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State v Peter [2017] PGNC 124; N6772 (21 April 2017)

N6772

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1448 OF 2016

THE STATE
V

MEROLYN PETER
Defendant

Kundiawa: Liosi, AJ

2017: 21,22^nd February & 21^st April

CRIMINAL LAW – Sentence – Manslaughter – Criminal Code S.19 & 302 – Deceased adult female – Death arose from domestic dispute setting – Stabbed to the back puncturing deceased lower lobe of the left lung and heart – Provoked assault – Sentence of 10 years imposed partly suspended.

Cases Cited:

Goli Golu -v- The State [1979] PNGLR 653
Avia Aihi -v- The State [1983] PNGLR 92
Donald Robin -v- The State [1980] N230
State -v- Nicholson [2016] PGNC 247 N6442
State -v- Anita Kelly [2009] N3624
Manu Kovi -v- The State [2005] SC 789
State -v- Ellis Nema Mara [2010] N4133
Thress Kumbamong -v- The State [2008] SC 1017
State -v- Drekore Yuana Peter [2002] N1973
Public Prosecutor -v- Don Hale [1998] SC 564

Counsel:

C. Kos, for the State
M. Yawip, for the Offender

Sentence

21^st April, 2017

1. LIOSI AJ: On 22^nd February 2017, I convicted the prisoner Merolyn Peter on 1 count of manslaughter pursuant to s.302 of the Criminal Code. This I did after prisoner’s plea of guilt and after satisfying myself upon the depositions that the charge was made out.

2. The brief facts for arraignment were as follows. The deceased and the offender were married to a common husband. The deceased is the first wife and the offender the second. The relationship of the co-wives was not a happy one like any other polygamous marriages. There was occasional arguments regarding matrimonial duties including maternal and customary obligations. At times the deceased would run away from the marriage home and the offender would take on the responsibility of looking after the two (2) children. The husband would then go and bring her back to the village.

On the morning of 24^th February 2016, the offender returned from Lae with her child including the deceased’s two (2) children to attend the funeral of her father-in-law. The deceased approached her and an argument ensued which subsequently led to a fight. The deceased accused the offender of not taking care of their husband’s father whilst he was sick. The offender accused the deceased of her inability to look after her own children. In the course of the fight, the offender picked up a kitchen knife and stabbed the deceased on her right posterior skull or side of the face above the ear. She then swung the knife once on her back, just between the shoulder blades. The stab to the back punctured the deceased’s lower lobe of the left lung and heart. The deceased was rushed to the hospital but died on the same day due to massive internal bleeding as a result of the serious knife wound.

The Law

3. 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”.

4. The offence of manslaughter carries a maximum penalty of life imprisonment. But the courts have a discretion to impose a lesser sentence under s.19 of the Criminal Code. The law is also well settled that the maximum penalty for any offence is reserved for the worst instances of any particular offence. Furthermore each case depends on their own particular circumstances: Goli Golu -v- The State [1979] PNGLR 653, Avia Aihi -v- The State [1983] PNGLR 92.

5. I now have to determine an appropriate sentence for you. Obviously the circumstances of your case does not justify the imposition of the maximum penalty of life imprisonment. I will therefore need to decide what lesser sentence I should impose that is warranted from the circumstances of your case.

6. To do that I will have to consider your personal particulars, your allocatus, submissions by your lawyer and the State, circumstances surrounding the commission of the offence, mitigating and aggravating factors, reasons for sentencing for this type of offence, comparable cases and any guidelines the Supreme Court may have laid down.

7. You are from Kagai village Yongumugl Local-level Government Sine Sine Yongumugl District. You are now 21 years of age. You completed grade 8 at Mogol Kaglkai Primary School in 2012. In 2014 you completed grade 10 at Benai High School. You are a member of Seventh Day Adventist Church. You are married and have a 2 year old boy. The child currently lives with your parents and you are the eldest in the family of four.

8. On allocatus you said the following:

“I am sorry to the deceased family, to God and Government of Papua New Guinea, to the lawyers and to my 3 children. The deceased is the first wife and I am the second wife. Whilst I was still at school our husband would follow me around and take me home. When he got married to the first wife she gave birth then she ran away and I looked after her baby. Soon after that I also got pregnant and gave birth. She came back 4 months later. One night we had an argument and the deceased ran away again. I ended up breastfeeding the both babies. In January 2016, I got the 2 children and went to Lae. Our husband left me at the bus stop. In my absence he went and brought back the first wife. I stayed at Lae for 1 month but then our husband’s father died. Before he came to Lae he took the deceased and left her with his mother in the house. On the way back from Lae we stopped at the cemetery for me to visit my father in law’s graveyard. After crying at the graveyard I went up to the house and realised that she was there. When I went inside the house she did not respect me for looking after her children and she started laughing at me. She never respected me for looking after her children. This made me angry and we fought. During the fight I saw the knife got it and swung the knife thinking it would land on her hand but it penetrated her back. She lost a lot of blood and died I surrendered myself to the Police. The 3 kids are with my parents. The eldest is 3 years old, the other two are two years old. I ask the Court to have mercy and give me probation.”

9. Your lawyer submits your case is not the worst case to attract the maximum penalty. You are a first time offender, you pleaded guilty to the charge and made early admissions and you are a victim of domestic violence. This was a killing that occurred through provocation in a non-legal sense. The deceased is the first wife but had left her 2 children with you to look after them. When you returned from mourning your father in law’s death, the deceased mockingly asked where you were when your father in-law was sick and why you were crying. You replied saying you are not her grandmother to look after her two sick children which she left so you took them to Lae for medical attention. This exchanges led to the fight and the eventual killing. However your lawyer says there are also aggravating factors against you in that you used a dangerous weapon to attack the deceased and this is a very prevalent offence.

10. In the case of Donald Robin -v- The State [1980] N230, the court said;

“Frequent explanation of uncharacteristic offences is that they result from acute emotional stress. The most common example is the offence of violence committed against wife, husband, or a third party who has become involved with them as a result of a deteriorating marriage. In such cases, the circumstances which precipitate the violent act are usually treated as significant mitigating factors.”

Thus the action of one may result in another party to suffer from stress, despair, frustration, anger and loss of temper which result in one committing the offence. This should also operate as mitigating factor in favour of the prisoner.

11. Your lawyer has also cited some comparable cases. In the case of The State -v- Nicholson [2016] PGNC 247 N6442, I sentenced the prisoner to 10 years part of which was suspended on conditions. The facts are similar in that both are teachers and the deceased was the husband. The killings were both in domestic settings.

12. In the State -v- Anita Kelly [2009] N3624, the prisoner and deceased were co-wives. The 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 ordeal the prisoner produced the knife and stabbed the deceased on her neck once. The deceased died of internal bleeding from the knife wound. The prisoner pleaded guilty and was sentenced to 12 years imprisonment.

13. Your lawyer submits that considering the sentencing guidelines in Manu Kovi, your case falls into category two (2) attracting a sentence between 13-16 years.

14. In mitigation you pleaded guilty, you are a first time offender and there was de facto provocation. Considering all this your lawyer has submitted that a penalty in the range of 10-13 years is appropriate. He further submits a suspension of part of the sentence should be in order.

15. The State submits the Court must be reminded that the sanctity of human life is more precious than anything else. No amount of compensation or remorse can compensate life as it is lost forever. That should be the underlying factor to guide the Court in its assessment of an appropriate sentence to impose on an offender in homicide cases. This factor has been emphasised by the courts over the years when sentencing offenders in homicide cases.

16. The State submitted the aggravating factors included use of a weapon namely a kitchen knife to attack the deceased, the attack was vicious as the deceased died soon after the stabbing, the stabbing was on a vulnerable part of the body namely the chest and back piercing the left lung and the heart. Finally, the crime of killing in a domestic setting is prevalent in this country. This is a killing that adds to an already long list of unlawful killing cases dealt with by the courts. It indicates that there seems to be no deterrent effect on the offenders.

17. The State agrees that pursuant to the guidelines in Manu Kovi, the case falls into the second category which calls for a sentence between 13-16 years. This is because there was use of a kitchen knife to stab the deceased and the stabbing was on the back which pierced the left lung and heart. The post mortem report by Dr. Kily of Kundiawa General Hospital dated 18^th March 2016 confirms the deceased died of “hypovolenic shock due to massive internal bleeding from knife wound.” The State submits that 13 years imprisonment in hard labour would be an appropriate sentence in this case.

18. In support the State has cited some comparable judgments as well. In the case of the State -v- Ellis Nema Mara [2010] N4133, the offender found her husband and the deceased together and fought with the deceased. The deceased was armed with a kitchen knife and she wrestled it from her stabbing her on the right back. The kitchen knife penetrated the back and punctured the right lung. The deceased lost a lot of blood and died. A sentence of 12 years was imposed.

19. The State further cited the case of the State -v- Anita Kelly (supra). The State submits any sentence imposed must be between 12 to 13 years imprisonment. However it is not bound to strictly follow the sentencing guidelines and tariffs to fetter its sentencing discretion. See Thress Kumbamong -v- The State [2008] SC1017.

20. He submits that the aggravating factors far outweigh those in her favour and a sentence of 12 years is appropriate.

21. The case of Manu Kovi has set out sentencing guidelines for homicide cases including wilful murder, murder and manslaughter cases. It provided various categories setting out the circumstances and the range of penalties for the less serious to the worst.

22. The factors that are in your favour include your guilty plea, you are a first time offender, there was no preplanning on your part and you acted on the spur of the moment.

23. The aggravating factors against you include prevalency of the offence, use of an offensive weapon, stabbing on a vulnerable part of the body which was the back under which the vital organs like the lung and the heart are located.

24. Deciding what an appropriate sentence is for killings in a domestic setting such as this is becoming increasingly hard. His Honour Justice Kirriwom in the State -v- Drekore Yuana Peter [2002] N1973 rightly summarised the situation when he said “the problem of killings in a domestic setting is deeply rooted. It cannot be addressed by simply penalising and incarcerating the already overly abused and battered wives who have the misfortune to go overboard in their emotional reactions by causing the death of another.

25. Such is the dilemma that I face in having to come to an appropriate sentence for such killings. How does one draw a balance as to what is just and right in deciding an appropriate sentence in such killings like this?

26. The Supreme Court in Thress Kumbamong -v- The State [2008] SC 1017 tried to answer the problem when it said a distinction ought to be made between the real criminals who ought to be removed from society and those who should not. It said –

“The courts need to re-examine and identify cases that require imprisonment for the protection of the society and the cases that do not warrant imprisonment but correction outside the prison system. This is not a new thing. The courts have been doing that for centuries but have failed to guarantee safer societies. What is new, however, is the question of what should be the primary focus of criminal sentencing and the suggested answer of correction and rehabilitation and not necessarily imprisonment in prisons. Adopting such an approach would enable the courts to address that which matters most, which is the emotional needs of an offender and the society as a whole for a safer society.”

27. Given this observations, the circumstances under which you committed the offense and the authority of Manu Kovi, I will fix a starting point for your case at 12 years. That is 1 year below the bottom of category two (2) in Manu Kovi. Having said that I view that you deserve a head sentence below the starting point. I consider a fair sentence to be 10 years. I therefore sentence you to 10 years imprisonment. I deduct 1 year for the time you have spent in custody which leaves you with 9 years to serve. Should any of this be suspended?

28. The Supreme Court in Public Prosecutor -v- Don Hale [1998] SC 564 held that a sentence may only be suspended if it is supported by a favourable pre-sentence report where the community has shown a willingness to assist in rehabilitating or supervising the prisoner.

29. Despite the absence of the pre-sentence report, I will on the authority of Thress Kumbamong and s.19 of the Criminal Code suspend a portion of your sentence. Just like so many other killings in domestic settings, you are a victim yourself and you do not deserve to be incarcerated for lengthy periods of time and ought to be corrected outside the prison system.
30. However, because of the seriousness of the offense you will have to pay the price for killing the deceased by spending some time in custody which will also serve as a deterrent to others.

31. I therefore order that 3 years is suspended on condition that upon your release you enter into probation for a period of 3 years. You will therefore serve 6 years of your term at Barawagi Corrective Institutional Service.

32. You are therefore sentenced as follows:

(1) You are sentenced to 10 years imprisonment in hard labour.
(2) 1 year is deducted for pre-sentence custody.
(3) Remaining sentence is 9 years.
(4) 3 years of the 9 years is suspended on the condition that upon your release you enter into probation for 3 years.
(5) You will serve 6 years at Barawagi Corrective Institutional Service.

Ordered accordingly,
______________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Offender