State v Koli [2023] PGNC 69; N10183 (31 March 2023)

N10183

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 823 OF 2022

THE STATE

V

EMILY KOLI

Minj: Toliken J
2023: 22^nd, 28^th, 31^st March

CRIMINAL LAW – sentence – manslaughter – guilty plea – killing in domestic setting – prisoner kills husband – not a worst case – mitigating and aggravating factors considered – appropriate sentence – 9 years less time in presentence detention – suspension – appropriate case for – partial suspension – 4 years of resultant sentence to be served – balance suspended on condition – Criminal Code Ch.262, s 302.

Cases Cited:

Golu v The State [1979] PNGLR 653
Aihi v The State (No. 3) [1982] PNGLR 92
Lawrence Simbe v The State [1994] PNGLR 38
Manu Kove v The State (2005) SC789
Thress Kumbamong v The State (2008) SC1017
Rex Lialu v The State [1990] PNGLR 487
The State v Muli (2016) N6325
The State v Kande (2021) N9104
The State v Kapoi (2021) N9021
The State v Jack (2021) N8989
The State v Markus (2015) N5944

Counsel:
J Kesan, for the State
R Mangi, for the Prisoner

SENTENCE

31^st March, 2023

1. TOLIKEN J: On a typical afternoon on 16^th December 2021, the prisoner Emily Koli was preparing dinner for her family at Dong Village, Minj, Jiwaka Province, as was her daily routine. Her husband Manzip Kopi (deceased), a Correctional Service Officer, came home drunk as the prisoner and her daughter were peeling sweet potatoes and started assaulting her. An argument ensued. This went on for a while until sometime between 7.00p.m. and 8.00p.m., when, in an attempt to defend herself, the prisoner stabbed the deceased with a kitchen knife on his left underarm. The knife punctured the upper lobe of the deceased’s left lung causing heavy internal bleeding resulting in hypovolemic shock. The deceased died instantly.
   
2. The Post-Mortem Report dated 16 December 2021 by Dr. Kelvin Kalate of Mt. Hagen General Hospital, revealed that the deceased sustained a single puncture would measuring 5cm x 2.5cm on the left lateral chest just below the armpit. The puncture wound extended into the left thoracic cavity. The upper lobe of the left lung was punctured and there was a collection of blood (haemothorax) within the left thoracic cavity. Dr. Kalate was of the opinion that the deceased died from haemothorax due a punctured left lung caused by a sharp object.
   
3. The defence did not object to the Court having regard to both the Post Mortem Report and photograph when sentencing the prisoner.
   
4. On 22^nd March 2023, the prisoner was indicted for one count of manslaughter pursuant to Section 302 of the Criminal Code (the Code). She pleaded guilty.
   
5. The maximum penalty for the offence of manslaughter is life imprisonment, subject to the Court’s discretion to impose a lesser penalty pursuant to Section 19 of the Code.
   
6. It is trite, however, that the prisoner may only be served the maximum penalty if her case is considered a worst instance. Furthermore, the prisoner’s sentence will largely be determined by the peculiar facts and circumstances of her case. (Golu v The State [1979] PNGLR 653; Aihi v The State (No. 3) [1982] PNGLR 92; Lawrence Simbe v The State [1994] PNGLR 38)
   
7. The Court must now determine an appropriate sentence for the prisoner. The Court’s task must necessarily start with a determination on whether this is a worst case of manslaughter deserving the maximum penalty. If this is not, then the Court must impose an appropriate sentence – one that best fit the facts and circumstances of the case.
   
8. Both the State and Defence agree that this is not a worst case of manslaughter and I agree with them.
   
9. The Supreme Court, had over the years provided sentencing guidelines for homicide offences including manslaughter. The most recent of these guideline judgments is Manu Kove v The State (2005) SC789 where for the crime of manslaughter a range between 8 to 12 years is suggested.
   

Category	Description	Details	Tariff
1	Plea - Ordinary cases – Mitigating factors with no Aggravating factors	No weapons used – Offender emotionally under stress – de facto provocation – killing in domestic setting – minimal force used – victim had a pre-existing condition which caused or accelerated the death such as in spleen cases.	8 – 12 years
2	Trial or Plea – Mitigating factors with Aggravating factors	Use of offensive weapon such as a knife etc. on vulnerable part of body – vicious attack – multiple injuries - some pre-planning involved – some deliberate intention to harm.	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, e.g. gun, axe etc. – vicious attack – multiple injuries - pre-planning – some deliberate intention to harm – little or no regard for 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 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

10. In Thress Kumbamong v The State (2008) SC 1017 (Injia DCJ (as he then was), Lelania, Lay JJ) the justices there (Salika J, Kandakasi J (as they then were), Yagi J ) rightly, I should say, said that despite what was said in Manu Kovi, the sentencing court cannot be deprived of its discretion to impose a sentence outside the tariffs laid down in Manu Kovi. Be that as it may, the tariffs still provide a useful guideline for a sentencing court.
    
11. In Rex Lialu v The State [1990] PNGLR 487, the Supreme Court there held that a sentencing judge “must have careful regard to the circumstances of death and the way in which the death was actually caused.” These include:
    
    • (a) The nature and frequency of the attack or assault on the victim.

(b) Whether the injury that caused the death arose directly from the assault, or whether the injury was caused by an object when the deceased subsequently fell.
(c) Whether death was caused by a fist or a weapon.
(d) Whether the offender deliberately set out to hurt anyone.
(e) Whether there was provocation in the non-legal sense.

12. The court there laid down some tariffs, which of course are now outdated, but the principles there remain good guidelines. These to a large extent have been restated in Manu Kovi.
    
13. Apart from sentencing principles and a sentencing judge is also guided by sentences imposed in other cases not only as a guide, but also to ensure that there is consistency in sentencing so that like offences receive like or comparable sentences.
    
14. Both counsel cited several cases which they say are similar to the current case. The following cases are comparable to the circumstances of this case and all involved wives killing their husbands in the course of domestic arguments and fights:

The State v Alfred (2009) N3602; the offender was in the house when her husband (deceased), a policeman, arrived and argued with her accusing her of not preparing dinner for him. A fight followed in the course of which, the deceased took a torch and hit the prisoner on her left forearm and also on her head. She was badly injured and in the ensuring scuffle, she accidentally stabbed the deceased with a kitchen knife she had in her possession. The knife pierced the left upper thigh of the deceased, severing the muscle and blood vessels. As a result of the stab wound, the deceased lost a lot of blood and died at the hospital. The fight between the offender and the deceased was not a one-off incident. She was a victim of constant physical abuse by the deceased and would often receive injuries.

Among other mitigating factors the offender was provoked in the non-legal sense. It was held that the circumstances of the case placed it under category 1 of the Manu Kovi tariffs (8 -12 years). The offender was sentenced to 10 years imprisonment.

The State v Ninjipa (2020) N4135; the offender pleaded guilty to manslaughter for killing her husband and was sentenced to 9 years imprisonment. The deceased, who was drunk, approached the offender at a market and asked her for money. They ended up arguing and eventually fought in the course of which the offender stabbed the deceased on the chest with a kitchen knife. Among her mitigating factors were that she was remorseful, was provoked in the non-legal sense and that a large sum of compensation was paid. The circumstances of her case were assessed as falling within category 1 of Manu Kovi.

The State v Muli (2016) N6325; the offender had an altercation with her husband and hit him on his left abdomen with a wheel spanner. The deceased died from a ruptured spleen. The offender was subjected to two days of beatings by the deceased before the killing. The offender pleaded guilty to manslaughter and was sentenced to 9 years imprisonment.

The State v Kande (2021) N9104; the offender had an argument with her boyfriend when he came home drunk, and they fought. During the fight the offender stabbed the deceased on the back with a kitchen knife. She pleaded guilty to manslaughter and was given a sentence of 9 years.

The State v Kapoi (2021) N9021; the offender stabbed her husband during a domestic argument on the back with a kitchen knife killing him. She pleaded guilty to manslaughter and was sentenced to 11 years.

The State v Jack (2021) N8989; the offender pleaded guilty to manslaughter and was sentenced 9 years. She stabbed her husband on the back with a kitchen knife killing him during a domestic argument.

The State v Markus (2015) N5944; the offender and the deceased had been in a relationship, separated and then reunited. They had a fight after the deceased locked the offender in their bedroom after an argument. During the fight the deceased slapped the offender across the mouth then lifted her up and threw her on the bed. There was no light in the room, but she saw him approach her with a bush knife and a piece of wood. The deceased grabbed the offender and a struggle ensued. During the struggle the offender stabbed the deceased with a small knife she was holding, causing his death. The offender pleaded guilty to manslaughter and was sentenced to 9 years of imprisonment, of which 2 years were to be served and the balance suspended.

15. Now back to the case at hand.
    
16. The prisoner is 21 years old and comes from Dong Village, Tsigmil, Anglimp South Waghi, Jiwaka Province. She was doing Grade 9 at Minj High School when she became pregnant from the deceased, a Warder at Barawagi Corrective Institution and married him without completing her education. She has a 6-year-old daughter with the deceased. They were residing at Dong Village with her parents when this incident occurred. She is a member of the Evangelical Brotherhood Church (EBC).
    
17. She has one brother, and her parents are both still alive. She lived a subsistence life to maintain herself and her family. She has no prior convictions and had been in custody since her apprehension by citizen arrest on 18^th December 2021 for a period of 1 year, 3 months and 13 days.
    
18. The prisoner apologised to God and the Court for breaking the law. She is sorry for her late husband and apologized to his family for causing his death. She apologized also to her own family and relatives for the trouble she caused which forced them to pay a huge compensation of K80,000.00 and 45 pigs.
    
19. She is concerned about her daughter who was only 4 years old when this incident happened. She did not mean to kill her husband and now accepts that what she did was wrong and is sorry about it. She therefore pleaded for mercy and asked if she could be placed on probation.
    
20. The prisoner’s presentence report (PSR) is a balanced one. It contains the views of the prisoner’s father Korop Koli, the deceased’s elder brother Okun Kopi and Ward Councillor Poke Alkanga.
    
21. There the prisoner sheds a bit more detail on how her late husband met his fate. She and her daughter were at home that afternoon. She was peeling sweet potatoes when the deceased arrived drunk and assaulted her punching her on the face. She did not mean to kill him but only wanted to protect herself from his punches so she lifted the hand that was holding the knife. Since he was taller than her the knife hit and penetrated his left underarm. The deceased then dragged her out of the house. She did not realize that the knife had penetrated him but after a while he dropped to the ground and died on the spot. She was shocked and fled the scene and hid until she was apprehended by the Village Councillor and some boys and taken to the Police Station. She reiterated that she did not mean to kill her husband, but instinctively lifted the hand holding the knife which unfortunately penetrated the deceased. She accepted responsibility and confessed her crime.
    
22. Mr. Korop Koli is concerned, not only about his daughter but also about his granddaughter’s welfare. He is worried about her daughter’s safety in prison because her late husband’s colleagues at Barawagi could easily mistreat her while in prison.
    
23. He said that the deceased’s relatives demanded K500,000.00 and 200 pigs as compensation but he and his relatives could only pay K82,000.00 and 52 pigs. He pleaded to the Court to release his daughter on probation so that she could come out and help repay those who contributed the huge compensation.
    
24. Councillor Alkanga spoke well of the prisoner. He confirmed that her family and relatives had indeed paid a huge some of compensation. He puts this at K80,000.00 and 45 pigs, which he said is the biggest ever paid in South Waghi. This, however, has put the prisoner’s parents in great debt. He therefore supported probation for her so that she can assist her parents in repaying all those persons who contributed to the compensation.
    
25. Mr. Okun, the deceased’s elder brother on the other hand wanted the prisoner to serve a full custodial sentence. His family and relatives have no intention of ever seeing, let alone reconciling with the prisoner because the premature death of the deceased is a great loss to them. And even though compensation has been paid they are still not in good terms with the deceased’s people.
    
26. The author of the report Ms. Siwi was of the view that the prisoner is a suitable candidate for probation supervision. The Probation Service here in Minj stands ready to rehabilitate the prisoner as well as provide counselling. However, due to the seriousness of offence, Ms. Siwi left it to the Court to impose an appropriate sentence for the prisoner.
    
27. It is to be noted that the State did not counter all that was said in the report by the prisoner hence these will be applied to her benefit. (Saperus Yalibakut v The State (2006) SC 890).
    
28. Mr. Kesan submitted on behalf of the State that this is not a worst offence as I alluded to earlier. Counsel submitted that this case falls within category 1 & 2 of the Manu Kovi tariffs and should therefore attract a sentence between 8 – 16 years. Counsel also cited several aggravating factors such as the prevalence of the offence, use of an offensive weapon, the infliction of very serious injuries on the deceased, and lack of respect for the deceased as a law officer. He conceded, however, that the offender has pleaded guilty, has no prior convictions, and was provoked in the non-legal sense.
    
29. Counsel submitted that the circumstances of this case are similar to those in the cases cited above and therefore a sentence between 10 – 13 years would be appropriate.
    
30. Ms. Mange, for the prisoner, also agreed that this is not a worse offence. Counsel further submitted that the case falls under the lower end of Category 1 of the Manu Kovi tariffs (8 – 12 years) because the prisoner was under stress, there was de facto provocation, killing in a domestic setting, the killing followed immediately after argument and minimal force was used.
    
31. Counsel conceded that a life had been lost and that this offence is prevalent. However, there are significant factors that mitigated the prisoner’s offence. Despite having what would appear to be a good chance of mounting a successful defence (self-defence), the prisoner chose to plead guilty early thus saving court time and State resources in running a trial. Her early plea demonstrated that she is truly remorseful which she further emphasized during her plea in mitigation (allocutus) when she apologised to God, the Court and the deceased’s relatives, and of course to her own relatives for forcing them to pay such a huge amount of compensation. She surrendered to the police and co-operated with them by making early admissions in her Record of Interview. She has no prior convictions and a hefty compensation of K82000.00 and 52 pigs was paid. There was de facto provocation as well as de facto self-defence when she was assaulted by the deceased who happened also to be drunk.
    
32. Counsel submitted that the prisoner was at home performing her normal chores as a mother and wife and was not expecting her evening to turn out as it did. She did not expect to be assaulted nor imagine that she would end up taking her husband’s life in an attempt to defend herself.
    
33. Her actions were that of a frightened wife and young mother who was subjected to abuse. She has now realized and accepted the consequences of her action and has expressed regret by pleading guilty to the charge. She is remorseful for her action and the consequence this has brought upon herself, her family and her daughter, and the family of her late husband.
    
34. Counsel quoted a passage from Kumbamong v The State (supra.) where the court said the following at para.65:
    

“Not every case of human error is criminal and not every criminal case warrants imprisonment. The courts need to re-examine and identify cases that require imprisonment for the protection of the society and the cases that do not warrant imprisonment but correction outside the prison system.”

35. The prisoner here is not a threat to society counsel submitted hence correction outside the prison system would the most appropriate sentence for her.
    
36. Considering the above, counsel is of the view that a sentence between 8 to 9 years would be most appropriate. However, when considered against the prisoner’s mitigating and extenuating circumstances, a sentence of 7 years should be imposed less time in custody. The balance should then be wholly suspended, and the prisoner placed on probation.
    
37. I accept that the following aggravated the offence:
    
    • The prisoner used an offensive weapon – a kitchen knife which unfortunately has become the weapon of choice in domestic killings.
    • The wound was inflicted on a very vulnerable part of the deceased’s body just below the armpit with the knife penetrating straight into thoracic cavity and nipping the upper lobe of the left lung resulting in bleeding which collected in the lung cavity directly causing the death of the deceased.
    • The offence of manslaughter and killings in the domestic setting, and homicides generally is very prevalent.
      
38. The following factors mitigated the offence:
    
    • The prisoner pleaded guilty very early to her crime.
    • She co-operated with the police by making early admissions in her Record of Interview.
    • She is a first-time offender.
    • A huge amount of compensation comprising of K82,000.00 and 52 pigs was paid to the deceased’s family and relatives.
    • She expressed genuine remorse, apologizing for breaking the law, saying sorry to the deceased’s family and relatives and to her own family and relatives for putting them through the trouble of having to pay such a hefty compensation.
    • She did not pre-plan to kill the deceased but acted in the spur of the moment.
    • She was provoked in the non-legal sense.
    • She acted in de facto self-defence.
    • The killing of her husband who contributed significantly to sustain their nuclear family was self-inflicting to the prisoner and unavoidable their daughter who has not only lost her father but also the love and care of her mother because of her crime.
    • There appears to be no intention harm the deceased.
    • The offender is also youthful whose education was derailed prematurely when she got married to the deceased at a very young age.
      
39. The following factors are present in this case. The prisoner pleaded guilty, she used an offensive weapon, she stabbed the deceased on a vulnerable part of the body, she was under some stress on being assaulted by the deceased, killing occurred in domestic setting, and there was de facto provocation and self-defence.
    
40. I am of the view that the circumstances of this cases place it between Category 1 and the bottom of Category 2 of Manu Kovi thus attracting a prospective sentence between 8 and 13 years. As I said at the outset, I agree with counsel that this is indeed not a worst case of manslaughter. But for the use of the kitchen knife, the case would fall entirely under category 1 of Manu Kovi.
    
41. The prisoner has significant mitigating factors which easily outweigh her aggravating factors. However, she has prematurely taken the life of her husband and father of their 6-year-old daughter. For that she must be punished with an appropriate sentence. Life is precious and no one who unlawfully take away the life of another should be allowed to escape punishment. This is not a worst case of manslaughter hence not deserving of the maximum penalty of life imprisonment. She must, however, be served her just dessert with a sentence that fits the circumstances of her offending.
    
42. There is no evidence that the prisoner was subjected to persistent domestic abuse so what the Supreme Court said in Kumbamong v The State (supra.) in respect of battered women has no relevance here. However, there appears to be a beginning of a trend which often times eventually leads to persistent domestic violence and wife bashing – the abuse of alcohol by husbands and boyfriends followed by violent assaults on their wives and partners, as was the case here.
    
43. And so, despite no evidence that the deceased persistently abused the prisoner, he came home drunk that afternoon and started assaulting her for no apparent reason. According to the brief facts put to the accused on arraignment it appears that this continued for quite a while before the prisoner fatally wounded the deceased sometime between 7.00 and 8.00 o’clock in the night.
    
44. I accept that the prisoner instinctively lifted her hand that was holding the knife, hitting the deceased just below the armpit. The blow might not have been vicious or applied with great force, but the knife struck a vulnerable part of the deceased’s body and penetrated the thoracic cavity cutting the left lobe of his lungs in the process.
    
45. I accept that there was no preplanning and that the prisoner acted in the spur of the moment to defend herself even though there appeared to be no imminent danger to her life.
    
46. In those circumstances her culpability is very low, despite the premature loss of life. I fix a starting point of 11 years.
    
47. The circumstances under which the prisoner killed her husband are very similar to the cases cited above which attracted head sentences between 8 – 11 years. While some offenders there were subjected to persistent physical abuse by their partners, such as in the case of The State v Alfred (supra.) where the deceased also happened to be an officer of the law, the prisoner here was not.
48. Notwithstanding that, I have considered her very significant mitigating factors which include her early guilty plea, early admissions to the police, her expression of genuine remorse, lack of preplanning, or intention to cause grievous bodily and the payment of a hefty compensation. These should warrant a discount. I am fully aware of the prevalence of this offence and the need for deterrence, but I am of the view that a head sentence of 9 years would be most appropriate. I therefore sentence the prisoner to 9 years imprisonment less the period of 1 year, 3 months and 13 days in pre-sentence detention.
    
49. Should the resultant sentence be wholly suspended as submitted by Ms. Mangi? In fact, should any part of it be suspended for that matter?
    
50. Suspension of a sentence or part of it is entirely at the discretion of the sentencing court pursuant to Section 19 of the Code. However, that exercise of discretion must be according to law and upon proper principles. The Supreme Court has held that a sentence may be suspended, wholly or in part if it will promote reconciliation, among others, and such a course is supported by a favourable presentence report (Public Prosecutor v Tardrew [1986] PNGLR 91; Public Prosecutor v Hale (1998) SC 564).
    
51. The likelihood of reconciliation between the prisoner and the deceased’s family and relatives is very unlikely as they have expressed their total opposition to the idea despite the payment of a huge sum of compensation in cash and kind.
    
52. Despite leaving it to the Court to determine an appropriate sentence for the prisoner, the presentence report does recommend probation supervision for her.
    
53. I am of the considered view that a portion of the prisoner’s sentence ought to be suspended and that she be placed under probation supervision. She needs though to serve a part of her sentence as punishment for her crime and to impress upon her and others that the taking of life, intentionally or otherwise is a grave crime that must be met with a punitive and deterrent custodial sentence in the first instance. In appropriate cases this may be tempered with mercy, at the sentencing court’s discretion.
    
54. I will therefore order that the prisoner serve 4 years of her resultant sentence while the balance will be suspended upon her entering into a period probation of 3 years with conditions.
    
55. The sentence of the Court is therefore as follows:
    
    1. The prisoner is sentenced to 9 years imprisonment less time spent in pre-sentence detention.
    2. The prisoner shall serve 4 years of the resultant sentence while the balance is suspended on the condition that she will enter into probation for a period of 3 years with the following conditions –(i) she shall make contact with the Provincial Community Based Correction Officer at Minj, Jiwaka Province, within 5 working days upon her release from prison.

(ii) she shall undergo counselling and part-take in any rehabilitation programs provided by the Community Based Correction Office in Minj, which may be in consultation with the Evangelical Brotherhood Church (EBC) in Jiwaka.

(iii) The Provincial Community Based Correction Officer shall provide a report to National Court in Mt. Hagen or Minj, as the case may, every 6 months after the prisoner is released.

(iv) The prisoner shall serve her sentence at Barawagi Corrective Institution.

56. The prisoner has the right to appeal against her sentence within 40 days from today if she is aggrieved.
    

Ordered accordingly.

________________________________________________________________
P Kaluwin, Public Prosecutor: Lawyer for the State
L B Mamu, Public Solicitor: Lawyer for the Prisoner