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State v Aosa [2017] PGNC 244; N6907 (21 September 2017)

N6907

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
CR NO 137 of 2017

THE STATE

V

NISHEN AOSA

Kimbe: Miviri AJ
2017: 13^th & 21^th September

CRIMINAL LAW - Practise & Procedure-Plea - S302 Manslaughter -domestic fight with wife - stabbed her with a scissor – penetrating wound to left chest - loss of blood – de facto provocation - compensation paid-loss of life - prevalent offence-strong deterrent sentence.

Facts

Accused stabbed the deceased in the course of a domestic argument on the left chest with a scissors from which she bled to her death.

Held

1. The value of life and sanctity of life under the Constitution must be protected by strong and punitive sentences in all homicide cases.
2. Weapon used unnecessarily
3. Prevalence of offence.
4. Loss of wife, mother through his own actions
5. 15 years IHL less time in custody deducted.

Cases cited:
Acting Public Prosecutor v Aumane, Boku, Wapulae, and Kone [1980] PNGLR 510
Lawrence Simbe v The State [1994] PNGLR 38.
State v Polin Pochalon Lopai [1988-89] PNGLR 48,
The State v Allan Peter Utieng Unreported judgment delivered in Wewak on 23/11/00) SCR 15 of 2000
The State v. Danny Makao (2005) N2996.
The State v Lialu [1990] PNGLR 487
The State v Manu Kovi (2005) SC789
The State v Marangi [2002] SC702
The State v Simon Kama (2004) SC740
The State v Tanga [1999] PNGLR 216

Counsel:

L. Rangan, for the State

B. Popeu, for the Defendants

SENTENCE

21^st September, 2017

1. MIVIRI AJ: This is the sentence of a man who stabbed his wife with a scissors penetrating her left chest from which she died as a result of blood loss.
   

Short facts

2. Prisoner argued with his wife over accusations that she was not faithful on the 5^th November 2016 and stabbed her with a scissors on the left chest and she bled to her death.
   
3. The state charged him under Section 302 CCA Manslaughter which reads:
   

“A person who unlawfully kills another under such circumstances as not to constitute wilful murder, murder or infanticide is guilty of manslaughter.

Penalty: Subject to Section 19, imprisonment for life.”

4. Prisoner had pleaded guilty to manslaughter though he was initially committed to stand trial on murder but was the subject of plea bargaining between defence and state. There were no issues of law apparent and identifiable. The plea was in order and consistent with the evidence that was on file. I confirmed the guilty plea after perusal of the file tendered and convicted the defendant as indicted of manslaughter.
   

Issue on trial

5. What is an appropriate sentence to be imposed upon the prisoner.

Evidence

6. The maximum sentence prescribed by the section is life years. The facts and circumstances do not warrant the maximum sentence of life years be imposed upon you but a determinate term of years be imposed. In the record of interview he remained silent. But there was overwhelming eye witness evidence which would have gone against him on trial. And the sentence would have been a lot different to when you are pleading guilty as here.
   
7. "Manslaughter is a very serious matter or offence and it carries a maximum penalty of life imprisonment. And the life imprisonment is because a life is gone and that person is never going to come back.

"No matter whose fault it is, the person is dead and it is tragic. I cannot ignore the fact that you were carrying a knife with you at the time and unfortunately this court sees time and time again women who are walking around everywhere, not just in the Highlands, in many places of the country who are carrying knives and so much harm comes out of it. You stabbed her twice and what makes this case even sadder than everything is that the deceased was seven months pregnant. And the State has asked me to take that into consideration as an aggravating circumstance. As I understand the foetus died and the whole incident is tragic. It is sad and it should never have happened. You have done something that you will have to live with for the rest of your life.... I cannot ignore the fact that not only did the lady die but the seven months foetus has died as well. Women must realize that they cannot express their anger with the use of a knife; it is just not acceptable under any circumstances. If they do so, they can expect to go to jail." Marangi v The State [2002] PGSC 15; SC702 (8 November 2002)

8. Deceased was 35 years old. She was your wife from Kilu,Talasea with whom you had five children. You do not realize the pain that a woman goes through in labour to give birth to children of the union. Here your wife went through that five times considering that she was prepared to endure that pain for love of you her husband and you rewarded her with a stab wound with a scissor to the chest fatally killing her. It was a very selfish and self centred act. You did not have any evidence of the accusations that you levelled against her. You are a matured man. There was no reason to revert to violence as you did here. Your allocutus to my mind shows that you know the basics of what is right and wrong. And that is clear from your unblemished record over the years up to the crime here. You must be deterred and educated from that conduct including any others with similar or like inclinations.
   

Mitigation

9. Marangi (supra) appealed against the 9 years that was imposed for manslaughter, the Supreme Court rejected her appeal confirming the sentence of the National Court and adopting what was said by the Judge at first instance above. What the Supreme Court said is applicable here and relevant. You pleaded guilty realizing that you would not have gone past the extent of evidence on file against you. You would no doubt have been convicted of the offence of murder not manslaughter. Because that is what the evidence showed. But you maintained an early guilty plea saving the court time and money in the running of the matter on a trial. You are 47 years old married to the deceased with five children you had no previous breach known to the law.
   
10. In allocutus you said:
    

“She is my wife. We supported each other and we raised a family. I have five children. I look after them. My block is in dispute in the National Court. I have no block to settle my children. Before GOD in Heaven and before the court and audience I am sorry for breaking the law of this country. I ask the court to have mercy and give time outside jail”

11. In Allan Peter Utieng v. The State, Unreported judgment delivered in Wewak on 23/11/00) SCR 15 of 2000, it was held that:
    

“It is now settled law that, an offender should consider his or her personal and family backgrounds and needs before committing an offence. It follows therefore that, once a person is found guilty of committing an offence, it is a little too late for the offenders to raise their personal and family backgrounds and needs with a view to getting a more lenient sentence. This has been so which has been followed in a long list of National Court judgments: The State v. Danny Makao (2005) N2996”.

This is applicable to you now. The situation within your family should have stopped you from committing the offence. You paid no heed to them, you cannot flag them in the face of what is due to you in law now.

12. He pleaded guilty to manslaughter which drew the maximum sentence of life years. He was a 47 year old man who resided at Bialla Section 14 block 1322 Barema. He was educated to grade 8 education and was employed as a wheeler. He had five children with the deceased. And was a first time offender who pleaded guilty to the offence. In so doing, he saved the court time, money and resources. He acted spontaneous and there was no preplanning but there was de facto provocation. The killing was in a domestic situation following an argument. A weapon was used aggravating. It was a stab to a venerable part of the body which is the chest. Compensation had been paid of K15000. In the case of Manu Kovi v the State (2005) SC789 it was category one and two where the range was from 8 -12 years IHL and 13 to 16 years. Given all these the appropriate sentence was at the lower end of the manslaughter range.
    

Prosecution submission

13. He was under influence of liquor at the time that he committed the offence. It was a prevalent offence of man killing their wives. That they were not respected as human beings because a lot of women died at the hands of their husbands. He should have followed the process of law to settle what was alleged. He took the law into his own hands. Tough punishment was called. He purposely got drunk to perpetrate the offence. There was an element of intent to do what he did.
    
14. I take account of what both counsel have submitted and deduce that the offence falls under category 1 and 2 of the Manu Kovi case. He had deprived the right to life of the deceased under section 35 of the Constitution. It was a prevalent offence. The injury was to a venerable part of the body, which is the chest penetrating into the left lung from which the deceased bled to his death despite being rushed to the Kimbe General Hospital. Like in the case of Simon Kama v The State (2004) SC740, sentences imposed by the court were not deterring would-be offenders of the crime of manslaughter like murder. Your plea to serve time outside jail would be disproportionate to the crime that you committed. It would be an error of law if your sentence was to time outside: Acting Public Prosecutor v Aumane, Boku, Wapulae, and Kone [1980] PGSC 5; [1980] PNGLR 510 (19 December 1980).
    
15. Life is sacred and can never be taken at the whim of a person just like that. The sanctity of life derives from our teaching as Christians that only GOD can give and take life not man as you did here. Our Constitution recognizes Papua New Guinea as a Christian country and one of the fundamental rights under the Constitution is the right to life under section 35. The court will give effect in all material form to ensure that you understand and that others like you are deterred and observe that the right to life is basic and fundamental to every living human being. You were the author of the death of the deceased. You stabbed her on the left chest piercing her left lung from which she bled to her death. In the record of interview you maintained silence. She was aged 35 years old in the prime of her life still had a long way to go in life. You abruptly ended it without even considering that she was the mother of your five children: Lialu v The State [1990] PNGLR 487 (30 November 1990). I therefore agree entirely with the views of Bredmeyer J in The State v Polin Pochalon Lopai [1988-89] PNGLR 48, where his Honour held that:
    

“Sentences for manslaughter should be slightly higher than for rape as death is a more serious consequence than the trauma of rape. A range of sentences from five years for a plea of guilty, six years for conviction following a plea of not guilty going up to ten years in a case with aggravated features is appropriate for manslaughter’ .In making these comparisons, the point is made that there is a need to take into account that, in manslaughter cases, there is the element of death, whereas in the case of robbery or rape, death is not involved. Death is, of course, a significant element of the offence of manslaughter. However, that does not necessarily mean that every manslaughter case should receive a higher penalty than robbery or rape. If that principle was accepted, then all manslaughter cases would get a higher penalty than offences of robbery or rape on the basis that death is present in manslaughter cases.”

16. The victim of rape will live and breathe that is not so of the deceased here. That fact along is very serious to call that sentences of homicide will reflect its gravity and each case is depended on its own facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38. I am inclined to follow that the facts and circumstance will determine what sentence is passed upon the prisoner now. It is a category two matter in accordance with Manu Kovi (supra) which in effect means that he is looking at a sentence between 8 years and 16 years imprisonment. Tanga v The State [1999] PNGLR 216 (19 April 1999).
    
17. You will live with the fact that it was you her husband who killed her depriving the children between the two of you of their mother. It is disheartening when you the father is in jail and the mother has died in the prime of her life never to be seen by her children. Older children will over come easily but it will be a lot harder on young children. They will miss their mother and will grow without her love, care and companionship.
    
18. Accordingly you are sentenced to 15 years IHL and I deduct the time on remand forthwith.
    

Ordered accordingly.
________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Defendant