Konia v State [2020] PGSC 157; SC2122 (30 October 2020)

SC2122

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA 18 OF 2012

BETWEEN:
STEPHANIE KONIA
Appellant

AND:
THE STATE
Respondent

Waigani: Toliken, Pitpit JJ
2017: 6^th November
2020: 30^th October

APPEALS – Appeal against sentence – Manslaughter – Sentence on plea - Whether Appellant pre-planned and intended to cause death – Use of deposition – Reliance on medical report – Number of wounds observed on deceased body – Not stated in prosecutors summary of facts – Whether primary judge erred in referring to observations in medical report – Whether sentence manifestly excessive.

Cases Cited:

Norris v The State [1979] PNGLR 605
The State v Yakal [1988–89] PNGLR 129
in The State v Lahu (2005) N2798
The State v Kanupio (2005) N2800
Yalibakut v The State (2006) SC890
Public Prosecutor v Tom Ake [1978] PNGLR 469
Avia Aihi v The State (No. 3) [1982] PNGLR 92
John Vali v The State; SCRA No. 61 of 2004 (Unreported and unnumbered judgment dated 29 June 2007)
Manu Kovi v The State (2005) SC789
Rex Lialu v The State [1990] PNGLR 487
Anna Max Maringi v The State (2002) SC702
R v McGrath [1971-72] PNGLR 247
Mari v The State (1980) SC175
Counsel:

F Kirriwom, for the Appellant
T McPhee and C Langtry, for the State

JUDGMENT

30^th October, 2020

1. BY THE COURT: Stephanie Konia (the Appellant hereafter) appealed against her sentence of 23 years for manslaughter by the National Court at Kundiawa on 20^th April 2012 following a guilty plea. Leave to appeal was granted on 28^th February 2017.
   
2. The appeal was heard and reserved on 06^th November 2017. Subsequent to that a member of the bench (Higgins J) retired leaving only Toliken and Pitpit JJ.
   
3. Section 3 of the Supreme Court Act was administered. The parties had no objection to the remaining members of the bench continuing with the matter. This is the judgment of the Court.
   

FACTUAL BACKGROUND

4. The facts from which this appeal arose are as follows: The Appellant was married to the deceased, a school teacher, and they had a child. On Sunday 01 May 2011, at 11.00a.m. the Appellant and the deceased and their child were in their house at Nebare Primary School, Simbu Province, when she attacked the deceased with knife, stabbing him on the side and the back of the neck several times. The deceased dropped dead on the floor. The Appellant then placed the deceased’s body in one of the rooms, covered it with a blanket and thereafter proceeded to burn blood-soaked clothing and a mattress. That evening she packed her clothes and left for the village where she spent the night with relatives.
   
5. The next morning, she went into Kundiawa Town and surrendered to the police. She was charged with one count of wilful murder and subsequently was committed for trial. At trial she was, however, indicted for manslaughter instead after plea bargaining.
   

GROUNDS OF APPEAL

6. The Appellant raised seven (7) grounds of Appeal. These are:
   
   • (a) The primary judge made an identifiable error when he held that the Appellant’s actions were premeditated when the facts demonstrated that the actions of the Appellant immediately followed an episode of physical assault on the Appellant by the deceased which in effect is more consistent with a “spur of the moment” reaction. Hence the primary judge erroneously took the element of pre-meditation into account as an aggravating factor, which thereby had the effect of vitiating the exercise of his sentencing discretion.
   • (b) The primary judge made identifiable errors by placing little or no weight on mitigating factors in favour of the Appellant, particularly in regard to her voluntary surrender and her co-operation with the Police.
   • (c) The primary judge failed to take into account that the Appellant was a victim of domestic abuse throughout the course of her marriage to the deceased immediately prior to the killing. Hence these were relevant mitigating and extenuating circumstances which the primary judge failed to give adequate considerations to, which effectively vitiated the exercise of his sentencing discretion.
   • (d) The primary judge erred when he took into account the medical report which recorded 17 stab wounds on the deceased’s body, which was not conceded to by the Appellant nor was it part of the facts upon which the Appellant pleaded guilty, which only stated that the deceased was stabbed several times. The number of stab wounds add to the brutality and viciousness of the killing which the primary judge erroneously applied in exercising his sentencing discretion.
   • (e) The primary judge erred when he held that the Appellants’ actions were “deliberate and calculated to cause nothing less than death” as intention is not a necessary ingredient of the charge of manslaughter nor was the element of intention conceded by the Appellant. The primary judge may have misdirected himself and applied considerations that are only relevant on a conviction of wilful murder, thereby vitiating the exercise of his sentencing discretion.
   • (f) The sentence of 23 years imprisonment is manifestly excessive and does not reflect the relevant circumstances of the Appellant’s case.
   • (g) The sentence of 23 years is a quantum leap, considering the trends in sentencing on a guilty plea to a charge of manslaughter, where the killing occurred in a domestic setting, have been between the ranges of 10 to 16 years.
     

RELIEF SOUGHT

7. The Appellant sought orders for the appeal to be allowed and for the sentence to be set aside.

ISSUES

8. Grounds (a) and (e) can be merged as they essentially deal with the issues of premeditation and intention. Grounds (f) and (g) likewise would be heard together as they deal with the question of excessiveness of sentence.

9. The following issues therefore fall to be decided in this appeal:

(i) Whether the primary judge erred by holding that the Appellant’s actions were premeditated and “deliberate and calculated to cause nothing less than death” and that in so holding, His Honour committed an identifiable error.

(ii) Whether the primary judge placed little or no weight on favourable mitigating and extenuating factors, particularly the appellant’s voluntary surrender to and cooperation with the police and that she was the victim of domestic violence, and in so doing committed an identifiable error.

(iii)Whether the primary judge erred when he took into account the 17 stab wounds recorded in the medical report and whether he was entitled to refer to the report if it was not conceded.

(iv) Whether the sentence of 23 years was manifestly excessive and a quantum leap.

THE LAW

10. The Court’s power on appeal against sentence is relevantly provided by Section 23(4) of Supreme Court Act as follows:

DETERMINATION OF APPEALS IN ORDINARY CASES.

...

(4) On an appeal against sentence, if the Supreme Court is of opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed, it shall quash the sentence and pass the other sentence in substitution for it, and in any other case shall dismiss the appeal.

11. At the outset, it is trite that an appellate court would be slow to disturb a sentence imposed by a trial judge and will only do so if it can be shown that the sentence was manifestly excessive or manifestly lenient. The onus is on an appellant to satisfy the Supreme Court that the primary judge erred in exercising his sentencing discretion and that such error vitiated the sentence, thus the need to set it aside.

12. What is required of the Appellant is set out in the often-quoted statement by Kearney DCJ in Norris v The State [1979] PNGLR 605 at pp. 612 and 613. This can be summarized in the following manner: An appellant has to show that an error occurred which has the effect of vitiating the trial judge’s sentencing discretion. Some errors may be identifiable, such as a mistake as to the facts or a wrong application of a principle of law or that the trial judge took into account irrelevant matters or failed to take into account relevant matters or failed to give enough weight or gave too much weight on matters that he took properly into account. But even where no particular error can be shown, taking into account the advantaged position of the primary judge, the Supreme Court can infer that some error must have occurred in the exercise of his sentencing discretion if the sentence is obviously excessive and out of reasonable proportion to the circumstances of the crime and the proven facts.

13. So, has the Appellant in this matter shown that the primary judge made identifiable errors in the exercise of his sentencing discretion? Let us consider the issues raised in her appeal.

ISSUE 1: Did the primary judge err in holding that the Appellant’s actions were premeditated and “deliberate and calculated to cause nothing less than death”?

14. This was a guilty plea. Thus, the general principle that obtains when sentencing a prisoner who had pleaded guilty is that an accused person admits only to the essential elements of the charge and the facts put to him on arraignment. This, however, does not mean that the sentencing judge cannot use the depositions. In The State v Yakal [1988 – 89] PNGLR 129, Brunton AJ, held that depositions may be used on sentence on a plea of guilty provided the facts are not challenged and are within the bounds of reasonable possibility. To do otherwise would leave a judge with little to no material to work with and may result in an injustice to the community at large, or to the individual prisoner.

15. However, where there are significant issues raised by the depositions or on allocutus or submissions by counsel, then the principles enunciated by Cannings J in The State v Lahu (2005) N2798 and The State v Kanupio (2005) N2800 will apply. These are:

• The effect of a plea of guilty is that an accused person admits to the elements of the offence and the facts that have been put to the accused.
• Once the court considers the depositions, accepts the plea and enters a conviction, the accused must then be given the benefit of any reasonable doubt on matters of penalty.
• If the judge detects any aggravating or mitigating matters in the depositions that were not put to the accused, the judge must ascertain whether there is agreement between the prosecution and the defence on those matters.
• If there is agreement, the judge should work on the basis of what has been agreed to.
• If there is a dispute between the parties about those matters, it would be appropriate for the court to take sworn evidence on them. The accused can be invited to give evidence but cannot be forced into the witness box.
• If, however, the court does not take sworn evidence and there is no agreement between the parties as to the contentious matters, the court must act on the version of the facts which, within the bounds of possibility, is most favourable to the prisoner.
  

16. The Supreme Court in Yalibakut v The State (2006) SC 890 (Jalina, Mogish, Cannings JJ) approved these principles and relevantly held that:

...

(4) When sentencing an offender who has pleaded guilty the judge must apply the facts to which the offender has pleaded guilty.

(5) As to facts to which the offender has not pleaded guilty, the offender must be given the benefit of any reasonable doubt.

(6) If the court does not take sworn evidence and there is no agreement between the parties as to the contentious matters, the court should act on the version of the facts which, within the bounds of possibility, is most favourable to the accused.

17. In that case the appellant pleaded guilty to sexually penetrating a child under the age of 16 years, an offence under s 229A of the Criminal Code. Apart from appealing against his conviction in spite of his guilty plea, the appellant also appealed against his sentence of 17 years. He contended that the sentence was excessive given the fact that the victim had consented to the act. Furthermore, he did not fully penetrate her. The Supreme Court found that the primary judge sentenced the appellant on factors of aggravation to which he did not plead guilty. It held that the trial judge erred by not giving the benefit of a doubt to the appellant on the issue of consent, in a way that vitiated the sentence. The court allowed the appeal on that basis and reduced the sentence to 14 years.

18. Conversely, when no challenge is made to any of the facts alleged in the state case on a plea of guilty, the doctrine that the version of the facts most favourable to the accused should be acted upon, does not apply. (Public Prosecutor v Tom Ake [1978] PNGLR 469, (Prentice CJ, Pritchard J, Greville - Smith J)

19. In the instant case, Mr. Kirriwom submitted in behalf of the Appellant that the primary judge committed an error when he found, as a fact that the Appellant’s actions were pre-meditated, when in fact, the killing occurred immediately after the Appellant was “assaulted badly by the deceased prior to the killing’ as found by His Honour, a fact more consistent with “a spur of the moment” reaction than pre-meditation.

20. Counsel further submitted that His Honour fell into further error when he held that the Appellant’s actions were deliberate and calculated to cause nothing less than death. And that is, counsel argued, because intention is not an element of the offence of manslaughter. The general rule, counsel submitted, is that a guilty plea admits nothing more than the essential ingredients of the offence. In holding as he did, His Honour committed an identifiable error that vitiated his sentencing discretion.

21. The State countered that this ground has no basis. The State argued that contrary to the Appellant’s contention, the primary judge did in fact hold that the Appellant’s action was not pre-meditated. Counsel for the State referred us to page 36 of the Appeal Book. What did the primary judge say there?

22. At page 36 of the Appeal Book (lines 21 – 31) this is what His Honour said:

“The death seems unpremeditated but the multiple wounds inflicted on the deceased dismisses such claim to nothing. The manner and circumstances that led to the death effectively puts this killing into the list of killings consciously committed. It amounted to a manifestation of the will and determination of the prisoner to cause death. It appears that the prisoner was indicted on manslaughter on plea bargain.” (Underlining supplied)

23. His Honour was obviously responding to the Appellant’s lawyer’s submission that the killing was not premeditated. Taken in its proper context, it would appear to us that what His Honour was saying there was that even if the killing may appear not premeditated, the multiple wounds inflicted on the deceased demonstrated or manifested a will and determination to cause death. Earlier in his judgment at p. 34, when discussing the aggravating factors against the Appellant, His Honour said:

“... (7) There was an element of pre-planning present as the prisoner took careful steps to conceal the killing by burning bloodstained clothing and she also dragged the body into the bed and covered it with a blanket, and she locked the door and pretended that all was well when she went to overnight with relatives.”

24. With due respect to the learned primary judge, what the Appellant did there, is not evidence of pre-planning but rather of concealment of the crime.

25. Notwithstanding that, it is clear to us that His Honour was of the view, and effectively held that there was ‘pre-planning’ or ‘pre-meditation’ which words mean the same thing and are often used interchangeably. There was no evidence before His Honour of any pre-planning or pre-meditation by the Appellant to kill the deceased, notwithstanding her own statement in her Pre-sentence Report of the continuous physical abuse she had suffered at the hands of the deceased. The primary judge was obviously swayed by the number of stab wounds inflicted on the deceased by the Appellant and her endeavours to conceal the crime. These effectively led him into erroneously concluding that the Appellant pre-planned to kill the deceased.

26. We also find that the primary judge considered the killing intentional. This can be clearly seen at p. 34 line 2 of the Appeal Book where His Honour very clearly says that “The accused was deliberate and calculated to cause nothing less than death.” The Appellant was not indicted for wilful murder even though she was committed for trial on that charge. On the contrary she was indicted for manslaughter obviously after plea bargaining. She pleaded guilty to manslaughter and to the facts put to her on arraignment which did not allege the element of intention to kill at all.

27. While the trial judge could not pass a blind eye to the nature and extent of the injuries inflicted on the deceased, it was improper for him to draw conclusions, let alone make inferences of fact on matters which were not part of the prosecution’s summary of facts. In saying that the Appellant meant nothing less than to cause the death of the deceased, we find that His Honour erred and this ought to vitiate his sentencing discretion.

28. The prosecutor here had elected, within his absolute discretion, to indict the Appellant for the lesser charge of manslaughter instead of wilful murder, undoubtedly as a result of plea bargaining. As is often the case, the primary judge’s task was a challenging one. On the one hand he was constrained to restrict himself to the facts to which the Appellant pleaded guilty, while on the other hand, he was confronted with the material in the depositions, particularly the Medical Report, which recorded the nature and extent of the injuries inflicted on the deceased. Does he shut his mind to the latter completely? We think not. His Honour must take these into account as aggravating the offence, but he ought not to have gone beyond that and infer or countenance that the multiplicity and nature of the injuries manifested an intention to kill or cause the death of the deceased.

29. In considering an appropriate sentence, the exercise of discretion in that regard must ultimately be circumscribed by the offence and the facts to which the Appellant pleaded. The brief facts put to the Appellant did not include the number of injuries inflicted on the deceased. These aggravating factors were, however, apparent from the medical report.

30. According to the authorities cited above, what His Honour ought to have done then, was to ascertain from counsel if there was agreement on these. If there was, then he must work within the bounds of what was agreed. If not, then he ought to have called evidence on the matters in contention. Failing that, he must then act on the version, within the bounds of possibility, which is most favourable to the prisoner. (Yalibakut v The State (supra))

31. Despite the fact that the depositions may have justified a charge of wilful murder, and irrespective of whether or not His Honour agreed with the decision of the prosecutor to indict for the lesser charge of manslaughter, the primary judge cannot usurp the prosecutor’s power, let alone correct what he would have perceived as a dereliction of duty thereof by treating the charge as anything more than what the Appellant was indicted for.

32. When his Honour expressed the very clear view that the multiplicity of the injuries manifested, nothing less than the intention to cause death, without seeking agreement from the prosecutor and the defence as to the use of the medical report, he fell into an identifiable error which vitiated his sentencing discretion.

33. We therefore allow this ground of appeal. But did His Honour err in referring to the medical report?

ISSUE 2. Did the primary judge err in relying to the Medical Report?

34. On a guilty plea the use of depositions by the sentencing judge is essential. To do otherwise, would leave the judge with little to no material to work with and may result in an injustice as we have seen above. (The State v Yakal (supra.))

35. In homicide cases, a medical report (where one forms part of the depositions) often provides a comprehensive and detailed description of the injuries inflicted upon and observed on the deceased’s body. Ideally the nature and frequency or number of injuries inflicted on the deceased ought to be pleaded in the prosecutor’s brief or the agreed facts in the case of guilty plea as a result of plea bargaining. This enables the court to have a better, if not a fuller picture of all the relevant facts, in its difficult task of sentencing an offender.

36. Mr. Kirriwom submitted that the primary judge ought not to have relied on medical report lesser still on the 17 stab wounds that were observed on the deceased’s body.

37. In our opinion, there is nothing to prevent a sentencing judge from referring to a medical report in the deposition from which he may elicit relevant aggravating or mitigating factors. However, when no reference is made in the prosecutor’s summary of facts about a medical report or the nature of the injuries the deceased sustained, it behoves the sentencing judge to put the material to the prosecutor and the defence and enquire of them if they agree with the use of the report and the doctor’s observations and conclusions, if he were to rely on any aggravating or mitigating factors that may be apparent there-from. Depending on what the position of the parties is, the sentencing judge must then proceed according to the procedure prescribed in Yalibakut v The State (supra), Public Prosecutor v Tom Ake (supra), The State v Lahu (supra) and The State v Kanupio (supra.)

38. In the instant case, the primary judge did not err when he referred to the medical report and specifically to the number of injuries occasioned on the deceased. He, however, fell into error when he failed to secure the agreement of the parties on the report and when failing to act on the version that was most favourable to the Appellant. This ground of appeal is therefore allowed.

ISSUE 3: Did the primary judge err by placing little or no weight on the Appellant’s mitigating and extenuating factors.

39. The Appellant took issue with what she viewed as the primary judge’s failure to give favourable consideration to the fact that she surrendered and co-operated with the police. It was argued in her behalf that the primary judge had no basis for rejecting these factors.

40. The principle that obtains when an appeal is predicated upon an argument that a sentencing judge did not take into account a mitigating factor that was put to him by the defence, is that the judge is not required to recite every single factor cited by counsel to mitigate a sentence. It cannot be inferred that he did not take them into account, the proper presumption being that he took them into account and it is for the appellant to show that this did not happen or that some error occurred. (See Avia Aihi v The State (No. 3) [1982] PNGLR 92 at p. 103 per Kearney DCJ with whom Greville-Smith J and Kapi J agreed)

41. In John Vali v The State; SCRA No. 61 of 2004 (Unreported and unnumbered judgment dated 29 June 2007) (Salika J (as he then was), Lay and Gabi JJ) where the appellant had voluntarily surrendered, confessed and later pleaded guilty to the crime and was sentenced to 25 years imprisonment, the justices rejected the appellant’s argument that the primary judge did not give credit to the fact that he had surrendered. At paragraph 11 of their judgment they said:

“11. It is not necessary for a trial judge to recite every single point which counsel has made to establish that the trial judge has taken that point into account. The trial judge has said that he did take into account the arguments produced by each side. John Vali has not demonstrated that the trial Judge did not take his submissions and the mitigating factors into account. "... if the sentencing judge does not expressly refer to all the matters urged in mitigation before him, it is not to be inferred that he has not taken them into account; the proper presumption is that he has considered each important matter put before him, and given it due weight, it is for the appellant to show that this did not occur, or that some error was made in the process.": See Avia Aihi v The State (No. 3) [1982] PNGLR 92; Kidu CJ, Kearney DCJ, Greville-Smith J. Andrew J., and Kapi J. per Kearney DCJ.”

42. In the instant case, the State conceded that the primary judge erred when he held that the Appellant’s surrender and co-operation with the police cannot operate in her favour. The State further conceded that it benefited from such surrender and co-operation particularly her confession of the crime. Those acts, the State said, irrespective of the motive behind them, preserved State resources because they resulted ultimately in the entry of an early plea.

43. However, when considered against the circumstances under which the offence was committed and the aggravating features of the offence, and the effect these had on the overall sentence, the State submitted that the effect on the overall sentence was minimal and not substantial. There was therefore no substantial miscarriage of justice.

44. We agree that His Honour erred when he took the position he did. Co-operating with the police, which may include surrendering or confessing a crime, has always been accepted by the courts as mitigating factors. Where co-operation and admission to the crime is not disputed and leads to an early plea, there is an undeniable benefit to the State as it expedites the course of justice. This can, in appropriate cases be a substantial mitigating factor, and an appropriate discount will often follow. (See R v McGrath [1971-72] PNGLR 247; Mari v The State (1980) SC 175)

45. However, the amount of discount accorded a prisoner will depend on other factors such as the nature of the plea and how soon after committal the plea was entered. Whatever the case, a trial judge should not reject or refuse to apply such factors to the benefit of the prisoner.

46. But, did this error vitiate the primary judge’s sentencing discretion, such that it resulted in a miscarriage of justice? Taken on its own, it may not have resulted in a miscarriage of justice. However, when considered with the other errors which we have found the primary judge made, this error cannot be left to stand. We therefore allow this ground of appeal.

ISSUE 4: Was the sentence manifestly excessive?

47. It was submitted on behalf of the appellant that the sentence of 25 years is manifestly excessive and is a quantum leap in respect of offences imposed on first-time offenders who plead guilty to manslaughter in domestic settings.

48. In that regard it was argued that the primary judge erred in holding that the appellant’s case fell within the third category of the Manu Kovi tariffs which suggested a sentencing range between 17 – 25 years. (Manu Kovi v The State (2005) SC 769) It was argued in her behalf that had the primary judge considered the relevant mitigating and extenuating factors properly, he would have found that the case fell somewhere between the first and second categories, and thus, ought to have attracted a sentence between 8 to 16 years.

49. The State submitted that this ground of appeal is misconceived on the basis that there is no proposition that manslaughter committed in a domestic setting cannot be placed under the third category of Manu Kovi. To hold otherwise would result in artificially fettering the judge’s sentencing discretion as well as prevent him from forming a view as to the severity or otherwise of the offence based on the peculiar facts and circumstances of the case before him.

50. While it may be necessary to dwell at some length on this ground of appeal and the merits or demerits of the Appellant’s arguments, as well as consider the Manu Kovi guidelines and comparative sentences for manslaughter in domestic settings, we do not propose to do that. This is because, in our firm view, the primary judge misdirected himself the moment he held that the Appellant pre-planned and intended to cause the death of the deceased. This error, which is a significant and fatal one, contaminated his mental process and judgment which in turn vitiated his sentencing discretion and ultimately resulted in a miscarriage of justice.

51. It is apparent to us that His Honour’s train of thought was derailed, so to speak, and this infested or tainted his exercise of discretion. In other words, the primary judge treated the matter as one of wilful murder. This is a fatal error which should not be allowed to stand uncorrected.

52. We are of the view that this is a matter in which the sentence appealed against ought be disturbed because the primary judge had erred in the exercise of his sentencing discretion. We do agree with His Honour that this was a serious case of manslaughter. The number of injuries inflicted on the deceased indeed manifested a deliberate intention to cause harm.

53. However, we also agree with the Appellant that the primary judge ought to have given sufficient consideration to the fact that she had been the victim of domestic violence. She did not suffer silently as many survivors of domestic violence often do to their own detriment. On the contrary, she sought the assistance of the authorities like the local police, but she was not assisted in any meaningful way.

54. To recognize and acknowledge the realities that survivors of domestic violence go through before they snap and hurt or even kill their abusers, is not to be equated to a condonation or justification of criminal behaviour. Rather it is a recognition of human frailty and therefore a sentencing judge must have careful regard to the circumstances under which the offence is committed, which Manu Kovi attempts to do by its categorization of such circumstances and factors and the suggested ranges of sentences. (See also Rex Lialu v The State [1990] PNGLR 487 and Anna Max Maringi v The State (2002) SC702)

55. In our opinion there are certain factors which would have had significant mitigating effect on the Appellant’s offending. Had the primary judge not misdirected himself by treating the case at hand as a pre-planned, deliberate and intentional killing, and had His Honour given careful consideration to the circumstances under which the Appellant committed the offence and the abuse that the Appellant went through before she ended up killing the deceased, coupled with the fact that she voluntarily surrendered, co-operated, admitted and ultimately pleaded guilty to the offence (irrespective of whether or not this was the result of a plea bargaining), His Honour may have indeed imposed a sentence within the range suggested by the Appellant or just slightly above it.

56. But having said that, we do not think that the sentence of 23 years for manslaughter – even for one committed in a domestic setting – is a quantum leap as the Appellant contended. The offence carries the maximum penalty of life imprisonment and there is nothing to prevent a sentencing judge from imposing a very stiff sentence – even one that is outside the prevailing range – if the circumstances warranted it. However, while it is not a quantum leap it is nonetheless excessive in the circumstances in our view.

57. We therefore allow this ground of appeal.

CONCLUSION

58. Ultimately, we are of the view that a sentence below 25 years was warranted. Granted, the Appellant displayed a deliberateness to cause harm on the deceased. However, there are significant mitigating and extenuating factors which the primary judge erroneously failed to or refused to apply to the benefit of the Appellant. In the circumstances we are of the view that an appropriate sentence ought to have been 17 years.

59. We would therefore allow the appeal, quash the sentence of 25 years and substitute it with 17 years.

ORDERS

1. The appeal is upheld.
2. The sentence of National Court dated 20^th April 2012 is quashed and substituted with a sentence of 17 years.
3. The period spent in pre-sentence detention and the period already spent in post-conviction and sentence detention are to be deducted from the sentence.
4. The Appellant shall serve her sentence at Barawagi Corrective Institution.
   5. A new Warrant of Commitment shall be issued.
      

Ordered accordingly.
________________________________________________________________
The Public Solicitor: Lawyer for the Appellant
The Public Prosecutor: Lawyer for the State