N3640

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 647 OF 2004

THE STATE

V

LOSSY KARAPUS

Wabag: Makail, J

2009: 12th & 22nd May

CRIMINAL LAW - Sentence - Manslaughter - Deceased adult female - Girl friend of offender’s husband - Death arose from domestic dispute setting - Multiple stab wounds to head, back and thigh - Use of kitchen knife - Instant death - Presence of very strong de facto provocation - Husband’s flirtatious affairs - Killing resulted in back lash - Sentence of 10 years imposed - Criminal Code - Sections 19 & 302. 

Cases cited:

The State -v- Carol Alfred (2009) N3602
The State -v- Philipa Kawage: CR No 1386 of 2006 (Unnumbered & Unreported Judgment of 12th May 2008)
The State -v- Anita Kelly: CR No 1167 of 2007 (Unnumbered & Unreported Judgment of 22nd April 2009)
The State -v- Kila Peter (2006) N3018
The State -v- Tauseng Bange: CR No 973 of 2007 (Unnumbered & Unreported Judgment of 10th November 2008)
The State -v- Lapa Irape: CR No 1063 of 2008 (Unnumbered & Unreported Judgment of 7th November 2008)

Counsel:

Mr. S Kesno, for the State
Mr. P Kumo, for the Offender

SENTENCE

22 May, 2009

1. MAKAIL J: On 12th May 2009, you appeared before the Court and pleaded guilty to a lesser charge of homicide offence, namely manslaughter where you unlawfully killed the deceased, one Pale Ilaiya, a young girl of 17 years between Kairik and Tipinini villages in Porgera on the afternoon of 15th December 2003. What you did is an offence contrary to section 302 of the Criminal Code.

2. The killing took place around 5 o’clock in the afternoon, when the deceased and another girl were walking along the road between Kairik and Tipinini villages and you passed them on the way. You went to your house and returned. You followed them and when you caught up with them, you stabbed the deceased with a kitchen knife. You stabbed her three times on her body. The first one was on her right side of the head, the second one on the right side of her back and the last one on her right thigh. She died instantly because of heavy loss of blood from the kitchen knife wounds and also a punctured right lung. 

3. I administered allocutus to you. You told a long story about how and why you killed the deceased. In short, first, you are a first offender and this is the first time for you to stand before the Court. You acknowledge that you will be judged according to your actions today but you will also be judged by God Almighty one day for the same actions. You were once happily married to your husband and your husband had a paid job with Porgera Joint Venture. From the marriage, both of you have three children. He gave you his pay to pay for the basic daily needs for you and your three children. Your husband’s job required him to be away from home most of the time and you were burdened with the responsibility of bringing up the children including performing other domestic chores like raising of pigs and the making of gardens to supplement your daily diet and finances.

4. Then your husband decided to see another woman. He kept it a secret for sometime but your husband’s relatives witnessed his flirtatious affairs and reported them to you. You took the matter to the Village Court where your complaint against your husband and his girlfriend was heard and you were cautioned because you did not have "hard" evidence to prove their flirtatious activities. You were told to pay the deceased compensation for making baseless allegations against her and your husband which you did by paying her K100.00. Your husband assisted you with another K120.00, making a total of K220.00.

5. You thought it was the end of the matter and your husband would behave himself and remain faithful to you. Sadly though, it occurred again and this time, the deceased’s family members, especially her mother and step father publicly announced to you that your husband would take the deceased’s hand in marriage. You were not at all happy about this and took the matter back to the Village Court. You waited for three days and your husband and the deceased did not turn up. You gave up and returned home.

6. The public ridicule and humiliation did not stop there, as the deceased’s family members, especially her mother and step father continued their push for the deceased to marry your husband. Meanwhile your husband stopped giving you money from his pay. You had to work extra hard to support yourself and your children. One day your husband returned home and told you that he wanted to make up for the misery and pain he had caused to you by paying compensation to you and also to the deceased. But he never did. Things didn’t get any better for you as by now you gave birth to a fourth child and had an extra burden of taking care of three children and a baby. Your husband never gave you a helping hand.

7. That fateful day on 15th December 2003 was the climax of all the pain and misery that you had undergone. It was a rainy afternoon and you were just returning from a hard day’s work in the garden, exhausted and burdened with a heavy load of food (kaukau) and baby under an umbrella to hide from the pouring rain. The pain and miserable condition was also sparked by the deceased’s provocative indecent exposure of her lower body and derogatory remarks to the effect that you come and leak her private part. The remarks and the indecent exposure by the deceased followed an earlier comment by the deceased that she was going to your husband to get some food whereupon you rebuked her and warned her not to interfere with your marriage. You were furious and enraged by her remarks and provocative indecent exposure. You attacked her and she produced a kitchen knife to stab you but somehow you managed to wrench it from her hand and used it to stab her three times. She died instantly.

8. What you have described above is not an exceptional case. It is a common type of unlawful killing that happens everywhere in the country. It depicts a sorry state of affair in our societies as far as preservation of the sanctity of marriage is concern. It is a danger sign for this country and the Court must where possible help avert this disaster. You must be reminded that the offence you have committed carries a maximum penalty of life imprisonment under section 302 of the Criminal Code. But the Court has discretion under section 19 of the Criminal Code to reduce the sentence depending on the factual circumstances in each case like in your case. For that, you must be grateful.

9. Since my appointment as a judge of this Court in January 2008, I have dealt with a number of this kind of cases and I am beginning to wonder whether or not the National Court has done enough to curb killings in a domestic setting like in your case. This is because it appears that no matter how many cases of this nature are brought before the Court and a strong deterrent sentence is imposed on offenders, there are still a large number of such cases coming before the Court.

10. Having considered all the submissions made by your lawyer and the State prosecutor and taking the mitigating and aggravating factors present in your case, I am of the view that your case is similar to the cases of The State -v- Carol Alfred (2009) N3602, The State -v- Philipa Kawage: CR No 1386 of 2006 (Unnumbered & Unreported Judgment of 12th May 2008), The State -v- Anita Kelly: CR No 1167 of 2007 (Unnumbered & Unreported Judgment of 22nd April 2009) and The State -v- Tauseng Bange: CR No 973 of 2007 (Unnumbered & Unreported Judgment of 10th November 2008).

11. These cases arise from killings in domestic settings. Much of the mitigating factors like you have pleaded guilty to the commission of the offence, a first offender, expressed remorse, voluntarily surrendered to the police and co-operated with them during their investigations into the commission of the offence, presence of de facto provocation, history of domestic abuse, payment of customary compensation and character report of yourself were also present in the above cited cases. Then, there are circumstances of aggravation such as the prevalence of the offence, the use of weapons like bush knife or kitchen knife, the number of stab wounds, the pre planning of the killing, etc were also taken into account in the above cited cases to arrive at an appropriate sentence for each case.

11. A quick run down of these cases show that the sentences that I have imposed range between 9 and 13 years. For example, in the case of Carol Alfred (supra) handed down in Mendi during the last Court circuit in March 2009, I imposed 10 years imprisonment on the offender’s guilty plea for unlawfully killing her husband after an argument. There, the offender stabbed her late husband, a policeman with a kitchen knife after an argument. The husband had accused her of not preparing dinner for him that evening when he returned home. One of the compelling mitigating factors that persuaded me to impose a sentence of 10 years imprisonment is that, the offender was a victim of domestic violence and wife beating at the hands of her late husband for a long time, a fact that the State conceded. The other reason is that, the killing was accidental as the offender stabbed her late husband on his left upper thigh when they wrestled each other during the scuffle.

12. In Philipa Kawage’s case (supra), the offender was convicted on her guilty plea and I sentenced her to 13 years imprisonment at Buihebi CIS. She had stabbed her late husband, a police officer and at the material time, Commander of Mobile Squad, based at Tari. The offender did that after finding out that her late husband had taken a second wife and was living with that woman in Tari whilst she and her 4 children were living in Port Moresby. She traveled up to Tari and confronted her late husband outside the house at Enobi Police Barracks on 13th April 2006. An argument erupted between the two of them where the offender armed herself with a kitchen knife and attempted to stab him. A struggle took place and the offender was over powered by her late husband and fell down. As she came to a sitting position, with her back to her late husband, she swung the kitchen knife around her back and it struck her late husband’s right groin. The blow severed one of the main blood vessels which led to heavy bleeding and eventual demise of her late husband even though he was rushed to the hospital for treatment.

13. I found in Philipa Kawage’s case (supra), that a factor operating in her favour was that, the root cause of the problem was her late husband’s extra marital affair. I also accepted that she acted in the way she did because she was upset, angry and frustrated that her husband had been unfaithful and betrayed her marriage. There was de facto provocation. The second factor that operated in her favour was that she pleaded guilty, thus saving the Court’s time and money to conduct a trial to determine her guilt. The next factor was that she was a first offender. The other factor which operated in her favour was that, her line paid a hefty customary compensation to her late husband’s line. It was K13, 000.00, 18 pigs and 1 goat. The other favourable factor was that she did not intend to kill him as it was accidental and finally, she had 4 children to look after.

14. In the most recent case of Anita Kelly (supra) which I handed down in Minj on 22nd April 2009, I sentenced the offender on her guilty plea to, 12 years imprisonment for unlawfully killing the second wife of her husband. There was presence of strong de facto provocation as a result of the offender’s husband’s infidelity and a history of domestic violence and wife bashing, coupled with desertion of the offender and children. 

15. In the case of The State -v- Kila Peter (2006) N3018, the offender stabbed her late husband with a kitchen knife on his back and he died as a result of heavy bleeding. It was a case of domestic killing because the deceased had abandoned the prisoner and child and gone off to live with another woman. On her guilty plea, His Honour Cannings J, sentenced her to 12 years imprisonment but allowed her to apply for suspension of part of the sentence if a good report is made by the Correction and Rehabilitation Service Officer during service of her prison term.

16. In Tauseng Bange’s case (supra), I sentenced the offender to 16 years imprisonment on her guilty plea for the murder of her husband’s lover. It was also a case of domestic setting dispute where the offender suspected her husband of having an extra marital affair, followed her husband and his lover, the deceased to their own house in the night and confronted them. An argument arose between the offender and the deceased followed by the offender attacking the deceased by stabbing her on the chest once with a kitchen knife and she died.

17. So bearing in mind those above cases, I proceed to determine your sentence. I take all the mitigating factors operating in your favour into account in my assessment but there is one matter I wish to dwell on a bit more and that is the issue of de facto provocation. The main contention by your lawyer centered around this issue and I think I should make a few remarks before I come to my final decision. He referred me to the decision by His Honour Yalo AJ, in The State -v- Lapa Irape: CR No 1063 of 2008 (Unnumbered & Unreported Judgment of 07th November 2008), also a case of unlawful killing arising from a domestic setting like in your case where His Honour sentenced her to 8 years imprisonment on her guilty plea and made an interesting observation at pp 13 & 14:

"The recent prevalence of this nature of crime committed by Ms Irape reflects the increase and prevalence of its causes, namely unfaithfulness of a spouse. If on the one hand, the Parliament enacts or amends existing legislation to address the offence and our Courts impose tougher or maximum penalties to deter would be offenders, but on the other hand, neither the legislature nor the Courts address the causes there is likelihood that we may not effectively combat this disease affecting our societies. The offenders should not be unfairly stigmatized for homicide offences in a domestic setting caused by the unfaithfulness of one partner. Such unfaithfulness is usually likely to test the temperament of one partner who is without doubt naturally fallible and subject to the weakness and frailties of human nature. On my personal guess (not based on any academic or scientific resources), human experience is that close to 90-95 percent of a human facing this test will fail. I must qualify that I am not in any manner condoning the offenders or their crime. No. In the interest of justice, it is only fair to make observations about the flip side of the coin which this Court ought to take into account in exercising its discretion to impose the appropriate penalty warranted by the particular circumstances of this case. This leads me to accept the Prisoner’s reliance on de facto provocation".

18. I agree with his Honour’s sentiments, but I do not think that it should be considered an extenuating circumstance as what your lawyer tried to make me accept in his submission on your behalf. In my view, it remains a mitigating factor in the form of a strong de facto provocation and that is it. I made that position very clear in my judgment in Carol Alfred’s case (supra).

19. That brings me back to my continuous calls through my obiter dictum in the decisions on sentence that I have handed down in the cases like those that I have cited above that, there is a deep pitfall in this area of the criminal law of our country because husbands cannot be held criminally responsible for partly causing the problem. For these reasons, I will treat your husband flirtatious activities and act of desertion a form of de facto provocation in the usual manner. In other words, it is not an extenuating factor that would substantially reduce the penalty.

20. Whilst your lawyer says that you are 26 years old, I find that according to your Record of Interview, you said that your were 27 years old and that was in 2004 so by this year you would be 32 years old. Therefore, I will use 32 years and you come from Tipinini village in Porgera and married with four children. You have no formal education and live in the village and work the land to earn your living. You had earlier on benefited from your husband’s pay packet but it seems that it is no longer the case now. After the killing, you fled and now live with a kind and generous couple from the Southern Highlands Province in Mt Hagen. Your children are also living there.

21. You and your relatives paid K4, 000.00 and 114 pigs to the relatives of the deceased on 06th August 2004. There was a back lash where a big tribal fight occurred. It is said three people were killed. The alleged perpetrators of these killings have been committed to stand trial in the National Court and their cases are pending trial. It is also said that because of your actions, your side and the deceased’s side are still at war. I will hold this factor against you.

22. I reject your explanation that the deceased attacked you first with the kitchen knife and you managed to wrench it from her and used it to attack her. Logic and common sense would dictate that if she was armed, you would have at least sustained some injuries. But here, you walked away without a "scratch" so to speak. I find it hard to believe your story. The witnesses’ statements suggested that it was you who attacked the deceased with the kitchen knife after you went and left your baby and the heavy load of food. This appears logical and makes sense because it is also consistent with the multiple stab wounds the deceased sustained. The multiple stab wounds also suggest an element of preplanning. These factors aggravate the offence. 

23. Lastly, I did not hear you say sorry to the relatives of the deceased or even your relatives. I get the impression that you are adamant that what you did was justified. I will not hold this against you because it strikes me that despite bringing your husband’s flirtatious activities with the deceased to the Village Court twice for redress, nothing happened. In fact, on the first occasion, you were cautioned by the Village Court and ordered to compensate the deceased for making "baseless" allegations against her and your husband. To my mind, it seems our justice system has failed you. But do not take me wrong here. I am not saying that I condone what you did. All I am saying is that, perhaps this death could have been avoided if the Village Court did more than what it had done for her.

24. I must remind you that at the end of the day, someone has died. Neither you nor I, or anyone for that matter can bring that person back to life. You will live with that guilt and shame for the rest of your life no matter what punishment this Court may impose on you today. Life is irreplaceable. Therefore, death is something that the Court must not loose sight of or down play its importance when deliberating on an appropriate sentence in homicide cases. Death is a death and offenders like you must be punished severely. 

25. The sentence must reflect the gravity of the offence you have committed and also act as a personal and general deterrence. It must send out a clear message to everyone out there that the Court will not tolerate this kind of violent behaviour and will do its best to remind people not to commit this kind of offence through its sentencing powers.

26. In the end, I consider 10 years imprisonment in hard labour appropriate and I so order. I make no recommendation for your parole eligibility under section 21(1) (b) of the Parole Act as requested by your lawyer because that should be a matter for the Parole Board and the Correctional Services Institution to consider in light of your transformation and rehabilitation during your term. You have spent a total of 6 months in custody at the Police lockup and Baisu CIS prior to being granted bail, thus this period of time shall be deducted and you shall serve 9 years and 4 months imprisonment term in hard labour. Your bail monies shall be refunded forthwith.

A warrant of commitment will be issued shortly.

Sentence accordingly.

Acting Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Offender