N9021

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 80 OF 2021

THE STATE

V

SHEMILA KAPOI

Bomana: Berrigan, J
2021: 15th, 25th June and 13th August

CRIMINAL LAW – SENTENCE -  MANSLAUGHTER – Killing of husband by wife with knife – De facto provocation present – 11 years of imprisonment, partially suspended. 

Cases Cited:

Manu Kovi v The State (2005) SC789 
The State v Mema (2012) N4602
The State v Markus (2015) N5944
The State v Baundo Nicholson (2016) N6442
The State v Wenia Tony (2017) N6774
The State v Lahuwe (2018) N7625
The State v Vealolo (2019) N7802
The State v Carol Alfred (2009) N3602
Goli Golu v The State [1979] PNGLR 653
Lawrence Simbe v The State [1994] PNGLR 38
Rex Lialu [1990] PNGLR 487
Allan Peter Utieng v The State (2000) SCR No 15 of 2000
The Public Prosecutor v Vangu’u Ame [1983] PNGLR 424
The State v Tardrew [1986] PNGLR 91 
The State v Frank Kagai [1987] PNGLR 320
Kumbamong v The State (2008) SC1017 

References Cited

Sections 19, Section 302 of the Criminal Code

Counsel

Mr. D Digori, for the State 
Mr. N Timbi, for the Offender

DECISION ON SENTENCE
13th August, 2021 
1.	BERRIGAN J: The offender, Shemila Kapoi, pleaded guilty to the manslaughter of Christopher Billy, contrary to s. 302 of the Criminal Code. 

2.	The following facts were established on the plea, supported by the depositions. 

3.	Between 7am and 8am on the 20th of May 2020, at Amery Place, Tokarara, National Capital District, the offender and the deceased Christopher Billy had an argument.  The offender and the deceased were in a de-facto relationship and had ongoing issues prior to the time of the offence.  The offender told the deceased to pack his belongings and go live with his family. The deceased, who was enraged by the offender’s words, stormed towards her with clenched fists, verbally threatening that she did not know him and that he would kill her.  The offender, who had armed herself with a kitchen knife, swung at the deceased, stabbing him in his back as he turned away from her.   The offender’s step-mother, upon hearing the deceased scream for help, only managed to pull out the handle of the knife, but the blade remained in the deceased’s back.  The blade was later removed by another of the offender’s relatives, who then accompanied the deceased to Gerehu General Hospital in a taxi.  He died while being attended to by doctors from a stab wound to the right back, penetrating the heart. The offender heard about his death and surrendered herself to Waigani Police Station.

Allocutus 

4.	On allocutus the offender read a handwritten statement in which she apologised to God for breaking one of his commandments.  She apologised to the Court for breaking one of the major laws of the country.  She accepted responsibility for the crime but said that she had no intention of causing his death.  She is deeply sorry, she has realised her mistake and will not make the same mistake again.  She apologised to his family, his extended family, his friends, her family, her community and her friends.  She is deeply sorry for the deceased’s children and their mother.  She apologised to her own family, and thanked them for their prayers and support.  She asked the court to give her a non-custodial sentence as she has a medical condition of heart-burn, she would like to be with her family, especially as her father died in April this year and finally she has an 8 year old daughter.  The offender herself grew up without a mother and believes that her own daughter needs her mother by her side. 

Sentencing Principles and Comparative Cases

5.	The maximum penalty for manslaughter under Section 302 of the Criminal Code is life imprisonment. 

6.	In Manu Kovi v The State (2005) SC789 the Supreme Court suggested that manslaughter convictions could be put into four categories of increasing seriousness, as shown in the following table: 

No	Description	Details	Tariff	
1	Plea – ordinary cases – mitigating factors – no aggravating factors.	No weapons used – offender emotionally under stress – de facto provocation – killing in domestic setting – killing follows straight after argument – minimal force used – victim had pre-existing disease that caused or accelerated death, eg enlarged spleen cases.	8-12 years	

2	Trial or plea – mitigating factors with aggravating factors.	Use of offensive weapon, eg knife, on vulnerable parts of body – vicious attack – multiple injuries – some deliberate intention to harm – some pre-planning.	13-16 years	
3	Trial or plea – special aggravating factors – mitigating factors reduced in weight or rendered insignificant by gravity of offence.	Dangerous or offensive weapon used, eg gun, axe – vicious and planned attack – deliberate intention to harm – little or no regard for sanctity of human life.	17-25 years	
4	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 harmless, innocent person – complete disregard for human life.	Life imprisonment	

7.	Defence counsel submitted that the court should take into account that she is a first time offender, pleaded guilty and has expressed remorse, de facto provocation was present and there was a history of domestic violence. The offender surrendered and made admissions in her record of interview. He acknowledged in aggravation that the offence was prevalent, that a life was lost and a kitchen knife was used. 

8.	Defence counsel submitted that the offending fell within a range of 8 to 12 years having regard to Manu Kovi but that a sentence in the range of 6 to 8 years would be appropriate, wholly or partially suspended. 

9.	He referred to the following cases:  

a.	The State v Mema (2012) N4602, Kirriwom J:  The prisoner, a 24 year old woman pleaded guilty to manslaughter.  She struck the deceased with a piece of firewood on his head in order to immobilise him from further assaulting her, her sister and mother when he had already badly assaulted them earlier that evening. The deceased was stunned by the blow and fell to the ground bleeding from the cut on his head. He died a day or so later when belated attempts to seek medical attention failed. He was acting under the influence of alcohol at the time, and had a history of assaulting the family.  The prisoner was sentenced to 6 years, less time spent in custody, 5 years of the balance was wholly suspended; 

b.	The State v Markus (2015) N5944, Davani J: the deceased and the Offender had a fight, after an argument and after the Deceased had locked the Offender in their bedroom. The Deceased slapped the Offender on her mouth, then lifted her up and threw her on the bed. She saw him approach her with a bush knife and a piece of wood. There were no lights in the room. The Deceased then grabbed the Offender and a struggle ensued. It was during that struggle that the Offender stabbed the Deceased with a small knife she was holding, causing his death. The offender pleaded guilty to manslaughter and was sentenced to 9 years of imprisonment, of which 2 years was to be served, the balance suspended;

c.	The State v Baundo Nicholson (2016) N6442, Lioso AJ: 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, severing the main artery to the right leg.  He died from loss of blood whilst being transported to the health centre.  There was a history of violence by the deceased.  The offender pleaded guilty to manslaughter and was sentenced to 10 years, less time spent in custody, leaving a balance of 7 years, 3 months, of which 6 years, 3 months was suspended, leaving 1 year to serve;

d.	The State v Wenia Tony (2017) N6774, Liosi AJ: The deceased got drunk and went to the house where the offender and the family were sleeping and shouted for her. The offender, thinking the deceased would assault her again armed herself with a bush knife and stood inside the house. The deceased in attempting to get into the house walked up the steps onto the veranda broke open the timber wall near the door and struggled to get into the house. Knowing that she would be assaulted if the deceased got into the house, the offender swung the bush knife at the deceased’s left hand and legs to prevent him from coming into the house. The cuts were so serious that the deceased died on the same night due to blood loss. She was sentenced to 10 years in hard labour, less time spent in custody.  A further two years was suspended leaving a balance of 5 years to be served in custody;

e.	The State v Lahuwe (2018) N7625, Geita J, in which the offender was sentenced to 9 years of imprisonment, less time spent in custody, for stabbing his wife in the abdomen following an argument at their home in the village in East Sepik Province;

f.	The State v Vealolo (2019) N7802, Susame AJ: the offender was with his wife at their family home in the village in East New Britain Province.  The prisoner asked the deceased for a file to sharpen his knife.  He became angry when she handed it to him and it was wet.  In his anger the prisoner swung the bush knife against the bamboo seat. The knife slid on the surface of the bamboo seat and cut his wife on the right calf muscle at back of the knee causing a deep wound. The deceased was rushed to the nearby aid post at Lau. From there she was referred to the aid post at Rali but along the way she died.  The prisoner voluntarily surrendered to police and confessed to the killing.  He was sentenced to serve 8 years of imprisonment, which was wholly suspended.

10.	The State submitted in mitigation that the offender acted spontaneously in this case, that de facto provocation was present and that the offender cooperated with authorities and pleaded guilty, expressed remorse, and is a first time offender. It says in aggravation that an offensive weapon was used on a vulnerable part of the deceased’s body, resulting in the loss of life, and the offence is prevalent.  The State submitted that the offence fell between categories 1 and 2 of Manu Kovi and that a sentence of 10 to 15 years was appropriate.

11.	In addition to Baundo Nicholson (supra), the State referred to The State v Carol Alfred (2009) N3602, in which Makail J sentenced a woman to 10 years’ imprisonment in hard labour for the manslaughter of her husband.  She stabbed her husband on his thigh, unwittingly, after he physically assaulted her for not preparing his dinner on time.  She was severely assaulted at the time, and there was a history of past violence.  There was no suspension.

Consideration  

12.	It is well established that the maximum penalty is reserved for the most serious instances of the offence:  Goli Golu v The State [1979] PNGLR 653.  This case is not in that category. 

13.	Having regard to the fact that this was a plea matter, that the offender was emotionally under stress, the killing occurred in a domestic setting, the presence of de facto provocation, and the killing occurred following an argument, together with the use of an offensive weapon on a vulnerable part of the body and the presence of some deliberate intention to harm, the case falls between category 1 and 2 of Manu Kovi, and thus the starting point is a range of 10 to 14 years.  

14.	Section 19 of the Criminal Code provides the Court with broad discretion on sentence.  Whilst guidelines and comparative cases are very relevant considerations, every sentence should be determined according to its own circumstances: Lawrence Simbe v The State [1994] PNGLR 38.  In a case of homicide, careful regard must be had to the circumstances of death and the way death was caused: in Rex Lialu [1990] PNGLR 487; Kumbamong v The State (2008) SC1017. 

15.	The offender is 30 years of age from Sepoe Village, Malalaua, Gulf Province.  Her mother is alive but her father died whilst she was in custody this year. She is the eldest of 8 children, most of whom are still attending school.  None of her family members are employed. She has an 8 year old daughter from her first marriage. She is educated to Grade 10.  She was employed as a waitress and then at a beauty store until she married the deceased.

16.	In aggravation this case involved the use of an offensive weapon, on a vulnerable part of the body, and intention to do some harm on the part of the offender as demonstrated by the fact that the offender inflicted a deep penetrating wound to the back, as the deceased turned away from her.  In addition, this type of offence, the killing of a partner, including through the use of a knife is increasingly prevalent.  

17.	Against these factors the extenuating and mitigating circumstances must be taken into account.  There is evidence in the offender’s initial statement to police that she and the deceased had moved in together sometime around 2018.  Prior to the incident they had argued about his association with criminals, and  she had reported that to the police on a prior occasion.  There is also evidence from a police officer attached to the Boroko Police Station that she had reported the deceased to police a few months earlier for threatening to kill her, and that she had told police that he was associating with criminals.  The officer involved counselled them and gave a warning to the deceased.  

18.	On the morning of the offence, she was suspicious about where her husband was going and wanted him to wait for her.  The deceased walked out of the house whilst the offender was talking to him.  She told him that she had had enough of his ways and that he could pack up and go back to his family.  She ran back to get the knife. She then opened the door to him, he stormed towards her before turning away from her, and that is when she stabbed him hard in the back.  In the circumstances I take into account as an extenuating factor the presence of immediate de facto provocation that morning, which must also be considered in the context of the fear created by his previous threats of aggression.  By her own admission, however, she was frustrated and intended to stab him in the arm or shoulder.  

19.	In addition there are several mitigating factors.  

20.	The offender is a first time offender.  She is of prior good character.  I accept the statements of the offender’s aunt and uncle that she is not usually an aggressive or violent person but a responsible and caring member of the family and the community.  I also accept in this case the offender’s former Sunday school teacher that she is well respected member of the church and community, who helps others.  

21.	The offender surrendered herself and made admissions in a confessional statement and a record of interview.  She pleaded guilty at the first opportunity at the National Court.  

22.	I take this into account as reflecting genuine remorse, which she expressed during allocutus.  I also take it into account from the perspective that it has saved the Court and authorities the time and cost of a trial.  

23.	It is also a significant fact that the offender has reconciled with the deceased’s family.  The deceased’s sister said that he was a leader in their family and the community.  He is missed and they are struggling to look after his four children from his previous marriage, who must of course desperately miss their father.  The family is on good terms with the offender’s family.  The deceased’s sister feels sorry for the offender and she and the family have left it in the Court’s hands and will accept its decision.  

24.	The impact of the offence on the offender has been and will continue to be grave.  Imprisonment will have a significant impact on the offender’s family, her younger brothers and sisters, and sadly, her young daughter.  It is very well established that except in very extreme circumstances, however, the impact on family is not ordinarily a relevant consideration on sentence: see for example Allan Peter Utieng v The State (2000) SCR No 15 of 2000; The Public Prosecutor v Vangu’u Ame [1983] PNGLR 424.  

25.	I have taken into account the offender’s personal circumstances, and placed great weight on the mitigating and extenuating facts, namely her lack of previous conviction, prior good character, surrender and cooperation with police, early guilty plea, sincere remorse, the presence of de facto provocation, and the extenuating circumstances in this case, including the history of threats.  These types of offences are increasingly prevalent and this case calls for both general and specific deterrence.  Having regard to the submissions of counsel, the guidelines contained in Manu Kovi, and comparative cases, I sentence the offender to 11 years of imprisonment.  

26.	I exercise my discretion to deduct the time spent in custody to date.

27.	The question remains whether any or all of the sentence should be suspended. 

28.	In The State v Tardrew [1986] PNGLR 91 the Supreme Court set out three broad, but not exhaustive, categories in which it may be appropriate to suspend a sentence, namely: where it will promote the general deterrence or rehabilitation of the offender; where it will promote the repayment or restitution of stolen money or goods; or where imprisonment would cause an excessive degree of suffering to the particular offender, for example because of bad physical or mental health.  Suspension is not an act in leniency but a form of punishment that is to be served outside the prison system in the community interest to promote restitution or rehabilitation: The State v Tardrew [1986] PNGLR 91; The State v Frank Kagai [1987] PNGLR 320.

29.	Probation Services regards the offender as suitable for probation. 

30.	There is no evidence before me to suggest that the offender will suffer excessively in prison.  There is no medical report and nothing to establish that her heart burn is serious.  

31.	The offender has demonstrated strong prospects for rehabilitation.  She has accepted responsibility for her actions.  She is not a threat to the community and has support from both her family and the deceased’s family for probation.  

32.	Having regard to all of the above circumstances I am satisfied that partial suspension of her sentence would be in the best interests of the community to enable her to serve part of her sentence outside of prison, both to promote her rehabilitation into the community, and to enable her to care and guide her young daughter.  This must, however, be balanced against the serious nature of the offence and the need for deterrence.  In the circumstances I do not intend to suspend the sentence in its entirety.

33.	In the circumstances I make the following orders:

Orders

(1)	The offender is sentenced to 11 years of imprisonment.

(2)	1 year, 3 months spent in pre-trial custody is deducted from time to be served.

(3)	3 years is suspended on condition that the offender enter into her own recognisance to keep the peace and be of good behaviour.

(4)	Leaving a balance of 6 years, 9 months, to be served in custody.

Sentence accordingly.
_______________________________________________________________
Public Prosecutor: Lawyer for the State	
Public Solicitor: Lawyer for the Accused