N4620

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1122 OF 2011

THE STATE

Vs

MURU KOLI

Minj & Mount Hagen: Makail, J
2012: 14th February, 27th & 28th March

CRIMINAL LAW - Plea - Sentence - Manslaughter - Killing of husband- Domestic setting - Use of knife - Stabbing of deceased - First offender - Presence of de facto provocation - Prevalence of offence - Custodial sentence necessary - Personal and public deterrence - Criminal Code, Ch 262 - Sections 19 & 302.

Cases cited:

The State -v- Thress Kumbamong (2008) SC1017
Anna Max Maringi -v- The State (2002) SC702
Manu Kovi -v- The State (2005) SC789
Allan Peter Utieng -v- The State: SCR No 15 of 2000 (Unnumbered & Unreported Judgment of 23rd November 2000)
The State -v- Carol Alfred (2009) N3602

Counsel: 
Mr A Bray, for the State
Mr M Joe, for the Offender 

SENTENCE

28th March, 2012

1.	MAKAIL, J: Muru Koli, you were convicted on your guilty plea for unlawful killing of your husband George Koim under section 302 of the Criminal Code, Ch 262. You killed him on 06th August, 2011 at a place popularly known around the new Jiwaka Province as Minj road junction. He had taken some money from you. It was K10.00 and you had asked him to return some of it but he refused. You had intended to save some of that money for your children's school fees. An argument ensured and he got angry. He picked up a bamboo stick and hit you twice with it.

2.	You took refuge with a bystander and he stopped the fight. You then walked away and your late husband pursued you and hit you again with the bamboo stick twice. You turned around and stabbed him with a knife that you had on his left chest. He was rushed to Minj Hospital for treatment but died due to the injury.

3.	The crime that you have committed carries a prescribed maximum penalty of life imprisonment. That means you will go to jail for life. That is what the law says. You said it was accidental because you had not meant to stab your late husband on the chest but on his thigh so as to inflict pain on him because he had assaulted you and you were in pain. You stabbed your late husband on his chest. This is a vulnerable part of the human body because beneath it laid vital internal organs of the body such as the heart and lungs. If you like, the chest is a shield. It protects these vital organs of the body, so that the heart and lungs supply blood and air to other parts of the body and make the entire body function. If they are destroyed, that will be the end of life. The stabbing of your late husband on his chest suggests that you intended to kill him but I shall give you the benefit of doubt. It was not premeditated. It was also not a vicious killing. It was accidental.

4.	I will also accept your explanation for arguing with him which eventually led to you stabbing him. You said he is a gambler and spends all his money on gambling. Whenever you asked him for money for the children's school fees, he refused. You had expressed remorse to the Court, to your late husband's family and relatives and sincerely regretted committing the crime. You said your detention has jeopardised your children's future. But I must remind you, you have not only killed your husband but also the father of your children. He is gone forever. You will live with the guilt and shame and you and your children will suffer. 

5.	Your lawyer had asked that you should not be sent to jail for life. He made that request because you are a first offender, you have no prior convictions, you pleaded guilty, you expressed remorse and very importantly, had stabbed your late husband during an argument over money for children's school fees. It was not a premeditated killing. It was a spontaneous act when you struck him once with the knife. I take those matters into account. 

6.	He also strongly submitted that you should be given a term of imprisonment but wholly suspended because there is presence of a strong de facto provocation. Your husband contributed to his own death. In support of this submission, he relied on the case of The State -v- Thress Kumbamong (2008) SC1017. I accept your lawyer's submission on the de facto provocation because your husband had assaulted you with a bamboo stick after you both argued over money for children's school fees. You had a genuine reason for arguing with him. He should be supporting you and in fact leading the way in saving money for the children's school fees; not spending it on gambling.

7.	But I am not satisfied you should be given a suspended sentence. I have considered the case of Thress Kumbamong. It is distinguishable on its facts. In that case, the offender pleaded guilty to a charge of manslaughter for killing the second wife or girlfriend of her husband. The Supreme Court partially upheld her appeal against a sentence of 9 years imprisonment. The Court decided a period of a little over 2 years she had spent in pre-trial and post sentence custody was sufficient custodial sentence and suspended the balance of the sentence on conditions.

8.	The facts in that case were the offender killed her husband's second wife or girlfriend. On entering to the relationship with the deceased, the husband abandoned her and her children who were left with no money, food, electricity and other support they needed for their survival. Rather than immediately go on an attack mode, she approached the deceased with a suggestion for the deceased to go and live with her and her children so her husband could look after all of them. The deceased did not give any consideration to what she suggested. Instead, she went into verbal abuse, insult and provocation of the offender, armed herself with a knife and tried to attack the offender. The offender managed to overpower the deceased, took the knife off from her and stabbed her several times all over her body which led to her death. 

9.	The main consideration that persuaded the Supreme Court to substitute a custodial sentence for a partly suspended sentence was that there was strong de facto provocation. That case is peculiar and I do not believe the Supreme Court was suggesting for one moment that all offenders in manslaughter cases arising from domestic settings must be given suspended sentences. For it is trite law that each case must be decided on its own merits. Indeed, the Supreme Court acknowledged this principle when reminding Judges to be cautious of being too rigid in the exercise of sentencing discretion at para 71 as follows, "………………. The Supreme Court or any Court should be careful not to prescribe or regiment the way in which a sentencing judge should exercise his or her sentencing discretions in the particular circumstances of a case before him or her. We must never forget the well accepted principle that, each case must be determined on its own merits and that criminal sentencing is not a matter of mathematics but logic and common sense." (Emphasis added). So I shall deal with your case on its own merits.

10.	There is a lot of killing of this nature in our country. Wives kill husbands over money because they are either a gambler or a drunkard or both. In many instances, a knife has been used in the killing. In many instances also, wives stab their husbands on vulnerable parts of the body such as on the chest, abdomen and neck. These are vulnerable parts of the body and trying to solve a domestic problem in such a way will not help at all. It can be fatal and that is exactly what had happened in your case when you stabbed your late husband on the chest.

11.	Your case would fall between the first and second categories of manslaughter cases in Anna Max Maringi -v- The State (2002) SC702. The suggested sentences vary between 3 years and 12 years imprisonment. Then applying the sentencing range in Manu Kovi -v- The State (2005) SC789, your case would fall between the first and second categories of manslaughter cases of between 8 years and 16 years imprisonment. The Supreme Court also mentioned three special mitigating factors which might impact on the sentence. These are; the offender's very young age or very old age, poor health and payment of customary compensation. 

12.	According to the pre-sentence report, you are 40 years old and are of good health. Your relatives had paid customary compensation of K1,000.00 to the relatives of your late husband. I take those matters into account. It also stated that since your incarceration, your 7 children have been living with your brother in-law Kaipe Algne. Given the large number of children, it has been and is a burden for him to raise them with his own children and his wife is fed up in taking care of them. That may be true and I sympathise with you but it is of no consequence. For it is trite an offender's personal and family background is irrelevant to a plea for leniency so I will not take it into account: see Allan Peter Utieng -v- The State: SCR No 15 of 2000 (Unnumbered & Unreported Judgment of 23rd November 2000).

13.	Your case shares some common features with the case of The State -v- Carol Alfred (2009) N3602. In that case, the offender, a 24 years old woman from Kagua in Southern Highlands Province killed her husband, a policeman with a kitchen knife. She stabbed him once on his left thigh following a domestic argument over food. Her husband had returned home from work hungry and found she had not prepared supper. He assaulted her with a torch and she sustained injuries. In the ensuing scuffle, she took the kitchen knife and stabbed him on the upper left thigh. The kitchen knife severed the muscle and main blood vessel and as a result he lost a lot of blood and died. On her guilty plea, she was sentenced to a term of 10 years imprisonment.

14.	She had been a victim of domestic abuse. She had no children from the marriage and her family and relatives had paid substantial customary compensation comprising of K15,000.00 and 40 pigs to the relatives of her late husband. In your case, you are older than her, in fact twice her age. You are 40 years old and have 7 children. Your relatives had paid compensation of K1,000.00 with a promise to pay more in the near future. Your in-laws have indicated they will support a suspended sentence if your relatives give 2 live pigs to them. Given all these matters in your favour, I consider a sentence somewhere near to the one in Carol Alfred's case will be appropriate. You also spent almost 8 months in custody. I will deduct that time from the head sentence.

15.	Taking into account all those matters in your favour and against you, I consider a custodial sentence is necessary for personal and public deterrence purposes and in the exercise of the Court's discretion under section 19 of the Criminal Code, Ch 262, I sentence you to a term of 8 years imprisonment in hard labour. 8 months is deducted for time spent in pre-sentence custody which will leave 7 years 4 months to be served.

Offender sentenced accordingly.
____________________________________________________________
Public Prosecutor: Lawyers for the State 
Paul Paraka Lawyers: Lawyers for the Offender