. His father is married to a woman from Lealea and lives with is wife in her village. The offender is the third and only male from his parents’ marriage. He has four sisters. His stepmother has two daughters and an adopted son.
    
26. He is a member of the Seventh Day Adventist Church.
    
27. He completed Grade 8 at Gerehu Primary School. He did not further his education.

Allocutus

28. The offender said in Allocutus:

“I wish to say sorry in the eyes of our heavenly father to the State and the lawyers for what has happened. I want to say sorry to the family of the victim and my family. I am also a first-time offender to appear in front of the Court. I am asking this honorable court to have mercy on me so that it can reduce my time. I had no intention to kill her but because of this argument it made me kill her.”

29. I accept his statement as a sign of genuine remorse and regret over the loss of his wife.

Pre-sentence Report

30. The Probation Officer interviewed the offender and his aunt one Eli Kumbi.
    
31. The offender expressed his remorse and explained that the offence occurred when his wife accused his of having sexual relations with his ex-girlfriends who are now married women in their community.
    
32. Eli Kumbi is the offender’s paternal aunt. She states that the offender was a quite and humble person and the offence was out of character. His family members were shocked to learn of the incident. She has pity for him but cannot do much considering the gravity of the offence.
    
33. The Probation Officer makes no recommendation.

Victim

34. There is very little known about the victim. The State did not obtain a victim impact statement and the Probation Officer was not able to locate her family.
    
35. What little in the depositions is that she is 18 years old and from Goilala in the Central Province.

Consideration

36. Since being appointed to the bench in August of this year, all the bodily harm and manslaughter cases that I have presided over, have had a domestic element. The number of published judgments this year also reveal a high number of deaths and bodily harm cases arising out of a domestic setting. Most of the victims are women. It appears that our society is plagued by a far bigger issue than a break down in law and order. Most of the offences arise out of trivial or petty issues that would otherwise not lead to death had offenders simply walked away from the argument. Our society appears to be one that accepts violence as a mode of conflict resolution. Unfortunately, the human body is not made of steel, and it is vulnerabilities and weakness are fully appreciated after the fact by most offenders, albeit, too late.
    
37. As can be seen from the cases cited, the reasons for the violence are so outrageously petty that it leaves any reasonable person to contemplate how our society has reached this point. One woman is killed because her husband was bitten by mosquitos, one for swearing at her husband in front of his friends, another killed for not returning home sooner, yet another for playing cards, and in this case for raising her voice.
    
38. Kirriwom J, in State v Kenny (1991) NI881, in holding the view that sentences for manslaughter causes where deaths result out of circumstances which are unacceptable should not be less than 8 years, stated:
    

"Men who physically assault their wives or women generally must realise by now that spleen related deaths are common and frequent where men indiscriminately batter their women-folk without the slightest regard for their health and life. Resorting to physical violence to resolve one’s anger is not the right behaviour of decent and respectable men. Men who expect respect and support from their women must earn that respect by their conduct deserving of praise and dignity. The prisoner simply lost his control and as the consequence an innocent life is lost.

39. The offender in this case could have simply walked away and returned sometime later after his wife cooled down. Instead, he chose to calm an already agitate woman by telling her to keep her voice down. Obviously, that did nothing more than to further agitate her.
    
40. Sevua, J in The State v Lavin (2004)^[18], where the offender argued with his wife over fish, made the following statements which I adopt:
    

“People, especially men, must realize that women are an integral part of our society today. The Constitution accords equal rights and opportunities to women. They are human beings with dignity and value. Therefore, men like you cannot continue to treat women like rubbish. Women are not football those men can kick around. A man who kills his wife, like the prisoner in the present case, must pay the price for his action. He cannot come to Court and give all kinds of reasons to escape a heavy penalty for the life he has taken.”

41. Whilst I accept that the offender was embarrassed over his wife accusing him of sexual relations with his ex-girlfriends who were married and calling out their names out loud, it in no way justifies and condones his unacceptable behavior. He should have respected his wife and handled the situation in a better way. He did not. And for that he must accept the consequences of his actions.
    
42. He is a first-time offender that pleaded guilty to the offence. He did not use a weapon and minimal force was used. He expressed remorse which I accept is genuine. However, a young life was lost. The deceased was 18 years old at the time of her death. It is tragic that such a young woman barely into adulthood should lose her life so tragically over a trivial issue. The significant aggravating factor is that her death was caused by her husband. The one person who should have loved, honored, and kept her safe.
    
43. Having considered all the factors as they pertain to this case, the relevant guidelines, and comparative cases, I find that an appropriate sentence is 10 years.
    
44. There is nothing in the pre-sentence report that justifies suspending the sentence. Whilst a report was prepared. There were no views obtained from the deceased relatives or from members of the offender’s community.
    
45. The same factors that reduced sentence cannot be used to suspend sentence; Public Prosecutor v Thomas Vola [1981] PNGLR 412.
    
46. In terms of pre-sentence custody, I exercise my discretion and deduct the 2 years, 10 months, 1 week and 5 days. This is calculated from the date the information was laid at the Committal Court.

Orders

47. The Orders are as follows:
    1. The offender is sentence to 10 years imprisonment.
    2. The pre-sentence custody of 2 years, 10 months, 1 week and 6 days is deducted.
    3. The prisoner shall serve 7 years, 1 month, 2 weeks and 1 days in light labour at the Bomana Correctional Institution.
       

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

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^[1] PGNC 318; N6967 (8 August 2017)
^[2] PGNC 118; N4109 (22 April 2010)
^[3] PGNC 129; CR 290 of 2007 (28 March 2007)
^[4] PGNC 143; N2607 (6 May 2004)
^[5] PGNC 79; N3189 (21 March 2007)
^[6] PGNC 147; N2802 (25 February 2005)
^[7] supra
^[8] PGNC 39; N5963 (20 February 2015)
^[9] PGNC 170; N5798 (23 August 2014)
^[10] PGNC 344; N4319 (22 June 2011)
^[11] PGNC 342; N4317 (22 June 2011)
^[12] PGNC 130; N4116 (24 August 2010)
^[13] PGNC 117; N4108 (22 April 2010)
^[14] PGNC 263; N3941 (22 February 2008)
^[15] PGNC 212; N5023 (13 July 2007)
^[16] PGNC 171; N2600 (29 April 2004)
^[17] PGNC 125; N2367 (2 May 2003)
^[18]supra