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State v Pok [2014] PGNC 305; N5606 (21 May 2014)

N5606

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No.791 of 2012

THE STATE

V

ENNI POK
The prisoner

Mt. Hagen: David, J
2014: 9 & 21 May

CRIMINAL LAW – sentence – conviction for manslaughter after trial for wilful murder – statutory defence of self-defence rejected - prisoner committed offence whilst trying to defend herself from immediate harm, but excessive force used - prisoner killed co-wife by stabbing her in the neck – offensive weapon used – vicious attack - some deliberate intention to harm - life of a 28 year old female prematurely and unlawfully terminated leaving small child motherless – prevalence of offence - single stab wound – de facto provocation, killing in domestic setting - killing immediately after an argument – little or no preparation - no prior conviction – co-operation with police, early admissions – surrendered voluntarily – substantial belkol paid – expression of genuine remorse – prior good background - sentence of 10 years in hard labour – Criminal Code, Section 302.

Cases cited:

Goli Golu v The State [1979] PNGLR 653
Avia Aihi v The State (No 3) [1982] PNGLR 92
Public Prosecutor v Thomas Vola [1981] PNGLR 412
Ure Hane v the State [1984] PNGLR 105
Public Prosecutor v William Bruce Tardrew [1986] PNGLR 91
The State v Frank Kagai [1987] PNGLR 320
Lawrence Simbe v The State [1994] PNGLR 38
Public Prosecutor v Don Hale (1998) SC564
Edmund Gima and Siune Arnold v The State (2003) SC730
The State v Clara John Gabriel (2003) N2378
Manu Kovi v The State (2005) SC789
Richard Liri v The State (2007) SC883
The State v Aipani Elekane, CR 405/2001, Unreported & Unnumbered Judgment of Jalina, J delivered at Wabag
The State v Anita Kelly (2009) N3624
The State v Regina Jako (2010) N4110
The State v Jenny Dei (2011) N4260,
The State v Mala Jackson, CR No.448 of 2011, Unreported & Unnumbered Judgment of David, J delivered in Mt. Hagen on 13 October 2011
The State v Regina Mark, CR No.781 of 2011, Unreported & Unnumbered Judgment of David, J delivered in Mt. Hagen on 21 October 2011
The State v Gilbertha Kerowa, CR No.774 of 2009, Unreported & Unnumbered Judjment of David, J delivered in Mt. Hagen on 16 January 2012
The State v Helen Dominic, CR No.466 of 2013, Unreported & Unnumbered Judgment of David, J delivered in Mt. Hagen on 9 August 2013
The State v Enni Pok (2014) N5588

Counsel:

Philip Tengdui, for the State
Philip L. Kapi, for the Prisoner

SENTENCE

21st May, 2014

1. DAVID, J: The prisoner, Enni Pok of Minjim village, South Waghi in the Jiwaka Province was on the 23rd of April 2014 convicted of the unlawful killing of her co-wife namely Betty Pok on 14th of June 2012 at Minjim village under Section 302 of the Criminal Code after a trial on a charge of wilful murder under Section 299(1) of the Code. The statutory defence of self-defence under both Sections 269 and 270 of the Code was unsuccessfully raised. The full reasons for my verdict are contained in The State v Enni Pok (2014) N5588. This is my decision on sentence.
   
2. For purposes of sentence, the brief facts are these. The prisoner and the deceased were co-wives to a common husband. The deceased was the senior of the two and they lived in separate houses which were about 15 to 20 metres apart. Early in the morning of 14th of June 2012 after 8:00 o'clock, the prisoner and the common husband arrived back at the village from a campaign trail and asked the prisoner to boil his tea and cook some kaukaus. The prisoner refused to cook kaukaus. She told the common husband that as he was going to the deceased's house to sleep, the deceased should do the task. Overhearing this statement, the deceased berated her and an argument followed between the two of them. The deceased returned to her house, picked up a kitchen knife which she concealed, returned to the prisoner's house and attacked her with it. The prisoner who was bigger than the deceased put up a fight, struggled with the deceased and overpowered her. She then removed the knife from the deceased and stabbed her once on the left side of her neck. The wound was 8 to 12 cm deep which extended into the neck and diagonally into the mediastinum which severed large neck vessels and the trachea and there was bleeding in the mediastinum. The deceased died shortly thereafter from acute hypovolaemic shock from loss of blood from a punctured trachea.
   
3. The prisoner has no prior convictions.
   
4. On her allocutus, she admitted killing the deceased and said sorry to the deceased and her family, the common husband and his people and for breaking the law.
   
5. A pre-sentence report and a means assessment report were compiled and filed by the Probation Service, Mt. Hagen Branch and I commend Ms. Lilly Songoa, Probation Officer for her efforts. The prisoner is originally from Kokop village, Hagen Central in the Western Highlands Province, but her parents and family settled at Minjim village, Aviamp, South Waghi in the Jiwaka Province. She is now aged 30 years and is a subsistence farmer. She is married to the common husband who is also from Minjim and has no children. Her father is deceased and her mother is alive. She is the only female in a family of seven children. She has had no formal education and is illiterate. Her health both physically and mentally is sound. The prisoner was arrested and detained on 15th of June 2012 and has remained incarcerated at the Baisu Correctional Institution since that time. She has been in custody for 1 year, 11 months and 6 days. She was committed to stand trial in the National Court on 27th of September 2013 for wilful murder. The means assessment report concludes that the prisoner has no means and financial capacity to meet neither an order for compensation nor an order of a financial nature. Belkol in the sum of K13,000.00 cash and 36 pigs was paid to the deceased's relatives soon after the incident. The pre-sentence report recommends a custodial sentence.
   
6. Mr. Kapi for the prisoner submitted that the present case fell between the first and second categories of the guidelines propounded by the Supreme Court in Manu Kovi v The State (2005) SC789 as some elements of these two categories are present. He urged the Court to impose a custodial sentence between 10 and 11 years.
   
7. Mr. Tengdui for the prosecution submitted that the present case fell within the top end of the first category and the bottom end of the second category of the Manu Kovi guidelines which warranted a custodial sentence of between 13 and 15 years.
   

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

9. The Manu Kovi guidelines apply to sentences for manslaughter convictions whether they are entered on a plea or after a trial. They are reproduced below.

CATEGORY 1: 8 – 12 years

CATEGORY 2: 13 – 16 years

CATEGORY 3: 17 – 25 years

CATEGORY 4: LIFE IMPRISONMENT

10. The present case falls under the second category of the Manu Kovi guidelines as some of the elements of this category are present and these are; the use of an offensive weapon on a vulnerable part of the body; the attack was vicious attack; and there was some deliberate intention to harm. I will now consider a sentence within the range recommended there of 13 to 16 years which I will ascertain shortly after considering the factors in mitigation against those in aggravation and a number of comparable sentences.

11. I find that the factors which mitigate the offence in the present case are:

1. There was only a single stab wound.
   
2. The prisoner has no prior conviction.
   
3. The prisoner co-operated with the police by making early admissions.
   
4. Whilst a conviction was entered after a trial, the prisoner committed the offence whilst trying to defend herself from immediate harm, but for excessive force used.
   
5. There was de-facto provocation. i.e., killing occurred in a domestic setting involving co-wives.
   
6. The killing followed immediately after an argument between the prisoner and the deceased.
   
7. There was little or no preparation, killing done in the spur-of-the-moment.
   
8. The prisoner voluntarily surrendered to the police after the incident.
   
9. Substantial belkol comprising K13,000.00 cash and 36 pigs was paid to the relatives of the deceased.
   
10. The prisoner expressed genuine remorse.
    
11. Until committing the offence, the prisoner had a good background.
    

12. I find that the factors which aggravate the offence in the present case are:

1. An offensive weapon was used on a vulnerable part of the body.
   
2. This was a vicious attack as is demonstrated by the nature of the wound inflicted.
   
3. There was some deliberate intention to harm.
   
4. The life of a 28 year old female was prematurely and unlawfully terminated leaving a small child motherless.
   
5. The offence was prevalent in this region.
   

13. The mitigating factors outweigh the aggravating factors. Coupled with the strength of the mitigating factors, I consider that a sentence below the sentencing range recommended for second category cases is warranted.

14. I have considered the following manslaughter cases.

15. In The State v Clara John Gabriel (2003) N2378, the prisoner killed her co-wife by stabbing her once with a kitchen knife to the right hand side of her neck. The prisoner had armed herself with a kitchen knife and set out to look for her husband and the deceased. When she met them, she argued with the deceased and the argument developed into a fight. The deceased did not put up a fight. She was unarmed. She was rushed to the Mt Hagen General Hospital, but died an hour later from uncontrolled loss of blood (haemorrhage) due to severe laceration to the major blood vessels including artery and vein. On a guilty plea, a head sentence of 10 years imprisonment was imposed.

16. In The State v Aipani Elekane, CR 405/2001, Unreported & Unnumbered Judgment of Jalina, J delivered at Wabag, the prisoner stabbed her co-wife, on the neck with a knife. A head sentence of 12 years imprisonment was imposed.

17. In The State v Anita Kelly (2009) N3624, the prisoner killed her co-wife by stabbing her once with a kitchen knife on the neck. She died from internal bleeding. The prisoner's husband had deserted the prisoner and her three children and went to live with the deceased at her village leaving the prisoner and her children to fend for themselves. The prisoner was a victim of domestic violence at the hands of her husband and the deceased. Armed with the kitchen knife, the prisoner went to the deceased's house at her village and following an argument that developed into a fight, the stabbing occurred. The deceased was unarmed. On a guilty plea, a head sentence of 13 years imprisonment was imposed.

18. In The State v Regina Jako (2010) N4110, the offender pleaded guilty to unlawfully killing a co-wife. They both lived in the same residence and had a history of quarrelling. They argued and the offender stabbed the deceased three times with a kitchen knife. The deceased died shortly afterwards from loss of blood. A head sentence of 12 years imprisonment was imposed.

19. In The State v Jenny Dei (2011) N4260, the prisoner was charged with the wilful murder of her husband. She was convicted of manslaughter following a trial after the court rejected her defence of self-defence because of her use of excessive force. The prisoner used a kitchen knife to stab her husband on his neck inflicting a 13 cm wound which penetrated through the neck and into the lung causing the lung to collapse and major blood loss. A head sentence of 9 years imprisonment was imposed.

20. In The State v Mala Jackson, CR No.448 of 2011, Unreported & Unnumbered Judjment of David, J delivered in Mt. Hagen on 13 October 2011, the prisoner went after the deceased with a kitchen knife at the Kaiwe market. She suspected the deceased of being her husband's lover. When she found her, the deceased was watching a bingo game. The prisoner approached her from behind her and stabbed her from the back on her neck with the knife and ran away. The knife penetrated the neck cutting the main arteries in the neck and also pierced the right lung. The deceased was taken to the Mt Hagen General Hospital, but she died before arrival. On a guilty plea, a head sentence of 13 years imprisonment was imposed.

21. In The State v Regina Mark, CR No.781 of 2011, Unreported & Unnumbered Judgment of David, J delivered in Mt. Hagen on 21 October 2011, the prisoner and the deceased were co-wives to a common husband. The prisoner was the second wife and the deceased the first wife. The co-wives did not have a harmonious relationship and had constant arguments. Following another confrontation, the prisoner stabbed the deceased on her neck with a knife she had in her possession and the deceased collapsed and became unconscious. She was taken to the hospital, but was pronounced dead on arrival. On a guilty plea, a head sentence of 13 years imprisonment was imposed.

22. In The State v Gilbertha Kerowa, CR No.774 of 2009, Unreported & Unnumbered Judjment of David, J delivered in Mt. Hagen on 16 January 2012, prior to the incident, the prisoner was going around with the deceased's husband. During the night before the incident, the prisoner followed the deceased's husband to his village and stayed with him there. The deceased was living in another house in the village then. When she heard that the prisoner was with her husband in the village, she armed herself with a kitchen knife and went to the house and fought with her. The prisoner was not armed with any weapon. During the fight, the prisoner received some injuries. She tried to remove the knife from the deceased and held onto the blade. The deceased was holding the knife by the handle. The handle came apart resulting in the blade coming into the possession of the prisoner. The prisoner then struck the deceased on her neck with the blade and ran away. The incident happened at about 02:00 o'clock in the morning so she did not know which part of the deceased's body was struck with the blade. The deceased died as a result of the stab wound. The deceased's body was found sometime in the morning and later buried in the village. On a guilty plea, a head sentence of 13 years imprisonment was imposed.

23. In The State v Helen Dominic, CR No.466 of 2013, Unreported & Unnumbered Judgment of David, J delivered in Mt. Hagen on 9 August 2013, the deceased and the prisoner were married to two brothers. The deceased returned to her village after a trip out of the village in the evening of that fateful day and noticed her 12 year old son crying. When she enquired with him as to why he was crying, he told her that the prisoner had hit him. The deceased then went to the prisoner's house with her brothers and some others and had an argument with the prisoner. The deceased and her brothers attacked the prisoner; the deceased hitting the prisoner on the head with a stick. The prisoner then took out a kitchen knife and stabbed the deceased once in the mouth. The knife penetrated the tongue and ruptured one of the main blood vessels in the right side of the mouth. She again stabbed the deceased three times on the left side of her back. The deceased was rushed to a hospital, but unfortunately succumbed to her wounds and died from loss of blood. On a guilty plea, a head sentence of 8 years was imposed.

24. The maximum penalty is usually reserved for the worst sort of cases of unlawful doing grievous bodily harm: see Goli Golu v The State [1979] PNGLR 653, Avia Aihi v The State (No 3) [1982] PNGLR 92 and Ure Hane v the State [1984] PNGLR 105.

25. It is also settled law that each case must be decided on its own facts: see Lawrence Simbe v The State [1994] PNGLR 38.

26. I am satisfied that the present case does not fall within the worst category of manslaughter cases.

27. What is the appropriate sentence for the prisoner? I think a sentence that is similar or closer to that imposed in Jenny Dei is warranted. Taking into account all the circumstances of the present case and guided by the aforementioned comparable sentences, I think the appropriate sentence for the prisoner is 10 years imprisonment in hard labour.

28. I will deduct from the head sentence 1 year, 11 months and 6 days for pre-trial confinement period leaving the prisoner 8 years, 3 weeks and 1 day (the remaining term) to serve.

29. Should I suspend the whole or any part of the remaining term? The power to suspend a sentence conferred by Section 19(1)(d) of the Code is discretionary and should be exercised upon some proper basis: Public Prosecutor v Thomas Vola [1981] PNGLR 412. Some of these principles, which I have considered, are set out in Public Prosecutor v William Bruce Tardrew [1986] PNGLR 91, The State v Frank Kagai [1987] PNGLR 320, Public Prosecutor v Don Hale (1998) SC564, Edmund Gima and Siune Arnold v The State (2003) SC730 and Richard Liri v The State (2007) SC883.

30. The pre-sentence report reports that the prisoner is in sound health both physically and mentally and recommends a custodial sentence due to the seriousness of the offence. The defence has not pressed the issue of suspension. I therefore do not propose to suspend any part of the remaining term. The prisoner will serve the remaining term at the Baisu Correctional Institution.

31. A warrant of commitment shall issue forthwith to enforce the sentence.

Sentenced accordingly.

_______________________________________________
Public Prosecutor : Lawyer for the State
Public Solicitor : Lawyer for the prisoner