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State v Jack [2021] PGNC 363; N8989 (18 June 2021)

N8989

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1409 OF 2017

THE STATE

V

ELLYN JACK

Bomana: Berrigan, J
2021: 5^th and 18^th June

CRIMINAL LAW – SENTENCE - MANSLAUGHTER – EXTENUATING CIRCUMSTANCES PRESENT – Strong de facto provocation present – Extenuating and mitigating circumstances - Long history of abuse and violence at the hands of the deceased – Mitigating Circumstances – Sentence of 9 years of imprisonment in hard labour imposed, partially suspended.

Cases Cited:
Papua New Guinea

Manu Kovi v The State (2005) SC789 Kumbamong v The State (2008) SC1017

Warome v The State (2020) SC1991
Goli Golu v The State [1979] PNGLR 653
The State v Tardrew [1986] PNGLR 91
The State v Frank Kagai [1987] PNGLR 320
Rex Lialu [1990] PNGLR 487
Lawrence Simbe v The State [1994] PNGLR 38
The State v Carol Alfred (2009) N3602
The State v Baundo Nicholson (2016) N6442
The State v Wenia Tony (2017) N6774
The State v Aosa (2017) N6907

Overseas Cases Cited

R v Law; Ex parte A-G [1995] QCA 444; [1996] 2 Qd R 63

References Cited

Sections 19, 302 of the Criminal Code (Ch. 262)

Counsel

Ms L Jack, for the State
Mr F Kirriwom, for the Offender

DECISION ON SENTENCE

18^th June, 2021

1. BERRIGAN J: The offender, Ellyn Jack, pleaded guilty to the manslaughter of her husband, Martin Jawangi, on 8 March 2017, contrary to section 302 of the Criminal Code.
   
2. Between 7:30 am and 8:00am that morning the deceased arrived at his home at the Uniforce Residential Compound, Gerehu Stage 2, following his night shift as a guard. He was intoxicated. The offender, the deceased’s niece and his two young children were already up and making breakfast when he arrived home. His niece made him a cup of tea and when he was done he chewed buai. He was sitting by the doorway chewing his buai while the offender sat outside on a platform.
   
3. At the time of the offence the offender had been living in a very abusive and violent three year marriage with the deceased, who was the aggressor. On that day he suspected her of cheating on him. He said to her: “You and your people, when are you going to sort me out.” This led to a verbal argument between them and as they stood face to face he spat betel spittle on Ellyn’s face. During the argument Martin armed himself with a piece of 4x4 timber while Ellyn armed herself with a brown handle kitchen knife. Martin then struck Ellyn with the timber on her right arm. She retaliated by walking towards him aggressively and trying to stab him. Martin responded by backing away from her. As he was walking backwards, he tripped and fell on his back and the timber fell out of his hand. As he tried to get up, Ellyn jumped on him and tried to stab him on his left arm but missed. She then swung the knife at him a second time and in the struggle, ended up stabbing him in his chest. She then removed the knife and walked back to the house. Martin stood up and told his niece that he won’t live because aunty stabbed him straight in the heart. He walked towards his neighbour and shouted that he had been stabbed with a knife and would die now, after which he fell down and died.
   
4. The autopsy report confirmed the cause of death as massive blood loss due to a single penetrating stab wound to the left lung and base of the aorta (the main vessel from the heart to the body).
   
5. The offender surrendered herself to police and made early admissions in a confessional statement and record of interview with police.
   

Allocutus

6. On allocutus Ellyn said: Firstly, I apologise to the Court for breaking the mother law of this land. Secondly, I would like to tell this Court that I will not commit any offence like this again. I am very sorry to my late husband, Martin, I apologise. I apologise to his family, sisters and brothers, and to his mother’s people from Central, and his father’s line from Morobe. I am very sorry because he is the breadwinner of the family. I am very sorry to my two children and apologise to his work mates, his friends and our neighbours that they feel the pain for him. I am sorry. I am very sorry to my own family and ask for mercy. I will not do this again. I apologise. I love him. I had no intention to kill him. I also have a story from his brother, Simon. They have peace with me and for that I have their paper. On 8 March 2017 I arrived at Bomana police cell, with my infant child, a three months old girl. I brought her with me into the prison. She has been with me for four years. On 25 January she turned four and was not allowed to stay with me so people from Welfare took her. She was sick when she came at 5 months with pneumonia. She was admitted for one month, two weeks. I was with her. There was no visit from my relatives. When I was at the hospital CS officers they looked after her... I lost my big child, three years, ten months. There is no one to look after him. ... I want to tell this Court that my children suffered because of the wrong that I did. I apologise... Please have mercy on me.
   

Sentencing Principles and Comparative Cases

7. The maximum penalty for manslaughter under Section 302 of the Criminal Code is life imprisonment.
   
8. In Manu Kovi v The State (2005) SC789 the Supreme Court suggested that manslaughter convictions could be put in four categories of increasing seriousness, as shown in the following table:

9. Defence counsel submitted that this case demonstrates the disintegration of the institution of marriage by the collapse of one of its foremost pillars, trust. What started as a promising marriage turned out to be one marred with accusations of infidelity, insecurity, distrust and violence. At the time of the offence, Ellyn was holding their infant daughter when he started his tirade. He submitted that the deceased’s conduct contributed to Ellyn’s actions and that there existed strong elements of de facto provocation, and that having regard to comparative cases, an appropriate starting point is 10 years of imprisonment.
   
10. He referred to the following cases in support of his submission:
    
    1. The State v Carol Alfred (2009) N3602 Makail J: sentenced a woman to 10 years imprisonment in hard labour for the manslaughter of her husband. She pleaded guilty to stabbing her husband on his thigh, unwittingly, after he physically assaulted her for not preparing his dinner in time. She was severely assaulted at the time, and there was a history of past violence. There was no suspension;
       
    2. The State v Wenia Tony (2017) N6774, Liosi AJ: The deceased and offender had a long history of fighting. The deceased would get drunk and assault the offender. The main reason for the arguments was that the deceased had brought another woman into the family home and chased away the offender and her six children. The offender and her children had to go and reside with other people in their village. One night 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 massive loss of blood. The offender pleaded guilty to manslaughter and was sentenced to 10 years, less time spent in custody. A further two years was suspended;
       
    100. The State v Baundo Nicholson (2016) N6442, Lioso AJ: in which 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. She 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.
         
11. It was further submitted that the sentence should in the circumstances of this case be wholly or partially suspended.
    
12. The State agreed that in mitigation there was very little planning, the deceased was a violent and abusive man, de facto provocation was present and 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 and the offence is prevalent.
    
13. The State submitted that the case fell within the first and lower part of the second category of Manu Kovi. An appropriate sentence was a custodial term of 11 to 13 years with no suspension in the interests of personal and general deterrence.
    
14. It referred to the following cases:
    
    1. The State v Aosa (2017) N6907, Miviri AJ: the prisoner pleaded guilty to manslaughter. He argued with his wife over accusations that she was not faithful and stabbed her with a scissors on the left chest and she bled to her death. He was sentenced to 15 years, none of which was suspended;
       
    2. Warome v The State (2020) SC1991: the appellant went out looking for her husband who had not returned for four days during pay week, which caused the offender great anxiety. She went looking for him at his uncle’s house. She went straight to the family room. She attempted to open the door to the room, but it was locked from the inside. She then collected a knife from the kitchen and went into the room next door. She climbed over the partition and jumped into the family room. When she landed in the room she switched on the torch in her mobile phone. To her surprise she saw her husband and a woman asleep together on a bed and completely naked. She became very angry and stabbed the woman two times; one on the right breast and the other on the left hand. She also punched the husband before she ran out of the house. The deceased died shortly afterwards. The offender pleaded guilty to manslaughter was sentenced to 10 years in custody. Whilst expressing the view that it might have imposed a higher sentence under category two, the Supreme Court found that the sentence of 10 years was not manifestly inadequate and so confirmed it, but suspended three years having regard to de facto provocation and the role of the husband’s infidelity in contributing to the offence.
       

Consideration

15. 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.
    
16. Having regard to the fact that this was a plea matter, the offender was under emotional stress, the killing occurred in a domestic setting, the presence of de facto provocation, the killing followed 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 within category 1 and the lower part of category 2 of Manu Kovi, and thus the starting point is 10 to 14 years.
    
17. 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.
    
18. The offender is 26 years old and from Wabia, Tari District, Hela Province. She has two young children, the eldest is now five and the youngest four years old. She is the fourth born of a family of fifteen. Her mother is still alive and lives with the family in the village. She is educated to Grade 6.
    
19. In aggravation this case involved the use of an offensive weapon and some intention to do harm but the State do not allege she deliberately stabbed the deceased through the heart, rather that the wound was inflicted during the struggle.
    
20. This type of offense is also increasingly prevalent.
    
21. Against these factors, however, are very significant extenuating circumstances.
    
22. Strong de facto provocation was present immediately before the offence. The deceased, who was drunk, verbally and physically assaulted the offender, in the morning whilst she was preparing breakfast for him and her family, in the presence of her children and niece, whilst she had her three month old baby strapped to her back. He accused her of cheating, he spat beteljuice in her face and then assaulted her with a piece of wood.
    
23. That immediate provocation must also be seen in the context of a long history of violence and abuse at the hands of the deceased, and the psychological impact of that on the offender.
    
24. In addition there are several mitigating factors.
    
25. The offender is a first time offender. She is of prior good character.
    
26. The offender surrendered herself to police. She cooperated with authorities from the earliest stage and made admissions in her record of interview. She pleaded guilty at the first opportunity at the National Court.
    
27. I take this into account both as reflecting her heartfelt remorse, which she expressed during allocutus and which I accept as genuine. She deeply regrets the death of her husband, whom it is clear she loves to this day. She wanted the Court to see her certificate of marriage. I also take her plea into account from the perspective that it has saved the Court and authorities the time and cost of a trial.
    
28. Indeed, having regard to the history of abuse and the conduct of the deceased that morning, I did consider whether I should accept the plea. The offender was represented by senior counsel who made it clear that the offender was not seeking to raise self-defence. The offender herself was unequivocal in her plea and the depositions do support the charge. Ultimately, the offender takes responsibility for her actions that day.
    
29. It is also a significant fact that the offender has reconciled with the deceased’s family. A family conference was held some time ago and a statutory declaration from the deceased’s younger brother, as representative of the deceased’s broader family, states that the family are at peace with the offender and plead for the court to release her from prison so that she might care for her young children, the eldest of which is not well. This is relevant not just to suitability for rehabilitation but to my mind confirms the offender’s suffering at the hands of the deceased.
    
30. In addition, the offender is a young woman and was only 22 years old at the time of the offence. This is very significant, particularly given the history of abuse and the immediate circumstances in which the offence occurred. She had been in the marriage since 2014 when she was just 19 years of age.
    
31. The impact of the offence on the offender has been and will continue to be grave. She has lost the breadwinner of her family, and has been separated from her young children at a time when they need her most. At this stage the children are being cared for separately by relatives, one is with the offender’s auntie, the other with the deceased’s brother.
    
32. Having regard to the general circumstances of the case, the personal circumstances of the offender, the aggravating, extenuating and mitigating factors, the submissions of counsel, the guidelines contained in Manu Kovi, and comparative cases, I sentence the offender to 9 years of imprisonment.
    
33. This case is very different from both of those relied upon by the State. In Aosa the offender was both the aggressor and the killer. In Warome it is clear that the offender went out looking for her husband because she suspected him of infidelity, armed herself before even seeing her husband, made considerable effort to access a locked room, and then stabbed the women he was with multiple times, whilst the woman was sleeping. Here the offence was spontaneous, occurred in extenuating circumstances, and the stabbing to the heart occurred in the course of a struggle. The sentence of 9 years sufficiently addresses the need for personal and general deterrence in the circumstances of this case.
    
34. The question remains whether any or all of the sentence should be suspended.
    
35. 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.
    
36. Probation Services regards the offender as suitable for probation.
    
37. Neither party addressed the issue of delay. A lapse of time between the commission of an offence and the imposition of sentence is not a mitigating factor of itself: In R v Law; Ex parte A-G [1995] QCA 444; [1996] 2 Qd R 63. Delay may be a relevant consideration on sentence but it will depend on the circumstances. In determining whether delay is a mitigating factor consideration should be given to the reason for the delay. S 37(3) of the Constitution guarantees a fair trial within a reasonable time. Where there has been a failure on the part of enforcement authorities or the judicial process to bring an offender to justice within a reasonable time that may properly constitute a factor in mitigation. This may be particularly relevant where an offender has cooperated with authorities from an early stage. Consideration should also be given to the conduct of the offender him or herself and their role in the delay. For obvious reasons a person who absconds should not benefit by the delay he himself has caused. Delay may also be relevant where the offender has made demonstrable progress towards his or her rehabilitation during the period of delay. As in any case delay must be balanced against all the other factors for consideration, including the nature and seriousness of the offence.
    
38. In this case the offender has been trying to take responsibility for the death of her husband for the last four years. In my view the head sentence is appropriate in the circumstances of the case, but I do think it is appropriate to take account of the delay when considering suspension. In doing so I bear in mind that mitigating factors should not be relied upon to produce an effective sentence which is overly generous to a prisoner: Tardrew (supra).
    
39. Despite the fact the deceased was a controlling, violent and unpredictable man, the offender has never blamed him for what happened. She deeply regrets that his life has been lost at her hand. She told Probation Services that her husband was a caring and kind person except when he was jealous and abused her physical and mentally. Unfortunately, that is typical of many abusers.
    
40. She has demonstrated strong prospects for rehabilitation. She has strong support from both her own family and the deceased’s family. She is no threat to the community and records show that she has actively participated in church activities and development opportunities whilst on remand.
    
41. The offender has spent several years in custody. This is not a case where continued detention is warranted. Rather it is in the interests of the community that the offender is allowed to complete her sentence outside prison, where she may care for her children, guide their development and educate them so that they may become contributing members of society; educate her young son so that he does not grow up to be a violent and abusive man like his father, and educate her daughter about her right to be treated with love and respect.
    
42. In the circumstances, I make the following orders:
    

Orders

(1) The offender is sentenced to 9 years of imprisonment in hard labour.

(2) 4 years, 3 months, 10 days spent in pre-trial custody is deducted from time to be served.

(3) The balance of 4 years, 8 months, 20 days is wholly suspended upon the offender entering into her own recognisance to keep the peace and be of good behaviour.

Sentence accordingly.

_______________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Accused