Kumbamong v State [2008] PGSC 51; SC1017 (29 September 2008)

SC1017

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA 29 OF 2007

BETWEEN:

THRESS KUMBAMONG

And:

THE STATE
Respondent

Mt. Hagen: Salika, Kandakasi and Yagi, JJ.
2008: 29 September

APPEALS – Appeal against sentence – Trial judge stating he was taking some factors in Thress'' mitigation into account – Actual sentence not reflecting – Identifiable error – Supreme Court ought to correct and corrected.

CRIMINAL LAW & PRACTICE – Sentencing – Principles for criminal sentence reconsidered-– Not every case appropriate for incarceration – Not all offences are committed consciously - Focus should be on rehabilitation of offenders and sparing where appropriate – Wide discretion in trial judge to impose appropriate sentence – Supreme Court has no power to curtail, restrict or interfere with the free exercise of that discretion – Guidelines set by previous Supreme Court decisions – Guidelines prescribing minimum and maximum ranges within set maximum penalties – Effect of – Amounts to legislating and restricting trial judge''s discretion- Trial judges not bound to follow such guidelines.

CRIMINAL LAW & PRACTICE – Sentence - Manslaughter – Offender killing spouse''s wife or girlfriend – Spouse spending time and money with deceased – Offender offering co-habilitation – Deceased not considering and issuing verbal insult and starting to attack Thress with knife – Thress wrestling knife away from deceased, attacking and causing her death – Defence of provocation and or self defence existed – Thress choosing not to take them up – Defence of provocation and or self defence ought to be extended to cover innocent spouses committing offences against adulterous or polygamous spouses or their girlfriends/boyfriends or wives or husbands – Setting guidelines prescribing sentencing ranges in Manu Kovi v. The State and others illegal restrictions on trial judge''s discretion – Not to be followed – Sentence of 9 years varied - Part custodial and part suspended appropriate.

Papua New Guinea Cases Cited:

Papua New Guinea Cases
Allan Peter Utieng v. The State (Unreported judgment delivered in Wewak on 23/11/00) SCR 15 of 2000.
The State v. Danny Makao (2005) N2996.
Heduru Transport Pty Ltd v. Gairo Vergoli (1977) N99.
R v. Yigwai [1963] PNGLR 40.
Timbu-Kolian v. The Queen [1967-1968] PNGLR 320.
The State v. Angeline Winara (No 1) (2008) N3345.
The State v. Lenny Banabu (2005) N2871.
The State v. David Yakuye Daniel (2005) N2869.
The State v. Murray William and 2 Ors. (No 1) (2004) N2556.
The State v So'on Taroh (2004) N2675.
The State v. Micky John Lausi (2001) N2073.
The State v. Jimmy Solomon (6/7/01) N2100.
The State v. Eric Emmanuel Vele (24/07/02) N2252.
The State v. Louise Paraka (24/01/02) N2317.
Edmund Gima v. The State & Siune Arnold v. The State, (03/10/03) SC730.
Manu Kovi v. The State (2005) SC 789.
Simon Kama v. The State (2004) SC740.
The State v. James Yali (2006) N2989.
Anna Max Maringi v. The State (2002) SC702

Overseas Cases Cited:
Vallance v. The Queen [1961] HCA 42; (1961) 108 CLR 56
Palling v. Corfield [1970] HCA 53; (1970) 123 CLR 52

Counsels
Thress Kumbamong in Person
R. Auka, for Respondent

29 September, 2008

1. BY THE COURT: This is yet one more of those sad and unfortunate cases. Thress Kumbamong, the Appellant, a mother of 6 children pleaded guilty to a charge of unlawfully killing another woman, Miriam Kumbamong on 20th October 2006 at Newtown in Mt Hagen. The deceased was either a girlfriend or the second wife of Thress'' husband. Thress'' husband spent much time and possibly money with the deceased while Thress and her six children lived without food and electricity for almost two months.

2. 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.

3. The National Court imposed a sentence of 9 years in hard labour against Thress. Ten months and 24 days were deducted from the 9 years for time spent in custody awaiting trial and order her to serve the balance of 8 years, one month and six days in prison. Thress is appealing against her sentence of 9 years and is arguing for a reduction of her sentence to 5 or 6 years.

5. Her reasons for asking for a reduction of her sentence are:-

(1) she is a sick woman;

(2) there was provocation in the non legal sense in that the deceased was having an affair with her husband; and

(3) her husband who was the cause of this trouble has not been punished by the law for this offence and she is the only one that is being dealt with .

6. The State on the other hand argues against the appeal saying, the learned trial judge did take into account, all of these factors and correctly arrived at the sentence of 9 years. As such, the State through its lawyer argues that, the 9 years sentence is appropriate and reasonable and that this Court should not disturb it.

RELEVANT ISSUES

7. The main issue in this appeal is whether the sentence of 9 years is excessive. In order to resolve that issue, we need to determine if the learned trial judge took into account Thress'' medical conditions, the existence of provocation in the non-legal sense and that the role of her husband leading to the commission of the offence? These gives rise to the following subsidiary questions:

(1) Was the learned trial judge obliged to take into account Thress'' medical condition?

(2) If the answer to question (1) is ""yes"", to what extent should that be reflected in the sentence?

(3) Did the learned trial judge take into account the fact that Thress acted under some provocation in the non legal sense?

(4) If the answer to question (3) is ""yes"", to what extent should that be reflected in the sentence?

(5) Was the learned trial judge under an obligation to take into account Thress'' husband''s conduct and have that reflected in the sentence?

(6) If the answer to question (5) is yes, to what extent should that be reflected in Thress'' sentence?

Was the learned trial judge obliged to take into account the Thress'' medical condition and if so, to what extent should that have been reflected in the sentence?

8. Dealing firstly with the issue of Thress'' medical condition, which is the subject of questions, (1) and (2), we note there is no dispute that Thress had such a condition. According to a medical report that was tendered into evidence at the trial, Thress'' medical condition was described as ""Chronic recurrent peptic ulcer"" also known as ""duodenal ulcer"". At the time of her sentence, she was taking 20 milligram tablets orally as well as receiving dietary advice. The report indicated that the Correction Services institutional food may be detrimental to her speedy recovery and recommended monthly reviews.

9. The State through its then lawyer, Mr. Joseph Kesan, did not contest the medical evidence at the trial in the National Court and submitted that, the medical report spoke for itself. The learned trial judge noted the contents of the medical report and went on to observe that: the prisoner''s poor health is a special mitigating factor and that was also restated in Manu Kovi v The State."" Then before ultimately arriving at the sentence of 9 years, the learned trial judge said he did take into consideration Thress'' medical condition amongst other factors.

10. As far as we are able to work out from Thress'' arguments, the main concern was the kind of treatment she was receiving for her condition. She was concerned that, she could not be able to receive the kinds of treatment, including the kinds of diet she was advised to be on, if she was sent to prison. This was confirmed before us, when she tried to demonstrate her condition has now worsened because of her not being able to be on the kind of diet she should be on, given the tough conditions in the prison setting. The learned trial judge with respect, did not address this concern and is not reflected any where in his honour''s judgment. We are of the view that, the learned trial judge was under an obligation to address this concern but he did not. Accordingly, we are of the view that he fell into an identifiable error.
    
11. The question then is, was that error serious enough that it affected the learned trial judge''s sentencing discretion? It is now settled law that, an offender should consider his or her personal and family backgrounds and needs before committing an offence. It follows therefore that, once a person is found guilty of committing an offence, it is a little too late for the offenders to raise their personal and family backgrounds and needs with a view to getting a more lenient sentence. This was made clear by this Court''s decision in Allan Peter Utieng v. The State,[1] which has been followed in a long list of National Court judgments including the recent decision in The State v. Danny Makao.[2]
    
12. What this means is that, the medical conditions or other personal and family backgrounds and needs of an offender should not form any foundation for a lenient sentence unless, it is a case of life and death and no arrangements can made administratively by the Correction Services for a prisoner with a medical condition to access and receive appropriate medical attention and treatment. In this case, we note that, the learned trial judge noted Thress'' medical conditions and he did say, he took into account that amongst others. Considering that, sentences in these kinds of cases have gone beyond 9 years; it appears to us that, the learned trial judge did allow himself to be influenced by Thress'' medical condition in addition to other factors he also took into account in Thress'' favor, even though he did not specifically address Thress'' concerns.
    
13. We are of the firm view that, Thress'' medical needs and concerns are within the administrative powers and abilities of the Correction Service. That includes a report to the relevant Minister for a release on license. In the circumstances, we are of the view that, the learned trial judge''s failure to specifically address Thress'' medical needs and concerns is of no consequence.
    

Did the learned trail judge take into account the fact that Thress acted under some provocation in the non legal sense and if so, is that sufficiently reflected in the sentence?

14. Turning then to the next issue, we note there was no issue between the parties that, there was some provocation in the non-legal sense. The background to raising that issue was this. The deceased was the second wife of Thress'' husband, if not his girlfriend. The husband had not been home with Thress and her six children for about three days. Electricity to the matrimonial home was cut and her children were into their school examinations. They were left with no money and they have been without food for about two months. Previously, Thress worked as shop assistant but she left her paid employment on her husband''s demand.
    
15. Whilst Thress and her children were living in misery, her husband spent much of his time and money with the deceased. On the day of the offence, Thress decided to go and look for her husband at the deceased residence. She did turn up at the deceased residence. When she got there, she saw the deceased sitting on a chair in the kitchen area drinking tea. Thress got to the door of the house and informed the deceased that she was there to get the deceased to her house for them to live together as her husband''s wives. In that way, Thress worked out that, her husband would spend his money and time with all of them. Further, Thress told the deceased that, she had six children and that she was getting all kinds of sickness. Given that, she said it will be necessary to get blood tests for everyone''s safety.
    
16. The deceased response was, ""you feeling pain and, are you looking for work by coming here?"" The deceased then got hold of a knife that was there on the kitchen table, armed herself with it and started to attack Thress. On realising that there was no way of escaping for her, she managed to grab hold of the deceased hand in which the knife was and ended up in a struggle with the deceased in the course of which, Thress pulled the knife off from the deceased and attacked the deceased with it.
    
17. Clearly, these facts disclosed the possible legal defence of self defence or provocation. The learned trial judge correctly raised the issue with Thress'' counsel, who indicated having discussed the matter with his client, Thress and she made a decision to plead guilty to the charge and take the matter up in submission on sentence in her mitigation. In submissions on behalf of Thress, her lawyer in the Court below took this point up in Thress'' mitigation.
    
18. In his decision on sentence, the learned trial judge said:
    

""While the court considers that there was provocation in the non-legal sense, the law still does not allow the killing of a fellow human being in the circumstances described above. The court also notes that the prisoner is reasonably educated and as such, she should have appreciated that, there were other avenues available to her to address her marital problems and that was through the courts. She chose not to do that and embarked on a vicious assault of the deceased in her own home which resulted in the crime.""

19. The Criminal Code prescribes the kinds of conduct that are unacceptable in our society. At the same time, the Code provides for the circumstances in which an offender may be excused. Offenders are thus charged, convicted and sentenced or penalized on the basis of their criminal responsibility. Part 1 of Division 5 of the Code deals with the subject of criminal responsibility. Case authorities say that questions of one''s criminal responsibility can only be determined by reference to this part and division of the Code and not by the common law doctrine of mens rea or the requirements of a guilty mind of some kind.[3] The learned authors of the book, Criminal Law and Practice in Papua New Guinea sum up the position in this way:
    

""In general, criminal responsibility is today attached to moral blameworthiness, and according to deeply rooted beliefs blameworthiness does not depend simply on what a person did, or on the results caused by those actions. It depends upon the person''s knowledge and intentions when he or she acted. The doctrines of mens rea in the common law and of dole in the law of Scotland express this element of guilt. There is no reason to think that s 24 demands any departure from the basic concept or that it at all attenuates it. The words used reflect the accepted dominant and orthodox view of psychological process and must be read literally.""[4]

20. The provisions under Part 1 Division 5 of the Code provide for completed immunity from criminal responsibility where one acts or abstains from acting in a number of specified situations or circumstances. In so far as they are relevant, this includes amongst others, a person acting independently of an exercise of his or her will or the act or omission constituting the act or omission is accidental, which is provided for by s. 24 or one acting under compulsion or provocation or in self defence under circumstances of sudden or extraordinary emergency depriving the power of self-control, which is provided for in s 26.
    
21. Mann CJ., in R v. Yigwai[5] said in the context of s. 24 that the section:
    

""applies to unwilled acts in the sense that the physical actions involved were not due to the conscious mental activity of the person performing them; ...[the person] would need to be hypnotised or in some way deprived of conscious volition to come within s 24"".

22. Barwick CJ in Timbu-Kolian v. The Queen[6] elaborates in the context of the offender striking and killing a child instead of the child''s mother whom the offender had intended to hit. There, His Honour observed that:
    

""The exercise of the will to which this section refers is not identical with the presence of intention, nor is it the equivalent of voluntaries or the presence of volition. Of course, an intended act, in the sense that the actor intended by his action to achieve the full operation of that action as it proved to be in fact, must necessarily, in my opinion, be a willed act within the section. On the other hand, that the applicant by an act of volition wielded the stick (with the intention of hitting his wife), does not mean that the striking of the child was his willed act ... the exercise of will involves the making of a choice to do that which the physical activity of the applicant in fact does: eg in this to land the blow on the head of the child. The relevant act in this case was the striking of the child on the head; it was not an exercise of the will of the applicant, was not his willed act: and from a point of view of criminal responsibility was not his act at all.""

23. As for accident, we could say, going by the persuasive authorities like that of Vallance v. The Queen,[7] ""that an event occurs by accident if it was not intended, not foreseen, and unlikely and is one that is not reasonably foreseen as a consequence of a person''s conduct.""[8] Decisions of the pre-independence Courts in our jurisdiction like the decision in Timbu-Kolian v. The Queen[9] provides the foundation locally for these view or definition of what amounts to an ""accident"" within the meaning of s 24.
    
24. The defence of one acting under compulsion or provocation or in self defence under circumstances of sudden or extraordinary emergency depriving the power of self-control, which is provided for in s 26, is similar to the defence of an unwilled act. The difference however is in the circumstances in which these defence may arise. The defence under s. 24 applies to purely accidental and unwilled acts or omissions, while the defence under s. 26 applies in cases where the offender is forced to act by the application of force or threat of force or harm against his or her own life or another person by another and the offender has no choice but to react in the way he or she acted or omitted to act. Similarly, the defence of provocation or self defence in circumstances of sudden or extraordinary emergency depriving the power of self-control is set in motion by what another does causing a deprivation of self-control and causing the offender to act in the way he or she acted or omitted to act.
    
25. The defence of self defence is further provided for in s. 269 for unprovoked assault and s. 270 for provoked assault. The defence under s. 269 is available where the offender is unlawfully assaulted which poses a threat of death or grievous bodily harm by another without any provocation from the offender, retaliates and the offender uses such force as is reasonably necessary to meet the threat levelled against him or without any intention to kill or cause any bodily harm.[10]
    
26. For the defence under s.270, it is similar but in order for the defence to succeed, the victim must have first unlawfully assaulted the person claiming the defence independent of any provocation from the victim and the victim has applied such force or violence to cause the person claiming the defence to have a reasonable apprehension of death or grievous bodily harm and caused to believe on reasonable grounds that, it is necessary for his or another''s preservation from death or grievous bodily harm to use force in his or the other person''s defence. However, this defence cannot be available, where the person claiming the defence first began the assault with intent to kill or do grievous bodily harm or attempted to kill or to do grievous bodily harm to some person before the necessity of preserving him or the other person arose or, the person using the force declined further conflict and quitted it, or retreated from it as far as is possible.[11]
    
27. Up to this point in time, our human society has accepted and applied these principles. In so doing, we have proceeded on the basis that, unless an offender can bring his case under any of these well defined defence, the offender is conscious and knows he or she is deliberately committing an offence and commits the offence. This has in effect arbitrarily put a time limit on when a person acts consciously and when a person does not so act. That has been based on prevailing knowledge in the science of human behaviour, namely psychology or psychiatry. By doing that, society has in fact ignored a well known fact in human behaviour. Human beings hold onto their grudges or anger toward another for good cause or not and they continue to hold onto and harbour them for even longer periods beyond the initial incident giving rise to the grudge or anger until they are vented out in one form or another.
    
28. In proceeding in the way we have just described, society has failed to acknowledge its greatest limitation that no one has been able to really get into the study of and the understanding of human consciousness. By this, we mean that, no one has been able to scientifically pin point at what point in time anger and rage and that which causes a person to react violently in response to one''s pain, suffering or loss or a threat to one''s survival comes to an end and consciousness takes over and prevents a person from so reacting. Fortunately the workings of some learned people like Dr. Hawkins as set out in his book, ""Power vs Force"", makes it clear that, all human behaviour is driven by one''s ego which has everything to do with the thought and not the consciousness or the actual essence or the being of a person. This applies across all humanity except for a very few enlightened people, like Mahatma Ghandi and Jesus Christ who did not retaliate violently in situations they could have so acted. Given that, the necessary inference is that, all of humanity is unconsciously acting, evidenced by the abundance of so much trouble in the world today with large scale armed military and other war fares at the worst and highest to verbal abuse and exchanges at the lowest that are so ever present from the highest human levels such as the president of the United States of America to the man on the streets of Mt. Hagen in Papua New Guinea.
    
29. Other best know thinkers and writers like Eckhart Tolle in his work the ""Power of Now"" and ""The New Earth"" effectively render support to Dr. Hawkins work and make the point that, all humans who are so attached and identified with their thoughts of who they are and hence their egos, are inclined to act in defence of their perceived self, their children, relatives and friends, their property and their lives and their means of survival. Most people call this pure animal instinct, which can be best illustrated in the way a female dog with puppies attacks anyone trying to or in fact taking one of her puppies even though, the person taking the puppy may be its master or owner who meant no harm to the puppy. The female dog does so without stopping to think and plan out her actions and then execute them. Instead, she immediately reacts the moment she feels or senses her puppies are under threat.
    
30. In the present case, there is no doubt that, Thress had a sense of herself and her six children''s survival was under threat by her husband and her children''s father having his relationship with the deceased. Indeed we note that, the threat was already being actualized with the disconnection of power supply to the matrimonial home, and Thress and her children were left with no money and food for two months. This is not uncommon. There is already far too many cases of men marrying new wives and abandoning their wives and children in place of younger women.
    
31. After having to live under the kinds of conditions we have outlined above, Thress decided to go and look for her husband and that led her to the deceased house. Unlike most other similar cases that we are aware of, Thress tried to reason with the deceased and she put a proposition to the deceased that was aimed at all of them, Thress and her children and the deceased with their husband living together. Without giving that proposition any consideration, the deceased insulted Thress and provoked her. The deceased then armed herself with a knife and started to attack Thress. A fight or struggle ensued between the two and Thress managed to disarm the deceased and attack the deceased with the knife, which eventually led to her death.
    
32. Given the facts we outlined above and in the absence of any scientific information or tool to assist the Court below and this Court to determine when Thress'' anger, pain or rage and the need to do something in protection of her perceived means of survival for her and her children, at that moment came to an end, the courts cannot arbitrarily come to the decision that, Thress was fully conscious, knew that what she set out to do was wrong and that she did it anyway. Instead, the Court is of the view that, her ability to be conscious was clouded and marred by her perceived threat that was coming from the deceased, her husband and her children''s father''s other wife who was receiving all the time, attention and means of survival and was now trying to physically attack her.
    
33. We note that, it is a known scientific fact that, unless a person''s causes of anger, frustration, pain and suffering or even rage is appropriately addressed and removed, they continue to exist and hound the carrier of such emotions for a long time. There is no other highly toxic place in terms of anger and rage and loss of one''s self and human rationality or consciousness than in a case where a man or woman finds out about his or her spouse''s extra marital sexual affairs with another person or a man or woman is having intimate relationships with another to the exclusion of their spouses. Only a few could sustain such pressure and do nothing. In most cases however, the innocent spouse becomes suicidal, or caused to act in a way he or she has never ever acted before and become highly destructive either to themselves or others. Considering all of this, this Court is of the view that, the defence of provocation should be extended to cover offenders who kill or otherwise commit an offence against their spouse or their spouse''s extra marital lover or girlfriends or boyfriends or wives or husbands. However, given that the law has not come around to recognize this as yet, this Court is of the view that, this factor must feature prominently in mitigation of offenders that are in a position similar to that of Thress.
    
34. We are mindful that, to some, this might appear sanctioning the killings in these kinds of settings. However, we note that the situation is no different from a case in which an offender has a legal defence of provocation or acting in self defence. In any case, young girls or women who chose to have a relationship with a married man ought to know that they are voluntarily assuming the risk of being killed or injured. What we are saying here is aimed at preventing rather than looking for cures after the damage is done. It would pay to advice young girls and women to stay away from entering into any relationships with any married men, if they want to avoid being killed or injured. Hence, what we are saying here will hopefully serve as a better deterrent than it has been the case in the past.
    
35. Reviewing what the learned trial judge did and said in his judgment as we have noted earlier in the light of what we have just discussed above, we are of the view that, the learned trial judge did not give sufficient consideration and regard to the issue of provocation and the particular facts in which the issue arose. Hence, we find that, the learned trial judge fell into an identifiable error, which this Court must correct and we will.
    

Was the learned trial judge obliged to take into account Thress'' husband''s conduct and if so, to what extend should that be reflected in the sentence?

36 Thress submitted that, if it was not for the actions of her husband and the deceased, she would not have committed the offence. She also submitted that, it was not fair on her that, her husband, who was having an affair or a relationship with the deceased and was therefore the cause for her to look for him and eventually cause her to cause the death of the deceased is a free man and is outside the prison, free to do as he pleases which might even mean being with other women while she is suffering in jail.

37. Thress further submitted that, the learned trial Judge did not put sufficient emphasis on the cause of the problem and that, had the learned trial judge considered this factor carefully, he might have imposed a lesser sentence than the 9 years she got. She pointed out that, her lawyer made a specific submission on this aspect but the learned trial judge did not place adequate weight on this. If the learned trial judge did that, he would have imposed a sentence that was lower than the one he imposed. Hence, she urged this Court to take this factor into account and reduce her 9 years sentence to a term to 5 or 6 years.

38 We do note and accept that, Thress'' lawyer did ably argue this point and highlighted the social problems men who go around marrying more than one wife or end up having extra marital lovers or girlfriends are causing. We note that, counsel then suggested that this point be seriously taken into account in his client''s favour and be reflected his client''s sentence. The learned trial judge addressed that issue in this way:-

""Mr Norum suggested that a law should be passed to make men responsible for their wives behaviour. However, until the legislator passes such a law if ever it will, I agree with Mr Kesan that women like everyone else should abide by the law.""

39. What the learned trial judge said in a nutshell was in fact an acknowledgement of the doctrine of separation of powers between the Legislature, the Executive and the Judiciary. It is the role of the Legislature to legislate or make laws. It would follow therefore that, if the Community wants a law to hold adulterous husbands and or wives also criminally responsible for the actions of their spouses in circumstances such as in this case, then the Community needs to urge Parliament through their elected representatives. The courts being part of the Community could assist to push for such initiatives for changes in legislation as this Court cannot enact such a law or change the existing legislation, save only to interpret and apply the law as it is. The courts can however continue to voice concern against Parliament not doing something about this problem.

40. The question then is, is that all that the Court can do? In so doing, is the Court condoning and endorsing the actions adulterous of husbands and wives in our country and effectively allow such people to continue with their polygamous and adulterous relationships?

41. It should be clear by now that, where offenders act in response to an extra marital conduct of their spouses, that which causes the offenders to act in the way they act, is the conduct of the other spouse, provided the offender is not responsible for causing or provoking the offending spouse to venture out of the marriage or relationship. There is always a cause and effect. The cause in these kinds of offences is the unprovoked extra marital affairs of the offender''s spouse. The effect is, the offender has committed an offence against the guilty spouse''s extra marital lover or girlfriend or boyfriend or wife in the case of a polygamous marriage. Simply put, without, the unprovoked extra marital conduct of the offender''s spouse, the offender could not have committed the offence. It should logically and reasonably follow therefore that, the unfaithful spouse and his or her lover''s conduct must be addressed and dealt with if the law is to be fair to all involved.

42. Previously, adultery was an offence which attracted up to a maximum of 6 months imprisonment. Subsequently, the law has changed to make it only a civil wrong entitling the spouse of an adulterous husband or wife (innocent spouse) to sue for compensation up to K1,000.00 only.[12] This Court is of the view that, this does not adequately address the emotions that run high in the way we have already seen above. The onus is placed on innocent spouses to commence proceedings and have them enforced, all on their own. The State or society has no part in assisting or supporting the innocent spouse apart from providing a Court at which proceedings could be commenced and concluded. However, when the innocent spouse reacts in the way we have seen, the whole array of law enforcement, from the police to the courts and prison system, comes down hard against an innocent spouse.

43. Can this be said to be fair? Why couldn''t that same array of law enforcement spring into action in much the same way to deal with a social disease that is eating into our society affecting many families and lives causing all sorts of social problems including the spreading of the dreadful decease HIV and AIDS? Shouldn''t the law deal precisely and decisively with the cause rather than the effect? How does sending an innocent spouse who reacts in the same way as any other human being to prison adequately address and deal with this social problem? Does the sending of an innocent spouse to prison deter the offending spouse (the adulterous spouse), and the one who set in motion the commission of an offence at the first place from engaging in similar conducts once his or her spouse is imprisoned?

44. It would certainly be most unfair to deal with and punish the innocent spouse, without addressing that which caused him or her at the first place to commit the offence. This would as of necessity require an examination and consideration of the facts or circumstances leading to a commission of an offence. If for instance, the offending spouse did something that caused the other spouse to venture outside of a marriage or a relationship, than that spouse would be equally blamed for what the other spouse does.

45. Unless the cause of the problem is addressed, the innocent spouse would have a justified feeling of being abandoned by the formal legal system which in his or her eyes exists only for a spouse who can afford to have extra marital affairs. There is no doubt that, the present legal system does not adequately address the social problems that are created by men and women who have extra marital affairs. Sending people to prison for killing or otherwise taking the law into their own hands because of their spouse''s unfaithful conduct, would not deter the unfaithful spouse. Instead, it has the potential of giving him or her more freedom to continue with his or her kind of contact now with the assistance of the formal legal system putting away the other spouse who by reason of that, will now not be available to stop him.

46. Many people in our society have been repeatedly calling on Parliament to address this problem and the problems associated with polygamy. The National Court re-echoed those calls in the case of The State v. Albina Sinowi (2001) N2175, in the context of a polygamous marriage in these terms:

""...Presently there are calls for an end to polygamy or marrying more than one wife. Cases like this demonstrate the need to enact such laws. The Papua New Guinea Law Reports are filled with cases some of them tragic caused by such polygamous marriages. See the case of Regina v. Kambe-Pare [1965-66] PNGLR 321 for a much earlier example and Agua Bepi v. Aiya Simon [1986] PNGLR 233, for a later example. The duty is on Parliament now to enact such laws quickly for the security, peace and harmony of our society. ... The call for such laws to be enacted has been around for a long time and is yet to be enacted. ...

Until such laws are enacted, men are under a social and moral obligation, in my view, not to marry more than one wife unless, he is able to keep all of his wives and children happy in a society like ours which is moving fast into the modern world. I note that custom in some societies in our country does allow for a man to marry more than one wife. That was so in most cases to allow for the production of more children given the risk of death for most children due to lack of appropriate medical services. The situation in most societies in our country today is not the same as in the past. There are comparatively better health services to safeguard against the early death of children. At the same time, the pressures of the modern economy are hitting hard on families. The bigger a family is the harder it is to survive.""

47. As did the National Court in the above case, we note that, polygamy is allowed by custom and as a result of that custom, women are left at the mercy of this custom and hence victims of selfish men who want more than one woman. Given the kind of bad social problems this custom has created, we are of the view that this custom needs to be reviewed and reconsidered.

48. Schedule 2.1 of the Constitution provides for the adoption and application of custom that are universal in application in the country and are not repugnant to the general principles of humanity. Section 4 (e) of the Customs Recognitions Act allows for custom to be taken into account in sentencing. Section 3 of the same Act says that custom will not be taken into account if it is not in the public interest. It follows therefore that, a sentencing judge must take into account any relevant custom before arriving at a decision on sentence. In the case before us the relevant question is, is the custom of allowing more than one wife, repugnant to the principles of humanity and as such, it should not be adopted and applied?

49. In our view the constitutional imperative under schedule 2.1 is to adopt and apply only good customs that do not go against the basic principles of humanity which values every human being and tries to promote peaceful co-existence of people. The custom of polygamy is not universal in our country. It is practiced only in some parts of the country. Traditionally, the custom did have its place and for good reason. One such reason was for instance, big men with many customary and social obligations had a lot of land and was required to take a lot of leadership responsibilities, such as paying of compensation and other customary obligations. It was therefore, permissible for him to marry more than one wife to raise pigs for such occasions. He built houses for each of his wives and accommodated them and their children and kept them well fed. Another good reason was that, due to a lack of proper medical care, infant mortality was high even to the extent of even threatening the existence of even a whole tribe. Men were thus permitted to marry more than one wife to produce more children to possibly allow some of the children to survive and carry on the pride of one''s tribe or clan.

50. The present day PNG is a cash base economy with the presence of a lot of medical establishments with a good number of doctors and other health workers, who have helped contribute to making infant mortality almost a something of the past. Also, most of the men are marrying more than one wife or are having a lot of extra marital relations out of selfish desires and out of a desire to satisfying their ego to have more than one wife or women, without of any necessity and social demands on them. They are not looking after all of their wives and children well, resulting in some resorting into lawlessness. Besides, our nation according to the Constitution is built on both the good traditional values as well as the Christian values. All Christian Churches teach against polygamy and extra marital relations. Also the present day realities are that, it is quite an expensive exercise to have a family, let alone a large family, with the costs of living so high and unaffordable for most families and a lot of wives and children are left destitute with men running away with their new wives or girlfriends, a reality well and truly demonstrated by the case before us. The problem of a man or a women getting into extra or additional marital relationships is one of the major causes of some of our social and law and order problems in the country. This is why many, including the courts, have been calling on Parliament to enact appropriate legislation outlawing polygamy. Parliament has not heeded these calls and has failed to enact appropriate laws to either outlaw or control polygamy and make men or women who have extra marital affairs or relations criminally responsible. In the circumstances, we have no difficulty in arriving at the conclusion that, the custom of polygamy is an inappropriate and unacceptable custom in our country because it does not apply universally and that, it is repugnant to the general principles of humanity.

51. Parliament''s failure to act does not mean that the problem does not exist. Instead, the problem is here presently glaring at us without fail. It is facing us fully with the grave risks of the spread of HIV and AIDS and other sexually transmitted deceases as well as serious break downs in families and the destruction of human lives and properties. So we ask the question again, does this mean that, this Court cannot and should not do anything about it?

52. Having regard to all that has been said, this Court is of the view that, an offender''s spouse''s unprovoked extra martial affairs which causes an offender to kill or otherwise attack his or her spouse''s extra marital lover should be reflected in the offender''s sentence. Of course, the question then is, to what extent should this be reflected in the sentence? Without repeating in full what we have already discussed, this Court notes that, without the offender''s spouse''s unprovoked unfaithful conduct, the offender could not have committed the offence. It is that critical and serious. Accordingly, this Court is of the view that, the sentence of the offender should prominently reflect this fact in the offender''s mitigation.

53. In the present case, the learned trial judge merely acknowledged, the existence of the problem and shifted the need to do anything about it to Parliament. In so doing, his Honour with respect, failed to give any consideration to any of the matters we have discussed above. This ignores the serious unfairness and inequalities that exists as we have tried to point out in the foregoing. Accordingly, we are of the view that, the learned trial judge failed to have this appropriately reflected in his decision on sentence, which this Court considers is a serious error that it must correct.

Is the sentence of 9 years excessive?

54. Bearing in mind all of the foregoing discussions, we now turn to a consideration of the main issue of whether the sentence of 9 years is excessive in the particular circumstances of this case? Thress'' argument as noted is that, the sentence is excessive whilst the State argues it is not.

55. The offence of manslaughter is created and its penalty is prescribed by s 302 of the Criminal Code. The maximum penalty for the offence is life imprisonment. This is however subject to s 19, also of the Code. That provision reads in relevant parts:

""(1) In the construction of this Code, it is to be taken that, except when it is otherwise expressly provided—

(aa) a person liable to death may be sentenced to imprisonment for life or for any shorter term; and

(a) a person liable to imprisonment for life or for any other period, may be sentenced to imprisonment for any shorter term; and

(b) ...

(c) ..,

(d) a person convicted on indictment of an offence not punishable with death may—

(i) instead of, or in addition to, any punishment to which he is liable—be ordered to enter into his own recognizance, with or without sureties, in such amount as the court thinks proper, to keep the peace and be of good behaviour for a time fixed by the court; and

(ii) comply with such other conditions as the court may, in its discretion, impose; and

(e) ...

(f) when a person is convicted of an offence not punishable with death, the court may instead of passing sentence, discharge the offender on his entering into his own recognizance, with or without sureties, in such sum as the court thinks proper, conditioned that—

(i) he shall appear and receive judgement at some future sittings of the court or when called on within a period specified by the court; and

(ii) if the court thinks fit, he shall in the meantime keep the peace and be of good behaviour and comply with such other conditions as the court, in its discretion, imposes.""

56. In our view, this provision vests in the courts a very wide discretion to determine punishment for offenders in all cases that go before them. In the exercise of that discretion, the Court could impose any sentence or penalty. That might range from a sparing of punishment to a nominal term of years to life imprisonment and the ultimate punishment of death, depending on the severity of the offence and the seriousness of the aggravating factors.

57. We note that, main line criminal sentencing the world over is usually incarceration for a term of years based on the assumption that, that is what the community expects or requires for its safety. There are not many cases of offenders being cautioned and discharged or spared from punishment. Yet as Barwick CJ said in the Australian case of Palling v. Corfield: [13]

""Ordinarily the court with the duty of imposing punishment has a discretion as to the extent of the punishment to be imposed, and sometimes a discretion whether any punishment at all should be imposed. It is both unusual and in general, in my opinion, undesirable that the court should not have a discretion in the imposition of sentences . . .""

58. However, in the few cases in which offenders have been spared imprisonment and given alternatives to imprisonment have indeed resulted in positive changes to the offender, with the offender doing more good than harm. They have proven more good and use to society and a huge saving on the countries limited financial and other resources. A good example of that is the decision of the National Court in The State v. Micky John Lausi.[14]

59. In that case, Mr. Lausi, committed armed robbery in the company of other youths. A motor vehicle was the subject of the robbery. Its owner recovered it with some damage. Mr. Lausi demonstrated genuine remorse and demonstrated a willingness to change for the better. He had parents and relatives who were supportive with the support of the Community Correction Services. In the circumstances, the Court imposed a sentence of 6 years all suspended on conditions. All of the conditions were faithfully kept and Mr. Lausi did more. He led a group of youths along the Kokoda Trail building Christian churches all along the trail. He has since not reoffended and has proven himself to be a useful member of the society.

60. The courts ought not to forget that, imposing a suspended sentence which was the kind of sentence imposed in the Micky John Lausi case is not an exercise in leniency but is a form of punishment. As many judgments in our jurisdiction have noted:

""It is erroneous to treat the suspension of sentence for imprisonment as merely an exercise in leniency. Because such order is made in the community interest and is generally designed to prevent re-offending which a prison sentence, standing alone, seldom does. A person so released as an obvious incentive not to re-offend. Therefore, there should be no misconceptions as to what will occur if he does. From time to time, persons charged with more serious offences may be dealt with in this manner by reason of good character, the court''s view that there will be no re-offending, that treatment is required outside prison and, at times, by reason of the fact that the court believes that a particular offender will be positively damaged by immediate incarceration.""[15]

61. A number of enlightened people, like James Selarno, Dr. Hawkins, Elkart Tolle and even the leaders of almost all religion and beliefs like Jesus Christ for all Christians agree that, the answer to humanities lawlessness is not the force of the law or eye for an eye or bad for bad or good for good principle. Rather, they all admonish their followers or believers to forgive or spare and encourage an offender not to reoffend, which is a positive input. After all, as these great people agree, a positive input will produce a positive output whilst a negative input will produce a negative output in much the same way a farmer harvests corn from planting a corn seed and not a pawpaw. These great men question quite rightly so, how have the kinds of penalties the courts have imposed to date, made our world a safer place for us to live? How does the collective societal handing out of punishments such as the death penalty, make us better than the offenders? Are we all not in the same boat as the offenders to the extent that we have all participated in the ending of the offender''s life? If we examine these questions closely, we will find that, all things are equal and there is only one difference between an offender and the rest of society. The difference is that, society has the force of the law while the offender does not.

62. In traditional Papua New Guinea and before the coming of the White man with his complicated legal system, there were no prisons with prison officers and before that policemen with guns and uniforms enforcing the law, arresting, charging and bringing offenders to Court and a Court determining guilt or innocence and handing out punishment which in most cases entails imprisonment for certain periods of time most of the time against their will. All there was in those days, apart from payback killings between warring clans or groups, were an acceptance that someone did something against someone and someone has been hurt, which needed to be appeased or corrected, usually through payment of some form of compensation, reprimand or some other forms of correction. Once that was done, life continued as before.

63. Under the so-called civilized system of justice or law and order, we have seen to the imprisonment of many people and kept them in prison for certain periods of time from a few days to an offender''s life time. In some more extreme cases, we have imposed death penalties and have kept people waiting on the death row, a fact led by the USA with some following here in our country for cases considered worse cases of wilful murder causing them anguish and mental pain and suffering. As Dr.Hawkins and Messers, Tolle, Selarno and others have clearly brought out, these kinds of criminal sentencing has not helped the society in its bid to create a safe environment for all. Instead, our prisons are overcrowded and serious crimes are being committed every day all over the world from organized and official wars to gang shoot outs and indiscriminate bombings and killings to verbal and other forms of abuse of the human race by fellow human beings, which is making our planet a very unsafe planet for us all to live in.

64. This Court is thus of the view that, it is high time now to review the society''s approach to dealing with offenders through the courts. 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. This is not a new thing. The courts have been doing that for centuries but have failed to guarantee safer societies. What is new, however, is the question of what should be the primary focus of criminal sentencing and the suggested answer of correction and rehabilitation and not necessarily imprisonment in prisons. Adopting such an approach would enable the courts to address that which matters most, which is the emotional needs of an offender and the society as a whole for a safer society.

65. Up to this point, the Supreme Court has provided guidelines for sentencing for almost all of the offences under the Code. In the case of manslaughter which is relevant for our purpose, the recent decision of the Supreme Court in Manu Kovi v. The State,[16] often comes up. However, that case has been the subject of some criticism because that decision tries to further categorize homicide cases and in so doing, provide for categories in which there is an intention or pre-meditated killing or there is an intention to do grievous bodily harm. These are critical factors in a case of wilful murder and murder respectively and therefore, they cannot come under manslaughter. As this Court said in its decisions in Simon Kama v. The State,[17] the Supreme Court cannot further categorize homicide cases for two reasons. Firstly, Parliament has already categorized such cases and secondly only Parliament can change it. The Court''s duty is only to interpret and apply the law as it is and be careful not to legislate in the guise of statutory interpretation and application.

67. Section 19 of the Code makes it clear that, a trial Judge has a wide discretion to impose any punishment from a term of years to life imprisonment. It is worth noting that, the discretion thus vested in the courts is not subject to any guidelines to be set by the Supreme Court or anybody. The discretion is instead left entirely within the discretion of a trial judge. That discretionary power ought to be exercised judicially and according to law and not arbitrarily, vaguely or fancifully. It must be exercised on proper grounds for good reason and not capriciously.

68. We do not dispute that, the Supreme Court can in the exercise of its appellate and supervisory role can only suggest how the courts can exercise the discretion vested in them under s 19. But care must be exercised to ensure and appropriately accommodate the fact that no hard and fast rule can be laid down as to exercise of judicial discretion, because from the moment you do, the discretion gets fettered.

69. The Supreme Court decisions in Anna Max Marangi v. The State[18], Gimble v. The State,[19] Ure Hane v. The State,[20] Manu Kovi v. The State[21] and several others say they are providing guidelines for sentencing for a number of offences. In so doing, these kinds of decisions have in fact prescribed sentencing minimums and maximums after prescribing a number of categories for a particular offence, such as wilful murder, murder, manslaughter, robbery, rape and so on. These kinds of decision have therefore in effect, prescribed minimum and maximum penalties within the Parliamentary prescribed maximums. These decisions have done that despite the fact that, Parliament through their respective and relevant provisions of the Code has prescribed only the maximum penalties for each of the offences except in one or two cases as in escape from lawful custody in which Parliament has prescribed minimum penalties.

70. The guidelines have, however, been followed, adopted and applied by many decisions of the National and Supreme Courts quite religiously. Effectively therefore, these guidelines have restricted the courts from exercising the discretion vested in them freely as they should. This is demonstrated by a ready application of the guidelines in terms of the courts accepting that there is a starting point and highest point in sentencing for each of the offences for which there are guidelines with certain range of sentences. A good demonstration of this is in the decision of Cannings J, in the case of The State v. James Yali[22] in these terms:

""From time to time the Supreme Court gives sentencing guidelines in the course of deciding criminal appeals or reviews. These guidelines are often expressed in terms of a ''starting point'' for various types of cases. The National Court then applies those starting points in the course of looking at each case on its merits and identifying the aggravating and mitigating circumstances.""

71. Given that Parliament has not provided for any fettering of the discretion vested in a trial judge, we are of the view that the exercise of that discretion should be left to the trial judge and not be prescribed by case law which could effectively amount to a usurping of the powers and functions of Parliament and the Supreme Court unlawfully legislating. The Supreme Court or any Court should be careful not to prescribe or regiment the way in which a sentencing judge should exercise his or her sentencing discretions in the particular circumstances of a case before him or her. We must never forget the well accepted principle that, each case must be determined on its own merits and that criminal sentencing is not a matter of mathematics but logic and common sense. Considering all of these, we do not take issue with the Supreme Court setting guidelines as to what sort of factors a sentencing judge should take into account but it cannot set sentencing ranges or tariffs with minimums as ""starting points"" and maximums within the maximums Parliament has already provided for. Instead, a trial judge has and should be left with his or wide discretion to impose such a sentence or penalty has he or she considers the particular circumstances of the case warrant. That discretion cannot be curtailed, restricted or interfered with except for very good reason, say for example, where there is a total improper exercise of the discretion and going against any sense of logic and common sense and perceptions of justice and fairness. In the exercise of that discretion, a trial judge should be at liberty to impose a sentence that could be considered either too low or a ""quantum leap"" or ""too crushing"" on an offender if the circumstances in which the offence was committed and the factors for and against the offender warrant the kind of sentence imposed.

72. Now turning to the case at hand, we note the learned trial Judge referred to the cases of Manu Kovi v. The State[23] and Anna Max Maringi v. The State[24] as precedents to arrive at his decision to impose the sentence of 9 years. To the extent that these two decisions further categorize and prescribe minimum and maximum sentences within the already prescribed maximum sentences, we are of the respectful view that, they are an unnecessary and illegal curtailment or fettering and or restriction of the discretion vested in a trial judge. We are thus of the view that, no trial judge should feel compelled or bound to follow these prescriptions. Instead, they should exercise the wide discretion vested in them in the way they see fit as long as they take into account all of the relevant factors and the particular circumstances in which the offence under consideration was committed and the sentence they eventually arrive at, sufficiently reflects the factors taken into account and the particular circumstances in which the offence under consideration was committed.

73. In the case before us, we note that, the unnecessary prescriptions by previous decisions of the Supreme Court the learned trial judge referred to, prevented His Honour from freely exercising his discretion in the particular circumstances of the case before him as we have noted above. This also, in our view, prevented the learned trial judge from taking into account and ensuring that the sentence reflected two addition factors in Thress'' favour.

73. The first factor is, Thress did freely admit to committing the offence from the very beginning and expressed remorse and regret before the learned trial judge. She in fact surrendered soon after committing the offence. She could have raised the defence, of provocation and or self defence. She did not do that, and was prepared to take responsibility for her action, even in the light of the learned trial judge raising that possibility with her. To us, that was a genuine acceptance of responsibility, which has to be contrasted with a person who has in fact committed an offence but denies it and raises baseless defences and later says sorry. Thress'' conduct immediately after the commission of the offence and all the events leading up to her guilty plea and conviction required special consideration and accommodation in the sentence but the learned trial judge did not do that.

74. Secondly, Thress was a first time offender. That means she had not been in trouble with the law before. Although the offence she committed was a crime of violence, there was no evidence of her being a violent person and as such, she was a danger to society for whose protection, she needed to be locked away. Instead, the evidence showed that this was a one off incident. Based on the evidence and the basis on which the State indicted her and the Court convicted her, what she did was forced upon her by her husband''s and that of the deceased''s conduct. There was no evidence that, she was likely to re-offend and that the only appropriate penalty was incarceration. Again, although the learned trial judge noted that Thress was a first time offender, there is nothing in the judgment that shows that he did give serious and appropriate consideration to this fact.

75. In the circumstances, we are of the view that the custodial sentence of 9 years, though not excessive was not reflective of the particular circumstances in which Thress committed the offence. We are of the view that, a suspension of the whole or part of the sentence of 9 years would at least help reflect the factors we have indicated that ought to be reflected in Thress'' sentence. Thress has already spent 2 years and 1 month in custody on account of both her pre-trial and post conviction and sentence incarceration. We consider that is sufficient custodial sentence for her. The balance of 6 years and 11 months should be suspended and we would do so on conditions of recognitions to keep the peace and be of good behaviour for the period of her suspended sentence.

Formal Orders

76. Ultimately and in the end, the Court makes the following orders:

1. The appeal against sentence is upheld in part.
   
2. The period of 2 years and 1 month already spent in pre-sentence and post conviction and sentence is sufficient custodial sentence.
   
3. The balance of 6 years 11 months is suspended on conditions of recognition to keep the peace and to be of good behaviour for period of suspended sentence.

________________________________________
Thress Kumbamong In person
The Public Prosecutor: Lawyers for the Respondent

---

^[1] (Unreported judgment delivered in Wewak on 23/11/00) SCR 15 of 2000.
^[2] (2005) N2996.
^[3] See Heduru Transport Pty Ltd v. Gairo Vergoli (1977) N99
^[4] D RC Chalmers, D Weisbrot, S Injia W J Andrew and D Nicole The Criminal Law and Practice of Papua New Guinea, 2001, Lawbook Co, Pyrmont, at p. 165.
^[5] [1963] PNGLR 40.
^[6] [1967-1968] PNGLR 320.
^[7] (1961) 108 CLR 56.
^[8] Chalmers et al at p. 167.
^[9] Opt Cit note 6.
^[10] For more discussions and application see: The State v Angeline Winara (No 1) (2008) N3345, per Kirriwom, J; The State v. Lenny Banabu (2005) N2871, per Cannings J; The State v. David Yakuye Daniel (2005) N2869, per Cannings J; The State v. Murray William and 2 Ors. (No 1) (2004) N2556, per Kandakasi J and The State v So'on Taroh (2004) N2675, per Kandakasi J.
^[11] See the above cases for a discussion and application of this defence.
^[12] See ss.4, 11 and 12 of the Adultery and Enticement Act 1988
^[13] [1970] HCA 53; (1970) 123 CLR 52, at 65.
^[14] (2001) N2073.
^[15] A position taken by the National Court in its decisions in The State v. Micky John Lausi (27/03/01) N2073; The State v. Jimmy Solomon (6/7/01) N2100; The State v. Eric Emmanuel Vele (24/07/02) N2252; The State v Louise Paraka (24/01/02) N2317 and others as endorsed by the Supreme Court in Edmund Gima v. The State & Siune Arnold v. The State (03/10/03) SC730..
^[16] (2005) SC 789.
^[17] (2004) SC740.
^[18] (08/11/02) SC702.
^[19] [1988-89] PNGLR 271.
^[20] [1984] PNGLR 105
^[21] (Supra note 16)
^[22] (2006) N2989.
^[23] (supra) note 16.
^[24] (2002) SC 702.