N4260

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 407 OF 2010

THE STATE

V

JENNY DEI

Madang: Cannings J
2011: 4, 21 April

SENTENCE

CRIMINAL LAW – sentencing – manslaughter, Criminal Code, Section 302 – sentence after trial – offender killed husband by stabbing him in the neck during a domestic dispute – sentence of 9 years

The offender was charged with wilful murder of her husband and, after a trial, was convicted of manslaughter after the court rejected her defence of self-defence because of her use of excessive force.

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 (the court having found that the deceased assaulted the offender first) were strong mitigating factors that warranted a sentence below the starting point range.

(3)	A sentence of 9 years imprisonment was imposed. The pre-sentence period in custody was deducted and none 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 Jenny Dei (2011) N4231
The State v Joe Rex Kum, CR 55/2009, 08.04.10
The State v Regina Jako (2010) N4110

SENTENCE

This was a judgment on sentence for manslaughter.

Counsel

M Pil, for the State
E Thomas, for the offender

21 April, 2011

1. CANNINGS J: The offender, Jenny Dei, faced trial for the wilful murder of her husband, Bob Wari, at the Gusap oil palm settlement in the Ramu area. She admitted killing him in the course of a fight but claimed that she acted in self-defence and that her husband's death was an accident. Both defences were rejected and she was convicted, not of wilful murder or murder but manslaughter under Section 302 of the Criminal Code. This is the decision on sentence.

2. In the course of the trial significant findings of fact were made about the sort of marriage the offender and the deceased had and about the circumstances of the incident. It was accepted that the offender, who was only 18 years old at the time, had been forced to marry the deceased against her will and that he was a violent man who failed to provide for her, routinely took her wages and often assaulted her. Two days before the incident, she lent him K20.00. The night before the incident, which occurred at one o'clock in the morning of Sunday 7 February 2010, he went off gambling. When he returned home he told her to prepare him something to eat. She did as she was told and, amongst other things, peeled carrots with a kitchen knife. She asked him about the K20.00 she had lent him, which caused him to become angry. He struck her twice, first, in the house, by hitting her over the head and other parts of her body, then outside when he struck her head with a rock. This caused her reasonable apprehension (ie she would have thought on reasonable grounds) that she might be about to suffer grievous bodily harm. It was found that she could not preserve herself from suffering grievous bodily harm other than by using the knife that she was still holding. Most of the elements of the defence of self-defence were satisfied. However, the defence failed because she used more force than was necessary for her defence. The post-mortem report showed that she inflicted a 13 cm wound, penetrating through the neck into the lung, causing the lung to collapse and major blood loss. This was evidence of considerable and deliberate force. Her stabbing of the deceased was not accidental. It was intentional. The court found that she killed the deceased without any lawful justification or excuse. Hence she was convicted of manslaughter (The State v Jenny Dei (2011) N4231).

ANTECEDENTS

3. The offender has no prior convictions.

ALLOCUTUS

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

I apologise to the court in the eyes of God for breaking the laws of this country. I did not mean to stab him. This is my first time to stand before a court. If I had stayed with my parents this problem would not have occurred. The deceased brought me down to Ramu from Southern Highlands and that made me do what I did. Since I have been remanded in custody my relatives have not visited me. I ask the court to have mercy on me.

PRE-SENTENCE REPORT

5. I received a pre-sentence report from the Community Corrections and Rehabilitation Service. Jenny Dei is from Wapisumi village in the Kagua area of Southern Highlands Province. She is the third-born in a family of six children. Her parents are alive, in the village. She was at the age of 15, forced into a marriage with the deceased, who brought her from the village to stay with him where he was working at Ramu. She has a cousin-sister living at Ramu with whom she has a close relationship. She has had no formal education and is illiterate. She had regular paid employment at the time of the incident. Her health is sound. She has not had the chance to reconcile with the deceased's relatives (who were not interviewed for the purposes of the report). The report concludes that she is suitable for probation.

SUBMISSIONS BY DEFENCE COUNSEL

6. Mr Thomas 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 habitual violence of which the offender was a victim and the nature of the incident a sentence of no more than seven years imprisonment should be imposed.

SUBMISSIONS BY THE STATE

7. Mr Pil, for the State, agreed that this is a category 1 case according to the Kovi guidelines, warranting a sentence of seven to ten years.

DECISION MAKING PROCESS

8. 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?

9. 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?

10. 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

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	

11. I do not agree with and I am not bound by the submissions of both counsel that this is 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?

12. I refer to two cases I decided last year which are useful precedents. In The State v Joe Rex Kum, CR 55/2009, 08.04.10, the offender, having been charged with murder of a relative, was convicted after a trial of manslaughter. He killed the deceased by kicking him on the side of his body, rupturing the spleen. The facts were similar to the present case in that the offender relied on self-defence as a defence, which was rejected because the offender used excessive force. However the court found that the deceased assaulted the offender first and most of the elements of the defence were satisfied. The sentence imposed was ten years imprisonment.

13. In The State v Regina Jako (2010) N4110 the offender pleaded guilty to unlawfully killing a co-wife of her husband. She and the deceased were living in the same residence and had a history of quarrelling. They argued and the offender stabbed the deceased three times with a kitchen knife and the victim died shortly afterwards. The sentence imposed was 12 years imprisonment.

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:

•	The offender was forced to marry the deceased at a young age and was the victim of habitual violence.
•	It was a spontaneous, not planned, incident.
•	There was only one stab wound.
•	The deceased caused the incident that led to his death by assaulting the offender twice, causing her to believe that she could not otherwise defend herself except by using the knife she was holding.
•	The offender made early admissions to the police.
•	The offender has no prior convictions.
•	She has expressed some remorse.
•	She was only 18 at the time of the incident.

16. Aggravating factors:

•	The 13-cm stab wound to the neck was 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. This was almost a case of self-defence and it warrants a sentence similar to that in Joe Rex Kum. 

18. Though the other sentence I referred to, Regina Jako, resulted from a guilty plea, that was a more serious case than the present because there was no immediate provocation of the incident by the deceased and the offender inflicted multiple stab wounds whereas in the present case there was only one.

19. A case in which death was inflicted by a knife wound to the neck does not warrant a sentence as low as the seven years contended for by the defence counsel. However, to take full account of both the events leading up to the incident and the incident itself I consider that it is necessary to impose a sentence less than that in Kum. The appropriate sentence is nine 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 one year, two months, two weeks.

STEP 6: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?
21. Though the offender is not considered a threat to the community and the risk of her re-offending must be regarded as low the pre-sentence report does not present a good enough case for suspension of any part of the sentence. There is no tangible sign of reconciliation with the deceased's relatives. There is no clearly available support network for the offender if she were to be put on probation. Therefore there will be no suspension.
The offender has requested that she be imprisoned at Buimo Correctional Institution, Morobe Province, which is close to where some of her relatives reside. That is a reasonable request and I will sign a warrant of commitment to that effect.
SENTENCE

22. Jenny Dei, having been convicted of one count of manslaughter under Section 302 of the Criminal Code, is sentenced as follows:

Length of sentence imposed	9 years	
Pre-sentence period to be deducted	1 year, 2 months, 2 weeks	
Resultant length of sentence to be served	7 years, 9 months, 2 weeks 	
Amount of sentence suspended	Nil 	
Time to be served in custody	7 years, 9 months, 2 weeks	
Place of custody	Buimo Correctional Institution, to where she must be transferred within 30 days after the date of sentence.	

Sentenced accordingly.
_________________________

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