N8846

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1129 OF 2019

STATE
v
DESSIE PARAM BELDEN
Accused

Kimbe: Numapo J
2021: 13th April & 21st May

CRIMINAL LAW – Particular offence – Wilful Murder s.299 (1) Criminal Code–  Guilty Verdict returned on a lesser alternative charge of Manslaughter (s. 302) pursuant to s. 539 of the Criminal Code – Sentencing Tariffs – Sentencing Discretion – Partial Suspension with conditions.
Cases Cited
State v Manasseh Voeto [1978] PNGLR 519 
Reference by the Principal Legal Adviser Pursuant to Section 26 of the Supreme Court Act Re: Section 539 of the Criminal Code SC1999 
James Pari & Tine Kaupa Bomai v The State [1993] PNGLR 173 
State v Avaka [2000] PGNC 56. 
State v Lossio John CR. No. 158 of 2012 
State v Carol Alfred (2009) N3602
State v Asi Piro (2011) N4410
State v Mema [2012] PGNC 21; N3602 
State v Serah Joe Wennis (2011) N4661
State v Elda Kevau CR. No. 281 of 2019

Counsel:
M. Tamate/A. Bray, for the State
D. Kari, for the Defence

DECISION ON SENTENCE

21st May, 2021 

1.      NUMAPO J: This is a decision on sentence. The prisoner DESSIE PARAM BELDEN of Matakali village, Namatanai, New Ireland Province was arraigned with one count of Wilful Murder pursuant to Sections 299 (1) of the Criminal Code. The accused pleaded not guilty and the matter went to trial. The State’s evidence overall was insufficient to sustain the charge of wilful murder under s 299 of the Criminal Code.  Prosecution has not proven all the requisite elements of the principal offence of wilful murder to secure a conviction. The Court in exercising its powers under s. 539 of the Criminal Code found the prisoner guilty on an alternative lesser charge of Manslaughter pursuant to s 302 of the Criminal Code and convicted her accordingly. 

    A.	BRIEF FACTS
2.     The prisoner was married to the deceased Belden Wanga at the time of his death. It was alleged that on the night of the 13th July 2019 at Morokea village on the fringes of Kimbe town, the deceased was drunk and went into the house when he got stabbed with a knife by the prisoner. It was alleged that the deceased demanded to have sex with the prisoner but she refused and an argument broke out. Prisoner was 5 months pregnant at the time. After he got stabbed the deceased walked out of the house with the assistance of one of his neighbour Nick Laupu and the prisoner. They laid him down on the ground, tied a piece of cloth over the stab wound and poured water on him. Nick Laupu went off to look for transport to take the deceased to the hospital whilst the prisoner watched over the deceased who was still alive and talking at the time. 
3.     The deceased was still breathing and talking when they took him to the hospital. He died a couple of hours later at the hospital from loss of blood. Postmortem report revealed a stab wound measuring 20cm deep penetrating the pericardium (part of the heart). 

B.	THE LAW
4.     Section 302 Manslaughter states: - 
A person who unlawfully kills another under such circumstances as not to constitute wilful murder, murder or infanticide is guilty of manslaughter.
Subject to Section 19, imprisonment for life.

5.     Section 19 of the Criminal Code gives the court a wider sentencing discretion to impose a lesser sentence including a non-custodial sentence in place of the maximum penalty prescribed by law. 

C.	MEDICAL REPORT
6.     According to the Postmortem Report, the deceased died of anoxia due to multi organ failure following the knife wound that penetrated through his chest causing injuries to his heart and lungs. 

D.	APPROPRIATE SENTENCE FOR MANSLAUGHTER

7.     The offence of Manslaughter carries life imprisonment however, it is trite law that the maximum penalty is reserved for the worst type offence. See Goli Golu v The State [1979] PNGLR 653 and Avia Aihi v The State (No 3) [1982] PNGLR 92. 

8.     The Supreme Court case of Manu Kovi v The State (2005) SC 789 sets out the sentencing tariffs on Manslaughter cases as shown in the table below:

Category	               Description	                   Details 	             Tariff	
      1	Plea - Ordinary cases – Mitigating factors with no Aggravating factors	No weapons used – Little or no pre-planning - Minimum force used – Absence of strong intent to do GBH	    8 – 12 years	
      2	Trial or Plea – Mitigating factors with Aggravating factors	Use of offensive weapons used such as a knife etc.– vicious attack – multiple injuries-some pre-planning involved	   13 – 16 years	
     3	Trial or Plea – special aggravating factors – mitigating factors reduced in weight or rendered insignificant by gravity of offence	Dangerous weapons used, eg. gun, axe etc. – vicious attack – multiple injuries - pre-planning – some deliberate intention to harm – little or no regard for human life.	    16 – 25 years	
     4  	Worst Case – Trial or Plea – special aggravating factors – no extenuating circumstances- no mitigating factors or mitigating factors rendered completely insignificant by the gravity of the offence	Pre-meditated attack- some of viciousness and brutality – some pre-planning – killing of innocent, harmless person – complete disregard for human life.	Life Imprisonment	

9.    It should be made clear that the sentencing guidelines or tariffs like the Manu Kovi Guidelines (supra) is merely a guideline provided to assist the court to ensuring that there is some degree of consistency in sentencing for like cases. It does not take away the sentencing discretion of the court. See: Kumbamong v The State [2008] PNGSC 51; SC1017.

E.	AGGRAVATING AND MITIGATONG FACTORS

(i)	Aggravating factors and circumstances

•	An offensive weapon namely, a knife was used in the attack
•	Deceased was stabbed on a vulnerable part of his body injuring his lungs and heart
•	Offender attacked without warning
•	Attack was carried out in the dark.

(ii)	Mitigating factors

•	First time offender with no prior convictions
•	There was a de-facto provocation on the part of the deceased as he was drunk at the time, kicked the door open and demanded to have sex with the offender 
•	Offender was 5 months pregnant at that time with their second child
•	Offender expressed great remorse for the loss of her husband and father of their two children.

F.	APPROPRIATE SENTENCE & COMPARABLE CASE LAWS

10.     Counsels submitted that the Court take into account the comparable case laws on manslaughter cases and be guided by it as precedent to impose a penalty that fits the crime. Moreso, the type of sentence that is appropriate guided by the sentencing tariffs on manslaughter set out in Manu Kovi (supra). 
11.     The State submitted for a specific deterrence as well as general deterrence given that domestic violence has contributed to significant number of deaths in recent years. Therefore, the Court must impose a sentence that would have an effective deterrent effect.
12.     Defence however, submitted that every domestic violence is not the same and each case should be judged on its own merits. In this case, the offender was the wife and not the husband as is the case in many other domestic violence cases. The prisoner was only trying to protect herself from been raped by her own husband (deceased) when she refused to have sex with him as she was already five (5) months pregnant at the time. To make matters worse, the deceased was drunk and heavily intoxicated as he has been drinking for almost two days non-stop when he attempted to have sex with the prisoner.   
13.     The prisoner is about 165cm tall and has a slim built whereas the deceased was 180cm tall and big in built. The prisoner used the knife to defend herself. However, this does not give her any excuse to use the knife to attack him. 
14.     Counsels cited the following comparable case laws to assist the Court in deciding the appropriate sentence:
(i)	State v Lossio John CR. No. 158 of 2012 

The prisoner was at the market with her husband waiting for a PMV to go to Lae. Whilst they were waiting her small sister who was newly married to the deceased ran to her as she was beaten by the deceased with a fan belt. The deceased followed her to where they were sitting and the prisoner told him not to hit her sister. The deceased without saying a word took out the fan belt from his pocket and hit the prisoner three times on her head. The prisoner retaliated by hitting him once on the side of his head with a piece of wood. The deceased died of a fractured skull as a result. The prisoner pleaded guilty and was sentenced to 6 years imprisonment. 

(ii)	State v Carol Alfred (2009) N3602

The deceased a policeman had an argument with his wife, the prisoner over dinner that had not been prepared by the prisoner. An argument developed into a fight during which the prisoner accidently stabbed the deceased on his thigh muscles and blood vessels. The deceased died from loss of blood from the wound. The prisoner pleaded guilty and was sentenced to 10 years imprisonment. 
(iii)	State v Asi Piro (2011) N4410
The prisoner killed her husband by stabbing him in the chest during the cause of an argument. The deceased had thrown a plate of food at the prisoner which prompted her to react and stabbed him. Prisoner expressed remorse and said there was no history of violence in the marriage. Reconciliation has taken place between the relatives of the deceased and the prisoner. She was sentenced to 10 years with 3 years of her sentence suspended.
(iv)	State v Mema [2012] PGNC 21; N3602 

The offender, a 24 year old female pleaded guilty to one count of manslaughter for hitting the deceased on his head with a piece of wood to prevent him from assaulting her. The deceased is the cousin of the prisoner who was upset that the prisoner’s mother and sisters were keeping a piglet which he has already sold to another person from another village. The deceased got drunk and went to the prisoner’s house and assaulted her mother and retrieved the piglet. He then returned and slapped the prisoner three times. The prisoner got a piece of firewood and hit him and he died. Compensation of K5, 000 and a pig valued at K600 was paid to the deceased’s relatives. She was sentenced to 6 years with 5 years suspended.

(v)	State v Serah Joe Wennis (2011) N4661

The offender stabbed the deceased once with a kitchen knife after a provoked assault. This was a case of domestic violence killing. The prisoner was sentenced to 12 years imprisonment with hard labour. Five (5) years was suspended to be served on probation after the balance term of 5 years and 5 months was served.

(vi)	State v Elda Kevau CR. No. 281 of 2019
Prisoner and her husband along with some of their relatives were drinking when the prisoner switched off the music which upset her husband who then attacked her. Prisoner ran into the house, picked up a bicycle paddle and threw it at her husband to stop him from further attacking her. The paddle hit the victim on his head and he fell to the ground unconscious. He was rushed to the hospital but died two days later from the injuries. Prisoner pleaded guilty and was sentenced to 6 years imprisonment which was partially suspended on probation condition.

G.	PRISONER’S ALLOCUTUS
15.      In her allocutus, the prisoner told the Court that:
“I say sorry to the Court and also say sorry to the family of the victim and my own family. I say sorry for breaking the laws of this country. I ask the Court to have mercy on me and give me probation. I have two (2) small children to look after. My parents are not working. My family have already compensated the deceased’s relatives with K5000 cash and a pig worth K1000. I was employed at the Book Makers but left the job after this incident happened. I want the Court to put me on probation so I can serve my time outside and look after my two young children. That is all.”

H.	PRE SENTENCE REPORT

16.     The prisoner is 24 years old and is currently unemployed and relies on the little income on betelnut sales and other food stuff on the road side market. She earns about K50 to K60 on a good day. Sometimes her parents help her with some money.
17.     She has two little children aged 4 years and 2 years respectively.  She is looking after the children all by herself. 
18.    The relatives of the deceased demanded K60, 000 compensation which was not paid as it was difficult for the prisoner and her relatives to raise such monies. They only paid K5000 and one live pig worth K1000 to the relatives of the deceased. The prisoner is not able to pay any compensation if ordered by the Court.
19.     The Report recommended that the Court take into considerations all these factors in deciding the appropriate sentence.

I.	PRESENT CASE
20.     Ms Tamate for the State submitted that domestic violence is prevalent and there was a need for specific and general deterrence when the Court is considering the appropriate sentence to impose. Counsel further submitted that the current trend on sentencing for manslaughter cases is an imprisonment term of between 9 – 16 years. The factual circumstances of the cases being the aggravating and mitigating factors and circumstances of the case placed this case under category 2 of the Manu Kovi guidelines which carries a sentence of between 13 – 16 years on plea or trial. The State submitted for an imprisonment term of between 14 – 16 years since the prisoner was found guilty and convicted following a full trial.
21.     Mr Kari for the Defence submitted however, that the current trend on sentencing in manslaughter cases is between 6 – 10 years imprisonment and referred to some case laws cited (above).  Counsel submitted that a sentence of 6 years imprisonment with partial suspension would be appropriate given the factual circumstances of the case. 
22.     It became obvious to me that the prisoner never had a good marital relationship with the deceased. There have been occasional arguments and fights in the past. The problem was compounded further with the deceased’s drinking problem. He was described as an alcoholic and drinks almost every day of the week. In this kind of an unstable environment, things could explode very quickly.
23.     I do not consider this case as the worst type offence and given the peculiar circumstances of this case, the prisoner should not be solely blamed for the demise of the deceased. I say this because there are several factors involved. Firstly, there was some degree of de facto provocation. The deceased was drunk and demanded to have sex with the prisoner and forced himself onto her when she was already five (5) months pregnant at the time. She was also not feeling well and was also sick at the time and could not have given in to his demand for sex. Secondly, the attack did not bring about instant death and the deceased was still alive when he was taken to the hospital and died several hours after. Had he been attended to quickly, the loss of blood would have been controlled the end result would have been different, I can only speculate. Thirdly, the deceased was heavily intoxicated at the time and that made it worse for himself for any chances of survival. 
24.     The Pre-Sentence Report prepared by the Probation Officer was favourable to the prisoner highlighting the problems the prisoner had experienced throughout her marital life. The deceased was an unfaithful husband and has had numerous extra marital affairs with a number of women. Prisoner sought help from the police and the Welfare office but nothing was done to help her. All these anger and frustrations have built up over time that led her to react in the way that she did. The attack she carried out has now left her without a husband to care for her and her two children. Prisoner has gone through a lot after the death of her husband. She told the Court of the financial hardships she faced and continues to face since the passing of her husband. Deceased was the only bread-winner for the family. It is very difficult on her own to support her two children and this will continue into the future. She has realized her mistake and has expressed regrets and remorse for what she did. 
25.     In so far as aggravating factors are concerned, the use of offensive weapon and the loss of life were the only two factors that stands out other than that I do not find anything peculiar about the case.
26.     I take into consideration the welfare of prisoner’s two daughters. Both are of a very tender age (4 years and 2 years respectively) and they would no doubt, require care and support of their mother now that their father is dead. To incarcerate the prisoner for a long term is not in the best interest of the children and their welfare. Furthermore, the prisoner is young and has a potential to reform and become a good law-abiding citizen and I want to give her that opportunity to change for the better. 
27.     Having said that, I concluded therefore, that the mitigating factors and circumstances outweighs the aggravating factors hence, reducing the seriousness of the offence and the degree of culpability. I further find that the factual circumstances of the present case does not place the case in the category of worst type offence that warrants the imposition of the maximum penalty. 
28.     As I said in many similar cases in the past, each case must be decided on its own merits based on the factual circumstances of the case to determine the appropriate sentence. Furthermore, I am not limited or restricted by any sentencing guidelines and/or tariffs in deciding what type of sentence to impose. The wider sentencing discretion under section 19 of the Criminal Code allows me to consider a lesser sentence including a non-custodial sentence where appropriate. (See: Kumbamong v The State [2008] PGSC 51; SC1017). 
29.     For non-custodial sentence, the grounds under which suspended sentence is given is discussed in the Supreme Court case of Public Prosecutor v William Bruce Tardrew [1986] PNGLR 91.  In that case the Supreme Court sets out three (3) broad categories on suspended sentence. The categories are not exhaustive and are as follows:

(i)	Where suspension will promote personal deterrence, reformation or rehabilitation of the offender.

(ii)	Where suspension will promote repayment or restitution of stolen money or goods; and

(iii)	Where imprisonment would cause an excessive degree of suffering to a particular offender, for example because of his bad physical or mental health. 
30.      In the present case, it is my view, that partial suspension of the sentence will promote personal deterrence and rehabilitation for the offender. She has expressed remorse and was genuinely sorry for what she did. Incarcerating her would cause her more psychological suffering as she would be leaving behind her two very young children to the care of other people and no mother would want to do for a long period of time. However, I am reluctant to have her prison sentence wholly suspended given that this is no ordinary GBH cases but a homicide case of which a life has been lost and she must therefore, serve some jail time.

J.	ORDER
31.      I make the following Orders:
(i)	Prisoner is sentenced to Six (6) years imprisonment.

(ii)	I further order that One (1) year and Two (2) months be deducted for the pre-trial custody period leaving the balance of Four (4) years and Ten (10) months to be served. 

(iii)	I further order that Two (2) years be suspended on the conditions that the prisoner is placed on probation for a period of twelve (12) months under the supervision of the Probation Office. 
 
(iv)	Prisoner is to serve the balance term of Two (2) years and Ten (10) months imprisonment. 

Orders Accordingly
__________________________________________________________________
 Public Prosecutor:	Lawyers for the State
 Public Solicitor:	Lawyers for the Defendant