N4135

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NO 1314 OF 2009

THE STATE

V

JOSEPHINE LAS NINJIPA

Minj: Makail, J
2010: 20th, 21st & 23rd September

CRIMINAL LAW - Plea - Sentence - Manslaughter - Killing arising from domestic setting - Prescribed maximum penalty of life imprisonment - Aggravating factors and mitigating factors considered - Presence of strong mitigating factor - De-facto provocation - History of domestic violence and abuse - Custodial sentence appropriate - Personal and public deterrence - 9 years imprisonment imposed less time spent in pre-sentence custody - Criminal Code, Ch 262 - Sections 19 & 302.

Cases cited:

The State -v- Anita Kelly (2009) N3624
Manu Kovi -v- The State (2005) SC789
The State -v- Carol Alfred (2009) N3602

Counsel:

Mr M Ruari, for the State
Mr F Kua, for Prisoner

SENTENCE

23rd September, 2010

1. MAKAIL, J: The prisoner pleaded guilty to one count of manslaughter under section 302 of the Criminal Code, Ch 262. She killed her husband by stabbing him with a kitchen knife during a fight at Komun market in Anglimp on the evening of 22nd July 2009. The killing arose from a domestic argument between her and her husband over money. At that time, she was selling food and other items at the market. Her husband was drunk, walked up to her and started an argument. He assaulted her. She retaliated and stabbed him on the chest with the kitchen knife. He lost a lot of blood and died. The offence carries a prescribed maximum penalty of life imprisonment. However, the Court is given wide discretion to impose a lesser penalty by virtue of its powers under section 19 of the Criminal Code, Ch 262.

2. I have considered the facts and submissions of both counsel, including the prisoner's statement on her allocutus and I think this is a straight forward case. This is another one of those unfortunate cases where someone's life has been unnecessarily and prematurely terminated by another. The sanctity of human life is more precious and valuable than gold or silver and no amount of compensation or remorse can compensate it. A death is a death and a killing is a killing. A person's life is lost forever. It cannot be recovered or returned: see The State -v- Anita Kelly (2009) N3624 at p 9. 

3. I accept the submissions of the prisoner's counsel that this is not a worst case of manslaughter. That means the prescribed maximum penalty of life imprisonment is inappropriate in this case for it is trite law that the maximum penalty is reserved for the worst case under consideration. On the facts and noting the presence of aggravating and mitigating factors, I consider this case falls between the first and second categories of manslaughter cases as per the sentencing guidelines in Manu Kovi-v- The State (2005) SC789.

4. In the first category, a sentence of between 8 and 12 years imprisonment is appropriate where the prisoner pleads guilty, no weapon is used in the killing, the prisoner is emotionally under stress, there is presence of de-facto provocation, the killing arises from domestic setting, following immediately after an argument, there is minimal force used and the victim has pre-existing disease that caused or accelerated the death. In the second category, a sentence of 13 to 16 years imprisonment is appropriate. In this category, it may be a not guilty plea or a guilty plea case with presence of both mitigating and aggravating factors such as use of offensive weapons, eg knife on vulnerable parts of body, vicious attack, multiple injuries, some deliberate intention to harm and some pre-planning.

5. In the present case, there are a number of mitigating factors present. They are:

-	Plea of guilty, thus saving time and money to conduct a trial;
-	First offender with no prior convictions;
-	Apology and remorseful to God, the Court and the relatives of the deceased;
-	Single blow from a kitchen knife;
-	Single wound;
-	Presence of strong de-facto provocation;
-	Constant abuse by deceased;
-	No pre-planning; and
-	No deliberate intention to harm.

6. In addition, I take into account that the prisoner is from Anda village and is 32 years old. She was married to the deceased immediately preceding his death and has four children. Three of them are aged 11, 8 and 5 while the fourth is 9 months, having been born at Baisu remand centre during her detention. That child is currently living with her at Baisu remand centre. She is the fourth born in the family of five and completed Grade 5 at Anglimb community school. She is a member of the PNG Revival Church of Mt Hagen. She said and I accept that her line had paid customary compensation to the deceased's line. As to the details, I do not know because she did not say. Finally, she has been in custody for 1 year, 1 month, 1 week and 5 days. 

7. The aggravating factors are:

-	Prevalence of the offence; and
-	Use of kitchen knife.

8. I look at past cases to guide me to reach an appropriate sentence which would be fair and proportionate to the offence. Two cases that immediately come to mind are, The State -v- Carol Alfred (2009) N3602 and Anita Kelly (supra) which were decided by me last year. In Carol Alfred's case (supra), I sentenced the prisoner to 10 years imprisonment because the mitigating factors out weighed the aggravating factors. It was a killing from a domestic setting. The prisoner killed her husband who was a policeman at Yame village in Kagua of Southern Highlands Province. She stabbed him with a kitchen knife on his thigh during a fight. He lost a lot of blood and died. The deceased assaulted the prisoner because she failed to prepare dinner for him. I found that the killing was accidental and there was no pre-planning. She and her line paid customary compensation of K15,000.00 and 40 pigs to the line of the deceased.

9. The Anita Kelly's case (supra) was, in my view more serious than Carol Alfred's case (supra). It was also a killing from a domestic setting. This is because the prisoner stabbed a co-wife of her husband with a kitchen knife on the neck and she died. It was a surprise attack with some element of viciousness and pre-planning. There was also presence of very strong de-facto provocation and history of domestic violence and wife abuse of the prisoner by her husband. Her husband deserted her and the children. She had to fend for herself and the children. I sentenced her to 12 years imprisonment.

10. In the present case, except for the prevalence of the offence and use of a kitchen knife to stab the deceased, I find this case less serious than Anita Kelly's case (supra) because of the presence of those mitigating factors above. I consider it similar in many respects to the case of Carol Alfred (supra). I said similar in many respects because like in Carol Alfred's case (supra), the prisoner in the present case killed her husband by stabbing him with a kitchen knife during a fight. In both cases, the deceased were the instigator of the fight. In this case, the deceased was drunk and started the fight when the prisoner did not give him money. She retaliated and stabbed him in an attempt to defend herself. The deceased in Carol Alfred's case (supra) also did something similar, in that he assaulted the prisoner for not preparing dinner. It was accidental with no pre-planning. Also, like in Carol Alfred's case (supra), she and her line paid customary compensation to the deceased's line. 

11. The only difference though is, unlike Carol Alfred's case (supra) where there was no history of domestic violence and abuse, the prisoner in this case was a victim of constant domestic violence and abuse. At that time, she said the deceased was drunk and approached her at the market where she was selling food and other stuff. He demanded her to give money and she refused. He assaulted her and she retaliated by stabbing him with the kitchen knife. I consider the constant abuse of the prisoner by the deceased a strong mitigating factor.

12. Taking all these mitigating and aggravating factors into account, and the sentences I have imposed in the cases of Carol Alfred (supra) and Anita Kelly (supra), I consider a sentence of 9 years appropriate in the circumstances. It will act as a personal deterrence and also a public deterrence to those likely offenders out there. It will send a strong message to them that people who commit this offence can be put into prison for a very long time. As she has spent 1 year, 1 month, 1 week and 5 days in pre-sentence custody, I will round it up to 1 year and 2 months and deduct that period from the head sentence of 9 years. That leaves a balance of 7 years and 10 months to serve at Baisu prison. A warrant of commitment in those terms will be issued in due course.

Sentence accordingly.
____________________________________
Acting Public Prosecutor: Lawyers for the State
Paul Paraka Lawyers: Lawyers for Prisoner