State v Robert [2010] PGNC 100; N4065 (8 June 2010)

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CRIMINAL LAW – sentence – manslaughter – deceased a young man aged about twenty years – prisoner sole attacker - deceased prisoner's brother in-law – deceased brother of prisoner's husband - kitchen knife used – single blow to left side of back of neck – deep stab wound sustained - vicious attack – presence of some deliberate intention to harm the deceased – death due to acute blood loss from stab wound - prevalence of offence – guilty plea - prisoner an unsophisticated, illiterate and subsistence villager - first time offender – cooperation with police – no intention to kill deceased - expression of remorse – presence of provocation in a non-legal sense - argument arose after prisoner accusing deceased of stealing from her garden - no pre-planning - sentence of twelve years imposed – Criminal Code ss. 19 and 302.

Public Prosecutor v. Vangu'u Ame [1983] PNGLR 424
Rex Lialu v. The State [1990] PNGLR 487
The State v. Margaret John (No 1) [1995] PNGLR 446
Antap Yala v. The State, SCR 69 of 1996, Unnumbered & Unreported Judgment delivered on 31 May 1996 (Amet CJ, Salika & Injia, JJ)
Ivoro Kaumin Lupu v. The State, SCRA No.2 of 1997, Unnumbered & Unreported Judgment delivered on 13 June 1997 (Kapi, DCJ, Los & Jalina, JJ)
Jack Tanga v. The State (1999) SC602
Anna Max Marangi v. The State (2002) SC702
Sakarowa Koe v. The State (2004) SC739
Manu Kovi v. The State (2005) SC789
The State v. Daniel Ronald Walus (2005) N2802
The State v. Alphonse Kaparo (2006) N3189
The State v Maria Tuu (2008) N3706
The State v. Philipa Kawage, CR 1386 of 2006, Unnumbered & Unreported Judgment delivered by Makail, J on 12 May 2008

1. DAVID, J: INTRODUCTION: The prisoner pleaded guilty to a charge of unlawful killing (also known as manslaughter) committed against the deceased, Jun John Usap on 12 June 2009 at Nipa in Southern Highlands Province contrary to s.302 of the Criminal Code. Upon arraignment, the prisoner pleaded guilty. I accepted the plea and convicted her of the charge after reading the depositions and having been satisfied that there was sufficient evidence to support the charge.

2. For purposes of arraignment, the following brief facts were put to the prisoner.

4. A post mortem medical examination of the deceased's body was conducted by one Dr. Nolpi Tawang at the Mendi General Hospital on 29 June 2009. Dr. Tawang's findings are recorded in his Post Mortem Report dated 29 June 2009. It discloses, amongst other things, that there was a deep penetrating wound to the left side of the neck measuring about 20-25 cm x 8-10 cm wide which lacerated the stenomastoid muscle and the left jugular vessels causing excessive bleeding and blood loss. The cause of death according to the medical report was from cardiopulmonary failure from acute severe blood loss (hypovolemic) secondary to a penetrating stab wound in the neck.

5. The prisoner has no prior convictions. This is her first time to commit an offence.

6. The prisoner was very apologetic. She apologised to; the deceased and his relatives for causing his death; her family because they had to pay customary compensation for her action; the Court; and God. She was also sorry for breaking the law. She asked the Court to consider in her favour that she was a first time offender and pleaded for mercy and a lenient sentence.

7. The prisoner was arrested on 24 June 2009 and has been in custody since. According to my calculation, she would have been in custody for a period of eleven months and fifteen days as at the date of sentence.

8. The maximum penalty for the offence of unlawful killing or manslaughter is life imprisonment under s.302 of the Code subject to the Court's discretion to impose a lesser sentence under the various options available to the Court under s.19 of the Code.

9. The basic principle was stated in Antap Yala v. The State ( 1996), SCR 69 of 1996, Unnumbered & Unreported Judgment delivered on 31 May 1996 (Amet CJ, Salika & Injia, JJ) and affirmed in Jack Tanga v. The State (1999) SC 602 where the Supreme Court said:-

"The maximum punishment for the offence of manslaughter is life imprisonment. Whilst sentences for manslaughter will normally be lower than sentences for murder and wilful murder, there are those cases which will justify the imposition of heavy punishment and even the maximum punishment..... The sentence in any given case will of course depend on its own peculiar facts. We are unable to prescribe any particular range of sentences for this offence as it is all too often difficult to fix any range of sentences with some degree of precision. However, we would suggest that in an unintentional killing case which is uncontested, whatever the extenuating and mitigating circumstances may be, the application of vicious force, with or without the use of a weapon, causing serious bodily injury resulting in death may attract sentences between 10 years and above and in some cases, even life imprisonment."

10. In Rex Lialu v. The State (1990) PNGLR 487, the Supreme Court said that in sentencing for manslaughter, the court must have careful regard to the circumstances of death and the way in which it was caused. The Supreme Court then set out a list of factors which was not meant to be exhaustive that may be considered in determining the nature of the act causing death and these are:-

13. In Sakarowa Koe, the sentencing range for the three categories suggested in Anna Max Marangi was varied to cover all kinds of manslaughter cases with appropriate modifications and the tariff was increased, subject to the exercise of the Court's discretion. These are; for the first category, seven to twelve years imprisonment; for the second category, thirteen to seventeen years imprisonment; and for the third category, eighteen years to life imprisonment.

14. While reaffirming the principles in Rex Lialu, the Supreme Court in Manu Kovi stated three special mitigating factors to be considered by the Court in addition to normal mitigating factors which could impact upon sentence. These are; the offender's very young age or very old age; the offender's poor health; and the payment of customary compensation.

15. Using the range of sentences noted in Anna Max Marangi as a guide, the Supreme Court in Manu Kovi then suggested the following tariff:

"1. In an uncontested case, with ordinary mitigating factors and no aggravating factors, a starting point of 7 years up to 12 years. A sentence below 7 years should be rarely imposed except in exceptional cases where there are special mitigating factors.

2. In a contested or uncontested case, with mitigating factors and aggravating factors, a starting point of 13 – 16 years.

3. In a contested or uncontested case, with special aggravating factors and mitigating factors whose weight is reduced or rendered insignificant by the gravity of the offence, 17 – 25 years.

4. In contested and uncontested case with special aggravating factors - Life imprisonment for the worst cases. The presence of mitigating factors is rendered insignificant by the gravity of the offence. These are cases which involve viciousness, some pre-planning, use of a weapon and complete disregard for human life.

CATEGORY	MANSLAUGHTER
CATEGORY 1	8 – 12 years
Plea Ordinary cases. Mitigating factors with no aggravating factors.	No weapon used. Victim emotional under stress and de facto provocation e.g. killings in domestic setting. Killing follows immediately after argument. Little or no preparation. Minimal force used. Victim with pre-existing diseases which caused or accelerated death e.g. enlarged spleen cases.
CATEGORY 2	13 – 16 years
Trial or Plea Mitigating factors with aggravating factors.	Using offensive weapon such as knife on vulnerable parts of body. Vicious attack. Multiple injuries. Some deliberate intention to harm. Pre-planning.
CATEGORY 3	17 – 25 years
Trial or Plea Special aggravating factors. Mitigating factors reduced in weight or rendered insignificant by gravity of offence.	Dangerous weapons used e.g. gun or axe. Vicious and planned attack. Deliberate intention to harm. Little or no regard for safety of human life.
CATEGORY 4	LIFE IMPRISONMENT
WORST CASE – Trial or Plea Special aggravating factors. No extenuating circumstances. No mitigating factors or Mitigating factors rendered completely insignificant by gravity of offence.	Some element of viciousness and brutality. Some pre-planning and pre-meditation. Killing of innocent, harmless person. Complete disregard for human life.

17. It appears that there is a typographical error in the tariff column of the Schedule for category 1. It indicates that the bottom end of the starting point for that category is eight years. Clearly, it does not correspond with the relevant statement of the Supreme Court in the body of the judgment to which the Schedule relates where seven years was suggested as the bottom end of the starting point.

18. Mr. Kumo of counsel for the prisoner recounted the prisoner's antecedents and then referred to a number of factors which he submitted should be applied in mitigation. These are; the prisoner pleaded guilty saving the trouble and expense of a trial; the prisoner was an unsophisticated, illiterate and a subsistence villager; the prisoner is a first time offender never having had a run in with the law before and was a Christian; the prisoner cooperated with the police making an early admission whereby she accepted criminal responsibility for her action and she maintained that stance culminating in her pleading guilty; the prisoner killed her brother in-law which she regretted and this will be an emotional and psychological scar which will torment her for a very long time; the killing occurred in the family circle and therefore the killing should be categorised as one arising in a domestic setting; the prisoner's expression of remorse was genuine; there was provocation in a non-legal sense as the killing followed immediately after an argument after the prisoner accused the deceased of stealing from her garden; there was no pre-planning, but the prisoner committed the crime on the spur of the moment.

19. As to sentence, Mr. Kumo submitted that, despite the use of a knife to commit the crime, sentence should be considered at the top of the range of category 1 of the tariff recommended in Manu Kovi. He suggested that the Court consider imposing a sentence between ten to twelve years imprisonment.

20. Mr. Waine of counsel for the State submitted that this is a borderline case which fell between categories 1 and 2 of the tariff recommended in Manu Kovi. He concurred with the defence that a sentence at the top of the range of category 1 was warranted.

21. Counsel invited me to consider the cases of The State v. Maria Tuu (2008) N3706 and The State v. Philipa Kawage, CR 1386 of 2006, Unnumbered & Unreported Judgment delivered by Makail, J on 12 May 2008 to guide me in settling on an appropriate sentence for the prisoner. They are briefly discussed below.

22. In Maria Tuu, I convicted the prisoner on a charge of murdering her co-wife contrary to s.300 (1)(a) of the Code. The prisoner there used a kitchen knife and stabbed the deceased on her abdomen. The knife penetrated the right kidney and a portion of her liver. She died from those injuries. Factors considered in the prisoner's favour there were that; she pleaded guilty; she voluntarily surrendered to the police immediately after committing the crime; she cooperated with the police by her early admissions; her expression of remorse was genuine manifested by payment of belkol compensation; there was provocation in a non-legal sense; and she had no prior convictions. I imposed a sentence of sixteen years less the period of pre-trial custody.

23. In Philipa Kawage, the prisoner was convicted on a charge of manslaughter and was sentenced to thirteen years imprisonment. She stabbed her late husband, a police officer who was at the material time, Commander of a Mobile Squad based at Tari. The prisoner did that after discovering that her late husband had taken a second wife and was living with that woman in Tari whilst she and her children were living in Port Moresby. She travelled up to Tari and confronted her late husband outside the house at Enobi Police Barracks. An argument erupted between the two of them when the offender, armed with a kitchen knife, attempted to stab him. A struggle took place and the prisoner was overpowered by her late husband and fell to the ground. 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 death of her late husband.

24. In that case, the Court found that the root cause of the problem there was the prisoner's late husband's extra marital affair. The Court accepted that the prisoner 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. Other factors which operated in the prisoner's favour were that; she pleaded guilty; her line paid a hefty customary compensation to her late husband's line consisting of K13,000.00 cash, eighteen pigs and one goat; she did not intend to kill him as it was accidental; and she had four children to look after.

25. Factors operating against the prisoner there were that; she used a kitchen knife to stab her late husband; and the offence of manslaughter is prevalent in the country, especially in cases arising from a domestic setting.

26. As to the payment of customary compensation claimed by the prisoner on allocatus, counsel submitted that there is no evidence to substantiate that claim so it should not be accepted and applied as a special mitigating factor.

27. As to whether the killing in the present case should be categorised as one arising in a domestic setting, counsel's response was that the Court should be cautious because the Manu Kovi guidelines do not give killing in a domestic setting a separate category.

28. I consider that the present case falls under category 2 of the tariff recommended in Manu Kovi. This is because that category deals with, inter alia, the use of an offensive weapon such as a knife on vulnerable parts of body, the attack is vicious and there is present an element of some deliberate intention to harm. The starting point is therefore thirteen to sixteen years. I note however that some elements of category 1 are present. They will feature later on in my judgment.

29. Before I fix an appropriate sentence for the prisoner, the proper approach I will take in determining whether to increase or decrease the head sentence above or below the starting point or leave it at the starting point is to consider the various factors set out by the Supreme Court in Rex Lialu which it recommended should be applied in determining the nature of the act causing death. I will also consider a couple of sentences that have been imposed concerning killings of in-laws on guilty pleas to the offence under consideration.

The prisoner who was the sole attacker stabbed the deceased on the left side of the back of his neck once with a kitchen knife. Going by the Post Mortem Report, the deep wound measuring 20-25 cm deep and 8-10 cm wide convinces me that the attack was vicious and there was some deliberate intention to harm notwithstanding that the crime was committed on the spur of the moment.

The deceased died of cardiopulmonary failure from acute severe blood loss (hypovolemic shock) secondary to a penetrating stab wound to the left side of the back of his neck inflicted by the prisoner directly with the use of a kitchen knife.

Yes. The prisoner who was the sole attacker stabbed the deceased on the left side of the back of his neck once with a kitchen knife.

Yes there was. This is because any person using an offensive or dangerous weapon such as the knife to attack someone as in the present case, an intention to do serious harm must be presumed.

Yes there was. The killing followed immediately after an argument over the prisoner alleging that the deceased was stealing from her garden and the deceased punching the prisoner thereafter. However, to my mind, the prisoner's response was way out of proportion since the deceased assaulted her with his bare hands.

Not applicable. Nevertheless, there is no evidence to suggest that the deceased had a thin skull. According to the Post Mortem Report, the deceased was perfectly well prior to his death.

Not applicable. Nevertheless, there is no evidence to suggest that the deceased had an enlarged spleen. Again, according to the Post Mortem Report, the deceased was perfectly well prior to his death.

31. As I have alluded to earlier, I have considered The State v. Alphonse Kaparo (2006) N3189 and The State v. Daniel Ronald Walus (2005) N2802, cases involving killings of in-laws.

32. In Alphonse Kaparo, two men pleaded guilty to unlawfully killing their brother-in-law by punching and kicking him. They were angry with him as he was married to one of their sisters, but was having an affair with another of their sisters. They used no weapons, but it was a vicious assault. The first offender was drunk and instigated the assault on the deceased and kicked him. The other offender assisted the first offender, but did not kick the deceased. In that case, it was a two-against one fight and the second offender, by joining in with the first offender, allowed the first offender to inflict the lethal blow; so their degree of involvement was regarded as the same. A sentence of twelve years was imposed on each offender.

33. In Daniel Ronald Walus, the prisoner walked to the deceased's house and punched her on the side of her face while she was on the steps of her house. That caused her to fall to the ground. While she was on the ground, the prisoner punched her on each side of her stomach. He then kicked her in the ribs, while she was still on the ground. The deceased then urinated, passed faeces, vomited and died shortly afterwards. The deceased was the offender's in-law, i.e, his wife's cousin sister. A sentence of eighteen years was imposed.

34. In the present case, the deceased was angered by the prisoner berating and ridiculing him publicly at the Nipa Station market for allegedly stealing from her garden coupled with the prisoner using foul or obscene language. This provoked him to punch the prisoner and the ensuing fight between the two of them. Eye witnesses who were at the crime scene at the material time namely, Kep Mack, Otomo Gilbert and Kome Wap all said in their written statements given to the police all dated 21 July 2009 that they all heard the prisoner screaming and yelling at the deceased in Tok Pisin saying; 'Yu gat kok grass, yu man, why na yu steal?' The English translation of what the prisoner said is; "You have pubic hair, you are already a man, why do you steal?"

35. The factors I take into account as operating in favour of the prisoner are these.

36. I find no special mitigating factors operating in the prisoner's favour. Firstly, the prisoner is neither a youthful offender nor is she of very advanced age. She was aged about twenty three years when she committed the crime. Secondly, there is no evidence before me to suggest that she is in poor health. Thirdly, while it was claimed by the prisoner on allocatus that her family paid customary compensation, she has not produced any credible evidence to substantiate the claim.

37. As to whether I should treat the killing in the present case as one arising in a domestic setting because the killing occurred in the family circle, I accept the prosecution submission because the guidelines apply to all types of manslaughter cases now since Sakarowa Koe varied the sentencing guidelines in Anna Max Marangi.

38. I have considered the fact that the prisoner is a mother with one child aged over six years, but I have not given it prominence in my deliberation as it is my view that she should not use her child to avoid punishment: see Public Prosecutor v. Vangu'u Ame [1983] PNGLR 424; The State v. Margaret John (No 1) [1995] PNGLR 446; Ivoro Kaumin Lupu v. The State, SCRA No.2 of 1997, Unnumbered & Unreported Judgment delivered on 13 June 1997 (Kapi, DCJ, Los & Jalina, JJ). If the father of the child does not have the custody of the child, I am sure relatives of both the prisoner and her husband will take care of the child through the extended family system.

41. Before I fix the sentence, I wish to make this remark. The Courts have reiterated in many homicide cases time and time again that the unlawful taking of another person's life prematurely is a serious and horrendous crime. Those who commit the crime have no respect for the sanctity of human life and sentences imposed upon them must be adequate and befit the crime committed. Unlawful killing through the use of dangerous weapons such as bush knives, grass knives, kitchen knives and axes, guns to name a few, is more serious than that committed by a kick resulting in the rupture of the spleen. This is reflected in the guidelines suggested for manslaughter from category two onwards in Manu Kovi. This is a serious case. There is therefore a need for a deterrent sentence to stop the prisoner and other like minded persons from committing this offence and other homicide offences regardless of the reasons proffered.

42. I have considered and taken into account all factors operating for and against the prisoner, submissions of the parties, the law and relevant case authorities referred to by counsel and those I have referred to and consider that the prisoner has made out a case for the Court to impose a sentence below the starting point suggested in category 2 of Manu Kovi. I therefore sentence the prisoner to twelve years IHL. I deduct from the head sentence the time the prisoner has spent in custody awaiting to be brought to her trial; that is a period of eleven months and fifteen days as of today. The prisoner will serve eleven years and thirteen days in custody at the Bui-iebi Correctional Institution.

______________________________________________
JW Tamate, A/Public Prosecutor: Lawyer for the State
F. Pitpit, Public Solicitor: Lawyer for the Prisoner

National Court of Papua New Guinea

State v Robert [2010] PGNC 100; N4065 (8 June 2010)