N2168

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1710 of 2001

THE STATE

-V-

ODDILYA HURAYUA

WEWAK: KANDAKASI, J.
2001: 12th December

CRIMINAL LAW - Sentence – Manslaughter – Fight over common boyfriend – Deceased started the fight leading to her death – Deep penetrating wound to the heart through the chest area with a pocket knife– The heart failed and the deceased died despite medical attempts to resuscitate the heart -Guilty plea – No prior convictions – Prisoner over reacted to attack on her by the deceased - Sentence of 5 years in light labour imposed – Criminal Code ss. 302 & 19.

Cases cited:
The State v. Jonathan Apamba Wangu (CR 544 of 2001)
The State v. Ngetto Rex Rongo (unreported judgement delivered 20/12/00) N2035
The State v. Laura (No. 2) [1988-89] PNGLR 98
The State v. Maria Er N1749

Counsel:
M. Ruarri for the State 
G. Korei for the Accused

12th December, 2001

DECISION ON SENTENCE

KANDAKASI J: 	You pleaded guilty this morning to one count of unlawful killing of one Wendy Huranangu contrary to section 302 of the Criminal Code. The evidence produced against you by the State including your record of interview with the police supported your guilty plea. So I accepted your guilty plea and then convicted you of having committed the offence. 

The Facts 

The tragic lost of the life of the deceased came about on the 24th of September 2001, following a fight between you and the deceased on the 23rd of September 2001. The fight was over a common boyfriend, you and the deceased had. There were two fights that day over the boyfriend. The first took place during the day at Yarabos Primary School. You started that fight. After the first fight, the deceased went to her house, which is at the Wom junction. 

When the deceased got to her house at the Wom junction she waited for you to turn up to retaliate your fight with her at Yarabos Primary School. You got the Wom junction toward the evening around 6:30 and 7:00pm. When you got there, the deceased asked you about the first fight at Yarabos Primary School and a fight between you and the deceased erupted. 

The fight resulted in your being forced to the ground and the deceased landing on top of you. Whilst on top of you, the deceased swung at you and continue to hit you. You of course, fought back. In the process, you used a pocketknife you had with you. You stubbed the deceased in her chest area. The knife penetrated into the deceased internal parts of the body, particular the heart seriously damaging it. You also inflicted other knife wound injuries to other parts of the deceased body including the back. 

After you had seriously injured the deceased, you were able to free yourself from the deceased. Soon thereafter, the deceased was taken to the hospital where she was admitted. The deceased was give appropriate medical attention and treatment. That included a number of medical procedures aimed at saving her life. However, the injuries you caused were serious that her life could not be save even though the medical doctors tried all they could to save her. 

The Law

The offence of unlawful killing and its penalty is prescribed by section 302 of the Criminal Code. It prescribes a maximum penalty of life imprisonment. The offence is therefore a very serious one, regardless of how it is committed. The section in relevant parts prescribes the offence and the penalty in these terms:

"302.	Manslaughter.

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."

As I said this morning in the case of The State v. Jonathan Apamba Wangu (CR 544 of 2001), it is trite law that the maximum penalty for any offence must be reserved for the worse type of the offence under consideration. There are many cases on that point. I mentioned some of them in my judgement in The State v. Andrew Keake (unreported judgement delivered on 27/02/01) N2097 at pp. 3 - 6.

Your lawyer has submitted without any challenge from the State that, your case does not fall in the worse type of unlawful killing or manslaughter cases, warranting an imposition of the maximum penalty of life imprisonment. That does not mean however that the offence you committed is not a serious one. Instead it is a serious offence. That is why, the maximum penalty prescribed is life imprisonment. 

Submissions

I am urged to consider and I note that the two fights were over a common boyfriend. You started the first fight and the deceased started the second one. Had it not been for the deceased starting the second fight you would not have stubbed the deceased in the way you have. You are a first time offender with no prior convictions. You freely pleaded guilty to the charge, a position you maintained from the very beginning. You therefore, cooperated with the police and now this Court. That has resulted in the saving of a lot of time and expenses for all concerned. You have expressed genuine remorse and sorrow for the lost of a human life you brought upon the society generally and the relatives of the deceased in particular. I also note that you are a single lady, 21 years of age.

The reason for the fight and the eventual death of the deceased did not justify the lost of the deceased life. The common boyfriend you and the deceased had was not the only person around. Either of you could have easily found another man for a boyfriend. Being young and single as your are and working as a shop assistant after completing grade 8 formal education, you would not had any difficulty finding another boyfriend. Yet you proceeded has if the common boyfriend was the only person you could be friend and justify the lost of another’s life. 

The law does not permit the killing of another human life in this kind of setting. Indeed Parliament in enacting section 302 of the Criminal code considered such a killing unlawful and a very serious offence. At the same time however, Parliament gave the Courts a wide discretion under s.19 of the Criminal Code to impose a term of imprisonment that is less then the prescribed maximum sentence of life imprisonment. This is because the circumstances in which a person could kill another can not be the same. In some cases, the circumstance may be serious whilst in others, it may be less serious. I am bound to consider and follow past judgements of the Supreme and the National Court unless there is a valid reason to depart from them.

Case Precedents 

Your lawyer has drawn my attention to a case in which my brother Justice Sawong imposed a term of 5 years against a prisoner. That was in an husband and wife fight were one of them was on the ground and the other was on top and in a bid to get away from the person on top, the person on the ground used a knife to stub the person on top. 

On my part I have imposed terms of 6 years in similar settings as in The State v. Ngetto Rex Rongo (unreported judgement delivered 20/12/00) N2035. In that case I found that the prisoner unlawfully killed his wife following an argument over some valueless cooking utensils. The prisoner had no intention of killing the wife but death resulted from the injuries he inflicted upon the deceased. Before arriving at that decision I had considered the guidelines in murder cases set by The State v. Laura (No. 2) [1988-89] PNGLR 98, and manslaughter cases like that of The State v. Maria Er N1749.

In the last mentioned case, the prisoner stabbed and hence caused the death of a woman whom she believed was seeing her husband. Before she did that, the deceased spit on her, which made her angry and do what she did. After reviewing the sentencing trend in this type of cases, the Court in that case, imposed a term of 7 years in light labour.

Your Case

In your case, I find that the fight you started finished some hours back. But the deceased did not consider it finished. So she waited for you to turn up near her house. When you did turn up, she attacked you. You fought back and in the process you inflicted serious knife wounds to the deceased resulting in serious damages to the deceased heart. She died as a consequence of that. As I already said, the cause of the fight did not justify the lost of a human life. You could have easily found a new boyfriend. It was not a case of you not having any choice. Instead you proceeded as if the boyfriend you fought over was the only person around. The reality of the situation is that, there a lot of other young men. You could easily be friend one of them rather than fight over just one man between yourself and the deceased.

As I said in my judgement this morning in The State v. Jonathan Apamba Wangu (CR 544 of 2001),

"… the law prohibits unlawful killing. Life is sacred and is a gift from God. No human has made a human being although it takes a man a woman to conceive a child. Here I am speaking in terms of that which causes a sperm cell and an egg cell to form into an embryo and eventually a human being. God is responsible for that process and in that respect, it is a gift from God. God the creator calls on all people to love and respect each other and live in peace and harmony. Yet the created beings assume the position of God and destroyed what he has created." 

The Courts have repeatedly warned that people who take the lives of others for whatever reason must be severely dealt with. Since then, the number of murder cases have not stopped. Instead they are on the increase with many people taking the law into their own hands. Society is therefore calling for severe penalties to be imposed with a view to deter other would be offenders.

Taking all of the above opposing but equally important factors into account, I consider the sentence proposed by your counsel without any contest from the State is appropriate. Hence I accept the submission that, you be given a sentence of 5 years to be served in light labour. Of course, the period you have already spent in custody will be deducted and you will serve the balance of the term in light labour at the Boram CIS and I so order. 
______________________________________________________________________
Lawyer for the State: 		Public Prosecutor
Lawyer for the Accused:	The Public Solicitor