N4110

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NO 137 OF 2008

THE STATE

V

REGINA JAKO

Madang: Cannings J
2010: 18 February, 18 March, 22 April

CRIMINAL LAW – sentencing – manslaughter, Criminal Code, Section 302 – sentence after guilty plea – victim, a 23-year-old co-wife of offender – stabbing death – sentence of 12 years.

The female offender was a co-wife of a man, sharing him as a husband with the victim. She and the victim were living in the same residence and had a history of quarrelling. They argued and the offender stabbed the victim three times with a kitchen knife and the victim died shortly afterwards. The offender pleaded guilty to manslaughter.

Held:

(1)	The starting point for sentencing for this sort of killing, a vicious attack involving an offensive weapon, is 13 to 16 years imprisonment.

(2)	There were a number of mitigating factors, including the guilty plea, the offender had no prior convictions, the offender was under emotional stress.

(3)	A sentence of 12 years imprisonment was imposed. The pre-sentence period in custody was deducted and three years of the sentence was suspended.

Cases cited

The following cases are cited in the judgment:

Manu Kovi v The State (2005) SC789
The State v Joyce Yomi CR No 348 of 2008, 16.10.08
The State v Lien Kaingi CR No 1119 of 2006, 19.12.06
The State v Vincent Matana Laore and 3 Others CR No 915 of 2005, 24.04.08
Saperus Yalibakut v The State (2006) SC890

SENTENCE

This was a judgment on sentence for manslaughter.

Counsel

A Kupmain & N Goodenough, for the State
D Joseph, for the offender

22 April, 2010 

1. CANNINGS J: This is a decision on sentence for a young Western Highlands woman, Regina Jako, who has pleaded guilty to the manslaughter of her co-wife, Elish Jako, also from Western Highlands. The offender and the victim shared the one husband, Joe Jako, the Jail Commander of Beon Jail, Madang Province, and they were all living together at a guesthouse in Madang town when the offence was committed on 17 July 2007. The offender and the victim had a history of quarrelling. The offender was feeling unwell, and an argument developed between the two of them that resulted in her stabbing the victim three times with a small kitchen knife. The victim was rushed to hospital but died of loss of blood soon afterwards.

ANTECEDENTS

2. The offender has no prior convictions.

ALLOCUTUS

3. The offender was given the opportunity to address the court. She said:

I apologise to the court and to God. I did not mean to take the life of that woman. I just wanted to hurt her, but she died. I extend my sorrow to her immediate and extended family and to her two children and to our husband.

This problem is all the fault of our husband. He misled me by coming to my village to take me as his wife and telling me that he had divorced his wife. We had a customary marriage ceremony in the village and he took me to Port Moresby to live and I became pregnant with my first child. I did not realise that he had another wife until he sent for her and brought her to live with us in the same house at Bomana. Things did not work out well and she and I quarrelled and fought. My husband used to take sides and he began assaulting me, on one occasion breaking my nose. I felt shame, so I left Bomana, moved to a settlement in Port Moresby and then went back to the village. I stayed for nine months and then my husband came to the village to say that he had been transferred to Madang and wanted me and my child to move to Madang. I was reluctant to come but I trusted the law and I came here. I stayed for two months and became pregnant with my second child and then my husband brought his other wife [the victim, Elish] here also. He put us together in the Dalcrest Guesthouse but we had the same problems as at Bomana: we argued, he took sides and would always give her more money on his fortnight paydays.

At the time of the incident, my family from the village were staying with us for a few days. My husband came home from work. I was feeling unwell but he wanted me and Elish to go to Sagalau Market to do some shopping. I told him I did not want to go as I was feeling unwell, I just wanted to rest. Elish told him I was just pretending to be sick, then he got angry with me, swore at me and told me that I should just go outside and die on the street. He threw a basket at me as I was lying down. I thought I had done nothing wrong but then I got angry with Elish. We argued and fought in the room. I thought about how hard my life had become and I stabbed her.

My husband has since taken another wife. He still wants me as his wife but the same problems are happening again. He takes sides and does not care about me and my two children. If I go to prison the other woman will not take care of my children. My lawyer will explain how much compensation my people have paid. I say sorry again for what has happened and ask for the court's mercy and probation.

OTHER MATTERS OF FACT

4. As the offender has pleaded guilty she will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State (2006) SC890). In that regard, I will take into account the following matters:

•	The offender was in a difficult, stressful and dysfunctional domestic setting.
•	Immediately prior to the incident, she was involved in an argument with her husband and also the victim.
•	She made full admissions to the police when interviewed.
•	She has co-operated well with the police and the court.

PRE-SENTENCE REPORT

5. I received a pre-sentence report from the Community Corrections and Rehabilitation Service. Regina Jako is from Olubus village in the Minj District. She is the first-born in a family of three. Her parents are alive and are willing to support her. Family relationships are strong. She has a grade 10 education. She has no formal employment record. Her health is sound. She is now aged 26. She was aged 23 – the same age as the victim – at the time of the offence. The offender's father, Peter Une, says that a lot of effort has been put into reconciling with the victim's relatives, including payment of compensation comprising K3,000.00 cash, 14 pigs and food.

6. The offender's husband, Joe Jako – also the husband of the deceased – says that he is disgusted by what the offender did. She has not expressed genuine remorse and is still aggressive towards him. He fears that she may re-offend if she is not imprisoned. A prison sentence is required to quell tension between different tribal groups, he says.

SUBMISSIONS BY DEFENCE COUNSEL

7. Mr Joseph submitted that the case fell within the first (least serious) category of the guidelines given by the Supreme Court in the case of Manu Kovi v The State (2005) SC789 and therefore the starting point should be in the range of 8 to 12 years. He submitted that the sentence should be at the bottom of the range – eight years – because of the strength of the mitigating factors. There was a de facto provocation on the part of the deceased who claimed that the offender was pretending to be sick, and this was the trigger to the argument which led to the offender losing control. The offender had been placed in a very stressful situation due to the actions of her husband. It was a one-on-one killing, the offender had no previous convictions and she pleaded guilty. Also there has been a serious attempt to reconcile with the deceased's relatives and substantial compensation has been paid.

SUBMISSIONS BY THE STATE

8. Mr Kupmain, for the State, conceded that the offender had been through a lot of emotional stress and agreed that this could be taken into account to a limited extent as a mitigating factor. However, he did not agree that the case fell within the least serious category of manslaughter cases. The case fell within the second category of the Manu Kovi guidelines as the offender had inflicted death by a lethal weapon and stabbed the deceased three times, and this showed a deliberate intention to injure the victim. He submitted that a sentence of 12 to 15 years should be imposed.

DECISION MAKING PROCESS

9. To determine the appropriate penalty I will adopt the following decision making process:

•	step 1: what is the maximum penalty?
•	step 2: what is a proper starting point?
•	step 3: what other sentences have been imposed for similar offences?
•	step 4: what should the head sentence be?
•	step 5: should the pre-sentence period in custody be deducted?
•	step 6: should all or part of the sentence be suspended?

STEP 1: WHAT IS THE MAXIMUM PENALTY?

10. The maximum penalty for manslaughter under Section 302 of the Criminal Code is life imprisonment. The National Court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code.

STEP 2: WHAT IS A PROPER STARTING POINT?

11. In Manu Kovi v The State (2005) SC789 the Supreme Court suggested that manslaughter convictions could be put in four categories of increasing seriousness, as shown in table 1.

TABLE 1: SENTENCING GUIDELINES FOR MANSLAUGHTER DERIVED FROM THE SUPREME COURT'S DECISION IN MANU KOVI'S CASE

No	Description	Details	Tariff	
1	Plea – ordinary cases – mitigating factors – no aggravating factors.	No weapons used – offender emotionally under stress – de facto provocation – killing in domestic setting – killing follows straight after argument – minimal force used – victim had pre-existing disease that caused or accelerated death, eg enlarged spleen cases.	8-12 years	

2	Trial or plea – mitigating factors with aggravating factors.	Use of offensive weapon, eg knife, on vulnerable parts of body – vicious attack – multiple injuries – some deliberate intention to harm – some pre-planning.	13-16 years	
3	Trial or plea – special aggravating factors – mitigating factors reduced in weight or rendered insignificant by gravity of offence.	Dangerous or offensive weapon used, eg gun, axe – vicious and planned attack – deliberate intention to harm – little or no regard for sanctity of human life.	17-25 years	
4	Worst case – trial or plea – special aggravating factors – no extenuating circumstances – no mitigating factors, or mitigating factors rendered completely insignificant by gravity of offence.	Some element of viciousness and brutality – some pre-planning and pre-meditation – killing of harmless, innocent person – complete disregard for human life.	Life imprisonment	

12. I agree with the prosecutor that the manner in which death was inflicted – three stab wounds with a knife – prevent the case falling within the least serious category. There are both mitigating and aggravating factors and death was caused by an offensive weapon, so it falls within category No 2. The starting point is 13 to 16 years.

STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED FOR SIMILAR OFFENCES?

13. There are several aspects of this case that make it similar to two recent West New Britain cases I have dealt with, The State v Lien Kaingi CR No 1119 of 2006, 19.12.06 and The State v Joyce Yomi CR No 348 of 2008, 16.10.08. In both cases the female offenders pleaded guilty to the manslaughter of other females of similar age who they killed by stabbing them.

14. In Kaingi the victim was the offender's younger sister, who the offender accused of having an affair with her husband. The sentence imposed was 10 years imprisonment.

15. In Yomi the victim was not related to the offender but, again, a woman whom the offender suspected was having an affair with her husband. This was dealt with as a significantly more serious case than Kaingi as the offender staged a surprise, planned attack on the victim, and was in the company of four other women. The sentence imposed was 14 years imprisonment.

STEP 4: WHAT IS THE HEAD SENTENCE?

16. I refer to the list of sentencing considerations set out in The State v Vincent Matana Laore and 3 Others CR No 915 of 2005, 24.04.08 and highlight the following mitigating and aggravating factors.

16. Mitigating factors:

•	It was a spontaneous, not planned, incident.
•	The offender made early admissions to the police.
•	She was a young woman at the time who had been placed in a difficult, stressful and dysfunctional domestic setting.
•	The offender has no prior convictions.
•	Genuine efforts have been made to reconcile with the deceased's relatives and pay compensation in accordance with custom.
•	She pleaded guilty. 
•	She expressed remorse.

17. I reject the defence counsel's submission that the deceased provided provocation by accusing the offender of pretending to be sick. This is the sort of thing that people say to each other in the course of an argument. It should not be regarded as a mitigating factor in a homicide case.

18. Aggravating factors:

•	It was a vicious attack, exhibited by the offender inflicting three separate stab wounds.
•	A kitchen knife which is a lethal weapon was used.

19. I reject the defence counsel's submission that a sentence as low as eight years is warranted. That sort of sentence should be reserved for a case where an offender has inflicted a single sharp blow with a part of the body, such as a fist. After weighing all these factors, comparing this case with others, particularly the cases of Lien Kaingi and Joyce Yomi the head sentence should be between the sentences in those cases and just below the bottom of the starting point range. I impose a head sentence of 12 years imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

20. Yes. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the head sentence, the whole of the pre-sentence period in custody, which is ten months.

STEP 6: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

21. This is a tragic case. A young woman's life has been lost, needlessly and viciously. The offender has attempted to deflect blame for what happened to the husband who she shared with the victim. Many people with knowledge of the facts of this case may well agree with her. However, the husband is not before the court to be sentenced and he was not the one who stabbed the victim to death. It is the offender, Regina Jako, who must be given an appropriate sentence. She is genuinely concerned about the welfare of her two young children and the difficulties they would face in being raised without their mother's immediate nurturing is perhaps the best reason available for imposing a fully suspended sentence.

22. However, as I have said in other cases, to impose a fully suspended sentence would have the effect of cheapening the value of human life. The offender must be imprisoned. Only by imposing a prison term will the court be able to signify the gravity of the offence.

23. That said, because she has a fundamentally sound pre-sentence report and a good record of co-operating with the police and the court, I will suspend three years of the sentence on the following conditions:

1.	must within three days after release from custody report to the Probation Office in Mt Hagen;

2.	must reside at a place to be nominated by the National Court and nowhere else except with the written approval of the National Court;

3.	must not leave her home province without the written approval of the National Court;

4.	must perform at least six hours unpaid community work in accordance with a program approved by the National Court;

5.	must attend church every weekend for service and worship and assist the church in its community activities;

6.	must not consume alcohol or drugs;

7.	must keep the peace and be of good behaviour;

8.	must have a satisfactory probation report submitted to the National Court Registry at Madang every six months after the date of release from custody; 

9.	if the offender breaches any one or more of the above conditions, she shall be brought before the National Court to show cause why she should not be re-detained in custody to serve the rest of the sentence.

24. The offender has expressed a desire, in the event that she is given a prison term, to be imprisoned at Baisu Jail, Western Highlands, and I will make an order to that effect.

SENTENCE

25. Regina Jako, having been convicted of one count of manslaughter under Section 302 of the Criminal Code, is sentenced as follows:

Length of sentence imposed	12 years	
Pre-sentence period to be deducted	10 months	
Resultant length of sentence to be served	11 years, 2 months	
Amount of sentence suspended	3 years	
Time to be served in custody	8 years, 2 months	
Place of custody	Baisu Correctional Institution, to where she must be transferred within 30 days after the date of sentence	

Sentenced accordingly.
_________________________
Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyers for the offender