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State v Kaingi [2006] PGNC 229; N4518 (19 December 2006)

N4518

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1119 OF 2006

THE STATE

V

LIEN KAINGI

Kimbe: Cannings J

2006: 22 September
17 October
19 December

CRIMINAL LAW – Criminal Code, Division V.2 (homicide etc) – Section 302 (manslaughter) – sentence on plea of guilty – infidelity cases – sentence of 10 years.

A young woman pleaded guilty to killing her younger sister by stabbing her as she was angered that her sister was having an affair with her husband. A pre-sentence report showed the offender was of good character prior to committing the offence. However, her family is still distressed over what happened and is supportive of a heavy sentence.

Held:

(1) The starting point for sentencing for this sort of killing in a domestic setting is 13 to 16 years imprisonment.

(2) Mitigating factors are: only one offender; strong de facto provocation; gave herself up; co-operated with police; pleaded guilty; expressed remorse; first offender; already paying heavy price by denial of access to children; offender's husband's infidelity.

(3) Aggravating factors are: multiple stab wounds; no intervening cause of death; use of knife; intention to do serious harm; deceased had no pre-existing condition; vicious assault; offender solely responsible; no reconciliation.
(4) A sentence of 10 years was imposed. The pre-sentence period in custody was deducted and none of the sentence was suspended.

Cases cited

The following cases are cited in the judgment:

Manu Kovi v The State (2005) SC789
Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06
The State v Daniel R Walus (2005) N2802
The State v Elizabeth Gul CR 375/2005, 09.05.05
The State v Hiliong Gunaing (2005) N2803
The State v Jacklyn Boni CR 786/2005,08.09.05
The State v Joseph Dion CR 71/2001, 20.05.05
The State v Kalimet Tovut CR 968/2004, 20.12.05
The State v Kila Peter (2006) N3018
The State v Mark Kanupio, Balwin Kining, Peter Pasikio, Steven Lipilas and Paul Nowor (2005) N2800
The State v Timothy Mawe CR 1455/2003, 20.05.05

PLEA

A woman pleaded guilty to manslaughter and the following reasons for sentence were given.

Counsel

F. Popeu, for the State
O. Oiveka, for the accused

SENTENCE

19th December, 2006

1. CANNINGS J: INTRODUCTION: This is a decision on the sentence for a woman who pleaded guilty to an unlawful killing (manslaughter) under Section 302 of the Criminal Code. She faced the following indictment:

Lien Kaingi of Babandu, Maprik, East Sepik Province, stands charged that she on the 15th day of April 2006 at Barema oil palm settlement ... unlawfully killed Lisa Kaingi.

CONVICTION

2. The offender pleaded guilty to the following facts:

• On 13 April 2006 the deceased, Lisa Kaingi, who was the accused's biological sister, was on school holidays and went to stay with a friend at Barema.
  
• The next day, 14 April 2006, the accused's husband, John Tubang, went to Barema, where the deceased was staying, and spent the night with the deceased.
  
• John and the deceased had been having an affair.
  
• At 7.00 am on 15 April 2006 the accused got a PMV from Soi to Barema, went to the place where the deceased was staying and saw her husband in the company of the deceased.
  
• When the accused approached them they ran away.
  
• The accused chased the deceased into the oil palm tress, caught up with her, pulled out a knife from her bilum, stabbed the deceased on the upper area of each arm and on the back, left her there and walked away.
  
• The deceased was taken to hospital but was dead on arrival.
  
• The accused caused the death of the deceased without lawful excuse or justification.
  

3. When she admitted the truth of those allegations the accused said:

It is true that I have done that. I did not mean to kill my sister. I knew that she was with my husband. I only wanted to cause her pain for going around with him. She did not respect me as her elder sister. She should have reported it to me.

4. I entered a provisional plea of guilty and then, after reading the District Court depositions, confirmed the plea and entered a conviction.

ANTECEDENTS

5. The offender has no prior convictions.

ALLOCUTUS

6. I administered the allocutus, ie the offender was given the opportunity to say what matters the court should take into account when deciding on punishment. A paraphrased summary of her response follows.

I know I am wrong. I apologise for what I have done. I am married with four children; their ages are 7, 5, 3 and 2. They are scattered around with various relatives. I ask this court for mercy. That is all.

OTHER MATTERS OF FACT

7. As the offender has pleaded guilty, she is entitled to the benefit of the doubt on mitigating factors that are apparent from the depositions, the allocutus (or plea) or matters raised by her defence counsel that are not contested by the prosecutor (Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06, Supreme Court, Jalina J, Mogish J, Cannings J). The rationale is that giving the benefit of the doubt provides an incentive for accused persons to plead guilty and is a benefit accorded to them for saving the State extra resources that would have been committed to the case if a trial were necessary.

Depositions

• The offender made a confessional statement to the police on 18 April 2006, three days after the incident.
  
• The offender made admissions to the police and co-operated fully in an interview on 28 April 2006.
  
• Her husband had been having an affair with the deceased since 2004, when the deceased was a Grade 8 student at Soi Primary School. The offender found condoms, reported the matter to her parents; they went to mediation; he was ordered to pay K1,000.00 which was paid to the offender's grandfather. She and her husband were at that stage living with their children on her parents' block. The husband, John, was kicked out but then he was allowed to come back after apologising and promising not to do similar things again. But the relationship between him and the deceased was reactivated. The offender complained again to her parents but they ignored her. It became unbearable. A week prior to the offence, John and the deceased had sex, while she slept in the house. She went to Barema and saw the two of them conversing under a mango tree. She was very angry.
  

Allocutus (including plea)

• Did not mean to kill her sister.
  
• Expressed remorse.
  

PRE-SENTENCE REPORT

8. To help me make a decision on the appropriate sentence and determine whether any of it should be suspended I requested and received a pre-sentence report under Section 13(2) of the Probation Act for the prisoner. The report, prepared by the Kimbe office of the Community Corrections and Rehabilitation Service, is summarised below.

Lien Kaingi: 26-year-old female.

Background: from Bapandu village, Maprik District, East Sepik Province – raised in the Bialla District, WNBP. Oldest in a family of seven children. Parents alive.

Marital status: Married, with four children.

Education: completed Grade 10, Bialla High School, 1996.

Work: never formally employed.

Health: OK.

Plans: wants to follow her husband to Rabaul.

Family attitude to crime – the offender's parents were interviewed. Her father is a pastor. He said that she was a well behaved person prior to the offence. Ever since she married her husband he had been unfaithful. However, the offender's father wants to see the offender severely punished. Her mother has the same attitude. The offender feels that she is now hated by her parents.

Community history: the offender was a committed AOG Church member – the AOG pastor was interviewed and described the offender as a humble, honest and committed worker and devoted Sunday School teacher – the church will support her if she is released from jail.

Recommendation: is a suitable candidate for probation supervision.

SUBMISSIONS BY DEFENCE COUNSEL

9. Mr Oiveka highlighted that the death of the deceased was directly attributable to the conduct of the offender's husband. He was largely to blame for what happened and the offender was being punished for what he caused. The court should take a careful approach to these sorts of killings that are due to infidelity. There was a very high degree of de facto provocation.

10. There was no intention to do serious harm, Mr Oiveka submitted. The court must give credit for the guilty plea and the immediate surrender to the police.

SUBMISSIONS BY THE STATE

11. Mr Popeu, for the State, submitted that the court should not too easily accept the claim that there was no intention to do serious harm. The post-mortem report shows that the deceased was stabbed several times. This is a more serious case than those in which the offender inflicts just one, fatal, stab wound. A sentence in the range of 12 to 15 years is warranted, Mr Popeu submitted.

DECISION MAKING PROCESS

12. To determine the appropriate penalty I will adopt the following decision making process:

• step 1: what is the maximum penalty?
  
• step 2: what is a proper starting point?
  
• step 3: what other sentences have been imposed recently in West New Britain for equivalent offences?
  
• step 4: what should the head sentence be?
  
• step 5: should the pre-sentence period in custody be deducted from the term of imprisonment?
  
• step 6: should all or part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

13. Section 302 (manslaughter) of the Criminal Code states:

A person who unlawfully kills another under such circumstances as not to constitute wilful murder, murder or infanticide is guilty of manslaughter.

Penalty: Subject to Section 19, imprisonment for life.

14. The maximum penalty is therefore life imprisonment. The court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code.

STEP 2: WHAT IS A PROPER STARTING POINT?

15. In Manu Kovi v The State (2005) SC789 the Supreme Court suggested that manslaughter convictions could be put in four categories of increasing seriousness, as shown in table 1.

TABLE 1: SENTENCING GUIDELINES FOR MANSLAUGHTER DERIVED FROM THE SUPREME COURT'S DECISION IN MANU KOVI'S CASE

16. The present case has both mitigating and aggravating factors present and death was caused by stabbing the victim with a knife. It therefore falls within category No 2 of Manu Kovi, which gives rise to a starting point of 13 to 16 years.

STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED RECENTLY IN WEST NEW BRITAIN FOR EQUIVALENT OFFENCES?

17. Before I fix a sentence, I will consider other manslaughter sentences I have imposed in 2005 and 2006 in West New Britain. These cases are shown in the following table. Those marked (*) are what can be called the 'infidelity cases', those where it was accepted that the killing had taken place due to the offender's suspicion that his or her partner had been unfaithful.

TABLE 2: NATIONAL COURT SENTENCES FOR MANSLAUGHTER,
WEST NEW BRITAIN, CANNINGS J, 2005-2006

STEP 4: WHAT IS THE HEAD SENTENCE?

18. There are a number of considerations to take into account in deciding on the head sentence. I have listed them below as a series of questions. An affirmative (yes) answer is regarded as a mitigating factor. A negative (no) answer is an aggravating factor. A neutral answer will be a neutral factor. The more mitigating factors there are, the more likely the head sentence will be reduced below the starting point. The more aggravating factors present, the more likely the head sentence will be above or at the starting point.

19. Three sorts of considerations are listed. Numbers 1 to 8 focus on the circumstances of the incident. Numbers 9 to 13 focus on what the offender has done since the incident and how he has conducted himself. Numbers 14 to 16 look at the personal circumstances of the offender and give an opportunity to take into account any other factors not previously considered.

20. The relevant considerations are:

1. Did the attack on the deceased consist of just a single blow? No, the deceased suffered four knife wounds.
   
2. Was just one person involved in the attack? Yes.
   
3. Was there some intervening cause of death, eg did the death not result directly from the assault due to death being caused by an object when the deceased fell down? No.
   
4. Was the deceased injured by only a fist? No, she was stabbed four times with a knife, 26 cm in length.
   
5. Did the offender not intend to do serious harm? No. The offender has said repeatedly that she did not intend to do serious harm. However, the prosecution has taken issue with that, for good reason. She stabbed her sister four times, with a long knife. Even though she has pleaded guilty, she cannot be given the benefit of the doubt on this issue. Her actions speak louder than her words. There was an intention to do serious harm.
   
6. Did the deceased or any other person provoke the offender in 'the non-legal sense'? Yes, the offender's sister – the deceased – was having an affair with the offender's husband. This had been going on for some time. The offender had tried to solve the problem by peaceful means. There had been mediation and the offender's husband paid compensation but after that he went back to his old ways. The offender tried again to sort out the problem peacefully but to no avail.
   
7. Did the deceased have a pre-existing condition making her susceptible to serious or fatal injury by a moderate blow, eg did the deceased have a thin skull or enlarged spleen? No.
   
8. Can the assault on the deceased be classed as 'not vicious'? No.
   
9. Did the offender play a relatively minor role in the attack? No.
   
10. Did the offender give herself up after the incident? Yes.
    
11. Did the offender co-operate with the police in their investigations? Yes.
    
12. Has the offender done anything tangible towards repairing her wrong, eg offering compensation to the family of the deceased, engaging in a peace and reconciliation ceremony, personally or publicly apologising for what she did? No.
    
13. Has the offender pleaded guilty? Yes.
    
14. Has the offender genuinely expressed remorse? Yes.
    
15. Is this her first offence? Yes.
    
16. Can the offender be regarded as a youthful offender or are her personal circumstances such that they should mitigate the sentence? Yes, though she cannot be regarded as a youthful offender, the court should take into account that she is a young mother with four children. Because of what happened she has been denied access to her children. Her family is not at peace with her and will not let the children see her. She is paying a heavy price already for what she has done.
    
17. Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence? Yes, there is merit in the defence counsel's submission that this tragedy was caused in large part by the offender's husband's infidelity. He was not only unfaithful but he had an affair with the offender's younger sister who was still going to school. The offender, a well regarded and law-abiding person prior to the offence was driven to breaking point by her husband's conduct.
    

21. To recap, mitigating factors are:

• No 2 – only one offender;
• No 6 – strong de facto provocation;
• No 10 – gave herself up;
• No 11 – co-operated with police;
• No 13 – pleaded guilty;
• No 14 – expressed remorse;
• No 15 – first offender;
• No 16 – already paying heavy price by denial of access to children;
• No 17 – offender's husband's infidelity.
  

22. Aggravating factors are:

• No 1 – multiple stab wounds;
• No 3 – no intervening cause of death;
• No 4 – use of knife;
• No 5 – intention to do serious harm;
• No 7 – deceased had no pre-existing condition;
• No 8 – vicious assault;
• No 9 – offender solely responsible;
• No 12 – no reconciliation.
  

23. After weighing all these factors, comparing this case with the other recent infidelity cases in West New Britain and bearing in mind that there are nine mitigating factors compared to eight aggravating factors, the head sentence should be below the starting point. I impose a head sentence of 10 years imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

24. The offender has been in custody in connection with this offence, since the date of the offence, 15 April 2006: a period of eight months, four days. It is proper that that period be deducted from the total sentence. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment the whole of the pre-sentence period in custody, as shown in table 2.

TABLE 3: CALCULATION OF FINAL SENTENCE

STEP 6: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

25. This is not an appropriate case in which to suspend the sentence. A life has been lost. A woman has killed her own sister. She must spend a considerable time in jail. The offender's family are supportive of a heavy sentence. They say that they are caring for the offender's four children. I will not suspend any part of the sentence. Nor will I indicate a minimum term in custody.

SENTENCE

26. Lien Kaingi, having been convicted of the crime of manslaughter, is sentenced as follows:

Sentenced accordingly.
__________________________________________________________

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the accused