Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

State v Nicholson [2016] PGNC 247; N6442 (25 July 2016)

N6442

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1125 OF 2014

THE STATE

V

BAUNDO NICHOLSON

Kundiawa: Liosi, AJ
2016 : 15 June, 25 July

CRIMINAL LAW – Sentence – Manslaughter – Deceased adult male – Death arose from domestic dispute setting – Wife stabbed husband – Death caused by knife wound to thighs – Element of Defacto provocation considered – Sentence of 10 years partly suspended – Section 302 and 19 of Criminal Code.

Cases cited:
Acting Public Prosecutor -v- Don Hale (27/08/98) SC564
Anna Max Marangi -v- The State (2002) SC702
Antap Yala (1994) CRA No. 64 of 1994. (Unnumbered and Unreported Supreme Court Judgment dated 31 May 1996)
Golu -v- The State (1979) PNGLR 653
John Kapil Tapi -v- State (2002) SC635
Manu Kovi -v- The State (2005) SC789
Public Prosecutor -v- John Mela SCRA 17/01, (Unpublished Supreme Court Judgment dated 28^th June 2001)
Rex Lialu -v- The State [1990] PNGLR 487
Sakarowa Koe -v- The State (2004) SC739)
Saperus Yalibakut -v- The State (2006) SC890
State -v- Anita Kelly (2009) N3624
State -v- Asi Piro (2011) N4410
State -v- Carol Alfred (2009) N3602

State -v- Serah Joe Wennis (2011) N4661
The Public Prosecutor -v- Panikuiaka Nopi [1979] PNGLR 536
Ume -v- The State (2002) SC836

Counsel:
Mr. K Umpake, for the State
Mr. M Yawip, for the offender

SENTENCE

25^th July, 2016

1. LIOSI AJ, On 15^th June 2016, I convicted the offender on one count of unlawful killing (manslaughter) of one Toa Kugame under Section 302 of Criminal Code after she pleaded guilty to the crime and after satisfying myself from the depositions presented that the charge was sufficiently made out against her. The matter was then adjourned for a Pre-Sentence Report.

Brief allegations of fact

2. The brief allegations of facts put to her on arraignment upon which she pleaded guilty to are these. The deceased was her husband. About 9 pm on 28^th May 2014 at Kerowagi Secondary School, the offender and her husband had a quarrel over money. The argument led to a fight during which the prisoner stabbed the deceased on the right thigh with a kitchen knife. The knife penetrated into the deceased thigh severing the main artery to the right leg. The deceased died from loss of blood whilst been transported to Kerowagi Health Centre. At the time of the stabbing the prisoner had not intended to cause the death of her husband the late Toa Kugame.
   

Allocatus

3. On the allocatus she thanked the Court for allowing her to talk. She said she had 7 points to raise.
   
   • She had never appeared before a big court and this was her first time.
     
   • The deceased is her husband not enemy. She never had the intention to go to the extreme of murdering him. Even though she is the only one working, she loved and respected him as head of the family and allowed him to control her fortnightly salary pay packet.
     
   • She says she carried the knife that night for her security as she was walking out of the school premises to look for her husband incase he used up her fortnightly pay on beer. She did not carry the knife to attack her husband.
     
   • She said they argued and fought. Unfortunately she had the knife in her possession and she was only trying to injure him. She aimed the knife on his thighs but she missed. Consequently, the knife landed on the wrong spot. She did not mean to stab him there.
     
   • She was surprised when he called out and fell down. There was nobody to help so she went looking for help. She says if she wanted to kill him she wouldn’t bother to assist him but that is not the case.
     
   • She says she has 6 children aged between 2-15 years who cannot look after themselves. She has been very worried about them since she was taken into custody and doesn’t know how they are now.
     
   • Lastly and most importantly she says although she did not mean to kill the deceased, she has taken the life of her husband. She is very sorry to the Court for breaking the law. She is sorry to friends and family of the deceased and her family for causing the problem, the Kerowagi Secondary School and the community. Lastly she is very sorry to her children for what she has done.
     

The Law

4. Section 302 of the Criminal Code provides as follows:
   

“302 Manslaughter

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”.

Defence Submission

5. Mr. Popeu of counsel gives personal details as follows:
   
   • The offender is 35 years old;
   • Previously married to the deceased but now a widow;
   • Married with 6 children;
   • From Pari Village, Kundiawa Simbu Province
     
6. In mitigation the following is submitted:
   
   • Prisoner is a first time offender
   • Prisoner cooperated from the outset she admitted committing the offence in her confessional statement and Record of Interview.
   • She pleaded guilty to the offence.
   • She expressed genuine remorse in allocatus.
   • Prisoner’s family has paid compensation with K15, 000.00 cash and 15 live pigs valued at K1500.00 each. This is confirmed in the affidavit of the offender’s father and the victim’s brother in the Pre-Sentence Report.
   • Prisoner is now a single mother with 6 children to look after.
   • She accidentally killed the children’s father a fact she will have to live with for the rest of her life.
   • Killing was spontaneous and isolated with no preplanning.

Extenuating Circumstances

7. Apart from the factors submitted in mitigation it also submits there were extenuating circumstances. The Supreme Court in Ume v The State (2002) SC 836 clarified the distinction between mitigating factors and extenuating circumstances. In that case the Supreme Court stated that:

“As for mitigating factors, relevant factors to be considered include the offender’s youth , good personal and family background, personal antecedents such as good character, education, employment and Christian background; first offender ; guilty plea; early confession to police; remorse; co-operation with police; poor health and restitution or compensation”. The Supreme Court in that case further stated that “As to extenuating circumstances, the concept is also not new. They relate to the circumstances of the commission of the offence itself – factors which reduce the seriousness of the crime. They are relevant factors for purpose of sentencing in all criminal offences. Examples of extenuating circumstances include de-facto provocation, duress or coercion, the degree of an extent the offender’s participation, the offender’s medical condition such as psychopathic personality, offender’s lack of sophistication or traditional customs, practices and beliefs which influence the offender to act in the way he did”

8. The defense submits that in the evidence tendered to Court there is de-faction provocation by the victim and that it be considered by the Court as an extenuating circumstance of this case:

“Applying the principle enunciated in the case of Yalibakut v The State, the Prisoner has established within the bounds of possibility that there was de-facto provocation in her confessional statement and Record of Interview that the victim usually misuses her earnings and refuses to share food with the Prisoner’s children from her earlier marriage. On the date when the deceased was stabbed he was drunk and left the Prisoner and took off with her money. This prompted the prisoner to go looking for the deceased. The defense submits that the Court should draw from this evidence that at that moment the Prisoner was provoked and when she argued with the deceased she took out the knife that she carried for protection and stabbed the deceased on the thigh. Therefore the Defense submits that since there is no other evidence contesting the Prisoner’s assertion the Court should act on this version and act or rely on it as an extenuating circumstance. It is based on these evidences that the Court should draw an inference and find that the Prisoner has established within the bounds of reasonable possibility that she was provoked. There is no other evidence that contests the Prisoner’s assertion of being provoked that would create doubts as to the existence of de-facto provocation”

Aggravating factors

8.

a. The prevalence of the offence
b. The use of a weapon a knife

Pre Sentence Report

9. The Pre-Sentence Report recommends that the prisoner is a suitable candidate for probation supervision.

State Submissions

10. The State submits that the killing arose out of a domestic argument over money. A dangerous instrument being a kitchen knife was used. Use of kitchen knives to kill has suddenly become prevalent. Although the offender did not intend to cause the death of the deceased, a life has been lost and cannot be replaced.

11. In a similar case of the State v Carol Alfred (2009) N3602, the deceased a policeman had an argument with his wife, the prisoner over dinner that had not been prepared by the prisoner. An argument developed into a fight during which the prisoner accidently stabbed the deceased on his thigh muscles and blood vessels. The deceased died from loss of blood from the wound. The prisoner pleaded guilty and was sentenced to 10 years imprisonment.

12. In the State v Anita Kelly (2009) N3624, the prisoner and the deceased were co-wives. Prisoner was the first wife. The husband had abandoned the prisoner and her children and was living with the deceased. Immediately prior to the day of the killing the prisoner had a heated argument with the husband. On the day of the killing the prisoner went to the deceased’s house armed with a kitchen knife. Both had an argument which developed into a fight. During the duel the prisoner produced the knife and stabbed the deceased on her neck once. Deceased died of internal bleeding from the knife wound. Prisoner pleaded guilty. She was sentenced to 12 years imprisonment.

13. I further refer to two other cases. They are State v Asi Piro (2011) N4410 and State v Serah Joe Wennis (2011) N4661. In the case of State v Asi Piro the offender killed her husband by stabbing him in the chest during the cause of an argument. Immediately before the stabbing the deceased had thrown a plate of food at the offender. She expressed remorse and said that there was no history of violence in the marriage. A process of reconciliation with the deceased relatives was well advanced. A sentence of 10 years imprisonment was imposed. The pre-sentence period in custody of 1 year, 5 months and 3weeks was deducted and 3 years of the sentence was suspended. In the case of State v Serah Joe Wennis the offender stabbed the deceased once with a kitchen knife after a provoked assault. This was another case of domestic killing. The prisoner was sentenced to 12 years imprisonment with hard labour. The presentence period of 1 year 7 months was suspended. A further 5 years was suspended to be served on probation after the balance of 5 years and 5 months was to be served.

14. The State submits that the Supreme Court case of Manu Kovi v The State (2005) SC 789, sets out the current sentencing tariffs for the various categories of homicide cases including manslaughter cases. It submits that this case fits into category two of manslaughter cases which suggests a range of 13-16 years. However, the Manu Kovi case does not restrict the wide sentencing discretion of a trial Judge. It submits the appropriate penalty would be in the range of 10-13 years.

Reasons for Decision

15. I have heard counsel’s submissions and I generally agree with them. For the record the offence of unlawful killing has become a common occurrence particularly the use of a kitchen knife. Unlawful killing is the premature termination of one’s life by another. The offender herein must be reminded that she is responsible for the death of her husband, no matter how accidental it was. Lives cannot be replaced although the guilt will be with her for the rest of her life.

16. In dealing with this matter I have also considered the cases of Anna Max Marangi v The State (2002) SC 702, Sakarowa Koe v The State (2004) SC 739 and Manu Kovi’s case (supra)

17. First in Max Marangi’s case (supra), the Supreme Court summarises previous cases on manslaughter in a domestic context, under three broad categories as follows:

“The current range of sentences for uncontested manslaughter cases in a domestic setting as set out in the above three cases and other cases range from four (4) years to sixteen (16) years imprisonment. There are 3 categories of sentences within this range.

“The first category relates to cases which come in the lower end of this range. These cases involve application of force in an uncalculated manner, such as a single blow, punch or kick on any part of the deceased’s body. For instance, single or multiple kick or punch causing rupture of the spleen. This kind of killing attract sentences between three (3) and seven (7) years. Cases where the deceased has pre-existing disease which accelerated or contributed to the death such as enlarged spleen are treated as less serious than death of a normal person and they attract sentences in the lower end of this scale: Public Prosecutor –v- John Mela SCRA 17/01, Unpublished Supreme Court Judgment dated 28^th June 2001.

The second category relates to cases which fall in the middle part of this range. These cases involve repeated application of vicious force, with or without the use of an instrument or weapon, such as repeated kicks and punches applied to the head or chest with deliberate intention to wound or cause bodily harm. An example is Jack Tanga’s case. Death caused by single or multiple knife wounds applied on the head, chest or abdomen or any other vulnerable part of the body, without any other special aggravating factors, also come under this category. Unintentional killings which come under this category attract sentences between 8 and 12 years.

The third category relates to cases which fall on the top end of this range. Those cases involve application of direct force in a calculated manner, on the body injuries, such as piercing vital organs or severing vital parts of the body. Death caused by chopping the neck, legs and arms with an axe or bushknife are examples of this kind of killing. Death caused by single or multiple (knife) stab wounds on the head, face, neck, chest or the abdomen if accompanied by other special aggravating factors may also fall under this category. This kind of killing attracts sentences between 13 and 16 years. An example of this type of killing is John Kapil Tapi –v- State (2002) SC 635. The case of Antap Yala (1994) CRA No. 64 of 1994. Unnumbered and Unreported Supreme Court judgment of Amet CJ, Salika and Injia J dated 31 May 1996 Mt Hagen SCR 69/96, could also come under this category although the sentence imposed in that case was 10 years.

As to which of these categories a particular case falls into, depends principally on the viciousness of the assault, the manner in which the injuries were inflicted and the seriousness of those injuries which caused death.

It is worth noting that killings which come under the second and third categories may well constitute murder or even wilful murder, if the necessary intentions to either cause grievous bodily harm or kill are present.....

In our view, the sentences commencing with Antap Yala, marks a significant increase in the sentences imposed in manslaughter cases since the case of Rex Lialu . Prior to Rex Lialu, manslaughter sentences ranging between three (3) and six (6) years were common. But those kinds of sentences are no longer appropriate nowadays.......”

18. Secondly in Sakarowa Koe’s case (supra), the Supreme Court discussed the above categories and correctly extended the same tariff to apply to all types of manslaughter cases. The Court then suggested the tariff for each category to be increased as follows:

“...we suggest that the sentencing tariffs be in terms of (7) to twelve ) (12) years if the first category, thirteen (13) to seventeen (17) years in the second and eighteen (18) years to life imprisonment in the third category... At the same time, the National Court still has the discretion to impose a less than what we have recommended in exceptional cases where a very good mitigating factors exists...” (Underline mine).

19. Thirdly in the Supreme Court case of Manu Kovi (supra), the Supreme Court 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. In Manu Kovi’s case (supra), the Supreme Court in using the range of sentences noted in Anna Max Marangi’s case (supra) as a guide 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 factors whose weight is reduced or rendered insignificant by the gravity of the offence, 17- 25 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”.

Offenders Case

20. The issue is which category does this case fall under based on the guidelines in Manu Kovi’s case.

21. I make comparison with this case and that of Carol Alfred (supra). I find a lot of similarities in the two cases.

• In both cases the offenders stabbed deceased with kitchen knife on the left and right thighs
• Both were charged with manslaughter
• Both pleaded guilty
• Both are first offenders
• In both cases hefty compensation payments were made to deceased relatives
• Both stabbings were accidental

22. The factual differences in both matters are:

• In the current case the prisoner has 6 children while Carol Alfred had no kids.
• In this case there was constant abuse of the prisoner’s pay packet whilst in Carol’s case it was constant domestic violence and abuse.
• In this case the argument was over the constant abuse of her pay packet whilst the other was argument over failure to prepare dinner.

23. I find that the killing followed an argument over the continued misuse of the offender’s fortnightly pay packet and refusing to share food with the prisoner’s children from her earlier marriage. I find from reading the depositions that this has been going on for some time. The death arose from a domestic dispute. I further find that the killing was accidental and there was no preplanning. Further the offenders stabbed the deceased once with the kitchen knife.

24. Consequently I find that this is not the worst case of manslaughter. Using my discretion under Section 19 of the Criminal Code, I find that this case falls into the first category of manslaughter cases in the Manu Kovi case which would attract between 8-12 years imprisonment. I will decide on a term after considerations of the mitigating and aggravating factors. I also agree with Mr. Popeu that there were extenuating circumstances as described and I find for the prisoner that there were extenuating circumstances.

25. In respect of compensation payment. I accept that it is a mitigating factor. There is an affidavit filed by the prisoner’s father Mr. Pius Kombonari who confirms that a cash amount of K15, 000.00 and 15 large pigs valued at K1, 500.00 each was paid as compensation at Yuai former Shorncliffe base. I hold this as a special mitigating factor in her favour given that it was a substantial compensation payment.

26. I reiterate the relevant statement made by the Supreme Court in Manu Kovi’s case at page 7 and 8 of the Judgment:

“Compensation for physical and non-physical injury to a person wrongfully inflicted by another person(s) and Compensation for injury or damage to personal property is also widely practiced in traditional societies in PNG.

Compensation is a relevant mitigating factor. Whilst the Courts acknowledge that compensation should not be used to pay for crime, it is an important mitigating factor.

In order for compensation to be regarded as an ordinary or special mitigating factor, two important indicators are the form and amount or value of compensation paid. Payments in the form of money are almost indispensable in modern times.

The amount of value of compensation often varies. In terms of money, it is difficult to fix any specific amount or figure for compensation but some guidance may be obtained from the maximum amount of compensation prescribed under the Criminal Law (Compensation) Act 1991, which is K5, 000. Despite the limit fixed by the Act, cases before the Courts show that compensation of amounts in excess of K10, 000 are common in homicide cases 5. In our view, compensation amount or to the value of between K5000 and K10, 000 or over is a substantial payment which would take the payment out of the “ordinary mitigating factor” category and place it in the “special mitigating factor” category”.

27. The payment of customary compensation is a sign of the offender’s acceptance of criminal responsibility for the wrong she has done and also a sign of forgiveness by the line of her late husband. This principle was set out in the Supreme Court case of The Public Prosecutor -v- Panikuiaka Nopi [1979] PNGLR 536. That was a case of wilful murder arising out of the continue domestic violence by the husband.

28. Thus, I take into account as a special mitigating factor, the payment of customary compensation between the offender’s line and the deceased’s line as a symbol of peace and the offender’s acceptance of criminal responsibility and also forgiveness by the line of her late husband.

29. As against this mitigating factors. I also take into account the State’s submission that there are aggravating factors. They include the prevalence of the offence and the use of a kitchen knife. In all the circumstances of the case I have considered factors for and against her particularly the extenuating circumstances, the special mitigating factor of bride price and the other mitigating factors. In the end I consider 10 years would be an appropriate sentence for the unlawful killing of Toa Kugame on 28^th May 2014. I deduct 2 years, 2 months pre-trial sentence in custody.

Should any part of the sentence be suspended?

30. Section 19 of the Criminal Code gives the Court the discretion to suspend a sentence. In Acting Public Prosecutor v Don Hale, there can never be a suspension of sentence unless there is a Pre-Sentence Report. The Pre-Sentence Report prepared favours a wholly suspended sentence. However whilst agreeing to suspending the sentence, I do not agree that all of the sentence should be suspended. Fully suspended sentences for homicide cases must be reserved for very exceptional cases. To impose a fully suspended sentence can have the effect of devaluing life, whilst I note and sympathise for the 6 children who will suffer, this are aftermath consequences of the prisoner’s actions. I am therefore inclined to consider a partial suspension of the sentence. After considerations of all the matters. I suspend 6 years and 9 months of the sentence of 10 years on the following conditions:

(a) Within 3 days after the release from the custody you must report to the probation office in Kundiawa
(b) You must reside at your Pari village unless approved by the National Court to live elsewhere
(c) Must not leave Chimbu without the written approval of the National Court
(d) You must not consume alcohol or drugs
(e) Must keep the peace and be of good behaviour
(f) Must have a satisfactory probation report submitted to National Court after 6 months after the date of release
(g) If any of the above conditions are breached, you shall be brought to the National Court to show cause why you should not be redetained to serve the rest of the term

Sentence

31. Baundo Nicholson having been convicted of one count of manslaughter under Section 302 of Criminal Code is sentenced as follows:

Sentenced accordingly,
________________________________________________________________Public Prosecutor: Lawyers for the State
Public Solicitor : Lawyers for the Offender