State v Kaumin [2024] PGNC 294; N10961 (14 August 2024)

N10961

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 2192 OF 2023

THE STATE

V

PAULINE ELIZAH KAUMIN

Waigani: Miviri J
2024 : 06^th & 14^th August

CRIMINAL LAW – Plea –Manslaughter- S302 CCA – Accused Stabbed Deceased with knife – Right Elbow – Severed Artery Heavy Bleeding – Incensed Over Common De facto Partner – Stabbed during Altercation – Instant Death – Early Plea – Expression of Remorse – First Offender – Prevalent Offence – Sanctity of life – Deterrent sentence.

Facts
Prisoner stabbed the deceased with a knife in the right elbow severing a major artery leading to massive bleeding killing her. It was culmination over a common de facto male altercation that lead to the victim’s death.

Held

1. Plea.
2. Fight over a common de facto male.
3. Knife used to stab deceased on right elbow.
4. Severing major blood vessel.
5. Bleeding to death
6. 10 years IHL less time in custody deducted.
   

Cases Cited
Simbe v The State [1994] PNGLR 38
Golu v The State [1979] PNGLR 653
Hane v The State [1984] PNGLR 105
State v Hane [1983] PGNC 10; N442 (11 July 1983)
Kumbamong v State [2008] PGSC 51; SC1017 (29 September 2008)
Marangi v The State [2002] PGSC 15; SC702 (8 November 2002)
State v Er [1998] PGNC 78; N1749 (31 July 1998)
Lilu, The State v [1988-89] PNGLR 449
Yalibakut v The State [2006] PGSC 27; SC890 (27 April 2006)
Avia Aihi v The State (N0.3) [1982] PNGLR 92
State v Aulo [2023] PGNC 273; N10430 (10 August 2023)
Manu Kovi v the State [2005] PGSC 789 (31 May 2005)
State v Aosa [2017] PGNC 244; N6907 (21 September 2017)
State v Roho [2006] PGNC 72; N4483 (24 August 2006)
State v Karo [2004] PGNC 171; N2600 (29 April 2004)
Marangi v The State [2002] PGSC 15; SC702 (8 November 2002)
Tanga v State [1999] PGSC 4; SC602 (19 April 1999)
State v Miva [2006] PGNC 103; N3454 (24 October 2006)
Aquila v Independent State of Papua New Guinea [2020] PGSC 113; SC2023(29 October 2020)
State v Nicholson [2016] PGNC 247; N6442 (25 July 2016)

Counsel:
S. Patatie & C. Langtry, for the State
K. Watakapura, for Defendant

SENTENCE

14^th August 2024

1. MIVIRI J: This is the sentence of Pauline Elizah Kaumin of Kovetap Village, Tapini, Central Province who pleaded guilty to Manslaughter in stabbing the deceased Mary Pota on the right elbow severing a major blood vessel leading to death.

2. Pauline Elizah Kaumin and the deceased Mary Pota have a common de facto male partner Peter Awo. On the 11^th February 2023, Pauline Eliza Kaumi was at the Waigani Market with Peter Awo and two others. All were seated near a foot bridge about 5.30pm. Mary Pota was seated about 20 to 30 meters from where Accused was in the company of three other women. Mary Pota was under the influence of alcohol and approached the Accused. There was an altercation between both over Peter Awo their common de facto partner. During that altercation accused picked up a small knife and stabbed the deceased on the right elbow. She bled to her death as a result. A main blood vessel there was severed causing massive bleeding leading to her death.
   
3. She unlawfully killed the deceased breaching section 302 manslaughter which is in the following terms:
   
   • (1) A person who unlawfully kills another under such circumstance as not to constitute wilful murder, murder, or infanticide is guilty of manslaughter.
     

Penalty: Subject to Section 19, imprisonment for life.

4. Here is yet another killing over a common de facto male partner. There will always be bad blood wherever as here there is a man and two women, or a woman and two men. And grievous injury and death is always and will be the taste given acceptance of the norm based on Christianity that, one man one wife will see no evil, or vice versa one woman one man will see no violence as here. Examples are trite in our jurisdiction, and it needs not to go far to see a few: Simbe v The State [1994] PNGLR 38. Deceased attempting to entice wife of the appellant. His 14 years for a guilty plea to murder was confirmed and the appeal was dismissed. I am considering a guilty plea to manslaughter here, so it would be lower considered in dishing penalty. But certainly, it would not be the maximum penalty of life imprisonment as that is always reserved for the worst offence of manslaughter. Here the facts do not warrant that imposition of life imprisonment. A determinate term of years will be proportionate to the facts and circumstances set out above to which the prisoner has pleaded guilty to: Golu v The State [1979] PNGLR 653.
   
5. And in wilful murder was Hane v The State [1984] PNGLR 105 and State v Hane [1983] PGNC 10; N442 (11 July 1983), because of all the hardship with the deceased he would not leave her for another choosing to wilfully murder her. His life years imprisonment was substituted for 15 years imprisonment on appeal. It is therefore of importance that a sentence befitting the crime must be meted out to the prisoner. It is no different here given the facts set out above. Prisoner is a first offender with education to grade three (3) back in the village where she is from in Tapini in the Central Province. She is 35 years old originally from Kovetap village, Tapini District, Goilala, Central Province. She is married with two children and stays at the back road in Baruni Port Moresby. In her record of interview to Police on the 15^th June 2023, she explains events leaving to the stabbing of the deceased at Waigani Market in question 16 there. She was sitting with a cousin sister that Saturday morning with her child at Waigani Market. At that time the deceased Mary Pota came upon them. She walked past them and met three other women and took out a K50 and gave it to them. One of the women went and bought Steam Homebrew alcohol with a 3pack drug (marijuana). And they sat down drank and smoke as well. Mary Pota got up and saw me and walked to me. She came to me and swung a punch at me. Then a second one and she said, U faol stap na mi kwapim man bilong yu stap, U noken wastim taim bilong u.” As she did, she punched me on my teeth causing her teeth to move and I got the knife from the table and stabbed her on her right arm. That is all.
   
6. There is no self-defence here because the force is disproportionate. The deceased does not use a knife justifying the prisoners stabbing the deceased. So that the conviction will be set aside. And it is fumed by the consumption of alcohol by the deceased so that she is not in a sober state to appreciate the gravity of what she set out to do against the prisoner. And in the case of the prisoner, she resorts without restraint to the knife in her possession fatally stabbing the deceased who bleeds to her death. It is clearly a very strong emotional, and physical bond associated that has seen death again. It is not in isolation, but a reoccurrence as seen in Kumbamong v State [2008] PGSC 51; SC1017 (29 September 2008). Killing over a wife or husband in law by the marriage Act, or customary requirements fulfilling marriage in the but de facto that has led to fume ignited by passion developed over time into what eventually occurs, seen classically in Marangi v The State [2002] PGSC 15; SC702 (8 November 2002) and also State v Er [1998] PGNC 78; N1749 (31 July 1998).
   
7. In Marangi (supra) 9 years imprisonment was confirmed dismissing the appeal, where the appellant got the knife off the deceased fighting that had erupted over the common husband, killing her by stabbing. In Maria Er (supra) she was the wife who stabbed the girl friend of the husband in the neck intending to give her pain, but she died. She was sentenced to 8 years IHL for murder pursuant to section 300 of the Code. In Kumbamong (supra) “On the day of the offence, Thress went looking for her husband at the deceased residence. When she got there, she found the deceased seated on a chair in the living room of her house drinking coffee. Thress proposed to the deceased for the deceased to go with her 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 Thress and then armed herself with a knife that was there on the table and start to attack Thress. On realizing she had no way of escaping, Thress grabbed hold of the deceased''s hand that held the knife and struggled with her until Thress was able to get the knife off from the deceased and used it against her. Thress stabbed the deceased on her head and back many times causing the deceased to collapse and die instantly.” The Court suspended part of the 9 years IHL that was imposed part custodial part suspended because of the facts above.
   
8. What is common here is the man in de facto between both deceased and the prisoner. He is the cause that leads to the confrontation in which the prisoner draws out a knife and stabs the deceased in the right elbow severing a major blood vessel leading to massive bleeding causing the death. Life has been unnecessarily taken because of a triangle in the relationship. Relationships that are founded in very strong morality will avoid what has happened here. It is weak morality that has led and must be settled in the sentences that ought to and must be passed against those offending. There are processes open in law that must always be used to settle behaviour as here. Man, who resort to behaviour as here must know the consequences of their actions. Women who see the same must know what the law will be against taking lives because of relationships as here. This is not a marriage by law founded upon the Marriage Act that has come to this facts and circumstances. There is no evidence that all have come to this relationship because of custom from the Goilala area of the Central Province.
   
9. I am not considering a one punch situation as in Lilu, The State v [1988-89] PNGLR 449 where there was one punch with the deceased falling back wards cracking his skull on the pavement and dying as a result from internal head injuries. This is a stabbing with a sharp knife fatally on the right elbow severing a major blood vessel there. Yes, the prisoner has pleaded guilty, and she will be sentenced on the basis of the facts that she has pleaded guilty to: Yalibakut v The State [2006] PGSC 27; SC890 (27 April 2006). Here incumbent in these is what is set out above relevant in the sentence against the prisoner.
   
10. It is a single stabbing of the elbow severing a vital vein supplying blood that was cause of the massive bleeding leading eventually to death. Consistent with Manu Kovi v the State [2005] PGSC 789 (31. May 2005), falling into the second category of manslaughter cases of 13 to 16 years in that, there was use of an offensive weapon a knife to the elbow of the deceased. And it is a guilty plea as opposed to a trial. It would follow the sentiments in State v Aosa [2017] PGNC 244; N6907 (21 September 2017). But would not go low. This is not likened to the spleen deaths as in State v Roho [2006] PGNC 72; N4483 (24 August 2006), a single blow to the mother ruptured her spleen over a domestic matter. He was sentenced to 10 years after a favourable presentence and means assessment report. A Security guard who threw out a non-paying drunken whose spleen was ruptured as a result got 8 years for rupture of the spleen a conviction of manslaughter, State v Karo [2004] PGNC 171; N2600 (29 April 2004).
    
11. Use of weapons as in Marangi (supra) appellant stabbed the deceased who she suspected was having an affair leading to her pregnancy with her husband. She found her in the house where the husband would normally stay when he returned from where he worked at Tabubil. She challenged the 9 years imposed for manslaughter in the Supreme Court. Which was dismissed and the 9 years confirmed. Comparatively that is more serious than the present facts and circumstances. Twelve years IHL was imposed in Tanga v State [1999] PGSC 4; SC602 (19 April 1999) in Lae, where the appellant was drunk. An argument over a relative ensued he chasing his wife and pursuing her down a river, where he repeatedly assaulted her to unconsciousness. When she regained consciousness, he persisted in the assaulted until she was motionless. She died from a ruptured spleen with other injuries accompanying. The appeal was dismissed, and the 12 years imposed by the National Court was confirmed.
    
12. I consider that the prevalence of the offence coupled with all set out must be addressed in the sentence. The gravity of the offence depicted by its own facts and circumstances will draw the appropriate sentence: Lawrence Simbe (supra). That was a murder case, but the principle is relevant also to Manslaughter or any other case for the same, fundamentally it shows out the reality of section 35 of the Constitution the right to life. It is comforting to note that the range of and tariff guided by Manu Kovi (supra) is sound as it has made good law, for instance State v Miva [2006] PGNC 103; N3454 (24 October 2006). The prisoner was sentenced to 16 years for manslaughter. It was a case where it was a domestic argument between husband and wife and relatives taking sides. Prisoner had pulled the bush knife off the deceased and cut him on his head killing him. A first-time offender who had pleaded guilty remorse with tangible evidence thereof.
    
13. In Marangi (supra) the prisoner appealed to the supreme court against 9 years imposed by the National Court for Manslaughter contending it was excessive she had pleaded guilty. The court dismissed the appeal and confirmed the sentence that was imposed. It reasoned that, “We endorse His Honour’s emphasis on the use of a knife as a lethal weapon to kill another person as unacceptable under any circumstances. To our knowledge, there are increasing instances of manslaughter and murder killings coming before the Courts in which a knife is used to settle domestic differences, with fatal consequences. The use of readily available kitchen knife to settle one’s domestic grievances is prevalent in this country. It is becoming a silent lethal weapon, far more dangerous than other potentially dangerous weapons like axes, bush knives or even guns. The reason for this is because the knife is readily available, it can be easily concealed, and used on unsuspecting unarmed victims who are usually taken by surprise, and used in a calculating and precise manner, that the human body is easily penetrated, and vital organs are damaged or even severed. It seems to us that more lives are being lost in this country today from the use of the knife than with any other weapon. Therefore, a strong punitive and deterrent sentence is required.” In my view this is a very relevant consideration that I adopt in the sentence to be passed upon the prisoner. He used that weapon easily in his possession to the demise of the deceased who was drunk, and he instigated the matter.
    
14. She has a good character a first offender. I do not consider the payment of compensation as taking any time off. But it is a relevant factor in that peace has been restored between the parties because of the K 10, 000.00 and a live pig value K2000.00. This view is very clear in Aquila v Independent State of Papua New Guinea [2020] PGSC 113; SC2023 (29 October 2020). Because by law, the Criminal Compensation Act is a maximum of K 5000 and not more. Here the payment exceeds that amount. And it does not mean that the prisoner will now have some of the time due in law for the crime reduced. In any case it is accepted that the conduct is very serious on her part. She realizes the full implications of her actions. The more that is poured out in the form of compensating will not be the same as the civil law principles of mitigating one’s liabilities or costs, or in a leasehold situation keeping the subject leased in good order mitigating any losses because of the claim made: Boroko Motors Ltd v Meridian Motors Ltd [2020] PGSC 114; SC2028 (6 November 2020). The deceased does not rise from the dead with the amount paid. And as such it does not make any difference eventually to the penalty due them. She has expressed genuine remorse for the offence which I accept in determining sentence.
    
15. I differentiate the case State v Nicholson [2016] PGNC 247; N6442 (25 July 2016) from the facts here but common is the use of the knife and the sentence will be the same given. The prisoner is sentenced to 10 years IHL in prison and time on remand is deducted forthwith. She will serve the balance in jail.
    
16. The sentence is 10 years IHL. Time on remand is deducted forthwith.
    

Orders accordingly.
________________________________________________________________
Public Prosecutor : Lawyer for the State
Public Solicitors : Lawyer for the Defendant