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State v Sumai [2022] PGNC 294; N9713 (28 April 2022)

N9713

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1321 OF 2021

BETWEEN:
THE STATE

AND:
JACKEY SUMAI

Vanimo: Rei, AJ
2022: 8^th, 15^th, 25^th, 26^th, 27^th & 28^th April

CRIMINAL LAW – Practice and Procedure – unlawful killing – plea of guilty – sentence.

Cases Cited:

Kumbamong -v- The State [2008] PGSC 51; SC1017
The State -v- Evelyn Kaplandi [2022] N9542
Manu Kovi -v- The State [2005] PGSC 34, SC789
Passingan -v- Beaton [1971-72] PNGLR 206

Legislation:

Section 302 of the Criminal Code
Section 19 of the Criminal Code

Counsel:

Mr. G. Korei, for the State
Mr. P. Moses, for the Defence

28^th April, 2022

1. REI AJ: An indictment was presented on the 8^th of April 2022 in which the accused was charged pursuant to Section 302 of the Criminal Code that on the 10^th of April 2021, he unlawfully killed one Lena Sumai who was his wife.

2. It is alleged that on the 10^th of April 2021 at Osol Village the deceased, Lena Sumai, the wife of the accused, was armed with a bush knife which she swung to hit her husband. The accused in retaliation swung his bush knife at the deceased without aiming at any vulnerable part of the body like the head or the chest and struck the deceased around the lower part of her body, the right ankle.

3. The deceased died as a result of loss of blood caused from the wound inflicted by the accused.

4. No reasons were given why the deceased wife Lena Sumai tried to hit the accused with the bush knife.

ARRAIGNMENT

5. The accused was arraigned on the 25^th of April 2022 in which the charge of unlawful killing as well as the brief facts were read to him.

6. When asked how he pleads to the charge, he said he enters a plea of guilty in the matter.

7. Mr. Moses, Counsel for the accused, submitted such plea was consistent with his instructions.

8. After a perusal of the committal file containing the record of interview taken on 13^th of April 2021 which contains admissions in answer – Qs 15, 16, 17, 18 & 19 and witness statements of Tobias Ihobia, Catherine Ihobia and Abel Paul, the guilty plea was confirmed.

9. The accused was found guilty of the charge of unlawfully killing the deceased pursuant to Section 302 of the Criminal Code.

ANTECEDENT

10. No prior conviction.

ALLOCUTUS

11. In his allocutus, the prisoner looked remorseful and said sorry to the relatives of the deceased and to the Court for taking its time.

12. He said he has 2 children who are 2 years and 6 months of age respectively and asked that the Court be lenient by considering a non-custodial sentence so he cares for and fends his young family.

13. He said that it was an accidental killing in which he really did not mean or intend to kill but to cause grievous bodily harm to avert the deceased from inflicting wounds to his body.

MITIGATING FACTORS

14. The mitigating factors are:

• Pleaded Guilty
• First time offender
• Cooperated with the Police during the investigation process by

making admissions in his ROI

• Remorseful
• Acted alone
• Strong Provocation offered by the deceased
  

AGGRAVATING FACTORS

15. The aggravating factor are:

• A life has been lost with an unborn child.
  

DECISION ON SENTENCING

16. This is a case that arises out of a domestic setting in which the wife and the husband had an argument during which the deceased wife hit the prisoner with a bush knife but did not hit him.

17. Being provoked and for his own safety, the prisoner also swung a bush knife toward the deceased wife and hit her around her right ankle resulting in heavy bleeding causing death.

18. The medical report dated 26^th April 2022 and Post-Mortem Report dated 13^th April 2021 confirm this conclusion.

19. It would seem there was presence of provocation and self defence in the non-legal sense as the deceased wife hit the prisoner first who retaliated resulting in her fatal injuries – Kumbamong -v- The State [2008] PGSC 51; SC1017 (29 September 2008).
20. In Kumbamong -v- The State (supra), it was the husband who swung the lethal weapon which the wife got and inflicted wounds resulting in the death of the husband.

21. I referred to this case and relied on it in the case of The State -v- Evelyn Kaplandi [2022] N9542 which is a decision I handed down recently in Maprik.

22. In The State -v- Evelyn Kaplandi (supra), it was noted that the deceased husband failed to provide for the sustenance of the wife and family and yet he continued to cause problems in the family.

23. In both cases, the Court imposed lengthy suspended sentences.

24. This case is the reverse of the cases cited herein where the husband used a bush knife to hit and did hit the deceased wife around her right ankle and died from heavy bleeding. He did so because he was first attacked by the wife. There is the presence of de fact provocation and self- defence in the non-legal sense.

25. But generally, in any domestic set up, the husband or father is the icon of the family. He is the leader of the family who is looked up to in orders to show leadership and courtesy.

26. He is therefore required to demonstrate restraint and patience when faced with situations of disagreements or violence in the family. He is the last person in the family to behave violently.

27. This is being said because children always look to their parents to set good examples. If this is not forthcoming in the family, children will grow up exhibiting deplorable lives thereby being pests in the society.

28. The guidelines for sentencing in homicide cases are set out in Manu Kovi -v- The State [2005] PGSC 34, SC789 in which four (4) broad categories were set down.

29. This case falls within category 1 of the Manu Kovi -v- The State (supra) sentencing guidelines in which the murder of the wife immediately resulted from an argument in which the husband swung a bush knife and accidentally hit the deceased wife who died from heavy bleeding.

30. A term of 8 to 12 years imprisonment is appropriate.

31. I however note that the prisoner is a youthful offender. He is 24 years of age and has two (2) young children to bring up.

32. A custodial sentence would be crushing to him – Passingan -v- Beaton [1971-72] PNGLR 206, and his two young children.

33. A pre-sentence report was filed which speaks favourably for the prisoner. It also says the prisoner paid compensation of K3,250.00 to the relatives and that he is prepared to pay a further sum of K1,750.00 making a total compensation payable of K5,000.00.

34. Mr. Korei concedes that a custodial sentence be avoided and a suspended sentence with stringent conditions be imposed.

35. In the exercise of my discretion under Section 19 of the Criminal Code, a sentence of 8 years is imposed.

36. The time spent in custody awaiting trial of 1 year 1 month 23 days is deducted leaving the balance of 6 years 11 months and 7 days.

37. The whole of the balance of 6 years 11 months and 7 days is suspended upon the following conditions:

(i) the prisoner be of good behaviour;
(ii) the sum of K1,750.00 be paid to the parents of the deceased within 6 months from today; and
(iii) if the prisoner breaches any of these conditions he shall be arrested and brought to Court to be sentenced accordingly.

_____________________________________________________________

Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Defendants