N10889
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR  404 OF 2024

THE STATE

V

RAYBISTHER RAYMOND

Walume: Batari J
2024: 16th & 17th May
	
CRIMINAL LAW– Sentence – Manslaughter – Accused stabbed deceased husband with kitchen knife resulting in death – Plea – Mitigation – youthful offender – deceased caught in act of fidelity – provocation – one stab wound to chest injuring heart – Sentence of 10 years appropriate.

CRIMINAL LAW- Practice and Procedure – Sentence – Manslaughter – power of court to reconsider and alter sentence – sentence of 10 years recalled and reconsidered to include suspension orders in view of deprivation of three-month-old child at time of arrest and to enable early release to pursue custody of the child.  

The prisoner set out in the early morning to look for her husband after rumours that he was drinking with another woman. She found them together and stabbed the deceased on the chest after a brief altercation. He died from a punctured heart. This is the sentence.  

Held: 

1.	A judge of the National Court, having imposed a sentence during circuit sittings and in the exercise of his criminal jurisdiction, has power to reconsider and alter the sentence at any time before the circuit has formally closed.

2.	When can a sentence be recalled depends on the worth and relevance of the omission or the unavailability of crucial information that would, if available and taken into account, increase or decrease the sentence initially imposed and further that it would serve the interest of justice.

Cases Cited:

Papua New Guinean Cases
Anna Max Marangi v The State (2002) SC702
Antap Yala v The State (SCR 69/96) 
Jack Tanga v The State [1999] SC602 
Janet Dolo v The State (2023) SC2513
John Kalabus v The State [1988] PNGLR 193
Kesino Apo v The State [1988] PNGLR 182
Lawrence Simbe v. The State [1994] PNGLR 38
Rex Lialu v The State [1990] PNGLR 487 
Simon Kama v The State (2004) SC740
The State v Kaupa Ungi [1980] PNGLR 199
The State v Lawrie Patrick & 3 Ors [1995] PNGLR 195
The State v Tobata (2021) N9400 
The State v Tony Emmanuel & Anor (No 3)  (2013) N5126 
The State v. Laura (No.2) [1988-89] PNGLR 98

Overseas Cases
R. v Phillips [1985] 7 CR App R (S) 235 at 237

Counsel
F. Popeu, for the State
M. Mumure, for the Accused

DECISION

17th May2024

1.	BATARI J: 	Raybisther Raymond, you were convicted yesterday following your plea of guilty to the unlawful killing of one Ray Tasman your husband (the deceased) contrary to s. 302 of the Criminal Code.  You are in Court again today to receive your punishment.

2.	On the early morning of 28/7/2023 at North Kagua Main Street, Southern Highlands Province, you confronted your husband Ray Tasman who was then with another man and two women. He had not come home in the night. After a short argument, the two of  you fought. Your husband tripped on a stone and fell. You then stabbed him on his chest, piercing his heart.

3.	The medical report compiled by a Dr. Satia Sanangkeo, D/MS, stated in the autopsy report, the deceased sustained punctured wound to the heart resulting haemorrhage shock and acute severe blood loss resulting in death.

4.	The Criminal Code prescribes under s. 302, penal servitude of life imprisonment for manslaughter. This reflects Parliament’s intention to impose tougher penalties against unlawful killings and the need to protect the sanctity of life. The maximum penalty also represents the community abhorrence and disgust against violence and pointless wanton killings. A killing under any circumstance is always a very serious matter as it invariably involved sudden irreversible termination of life.  There is no question then that you must be punished with imprisonment. 

5.	The maximum penalty is not mandatory because of s.19 of the Criminal Code. Nevertheless, the maximum penalty sets the level of seriousness of the offence. So, the Court must start with the maximum penalty as a yardstick against which the outcome of the sentence that meets the justice of the case may be reached. See, Simon Kama v The State (2004) SC740.  

6.	In that exercise, the two compelling interests to balance are the seriousness of the offence and the community interest to see that those who offend must be adequately punished, on the one hand, and on the other, the personal interests of the offender. There is no exact formula or scientific precision in this weighing-up exercise in judicial sentencing discretion.  

7.	In this case, the nature of injury points to a determined and vicious attack with a kitchen knife deliberately aimed at the heart region. The deceased was drunk and unarmed. 

8.	You took advantage of your husband’s drunken condition. After he tripped and fell, you showed your husband no mercy or cared about his life and his right to live.  If you had simply left him after he fell, he would still be alive today.  Be it as it may, your uncaring violent behaviour caused an abrupt end to a young life, a sudden loss and misery to his family.         

9.	You are a youthful offender at 21 years with no prior conviction. Your three-month-old baby from your marriage to the deceased was removed and taken to Samarai possibly, the home of the parents of the deceased.  You also complained of being badly beaten up at the time of your arrest. Your husband was a policeman. I can understand work colleagues reacting to the abrupt violent death of their colleague at your hand, but it is not the right thing to do. I will take that too into account.  

10.	Consistent with your prior good background, you cooperated with the police confessed your conduct and expressed remorse in your record of interview. You have pleaded guilty early and again expressed remorse. 

11.	I believe you are genuinely remorseful because that is supported by all those personal conduct and attributes I have referred to. I adopt the view from the case of The State v Lawrie Patrick & 3 Ors [1995] PNGLR 195 that remorse and contrition are usually matters to be weighed on sentence in favour of an accused if they are manifested in guilty plea.

12.	Your lawyer, Mr Pepson submitted, inter alia, that your plea of guilty has saved the Court and the State time and costs in conducting a trial to prove your guilt.  This incident happened in the full view of others at the scene.  Had you been convicted following a trial, you would not have been entitled to the consideration which may be open to the court on a plea of guilty.

13.	It is settled that the fact of a guilty plea in very serious cases of violence like murder killings, rape, and armed robbery has no or little weight on its own.  The State v. Laura (No.2) [1988-89] PNGLR 98; John Kalabus v The State [1988] PNGLR 193. 

14.	Factors that can support a plea of guilty include, unblemished past, surrender and cooperation with police investigations, early admissions, payment of compensation, early restitution. These factors with the plea of guilty are also strong indicators that support remorse and contrition.  I think the weight to be given will also depend on how soon after committal a plea is taken. An early plea avoids costs in having to assemble and prepare witnesses.   

15.	I bear in mind that the person you kill was your partner. He was your husband.  This court and the Supreme Court have long recognised killing of a relative to be a factor in mitigation because of the personal loss of support and dependency to the offender. In Kesino Apo v The State [1988] PNGLR 182 the Supreme Court acknowledged that the traditional self-punitive aspects relating to the killing of a relative are matters which may be considered in mitigation of sentence.  I consider that this factor is in your favour.

16.	 Section 19 sets out different sentencing options the court can use in the particular circumstances of a case beside the maximum penalty prescribed for the particular offence.  In deliberating sentence, the Court is, guided by settled principles of sentencing and sentencing tariffs settled by the Supreme Court.  In the absence of the higher court sentencing guideline, the current sentencing tendency of the National Court in similar type cases is a relevant guide.

17.	The case of Rex Lialu v The State [1990] PNGLR 487 initially set guidelines for sentencing the different categories of manslaughter killings.  The range of sentences prescribed then has been revisited by the Supreme Court in several cases in view of the prevalence and rising trend of violent deaths sometimes committed in horrendous circumstances: See, Jack Tanga v The State [1999] SC602, Antap Yala v The State (SCR 69/96); Anna Max Marangi v The State (2002) SC 702; Manu Kovi v The State (2005) SC 789.

18.	In Anna Max Marangi v The State the Supreme Court suggested a range of 8 to 12 years for the type of killing in this case.  Three years later, Manu Kovi v The State suggested the killing in the nature of the case before this court falls into the second category where a term within the range of 13 to 16 years would be appropriate. Both counsel agree this Court latter sentencing range to punish the prisoner.   

19.	It is settled that each case must be dealt with on its own facts and the Court is urged to have careful regard to the circumstances of death and the manner in which death was actually caused.  His Honour Kapi DCJ (as he then was) made this observation in, Rex Lialu v The State (supra) at 497:

"In considering the penalty for manslaughter cases, I adopt the words of Watkins LJ in R v Phillips (1985) 7 Cr App R (S) 235 at 237.

'The Court has to pay very careful regard to the circumstances of death, and especially to the way the death was actually caused, in coming to a conclusion as to what punishment a defendant should receive for whatever it was he did towards bringing that about.'"
 
20.	This approach was later affirmed by the Supreme Court in Lawrence Simbe v. The State [1994] PNGLR 38 where a sentence of 14 years was imposed on the prisoner who killed the deceased by cutting open the (deceased’s) ribcage after he caught the deceased trying to entice his wife to have sexual relation with her.

21.	In a more recent similar type killing, the prisoner and the deceased were married to the same man. The women had argument and fought at 8 Mile roundabout on Hubert Murray Highway, National Capital District. Serah hit Janet on the head with a stone, drawing blood. Janet crossed the road to get away, but Serah pursued after her. Janet drew a small knife and stabbed Serah near her neck, penetrating downwards so that the knife punctured her lung. Serah was rushed to Port General Hospital but was pronounced dead upon arrival. Janet was sentenced to 10 years which was affirmed by the Supreme Court in, Janet Dolo v The State (2023) SC 2513 (Batari J Bona J Numapo J).  

22.	In this case it is uncontested, and I accept that elements of provocation as a matter of fact existed and preceded the killing. You, Raybisther Raymond had heard rumours of your husband entertaining other women in drinking and socialising. Early the next morning, you caught him together with another man in the company of two ladies. You attacked the deceased in the spur of the moment. I also accept that like in Dolo’s case, the attack was not sustained. The provocation explains your conduct, it does not excuse it.   

23.	In all the circumstances of this case and using the combined ranges in Anna Max Marangi v The State and Manu Kovi v The State case, a sentence within the wider range of 8 to 16 will meet the justice of the case.  A sentence in the lower end is in my view, appropriate.

24.	You are sentenced to 10 years imprisonment with hard labour.  The sentence is reduced by 10 months, being the time spent in custody. You will serve the balance of 9 years and 2 months IHL.

Recall of Sentence 

25.	On 22nd May 2024, following submissions from the lawyers on the propriety of recalling and altering the sentence, I ruled that the Court has jurisdiction to recall and alter the sentence before the sittings rise and close for the month (Circuit) at Walume.  The sentence of 10 years was then altered by partial suspension of 5 years from the head sentence. 

26.	The power in a judge to recall and vary his or her sentence, having passed the sentence is not found in the Criminal Code or the Criminal Practice Rules. It has existed over time as a rule of practice in common law. 

27.	In The State v Kaupa Ungi [1980] PNGLR, 199 Narokobi AJ reviewed the common law position of England and Australian State cases on the power of the court or judge to recall and alter the sentence and concluded: 

“In this country we have circuits, not terms. By analogy, in this country it can be stated that a sentence can be altered at any time before the circuit is formally closed. This means that even after the warrant of commitment is signed and the prisoner is delivered to the gaoler, the court may recall its sentence and either increase or decrease the sentence initially imposed.” 

(Underlining added)

28.	Narokobi, AJ also relied on the Constitutional provisions, establishing the National Court and giving it unlimited jurisdiction under s. 155(4) to make, in such circumstances as seem to it proper, such other orders as are necessary to do justice in the particular circumstances of a particular case.

29.	When can a sentence be recalled depends on the worth and relevance of the omission or the unavailability of crucial information that would, if available and taken into account, increase or decrease the sentence initially imposed and further that it would serve the interest of justice.  In The State v Kaupa Ungi, the State made an application to vacate a sentence and sentence afresh. The accused had been sentenced as a first offender and after sentence was imposed, the warrant of commitment signed and the prisoner delivered to the gaoler at the corrective institution, prior convictions were discovered. 

30.	In The State v Tobata (2021) N9400 (Suelip AJ), the State applied to have the sentence recalled after three days to review a blanket sentence and replaced with separate terms for each count of sexual penetration charged on the Indictment. The application was granted, and specific terms were allocated for the separate counts. 

31.	Whilst the practice seems to be settled, that a sentence initially imposed may be recalled and altered before the circuit sittings end, there may be an exceptional case as in, The State v Tony Emmanuel & Anor (2013) N5126 (No 3) where Kirriwom J threw caution to the wind when his Honour remarked:

“Recall of judgment already pronounced by the court in certain circumstances may offend against the general rule based on public policy consideration that there must be finality to litigation once completed. In numerous cases coming before the Supreme Court by way of slip-rule application, this public interest consideration was acknowledged and it was noted from reading some leading case authorities cited in those cases that a judge has discretion to recall his earlier orders if in his determination that he 'had erred in a material matter in his approach to the case'- see Richard Dennis Wallbank v The State [1994] PNGLR 78 which referred to Autodesk Inc v Dyason [No.2] [1993] HCA 6; (1993) 176 CLR 300 and Sir Julius Chan v Ephraim Apelis (No.2) [1999] PNGLR 187 which also referred to the same Australian High Court case.”

32.	The sentence in that case was recalled and altered some three months after the sentence was passed based on prior conviction for similar offence, when fresh information emerged that the prisoner Tony Emmanuel had no prior conviction when initially sentenced.    

33.	In this case, I recalled the sentence on the court’s own motion to alter the sentence conditions based on a fact I had earlier considered but had not taken into account in the final outcome of the sentence. The fact was related to the issue of, whether or not suspension orders would be justified.

34.	The prisoner has a three-month-old child that was forcefully isolated and removed from her at the time of arrest. The child has been taken out of the province to some unknown location possibly to Milne Bay Province. 

35.	The prisoner naturally wants her child returned to her. It is not known if she will ever see her child again. I had earlier made a passing remark on this aspect. On hindsight, I indicated taking this into account on sentence and I do so now. Removing the child was an act of reprisal, it is unlawful and unconstitutional. Unlawfully removing a three-month-old child from the custody of its mother following her arrest in connection with the death of her husband is a serious breach of her liberty and tantamount to double jeopardy.

36.	The suspension orders to be on Good Behaviour Bond for 5 years will enable the prisoner to be released from incarceration early to pursue her claim for the return custody of her child with assistance of the Public Solicitor. 

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