State v Kundai [2022] PGNC 509; N10044 (22 November 2022)

N10044

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 531 OF 2022
BETWEEN:

THE STATE

AND:

WARI KUNDAI

Waigani: Wawun-Kuvi, AJ
2022: 1^st September, 19^th October & 22^nd November

CRIMINAL LAW-SENTENCE-Guilty Plea-Manslaughter, 304 Criminal Code- Alcohol related violence- First time offender- De facto Provocation-Sentence of 9 years imprisonment

Cases Cited
Mikoro v State [2015] PGSC 12; SC1424
Diwa v State [2007] PGSC 30; SC892
Kirafe v State [2007] PGSC 29; SC893
State v Kirafe [2005] PGNC 175; N3660
State v Diwa [2005] PGNC 184; N3381
State v Huliya [2005] PGNC 77; N2872
Manu Kovi v The State (2005) SC789
Gima v The State [2003] PGSC 730
State v Winston [2003] PGNC 146; N2347
Allan Peter Utieng v The State (2000) SCR No 15 of 2000
Public Prosecutor v Hale [1998] PGSC 564
Simbe v The State [1994] PNGLR 38
The State v. Aruve Waiba [1994] CR1/94(Unreported and Unnumbered)
Lialu v The State [1990] PNGLR 487
The State v Lopai [1988-89] PNGLR 48
State v Kagai [1987] PNGLR 320
Prosecutor v Tardrew [1986] PGLawRp 91
The Public Prosecutor v Vangu’u Ame [1983] PNGLR 424
Public Prosecutor v Thomas Vola [1981] PNGLR 412
The State -v- Tendi Kalio Ulio [1980] PNGLR 350
Goli Golu v The State [1979] PNGLR 653
Public Prosecutor v Sima Kone [1979] PNGLR 294

References
Criminal Code Ch 262
Criminal (Sentencing) Act

Counsel
Mr. Solomon Kuku, for the State
Mr Obadiah Himore, for the Offender

DECISION ON SENTENCE

22^nd November, 2022

1. WAWUN-KUVI, AJ: Wari Kundai (the offender) is a mother of three that has found herself in her present predicament because of poor choices. Instead of celebrating New Year’s Eve with her children, she made the decision to consume alcohol. A decision she now regrets.
   
2. The offender drank with her friends until 1 January 2021. The wife of the deceased asked her for beer. When she replied that there was no beer an argument ensued. The deceased threw a bottle of beer at the offender. The bottle stuck the offender on her forehead. She approached the deceased and questioned him as to his reasons for throwing the bottle. As she did so, the deceased threw two more beer bottles. The bottles struck the offender on the head. She fell to the ground and momentarily lost consciousness.
   
3. On gaining consciousness, she picked up an empty tropical beer bottle and pursued the deceased and his wife. The deceased and his wife were attempting to lock their gate. The offender approached the deceased and proceeded to strike him twice on the head with the beer bottle. The bottle broke.
   
4. The offender threw what was left of the bottle towards the deceased. The bottle missed the deceased and shattered on the gate. A fragment ricocheted off the fencing post struck the deceased on his throat severing his jugular vein. The deceased suffered massive blood loss and died.
   
5. The offender was arrested and charged. She pleaded guilty to the charge of manslaughter under section 302 of the Criminal Code. I must now decide the appropriate penalty.

Purpose of Sentencing

6. Sentencing is not only about punishment of an offender. Its’ purposes are numerous but generally involve rehabilitation, reparation by the offender to persons affected by the offence, deterrence, community protection in cases of violent offences, and communicating clearly that the behaviour of the offender is not condoned.
   
7. It is not an exact science but a discretionary exercise. It involves the assessment and application of the peculiar circumstances of the case against the relevant sentencing principles: Lialu v The State [1990] PNGLR 487 and Simbe v The State [1994] PNGLR 38.

Maximum Penalty

8. The offender pleaded guilty and was convicted for the charge of manslaughter under section 302 of the Criminal Code.
   
9. The maximum penalty subject to section 19 of the Criminal Code is imprisonment for life.
   
10. The general principle is 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.

Sentencing range

11. The State submits for a sentence between 13 to 15 years imprisonment. The Defence submits for a sentence between 8-12 years imprisonment.
    
12. Mr. Kuku for the State makes no submission in relation to sentencing guidelines for manslaughter cases.
    
13. Mr. Himore refers to the guidelines in Manu Kovi v The State (2005) SC789 and submits that the present case falls within category 1.
    
14. In Manu Kovi v The State (2005) SC789 the Supreme Court provided guidelines for homicide convictions. The guidelines do not bind the Court in the exercise of its discretion but are necessary to assist the Court to reach an appropriate penalty in consideration of the peculiar circumstances and at the same time ensure parity across sentencing.
    
15. The circumstances of the present case, places it in the 1^st category as set out in the table below:
    

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

Comparable cases

17. The State submitted the following comparable cases:
    
18. State v Kirafe [2005]^[1], Kandakasi, J (as he then was): The offender pleaded guilty. He was drunk and being a nuisance to the driver of the motor vehicle and other passengers. He argued with the driver of the vehicle. The argument was over the driver failing to stop when requested by the offender. The driver explained that he could not stop because of safety reasons. The offender threw a bottle at the driver’s head. Another person took over driving. The driver lost consciousness and eventually died. The offender was sentenced to 13-year imprisonment.
    
19. The Supreme Court in Kirafe v State [2007] PGSC 29; SC893 (27 June 2007) dismissed the appeal and confirmed the sentence of 13 years.
    
20. State v Huliya [2005]^[2], Mogish J: The offender pleaded guilty to Murder under section 300(1)(b) of the Criminal Code. The offender was among others watching a video show. He was intoxicated from having consumed alcohol earlier that day. During the show, he asked the proprietor for money. The proprietor refused. This angered the offender who picked up a bottle filed with kerosene and threw it in the direction of the audience. He had intended to hit a post. The bottle missed and instead struck the deceased on the back of his head. The bottle shattered and a fragment was lodged in the deceased head. He bled profusely and subsequently died. The offender was sentenced to 15 years imprisonment.
    
21. Whilst the modus operandi is similar, in that the offenders were intoxicated and used bottles to strike the deceased, I find that the present case is distinct. Here, the deceased instigated the incident by striking the offender on the head with beer bottles. She lost consciousness temporarily and after she regained consciousness, she immediately pursued the deceased. Further, death was not caused by a direct blow to the throat but from a fragment of glass that had ricocheted off the fence.
    
22. Additionally, State v Huliya [2005] was not a manslaughter conviction.
    
23. The defence submits the case of The State v Lopai [1988-89]^[3], Bredmeyer J: The offender pleaded guilty to causing the death of his wife. He kicked her with significant force that caused her spleen to rupture. She was 24 years old and did not have an enlarged spleen. The offender was sentenced to 6 years imprisonment.
    
24. Whilst I accept the submission by Mr. Himore that culpability and harm or consequences of offences are relevant considerations and that each case should be determined on its own peculiar circumstance, the case of State v Lopai [1988-89] is factually distinct. Additionally, the Supreme Court in Lialu v The State [1990]^[4] found that the guidelines in State v Lopai [1988-89] were erroneous.
    
25. I have had recourse also to the following comparable cases:
    
    • State v Diwa [2005]^[5], Kandakasi J (as he then was): The offender pleaded guilty to causing the death of the deceased during a village fight. The offender and others were playing soccer. During the match, one player kicked a ball which hit another player in the head. Both players started fighting. The offender and others took sides and started fighting each other. Despite pleas from village elders to stop fighting, the offender and others continued fighting. During the fight, the offender was punched in the face. Aggrieved, he ran to his house and grabbed a spade. He threw the spade at the deceased. The spade landed on the deceased ankle. The ankle was almost severed. The deceased died because of blood loss. The offender was sentenced to 13 years imprisonment.
      
    • The Supreme Court in Diwa v State [2007] PGSC 30; SC892 (27 June 2007) dismiss the appeal and confirmed the sentence.

Culpability of the Offender and Harm Caused by the Offender

26. In sentencing, determining whether the offender’s conduct was intentional, calculated, or premediated and the level of planning involved is a relevant consideration.
    
27. In State v Lopai [1988-89], Bredmeyer J stated that “Every form of punishment takes into account the intention behind the act or omission and the consequences, both the seriousness of the intention and the seriousness of the consequences.”
    
28. Mr. Kuku submits that this was a deliberate act of violence. He however concedes that the offender was provoked by the deceased and his wife. That they had started the argument.
    
29. Mr. Himore submits that the death was because of an unintended act. That the offender was assaulted after she had refused to give beer to the deceased and his wife. That death was caused because of a fragment of glass ricocheting off the fence.
    
30. Intention of the offender is a matter that is exclusive to the mind of the offender. The Court can infer the intent of the offender from the circumstances of the case.
    
31. The facts show that this was not a planned act. The offender was making her way to the toilet when she was interrupted by the request for beer from the deceased and his wife. The deceased struck the offender with the beer bottle and threw two other bottles at her. She immediately reacted after gaining consciousness.
32. Whilst the act of picking up the bottle and pursing the deceased was intentional, this is considered against the circumstances of the case.
    
33. The offender was intoxicated from consuming alcohol since 7 pm the previous day. I find that here mental faculties were inhibited by alcohol.
    
34. The weapon used was not one of choice. It was a weapon of opportunity available around the area due to the alcohol consumption.
    
35. I accept that the offender struck the deceased twice on the head before throwing the bottle. The actions indicating some level of intention, however, given the foregoing factors, I find that her level of culpability is far lower than the comparable cases.
    
36. As to the seriousness of the consequences of the offender’s action, I find that a life has been lost and cannot be replaced.
    
37. The State did not obtain a victim impact statement but relied on the statements provided to the Probation Officer. The statements from the deceased brother do not include any views as to the consequences from the loss of life. He feels sorry for the offender’s family who are suffering from her continued imprisonment. There is no statement from the deceased wife.

Aggravating Factors

38. I find the following to be aggravating:
    1. The loss of life.
    2. The offender used a bottle. As stated, it was a weapon of opportunity but dangerous when used inappropriately. A beer bottle is made of glass and when broken can cause serious injury and death. Even if it is not broken when applied with significant force, is still able to cause serious bodily harm and death. In the present case, the fragment severed the jugular vein which led to blood loss.
    3. The deceased was struck twice in the head with the beer bottle before the bottle was thrown at him.
    4. Alcohol violence is prevalent, and alcohol related deaths is also prevalent.

Mitigating Factors

39. In mitigation:
    1. The offender has no prior convictions.
    2. She pleaded guilty at the earliest opportunity.
    3. She cooperated with police and made admission recorded in the Confessional Statement and the Record of Interview.
    4. She surrendered to police the next day, that is 2 January 2021 and was detained thereafter. She subsequently gave her Confessional Statement on 5 January 2021 and continued to maintain her admissions 7 months later when the formal police interview was conducted.
    5. After a protracted committal proceeding, she was committed on 14 April 2022. She pleaded guilty during the directions hearing.
    6. She expressed her regret in allocutus and apologized to the deceased and his family. I accept that her statement was a genuine expression of remorse because of the foregoing matters in mitigation.
    7. There was no planning, and she was intoxicated. As stated, her level of culpability is significantly reduced because of these factors.
    8. Compensation was paid both in Port Moresby and in Enga which was accepted by the deceased relatives.
    9. The bottle did not directly hit the deceased, but it was a fragment that had ricocheted off the fencing post.
    10. There was strong de facto provocation. She was at her home when the deceased and his wife approached her and asked for beer. They insulted her when she did not give them beer. She was then assaulted. She was still bleeding from the assault when she pursued the deceased.

Extenuating Circumstances

40. Both the State and the Defence concede that there is an extenuating factor in this case.
    
41. The extenuating factor as I see it comes from a combination of three factors.
    
42. Firstly, according to the statement of Alois Michael after the deceased was cut, he walked around looking for a weapon to attack the deceased. The witness stopped him and tied a cloth on his wound.
    
43. Secondly, he was assisted towards the main road however just before the main road he sat down and went into convulsions. The witness called out to his relatives, but no one did anything. He left the deceased and went home.
    
44. The incident happened between 6 am and 9 am. The information given to the Pathologist indicates that the deceased was eventually taken to the hospital and died at the hospital. The Record of Death from the Port Moresby General Hospital records time of death at 3 pm.
    
45. Thirdly and finally, the autopsy report indicates that there was no arterial or major bleeding. The bleeding from the vein was superficial. A wound not entirely life threatening when stitched. However, a specialist is required to stich the vein. A specialist which is not available anywhere in Papua New Guinea. Between the time of stabbing and eventual medical intervention, the deceased had lost a significant amount of blood.
    
46. These factors have led to the deceased bleeding out and eventually dying from shock.
    

Consideration

47. Whilst not intentional the offender should have given some consideration to her actions after the deceased and his wife walked away. She made the decision to follow them and attack the deceased.
    
48. Alcohol related violence especially around the festive and New Year period are prevalent. For the present case, death resulted. That life has been lost and can never be replaced.
    
49. I have considered the foregoing matters, the aggravating, mitigating factors and extenuating circumstance, the sentencing trends and find that a sentence of 9 years imprisonment is appropriate.
    
50. The offender has been in custody since 2 January 2021. She has been in custody for 1 year, 10 months, 2 weeks, and 6 days.
    
51. In the exercise of my discretion pursuant to section 3 of the Criminal
    (Sentencing) Act, time spent in custody is deducted.
    
52. The offender shall serve 7 years, 1 months, 1 week and 1 day.
    
53. The next question is whether the sentence should be suspended?
    
54. I have considered the principles of suspension^[6] and categories set out in Public Prosecutor v Tardrew [1986] PGLawRp 91 and the sentencing principles discussed in Lialu v The State [1990] PGSC 16; [1990] PNGLR 487. The Supreme Court in Lialu v The State recognized that each case must be determined on its own set of facts. This requires the sentencing court to carefully consider the case before it and impose a sentence that is appropriate.
    
55. Whilst the offender stated that she has had a caesarean operation that often causes her pain and dizziness, there is no medical report to support her contention. I am not satisfied that imprisonment would cause her hardship or difficulty.
    
56. I have also considered the payment of compensation as a factor in mitigation which has had the effect of reducing the sentence. To consider it again as a factor for suspension would amount to a double discount: see Public Prosecutor v Vola [1981] PNGLR 412.
    
57. There are statements in the Pre-Sentence Report that her family will suffer. Family suffering is a consequence of the offender’s conduct and is rarely a consideration in sentencing: see Mikoro v State [2015] PGSC 12; SC1424 (1 May 2015), Allan Peter Utieng v The State (2000) SCR No 15 of 2000; The Public Prosecutor v Vangu’u Ame [1983] PNGLR 424.
    
58. Kapi DCJ held in Prosecutor v Vangu’u Ame [1983]:
    

“Indirect effects of a man going to gaol, although proper considerations, must not be over-emphasized nor allowed to cloud the fact a person has committed a most serious offence. Justice, it has been said, must of course be tempered by mercy, but in my view not to the extent of allowing a person who has committed a very serious offence to, in fact, go free.

...If a court is weakly merciful, and does not impose a sentence commensurate with the seriousness of the crime, it fails in its duty to see that the sentences are such as to operate as a powerful factor to prevent the commission of such offences.”

59. The offence is violent, it is prevalent and is a serious offence. A life has been lost. Suspension of the sentence is not appropriate. A clear message must be communicated that society does not condone the use of violence to resolve problems.

Orders

60. The Orders of the Court are as follows:
    
    1. The Offender is sentenced to 9 years imprisonment in light labour.
    2. Pre-sentence custody of 1 year, 10 months, 2weeks and 6 days is deducted.
    3. The offender shall serve 7 years, 1 month, 1 week and 1 day at Bomana Correctional Institution in light labour.
       

The Public Prosecutor: Lawyers for the State
The Public Solicitor: Lawyers for the Prisoner

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^[1] PGNC 175; N3660 (22 December 2005)
^[2] PGNC 77; N2872 (19 July 2005)
^[3] PNGLR 48 (21 February 1989)
^[4] Supra per Kapi DCJ
^[5] PGNC 184; N3381 (21 December 2005)
^[6] See Gima v The State [ 2003] SC 730, State v Winston [2003] PGNC 146; N2347, Public Prosecutor v Hale [ 1998] SC 564, The State v. Aruve Waiba [1994] CR1/94(Unreported and Unnumbered), State v Kagai [1987] PNGLR 320, State v Tardrew [1986] PNGLR 91, Public Prosecutor v Thomas Vola [1981] PNGLR 412, The State -v- Tendi Kalio Ulio [1980] PNGLR and Public Prosecutor v Sima Kone [1979] PNGLR 294.