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State v Warape [2013] PGNC 305; N5197 (18 April 2013)

N5197

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 320 OF 2005

THE STATE

V

YONGONE WARAPE

Porgera: Gauli AJ
2013: April 15, 18.

CRIMINAL LAW - Sentence - Convicted after trial - Manslaughter - Criminal Code, 302 - Aggravating factors - Used offensive weapon - Kitchen knife - Killed own wife - Stabbed her on thighs and vaginal part - Pre planned - No provocation - Mitigating factors - Acted alone - First time offender - Showed remorse - Compensation paid - Sentenced to 16 years - Time in custody deducted - Balance be served out in prison.

Cases Cited:

Goli Golu v. The State (No.3) [1982] PNGLR 92.
Manu Kovi v. The State (2005) SC 789.
The State v. Yakom Kanguala (Unreported;CR.481 of 2011; 25/07/2012).
The State v. Elis Nema Mara (2009) N1433.
The State v. Anita Kelly (2009) N3624.
The State v. Jacob Puti (Unreported; CR.338 of 2011; 12/04/13).
Thress Kumbamong v. The State (2008) SC1017.
The State v. Issac Ulul (Unreported; CR.203 of 2007; 16/10/07).
Simon Kama v. The State (2004) SC740.
The State v Carol Alfred (2009) N3602.
The State v. Rex Lialu [1988-89] PNGLR449.
Kesino Apo v. The State [1988] PNGLR 182.
The State v. Kenneth Penias [1994] PNGLR 48.

Counsel:

Public Prosecutor, for the State
Public Solicitor, for the Prisoner

SENTENCING

18th April, 2013

1. GAULI AJ: The prisoner Yongone Warape was found guilty after a two days trial and convicted on one count of manslaughter, charged under Section 302 of the Criminal Code.
   

BRIEF FACTS:

2. On the night of the 30th November 2004 at Muglap in Porgera District, the prisoner Yongone Warape took his wife Londa Ipai out from the disco area after 12.00 midnight. They walked up the Muglap / Kakanda main road for about 150 metres away from the disco area. Both undressed to have sexual intercourse. As Londa Ipai laid down, Yongone Warape stabbed her on both her thighs and her vaginal area. He escaped and Londa Ipai died instantly. The witness Mrs. Saina Nemboro stood about 10 metres watching the incident. The prisoner also made admissions in the Record of Interview that he stabbed the deceased. During the trial he denied stabbing her but Court found him guilty.
   

PRIOR CONVICTION:

3. The prisoner has no prior convictions. He is a first time offender.
   

ALLOCUTUS:

4. Before sentencing, the prisoner was given the opportunity to say any matter he would like court take note of in sentencing and said: "I am sorry for what I did. I ask the court for mercy and place me on probation. I have paid compensation of 243 pigs and K3500.00 cash already. I do not want to have a double punishment. During the last 8 years there was no trouble in relation to this offence I have committed. I ask the Court for mercy."
   

ANTECEDENT REPORT:

5. The prisoner is 35 years old from Apalapa village in Porgera and he resides at his village. He is married with one child. The deceased was the mother of the child. He comes from a family of 4 sisters and 3 brothers. He is the eldest in the family. He left school after completing Grade 8 in 1998. At the time of the offence he was employed in Porgera Mines Underground Drill Department as a driller.
   

MITIGATING FACTORS:

6. The prisoner acted along. He has no prior conviction. He showed remorse. He paid compensation to the relatives of the deceased with K5,000.00 cash plus 420 pigs as later confirmed by both counsels.
   

AGGRAVATING FACTORS:

7. He used an offensive weapon namely a kitchen knife. He took the deceased to an isolated area at midnight and stabbed her on her thighs and her private part. The act was premeditated. No form of provocation from the deceased. Though he cooperated with police where he made admissions, he forced the matter to trial by voir dire and at the substantive trial.
   

THE LAW:

8. The offence of manslaughter under Section 302 of the Criminal Code carry a maximum penalty of life year imprisonment but subject to Section 19 of the Criminal Code. Under Section 19, a court can impose sentence lesser sentence than the prescribed maximum sentence. Generally, maximum prescribed sentences are reserved for the worst category of cases under consideration before a court: see Goli Golu v. The State (No.3) [1982] PNGLR 92.
   

SUBMISSIONS BY DEFENCE

9. The prisoner surrendered to police on the next day after the incident. He was held in police custody for three months before been transferred to Baisu C.I.S in Mt. Hagen. He was detained in Baisu for six months before been released on bail in September 2005. He was on bail for five months until he breached his bail conditions. His bail was revoked and he was rearrested on the 3rd of March 2012 and he has being in custody until his conviction and sentence.
   
10. Counsel submitted that maximum sentence for manslaughter is a life year imprisonment but maximum sentences are reserved for the worse category of cases. The present case is not a worst type of manslaughter case. This case falls within Category 2 of Manu Kovi v. The State (2005) SC789, which attracts a sentence between 20 - 30 years. But the recent supreme Court decision in Thress Kumbamon v. The State has criticized the Manu Kovi (supra).
    
11. Counsel referred to a number of cases on manslaughter where sentences have been imposed. In The State v. Yakom Kanguala (Unreported Judgement, CR. 481 of 2011; dated 25/07/12), where I imposed a sentence of 14 years imprisonment. In The State v. Elis Nema Mara (2009) N1433, Makail J, imposed a sentence of 12 years for stabbing the deceased with a knife on the back that pierced the lunge.
    
12. In the present case, a compensation of 420 pigs plus K5000.00 cash was paid. The payment of compensation indirectly expresses remorse. The payment of compensation is valid in Enga Province but The State v. Anita Kelly (2009) N3624, be considered. The prisoner acted alone and he voluntarily surrendered to police. And the defence counsel submitted that a sentence between 12 - 15 years should be appropriate.
    

SUBMISSION BY THE STATE

13. The Prosecutor referred to my recent decision in The State v. Jacob Puti (Unreported Judgement; CR. 338 of 2011; 12/04/2013), which is the case of an attempted murder. In sentencing, I followed the decision of the Supreme Court in Thress Kumbamong v. The State (2008) SC1017, that a Judge is to exercise his discretionary powers in sentencing unfettered and not to be restricted by the sentencing guidelines in Manu Kovi (supra).
    
14. The Prosecutor also referred to The State v. Issac Ulul (Unreported Judgement, CR. 203 of 2007; 16 October 2007), where His Honour Cannings J, sentence the accused to a term of 10 years for slashing his brother with a bush knife on provocation.
    
15. Prosecutor submitted that there was an element of premeditation present in that the prisoner argued with the deceased and he used a knife and killed her. That makes this case more serious. The prisoner was the sole attacker and he cooperated with police by surrendering to police and making admission to police in the record of interview. However, during the voir dire and the trial proper he denied the charge. He has paid compensation of a number of pigs and cash money.
    
16. The Prosecutor submitted that sentence on manslaughter on guilty plea in domestic setting is between 10 - 15 years imprisonment. Prosecutor submitted that a sentence of between 13 - 15 years should be appropriate in this case.

DECISION OF THE COURT:

17. The Supreme Court in Manu Kovi v. The State (2005) SC789 sets out the sentence range on cases of wilful murder, murder, manslaughter and infanticide. From the sentence guidelines in Manu Kovi (above), the sentence in the present case falls within Category 2. An offensive weapon, namely a kitchen knife was used. The prisoner took the deceased out from a disco venue to an isolated area at night. He told the deceased to lie down with an intention to have sexual intercourse. And when she did, the prisoner stabbed her with a knife on both her thighs and vagina killing her instantly. She was stabbed in the pretext of having sex. It can be inferred that the act was pre meditated.
    
18. Under Category 2 of Manu Kovi, a term of sentence to be imposed will be between 20 - 30 years imprisonment. However, the Supreme Court in the case of Thress Kumbamong v. The State (2008) SC1017, has criticized the minimum and maximum sentencing guidelines in Manu Kovi (supra). The Supreme Court in Thress Kumbamong (above) said:
    

" .... that further categorizing and prescribed minimum and maximum sentences within the already maximum sentences ...... are unnecessary and illegal curtailment or fettering and or restriction of the discretion vested in a trial judge. ..... ."

19. I consider that the best approach in sentencing is to follow the decision of the Supreme Court in Simon Kama v. The State (2004) SC 740 that where the accused is convicted on plea or after a trial, the court approach sentence with a serious consideration of the maximum penalty first. Then let the accused make out a lesser sentence by pointing out factors in the mitigation. And once the accused puts the mitigating factors, the court then looks at what sentences have been imposed on similar decided cases to arrive at an appropriate sentence.
    
20. I do take into account of the prisoner's mitigating and aggravating features. The aggravating factors have no doubt far outweighed the mitigating factors. In my view this case is more serious than other manslaughter cases. Where a person kills another by stabbing him or her on his or her private part, that is sufficient to put the case in a worse category of manslaughter. And that should warrant the imposition of a maximum prescribed sentence.
    
21. However, this Court has considerable discretionary power under Section 19 (1) (a) of the Criminal Code to impose a sentence of a shorter term than the maximum sentence of life year imprisonment. Since sentencing for an offence of manslaughter is subject to Section 19 of the Criminal Code, I need to consider the sentences imposed in other decided cases on manslaughter.
    
22. I have considered the cases referred to this Court by both the defence and the prosecution counsel on sentencing. In The State v. Yakom Kanguala (Unreported Judgement, CR. 481 of 2011; 05/07/12), I sentenced the accused to 14 years imprisonment after a trial for stabbing a co-wife on her back and thigh. A compensation of K20,000.00 and 100 pigs was paid. In the present case the deceased was stabbed on her thighs and her private part and some amount of compensation in terms of cash and pigs.
    
23. In The State v. Elis Nema Mara (2009) N4133, the accused was sentenced to 12 years for manslaughter on plea of guilty for stabbing her husband's girlfriend on her back that pierced the lung. During a struggle, the accused wrestled the knife from the deceased and stabbed her. In The State v. Carol Alfred (2009) N3602, the prisoner was sentenced to 10 years for killing her husband in a domestic setting by stabbing him on the thigh during a fight. The killing was accidental and paid compensation of K15,000.00 and 40 pigs. In all these cases a single wound were inflicted whereas in the present case there were multiple wounds.
    
24. In The State v. Anita Kelly (2009) N3624, Makail J, sentenced the accused to 12 years for killing in a domestic setting where the accused stabbed the co-wife on the neck. The attack was pre planned and by surprise. His Honour said:
    

"The sanity of human life is more precious and valuable than silver or gold and no amount of compensation or remorse can compensate it. A death is a death and a killing a killing. A person's life is lost forever. It cannot be recovered or returned."

25. Again in the mention case above, there was only one single wound inflicted as compared to the present case, there were multiple injuries. In my view the sentence in the present case must be higher than the sentences imposed in the decided cases referred to above.
    
26. Earlier in the case of The State v. Rex Lialu [1988-89] PNGLR 449 at 452, Amet J, as then he was, expressed similar sentiments where he said:
    

"I consider that our sentences for manslaughter must reflex the serious view which the legislative took over loss of human life in fixing the maximum sentence as life imprisonment. This is also a reflection of the community's view against unwanton killing. I repeat my view that sentences for manslaughter must be relatively higher than sentences for rape or robbery to reflect the importance and sanity of life given by God which no man has the right to take or deprive prematurely. A life has been taken which cannot be restored, quite unlike rape and robbery."

27. I do agree with the decisions in Anita Kelly (above) and Rex Lialu (above) that human life is more precious than gold or any other precious treasures in the whole world. Once human life is taken away, it cannot be restored not even by remorse or hefty compensation payments. The payment of compensation, by whatever amount, does not take away the offender's criminal liabilities. It will only be taken as a mitigating factor that would reduce a term of imprisonment, for a fundamental reason that compensation cannot restore or bring back lost life. The compensations are paid only to maintain peace.
    
28. The Sections 35 and 42 of our Constitution, protects all human lives from deprivation and it protects a person's liberty. No one has the right to take away another person's life. Manslaughter is a very serious offence because a valuable life has been lost forever. Therefore sentences on manslaughter must reflect the seriousness of the offence. And a custodial sentence must be a starting point for the very fundamental reason that all human lives must be protected by a court of law: see Kesino Apo v. The State [1988] PNGLR 182.
    
29. From these few decided cases cited on sentences for manslaughter, where knives are used in the killing, in which multiple injuries were inflicted resulting in death, sentences between 12 - 14 years were imposed. Where the injury is inflicted in a private part or a sexual organ of a person resulting in death, I consider that an appropriate sentence to be eighteen (18) years imprisonment.
    
30. The court will not tolerate those who take away other person's life. Women are becoming the victims of unnecessary attack by men, particularly in domestic settings. God created a woman out of a man's rib. By creating a woman from a rib of a man, God made a woman equal to man: (see Genesis 2: 21- 22). Women are human beings like men. They have equal rights as men do, as provided under Section 42 of the Constitution. They have the right to live and be accorded the same treatment and respect as men: The State v. Kenneth Penias [1994] PNGLR 48; The State v. Jacob Puti (Unreported Judgement; CR. 338 of 2011; dated 12 April 2013).
    
31. I do take into account of his mitigating factors, that he has no prior convictions and he has expressed remorse in court. The payment of compensation is an expression of remorse. However compensation payment does not take away an offender's criminal liabilities. One must not assume that paying compensation will release him from being imprisoned. He must not think that imprisoning an offender after paying compensation is a double punishment. It will only reduce part of the imprisonment term. Since the prisoner has paid compensation, I reduce his sentence by two years from the eighteen (18) years sentence.
    
32. From the minutes in the Court file I noted that the prisoner escaped from custody once in the year 2005 and he also breached his bail condition while he was out on bail. I have been furnished with more accurate record of the prisoner's period of detentions. He was detained in police custody from 31/12/2004 to 04/06/2005 before been released on bail, (a total of five months four days). When he breached his bail condition he was detained in custody the second time from 07/11/2005 until he escaped from Baisu jail on 15/05/2007, (a total of 1 year 6 months 8 days). He was recaptured on 03/03/2012 and he has being in custody until this day, (a total of 1 year 1 month 15 days).
    
33. The prisoner has being in custody for a total period of three (3) years one (1) month awaiting his trial. It is a mandatory requirement under Section 3 (2) of the Criminal Justice (Sentence) Act 1986 that pre trial period in custody be deducted. And I deduct 3 years 1 month from the total sentence of 16 years.
    
34. Since the prisoner has breach his bail condition and he escaped from custody on one occasion, while awaiting his trial before the National Court, I consider that this is not an appropriate case to suspend part of the sentence.
    
35. Where the offender escapes from custody or breaches any of his bail conditions, suspension of sentence either whole or part should not be considered. Having said that I have decided not to suspend the sentence in part.
    

SENTENCE:

YONGONE WARAPE, having being convicted of manslaughter, you are now sentenced as follows:

Length of sentence imposed : 16 years.

Pre-sentence period deducted : 3 years 1 month.

Resultant length of sentence be served : 12 years 11 months.

Amount of sentence suspended : Nil.

Time to be served in custody : 12 years 11 months.

Sentenced accordingly.
__________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Offender