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State v Timbi [1998] PGNC 26; N1744 (23 April 1998)

Unreported National Court Decisions

N1744

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR. 414 OF 1998
THE STATE
V
BRENDA TIMBI

Mount Hagen

Bidar AJ
21 April 1998
23 April 1998

Counsel

Mr J Kesan for the State

Mr G Gendua for the Accused

SENTENCE

22 April 1998

BIDAR AJ: BRENDA TIMBI, you have pleaded guilty to Unlawful Killing of NANCY GABRIEL, contrary to s. 302 of the Criminal Code Act (Ch. No. 262).

The brief facts of your case show the following circumstances. You and PAUL TIMBI met and married in Port Moresby, when you worked for ANZ Bank and PAUL, student at University of Papua New Guinea. After Paul’s graduation in which you expended a lot money in his graduation party, his clothes and air fares for his relatives.

Paul was then employed by Chevron NIUGINI in Port Moresby for sometime. He was required to be transferred to Kutubu as the Chevron Niugini office was moved to Kutubu. The circumstances forced you to leave your work and transfer to Mt. Hagen. Whilst in Port Moresby, your husband was seeing another woman, the deceased. The relation between Paul and deceased continued to Mount Hagen. Deceased would travel to Mt. Hagen and stay around for sometime and would return to Port Moresby. Your husband Paul Timbi work at Kutubu and at times would come home for his field break. During January 1998, he was on a field break. On 29 January he was due to return to Kutubu. You packed his clothings and brief case. You, Paul and two others got on a PMV to Kagamuga Airport to see him off. On the way, the bus stopped and picked up deceased and two other women. You got off at the airport and you walked with your husband to MBA terminal. The deceased and other two women followed suit. As deceased came close to you she uttered, words to the effect that, Paul Timbi was only using you, in fact he was seeing her as well. At first you did not respond or do anything. The victim then walked passed you, uttered similar words and made obscene gesture with her middle finger. You then approached her with the small butter knife and stabbed her once. Unfortunately, it was a fatal stabbing and deceased died some hours later at Mt. Hagen General Hospital.

The Post Mortem Report by Dr. J. Kintwa show that the deceased sustained injury to left chest involving left upper lobe of lung and injuring the apex of left pleural cavity. Deceased died of acute loss of blood due to stab wound.

This was a tragic event. I accept that you did not intend to cause her death, if you did, you would have been indicted for wilful murder. Your husband Paul Timbi must accept some responsibility, it was through his extra marital affairs that brought about this unfortunate death.

In his statement to the Police, your husband say that both you and deceased are his wives, but there is no evidence any bride price is paid to the deceased relatives. In fact, deceased father strongly opposed deceased association with your husband.

Manslaughter (unlawful killing) is least of homicide offences. However, the penal servitude of life imprisonment show it is a serious offence. Indeed, this type of killing nearly always result from violence, some involving vicious attacks and use of objects to assault victims.

The task of arriving at an appropriate sentence is never an easy one, because of diversity of situations manslaughter is committed. A sentence may be deemed appropriate in the particular circumstances of a case but only upon careful regard to the relevant underlying factors and application of proper sentencing principles. In considering your sentence, I adopt useful statement by L. J. Watkins in R -v- Philips (1985) 7 Cr. App. s (5) 235 at p. 237:-

“The Court has to pay careful regard to the circumstances of death and especially to the way the death was actually caused, in coming to a conclusion as to what punishment a defendant would receive for whatever it was that he did towards bringing that about.”

This view was apparent in the Supreme Court Case of Rex Lialu -v- The State [1990] PNGLR 487. In the earlier Supreme Court Case of Norris -v- The State [1997] PNGLR 605, Raine DCJ. (as he then was) directed his mind to the way death was caused when he said at pp. 611 - 612:

“I say this because this was a bad assault on the deceased. This is not one of those unfortunate cases where one angry blow has tragic consequences. There were a number of blows and it is perfectly clear that the appellant, furious at the believe behaviour of the deceased, attacked her in quite a vicious way.”

Similarly, Wilson J. in the same case stated at p. 618:

“It must be said that the accused viciously assaulted the deceased. The appellant is not entitled to leniency that may be shown to those who commit the crime of manslaughter in a sudden or momentary out-burst.”

The case before me involved wife stabbing her husband’s lover (mistress) resulting in her death. This killing is akin to one wife killing another who both have a common husband. It is in my view, a prevalent offence particularly in this province and other Highlands Provinces. There have been calls and campaigns made against violence. In situations as this, it is usually the (man) or husband, who is the cause of domestic discord. While one women is deceased and another facing term of years in prison, the husband, is free to do as he pleases.

Presently, there is no law to deal with him. I reiterate the early calls by this Court and other forums to amend the present Criminal Code to make unfaithful husbands responsible for their conduct.

The accused is twenty-eight (28) years old, reasonably young women. This was her first offence. She is an educated woman and had a good job with every prospect of advancing in her job. She had pleaded guilty and admitted her guilt to the Police from the beginning. The accused conduct has been consistent with her remorse which she openly expressed in Court. I accept that you are genuinely sorry for causing Nancy Gabriel’s death. I accept that you acted on the spur of the moment when deceased uttered certain words and made offensive gesture with her finger, and committed this offence in a momentary outburst.

As suggested by Supreme Court in Norris -v- The State (supra) and Rex Lialu -v- The State (supra) non vicious assault or simple fist punch would attract sentence at the lower range from suspended sentence up to five (5) years. Spleen killing cases have been treated by courts as falling under that category of manslaughter. Where use of objects as knife, axe, stone, spear, arrow, piece of wood etc, a sentence of four (4) years up to eight (8) years have been imposed by Courts.

I conclude that a term of imprisonment is appropriate as a measure of personal and public deterrence for your conduct. I do not consider you to be a person of violent nature. You are in my view not likely to re-offend.

I accept that circumstances exist in your case to warrant suspension orders on your sentence.

You are sentenced to be imprisoned with light labour for period of three (3) years. I deduct two (2) months and twenty-four (24) days you served in custody. Of the remaining sentence of two (2) years, eight (8) months and four (4) days, I suspend eight (8) months and four (4) days. You placed on Good Behaviour Bond for twelve (12) months, after service of balance of sentence of two (2) years in light labour.

I order that you serve your balance of sentence at an institution in your province, either at Bihute Corrective Institution or Bundaira Corrective Institution.

Lawyer for the State: Public Prosecutor

Lawyer for the Accused: a/Public Solicitor