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State v Lucas [2024] PGNC 79; N10732 (4 April 2024)

N10732

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1366 OF 2021

THE STATE

V

VERO LUCAS

Waigani: Miviri J
2024: 18^th March, 4^th April

CRIMINAL LAW – PRACTICE AND PROCEDURE – Manslaughter S302 CCA – Plea – Deceased & Prisoner Husband & Wife – Argument – Deceased Hit Prisoner with an Electric Fan – Prisoner Reacted Stabbed Deceased Twice Chest –Unlawful Action – Collapse of Right Lung – No Intention to Cause GBH – First Offender – strong deterrent sentence – 13 years IHL.

Facts
Accused responded to the deceased hitting her with an electric fan with a knife that was in her hands stabbing him in the chest from which he died.

Held
Guilty plea.
First time offender.
Protection of Life
13years IHL

Cases Cited:
Avia Aihi v The State (No 3) [1982] PNGLR 92
Kairi v The State [2006] PGSC 8; SC831 (28 April 2006)
Kovi v The State [2005] PGSC 34; SC789 (31 May 2005)
State v Hagei [2005] PGNC 60; N2913 (21 September 2005)
Acting Public Prosecutor v Mailai [1981] PNGLR 258
Kumbamong v State [2008] PGSC 51; SC1017 (29 September 2008)
The State v. Allan Peter Utieng, Unreported judgment delivered in Wewak on 23/11/00) SCR 15 of 2000
State v Hurotove [2017] PGNC 114; N6754 (5 June 2017)
Tapi v The State [2000] PGSC 2; SC635 (30 March 2000)
State v Walus [2005] PGNC 147; N2802 (25 February 2005)
Marangi v The State [2002] PGSC 15; SC702 (8 November 2002)
State v Kapoi [2021] PGNC 181; N9021 (13 August 2021)
State v Kolokolo [2021] PGNC 74; N8849 (26 February 2021)
State v Tony [2017] PGNC 125; N6774 (21 April 2017)
State v Nicholson [2016] PGNC 247; N6442 (25 July 2016)
State v Kande [2021] PGNC 251; N9104 (2 September 2021)
Lialu v The State [1990] PNGLR 487

Counsel:
M. Tamate, & S. Patatie, for the State
D. Kaiyok, for the Defendant

SENTENCE

04^th April 2024

1. MIVIRI J: Vero Lucas of Yomkama village, Gembogl, Simbu Province appears to be sentenced for Manslaughter of her husband Jack Kuru Kubul.
   
2. She pleaded guilty that on the 07^th October 2020, between 4.30am to 5.00am together with her husband now deceased Jack Kuru Kubul they were at home at Gerehu Stage 4 in the rental room they rented. They argued over a land title which escalated into the deceased hitting the prisoner with an electric fan and then started breaking utensils on the floor. A fight ensued in the struggle the accused stabbed the deceased twice in the right side of the chest. He suffered internal injuries there and died as a result. She had not intended to do grievous bodily harm. But her actions were unlawful in stabbing him with the knife.
   
3. She was therefore charged with the offence of Manslaughter pursuant to section 302 which read, “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 prisoner could be sentenced to the maximum of life imprisonment for the offence. But that would draw if her offence was of the worst case of its kind: Avia Aihi v The State (No 3) [1982] PNGLR 92. At the outset it is not the worst offence of manslaughter committed in a case of a husband and wife. Because this is an argument between husband and wife which had escalated into violence perpetrated by the deceased upon the prisoner. He hit her with the electric fan prompting the reaction from her with the knife she was holding cutting a container. That is laid out very detailed and explicit in the presentence report that was ordered on application by the prisoner after entering a guilty plea to the Indictment of Manslaughter. I take due account of that fact that it was unintentional, and purely natural human reaction to avoid the impact of the fan that was used as a weapon upon her by the deceased. Her situation would be similar to Kairi v The State [2006] PGSC 8; SC831 (28 April 2006). The assault by the deceased is quelled but at an expense to his life.
   
5. The fan is a heavy one depicted by the photographs that were taken by the arresting officer photograph Number 10. That has the control panel looking from the back cracked from the side up exposing wiring and other materials underneath. The fan itself with its safety covering is curved into an oval instead of a normal circle. The front covering has come off. No doubt it depicts the strength of that blow delivered with it by the deceased. It could have hurt her in a bad way if she had not acted in that instant as she did. It was unfortunate that she had a knife in her hand at that time.
   
6. But it was not deliberate and calculated to entail that he died as a result. But upon realization that her husband was seriously injured She tried to get him to the hospital to seek medical assistance. This she opted for the Gerehu Hospital but to no avail, as he was dead on arrival. She immediately surrendered to Police in fear that she would be sought out by the relatives of the deceased. And she confessed outright to police that he was drunk and was cross with her during which he lifted the fan inside the room and hit her with it. At that time, she was holding a small knife which she was using to cut a container of water with. And in that struggling that ensued because of the fighting the knife she was holding cut him on his left side of the chest, the body, and his right ear.
   
7. Her explanation was affirmed in her record of interview with police on the 22^nd January 2021. It was clear that she did not deliberately stab the deceased in the chest causing the injury that led to his death. He was the instigator who was dead because of what he had set in motion. And it is confirmed by the photographic evidence number 12, he was consuming alcohol, or had to an extent where he was drunk effected by it, to inflict the violence upon her. Further the medical report of the autopsy of the 16^th October 2020 established that, he had died as a direct result of the stab wound to his chest. The right lung had collapsed because of that stab wound which was 20 mm on the right side of the chest anterior aspect 3^rd intercostal. There were 2.5 litres of free blood in the right chest cavity. Stab wound 20 mm on right chest lateral aspect mid axillary line 7^th intercostal space (not penetrating). This medical examination and evidence is consistent with the record of interview and the presentence report furnished before me now dated 02^nd April 2024. She was trying to avoid a blow that dismantled the fan as depicted out in photograph 10 by the informant.
   
8. She has been very remorseful firstly to God in Heaven, secondly to the Court for breaking the laws of the land. Thirdly to the family of her deceased husband and to her own family who were burdened with the compensation as a result of the wrong she had committed. She is also sorry for her two children born from her union with the deceased. And also, to her late husband, “who I love very much. It was an accident he is my husband I am his wife. It was an accident and he died. Have mercy on me.” She was obviously emotional as she recounted with tears. It is in my view regret and sorrow for the unfortunate turn of events that have landed her in this way. Without her husband and in jail facing a long jail term. But it is step that She has taken for the better. And reflected by her circumstances which I set out in the determination of an appropriate sentence.
   
9. She has prior good record in the community depicted out by her cousin brother a Pastor, one Bonny Philip Mob of the Revival Church Mt Hagen. He also confirms the payment of K35, 000.00 in cash and 23 pigs that were paid as compensation and bel kol to the deceased family. Who had invited themselves to Avi Block at Mt Hagen removing everything there from the prisoner’s family. These included houses, vehicle spare parts all to the total value of K160, 000.00 as compensation for the death of the deceased. He begged for mercy be upon her in the sentence passed. No one takes the law into ones own hands to correct another.
   
10. She is a 35-year-old first offender from Yokama Kundiawa Gembogl Chimbu Province. Who had very good repute in the community before the offence. That is from one Billy Laki of that community Gerehu Stage 4. The presentence report assesses her as humble and quite person. And is not a threat to anyone in the Community. But it is an unfortunate situation that she will live with for the rest of her life with her two children ages not disclosed by the report. She has no formal education but was renting the place where she was with her late husband. She is therefore industrious and will fit back into the community after due service of time imposed for the offence. She has been welcomed back forgiven by the cousin brother of the deceased who spoke on behalf of the deceased family. They have accepted the compensation paid as settlement of the matter amongst themselves.
    
11. Prisoner is of the SDA faith and works very closely with the spiritual director in the prison, Acting Chaplain Greg Teine who deposes to that fact by character reference dated 14^th March 2024 favourable for the prisoner. It is the same by Acting station in charge Female Division at the prison, Corporal Anna Baule. There are also four certificates depicting these out confirming that She has turned around and is making amends to her life after the offence. She is getting spiritual as well as intellectual development particularly with the intellectual development with certificate for Stage 1 of reading skills dated 28^th August 2023. A further certificate Survey of the Bible dated 23^rd March 2023. And life skills baking bread buns biscuits and cake, certificate of advanced Baking. She will by these fit back into the community to lead a normal life as these are necessary components that will entail well after service of the prison term.
    
12. I am minded in view of Kovi v The State [2005] PGSC 34; SC789 (31 May 2005) that 13 to 16 years imprisonment is appropriate because I likened the facts here to the second category. A knife has been used here unintentionally committing the crime. It is unplanned on the sudden responding to the deceased actions. And in my view, it would warrant a sentence at the lower end of the scale set out by the guide in Manu Kovi (supra). But it remains prime that a Life of a human being is not cheap by section 35 the right to life. That is mandatory and a fundamental right with the use of the words that it cannot be deprived intentionally. There is nothing exceptional setting out sentence from the ordinary, State v Hagei [2005] PGNC 60; N2913 (21 September 2005). Here I bear in mind the observation made for suspension of sentence in Tardrew, Public Prosecutor [1986] PNGLR 91. There is nothing warranting a sentence other than appropriate by the facts circumstances here: Acting Public Prosecutor v Mailai [1981] PNGLR 258.
    
13. I start with 13 to 16 years imprisonment given holding that range and tariff are not chains to the discretion of the Court but a guide only. The end is the facts and circumstances posed individually: Kumbamong v State [2008] PGSC 51; SC1017 (29 September 2008). The prevalence of the offence imposes upon the Court duty to impose sentences that will punish and have a deterrent effect on like or would be offenders: State v Hurotove [2017] PGNC 114; N6754 (5 June 2017). In manslaughter the Court has emphasized in Tapi v The State [2000] PGSC 2; SC635 (30 March 2000) maintaining that it was the top end of manslaughter cases for 16 years to have been imposed on a husband who had cut up the wife causing massive bleeding from which she died. Here it is the same scene of a husband who is violent prompting what the wife does here. It is not viciousness leading to death as this court held in State v Walus [2005] PGNC 147; N2802 (25 February 2005) 18 years IHL was imposed upon the prisoner who pleaded guilty to assaulting the deceased who sustained a broken neck as well as a ruptured spleen from which she died. Because "Manslaughter is a very serious matter or offence and it carries a maximum penalty of life imprisonment. And the life imprisonment is because a life is gone, and that person is never going to come back. "No matter whose fault it is, the person is dead, and it is tragic.” Marangi v The State [2002] PGSC 15; SC702 (8 November 2002).
    
14. She has spent 3 years 4 months in custody awaiting determination of this matter. That will be deducted from the time imposed for the offence. Each case comes with its own set of facts and circumstances. But it is relevant to consider like offences that have drawn sentences for like offences as in State v Kapoi [2021] PGNC 181; N9021 (13 August 2021) which in my view does not spell out in equal with the facts of the present because the knife blade is imbedded in heart of the deceased who is lunging forward to the prisoner with nothing in his hand, nor is he assaulting the prisoner as is the case here. That sentence will not be on par with the facts here. It would not amount to the scene painted out in State v Kolokolo [2021] PGNC 74; N8849 (26 February 2021), because that is a deliberate attack with the knife stabbing him in the legs leading to his death. Where there is deliberate attack with an offensive weapon it must draw serious consequences set out by the legislature. It cannot be a blanket that will engulf the full impact of what the legislature has prescribed. I am not bound by that decision here given my facts and circumstances. Nor would I be in the case State v Tony [2017] PGNC 125; N6774 (21 April 2017). Both are deliberate use of the knives to cut and inflict the injuries that lead to death, which is not the case here. This is not a case of continuous physical violence over a period of time so that it will fall similar as in State v Nicholson [2016] PGNC 247; N6442 (25 July 2016). Nor would it equate State v Kande [2021] PGNC 251; N9104 (2 September 2021). Because she sets out in response to the deceased call with a knife in preparation for what the deceased was going to do to her. That in my view is a lot serious than the present.
    
15. Yes, she is a first offender who has pleaded guilty but now has taken amends in her prison life backed by the payment of K35,000.00 in the hands of the relatives not hers. Their properties and belongings have also been taken to the tune of K160, 000.00. It was not deliberate but others in the family have also suffered because of that fact, the death of the deceased. He may have contributed to his death, but it does not leave out the fact that he will not return ever, no amount of compensation will bring him back: Lialu v The State [1990] PNGLR 487. All matters for an against is not mathematically defined.
    
16. I determine and consider that weighing the aggravating as well as the mitigating factors of the case that a just and proportionate sentence against the prisoner would be 13 years IHL. 3 years 4 months will be deducted forthwith for time in custody. The balance of 9 years 6 months will be served in jail. I do not make any further deductions from that head sentence in view of the fact that, an offender must bear personal responsibility for the crime. The family will not pay the prisoners way out of jail. The haves will pay their way out of jail, the have nots will remain in jail. The sentence to be served in jail is 9 years 6 months in IHL forthwith.
    

Sentenced accordingly.

Public Prosecutor: Lawyers for the State

Public Solicitor: Lawyers for the Defendant