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State v Piro [2011] PGNC 144; N4410 (6 October 2011)

N4410

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 47 OF 2011

THE STATE

V

ASI PIRO

Madang: Cannings J
2011: 16 August, 21, 22 September, 6 October

SENTENCE

CRIMINAL LAW – sentencing – manslaughter, Criminal Code, Section 302 – sentence after guilty plea – offender killed husband by stabbing during a domestic dispute – sentence of 10 years.

The offender pleaded guilty to unlawfully killing her husband by stabbing him in the chest during the course of an argument. Immediately before he was stabbed the deceased had thrown a plate of food at the offender. She expressed remorse and said that there was no history of violence in the marriage. A process of reconciliation with the deceased's relatives is well advanced.

Held:

(1) The starting point for sentencing for this sort of killing (use of offensive weapon on vulnerable part of body) is 13 to 16 years imprisonment.

(2) The circumstances leading up to the incident and the nature of the incident itself were strong mitigating factors that warranted a sentence below the starting point range.

(3) A sentence of 10 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
Saperus Yalibakut v The State (2006) SC890
The State v Elizabeth Gul, CR No 375 of 2005, 09.05.05
The State v Jenny Dei (2011) N4231
The State v Kila Peter (2006) N3018

SENTENCE

This was a judgment on sentence for manslaughter.

Counsel

J Wala & M Pil, for the State
A Turi & J Mesa, for the offender

6 October, 2011

1. CANNINGS J: This is a decision on sentence for Asi Piro who has pleaded guilty to the manslaughter of her husband, Yakep Tandep. The incident happened between 6.00 and 6.30 pm on Saturday 10 April 2010 at Warias Field in the Ramu Sugar estate, Madang Province, where the couple lived and worked. The offender argued with her husband over his alleged affair with another woman and in the course of the argument stabbed him in the chest with a kitchen knife, killing him almost instantly. It was an unlawful killing and the offender has been convicted of the offence of manslaughter under Section 302 of the Criminal Code.

ANTECEDENTS

2. The offender has no prior convictions.

ALLOCUTUS

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

My husband and I had a good marriage. We never fought or quarrelled before this incident but on the day in question I saw him walking around drinking with a lady and three men and he was buying them cigarettes in the market. When he came to the house with these people I questioned him why he was wasting our money on drinking when we had our only child in his first year at university. He then threw a plate of food over my face and hit me with a hammer. I felt dizzy and swung my bilum at him, not realising that a knife was inside it and the knife caught him in the chest. He collapsed and was taken to hospital and I ran away and was told later that my husband had died. I did not mean to kill him. My family have paid bel kol and there is a plan in place to pay compensation later this year. I apologise to my late husband for what I did and say sorry to his family and to my son. I have spoiled his future and I do not know what has become of him. I ask for mercy and a non-custodial sentence.

PRE-SENTENCE REPORT

4. I received a pre-sentence report from the Community Corrections and Rehabilitation Service. Asi Piro is aged 46. She is from Wapi village in the Kandep district of Enga Province. She comes from a large family and her parents are living in the village. The family remains strongly supportive of her. She had a stable marriage of 24 years. She has no formal education. She was employed as a housekeeper in a company manager's residence at Ramu Sugar. She is a member of the Seventh-Day Adventist Church. Her health is sound. Her relatives have paid bel kol of K3,000.00 cash + pigs to the deceased's relatives and the process of reconciliation between the two groups is well advanced. Full compensation of K10,000.00 + more pigs and final reconciliation is due to take place next month. The report concludes that she is suitable for probation.

OTHER MATTERS OF FACT

5. 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:

• this was a spontaneous, unplanned and one-off incident, something that was out of character for the offender to be involved in;
• she reacted in the heat of the moment retaliating to an uncharacteristic assault against her by her husband;
• the offender made a number of admissions to the police when interviewed;
• the process of reconciliation with the deceased's relatives is well advanced.
  

6. I do not accept the version of events that the offender gave in allocutus, when she said that the knife was in her bilum and she only swung the bilum at her husband, not realising that the knife was inside. This cannot be believed. The deceased suffered a 13-cm deep knife wound to the chest, which indicated that he was deliberately stabbed, and this version of events is consistent with the facts put to the offender upon arraignment and is supported by statements of the deceased's friends who witnessed the incident, which are included in the depositions.

SUBMISSIONS BY DEFENCE COUNSEL

7. Ms Turi 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. Because of the spontaneousness of the incident, something that happened which was out of character for both the offender and the deceased, a sentence of no more than eight years imprisonment should be imposed.

SUBMISSIONS BY THE STATE

8. Mr Pil, for the State, did not agree that this is a category 1 case according to the Kovi guidelines and submitted that the use of the knife showed an element of intention and pre-planning, warranting a sentence of 12 years.

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 the following table.

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

12. I uphold the submission of the State that this is not a category 1 case. The use of an offensive weapon on a vulnerable part of the body means that this is a category 2 case. The starting point is 13 to 16 years imprisonment.

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

13. It will be useful to consider three cases in which I sentenced female offenders for the unlawful killing of their husbands, in each case by stabbing the victim.

SENTENCES FOR MANSLAUGHTER
UNLAWFUL KILLING OF MAN BY HIS WIFE, 2006-2011, CANNINGS J

STEP 4: WHAT IS THE HEAD SENTENCE?

14. To determine the head sentence I will focus on the starting point range of 13 to 16 years and assess the mitigating and aggravating factors. The more mitigating factors there are, the more likely the head sentence will be below the starting point range. The more aggravating factors present, the more likely the head sentence will be above the starting point range. It is not, however, only the number of mitigating and aggravating factors that determines the head sentence. The strength or weight to be attached to each of those factors is more important.

15. Mitigating factors:

• it was a spontaneous, not planned, incident;
• she reacted in the heat of the moment in retaliation for an uncharacteristic assault against her by her husband;
• there was only one stab wound;
• the deceased caused the incident that led to his death by assaulting the offender first;
• the offender made early admissions to the police;
• the offender has no prior convictions;
• she has expressed genuine remorse;
• the process of reconciliation with the deceased's relatives is well advanced.
  

16. Aggravating factors:

• the 13-cm stab deep wound to the chest is evidence of considerable and deliberate force;
• stabbing of the deceased was not accidental, it was intentional.
  

17. The number and strength of the mitigating factors warrant a sentence below the starting point range of 13 to 16 years. Of the three similar cases referred to, the closest point of comparison is the case of Elizabeth Gul, and that gives rise to the most appropriate sentence, 10 years imprisonment.

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

18. 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 one year, five months, three weeks.

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

19. The favourable pre-sentence report, showing that the offender is recommended for probation, means that there is a case for suspension of the sentence. But not all of it. Fully suspended sentences for homicide cases must be reserved for the most exceptional and unusual cases. The offender killed her husband by stabbing him with a knife. It was a vicious attack. The court can appreciate why she was angry but to impose a fully suspended sentence can have the effect of devaluing human life. The offender must serve time in prison. After taking account of all those matters, it is appropriate to suspend three years of the sentence on the following conditions:

(a) must within three days after release from custody report to the Probation Office in Madang;

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

(c) must not leave Madang province without the written approval of the National Court;

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

(e) must attend church every weekend for service and worship and assist the church in its community activities;

(f) must not consume alcohol or drugs;

(g) must keep the peace and be of good behaviour;

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

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

SENTENCE

20. Asi Piro, having been convicted of one count of manslaughter under Section 302 of the Criminal Code, is sentenced as follows:

Sentenced accordingly.
_________________________

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender