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State v Gabriel [2003] PGNC 115; N2378 (25 February 2003)

N2378

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 292 of 2003

THE STATE

-V-

CLARA JOHN GABRIEL

Mt. Hagen: Jalina J
2003: 24 and 25 February.

CRIMINAL LAW – Unlawful killing – Sentence – Sentence for unlawful killing with dangerous weapons should be higher than unlawful killing from rupture of spleen through single kick or punch – Criminal Code s.302.

Cases cited:
The State –v- Aipani Elekane, Unreported Judgement from CR 405/2001 (Wabag)
Noring John –v- The State, Unreported Supreme Court Judgment from SCRA 14/02
The State –v- Rex Lialu, [1990] PNGLR 487
The State –v- Samuel Benimo, Unreported Judgment N2201
The State –v- Titus Wambun, Unreported Judgment N2311.

Counsel:
J. Kesan for the State,
B. Aipe for the Prisoner.

25th February, 2003

SENTENCE

JALINA J: This prisoner has pleaded guilty to a charge that she unlawfully killed one Jenny John Noah at Kindeng in the Western Highlands Province on 8th November, 2002.

The prisoner is the first wife of her husband and according to her statement in the District Court the victim was having an affair with her husband even though the victim herself was married.

And according to her statement to the police in the record of interview they have fought previously over her husband and the victim having extra marital affairs. On the day of the incident she waited for her husband but when he failed to arrive home at the time she expected him to be home, she took a knife and walked towards Kindeng Market. On the way she met her husband with the victim and another woman so she argued with the victim and later the argument developed into a fight. In the course of the fight she stabbed the deceased once on the right hand side of the neck with a kitchen knife. The deceased did not put up a fight soon after and was rushed to Mt. Hagen General Hospital but died about an hour later. The cause of death according to the medical report was from uncontrolled blood loss (haemorrhage) due to severe laceration to major blood vessels including artery and vein.

The maximum penalty for the offence of manslaughter is life imprisonment under s.302 of the Criminal Code subject to the Court’s discretion to impose a lesser sentence under s.19 of the Code.

The courts have imposed sentences varying from 6-10 years for manslaughter but recent sentencing trends have been in the range of 12 and 20 years due to the fact that the offence is serious though unintentional and that sanctity of human life must be respected. This offence is also becoming prevalent.

Mr. Aipe has referred me to a number of cases where sentences of between 9 and 12 years were imposed for manslaughter. They include The State –v- Aipani Elekane CR 405/2001 where I sentenced the co-wife in Wabag to 12 years for killing a co-wife with a knife. In Noring John –v- The State (see file SCRA 14/02) the Supreme Court reduced the sentence of a co-wife who killed a co-wife by stabbing her with a knife from 9 years to 7 years.

But I have in recent times sought to differentiate the sentences for manslaughter depending on the circumstances in which the death of the deceased was brought about much in line with what the Supreme Court said in Rex Lialu –v- The State [1990] PNGLR 487. In other words sentences for manslaughter where a dangerous weapon such as an axe or knife is used against the deceased would be much higher than sentences for manslaughter from rupture of spleen through a single punch or kick to the abdominal area not withstanding that a persons life may have been lost. Thus in The State –v- Samuel Benimo Unreported Judgment N2201 handed down in Popondetta by me on 18 April 2002 where the prisoner attacked the deceased with a grassknife I said:

"I would consider unlawful killing through the use of a weapon to be more serious than unlawful killing say through a kick resulting in the rupture of the spleen. Unlawful killing through the use of a dangerous and life threatening weapon such as a bushknife, grass knife, axe and so on to my mind indicates determination and total disregard for the risk of death or causing bodily injury to the victim and as such a higher sentence than that normally imposed for spleen death manslaughter would be warranted."

I sentenced the prisoner to 12 years imprisonment.

In the State –v- Titus Wambun Unreported Judgement N2311 dated 20th November, 2002 I sentenced the prisoner to 20 years imprisonment for unlawfully killing an off duty policeman with a pistol in Lae.

In the present case, the prisoner armed herself with a kitchen knife and set out to look for her husband and the deceased and she attacked the deceased in the course of a fight but the deceased was unarmed and the use of the knife was not warranted. The prisoner’s life was not in danger. As I said, the conduct of the prisoner in this case when she set out to look for her husband and the deceased whilst armed with a dangerous weapon like the kitchen knife showed determination to harm and lack of respect for human life and limb.

The prisoner may have been attacked by the deceased earlier but again it was no justification for use of the knife on this particular day. In considering the sentence I should impose I note that she has expressed remorse, has no prior convictions and that her two children will be left behind without motherly love and care. It is not clear whether her husband would take care of her children.

I also note that there is provocation in the non-legal sense and that some compensation has been paid to the deceased’s relatives.

In all the circumstances of this case particularly bearing in mind that death and injury through fights among co-wives is becoming prevalent and needs to be reduced if they cannot be stamped out completely and one way this could be done in thorough imposition of custodial sentences, the sentence I consider appropriate in all the circumstances is a period of 10 years in light labour which I so impose.

I deduct from that sentence the 3 months and 2 weeks she has spent in custody which leaves 9 years 8 months and 2 weeks she will have to serve at Baisu Corrective Institution.
______________________________________________________________________
Lawyer for the State: Public Prosecutor
Lawyer for the Prisoner: Public Solicitor