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State v Collin [2017] PGNC 95; N6735 (13 April 2017)

N6735

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 693 OF 2016

THE STATE

V

DELTA DENIS COLLIN

Porgera: Auka AJ
2017: 12^th & 13^th April

CRIMINAL LAW – Sentence – Particular Offence – Manslaughter – Guilty plea – Relevant consideration – Victim is the husband – Traditional aspect of killing relative – Relevant to Mitigating – Six (6) years imprisonment reduced by 1 year 3 months as pre-trial custodial term – Balance of 4 years yet to serve – Criminal Code S.302.

Case Cited:
Manu Kovi v. The State (2005) SC 789
Goli Golu v. The State [1979] PNGLR 653
Rex Lialu v. The State [1990] PNGLR 487
The State v. Rex Lialu [1998 -1989] PNGLR 449
Kesno Apo v. The State [1988} PNGLR 182

Counsel:

Mr. Philip Tengdui, for the State
Mr. Jeffrey Kolowe, for the Accused

DECISION ON SENTENCE

13^th April, 2017

1. AUKA AJ: An Indictment was presented by the State against the accused on 12^th April, 2017. The State charged the accused with one count of Manslaughter contrary to S.302 of the Criminal Code. That followed a plea bargain between the parties from the more serious offence of wilful murder under S.299 of the Criminal Code. The accused pleaded guilty to the charge.
   
2. The brief facts of the case were that on Friday 19^th February, 2016 between 4:30pm, at Panadaka village in the Porgera District of Enga Province, the accused was last seen with her husband Colin Nikipa the deceased and their infant child inside their house. Earlier in the day the accused had asked her husband for some money for bus fare to travel to Yuyan Village but the deceased refused saying he had no money to give her and that she should not go. Later in the afternoon, while in the house with the husband, it is alleged that accused had an argument with her husband in which she took a kitchen knife and struck the deceased on the left chest and the knife penetrated the chest and struck the heart. The deceased was rushed to the hospital but was pronounced dead upon arrival. The cause of death was Hypovolemic shock secondary to massive blood loss from a stab wound to the left chest.
   
3. On her statement on Allocatus, the accused said both her and the deceased had no grudges against each other before the time of the incident. She was a young girl when the deceased married her. They had a baby girl and she was 3 weeks old. At that time my husband was drinking beer and wanted me to have sex with him so we can have another baby and he pulled me to himself and I didn’t have the strength and I stabbed him with the knife. She said sorry to God for what she did. She said sorry for breaking the Constitution of PNG. She also said sorry to the public who were in court. She also said sorry to the deceased’s parents and his brothers and sisters as well as her own family members. She also said sorry to her baby and to those who are looking after her. She said she didn’t mean to kill the deceased and asked the court to have mercy on her.
   
4. For the accuseds personal particulars, Mr Kolowe submitted that the accused is 20 years old and has a 1 year 3 months old child. She is first born in the family of five (5) children. Both her parents are alive but have separated. She is from Wabag and got married to a man from Porgera. She is a member of the Apostolic Church.
   
5. Mr Kolowe submitted and urged the court to take into account in the accused’s favour on sentence the following mitigating factors:
   
   1. She pleaded guilty and saved courts time and resources;
   2. She has expressed remorse to the deceased’s relatives as well as her own relatives and others;
   3. She surrendered to police straight after committing the offence;
   4. Her 3 weeks old child was left with relatives to look after;
   5. She has no prior conviction;
   6. There was no intention to kill.
      
6. Mr Kolowe submitted that the facts and circumstances surrounding the commission of the offence does not show that this is a worst type of case and as such does not warrant the imposition of the maximum penalty. Mr Kolowe submitted and urged the court to consider both the mitigating and aggravating factors and impose a term between 10 and 12 years and reduced the term by 1 year and 3 months for pre – trial custodial term and the balance be served.
   
7. Mr Tengdui of counsel for the State submitted and urged the court to consider against the accused the following Aggravating factors;
   
   1. A dangerous weapon namely a kitchen knife was used;
   2. A life was lost in a domestic setting;
   3. The offence is a prevalent offence
      

Mr Tengdui referred to the often cited case of Manu Kovi v. The State (2005) SC 789 and said that the case falls under category one which attracts a sentence between 10 to 12 years. He submitted that this is not the worst type case.

8. The maximum penalty prescribed by law for the offence of manslaughter under s.302 of the Code is life imprisonment. The court has discretion to impose a term of years pursuant to s.19 of the Code. I am of the view that this case falls under second category of Manu Kovi’s case. The 2^nd category suggested in that case are for cases where there is use of offence weapon, example knife on vulnerable part of the body with some intention to harm.
   
9. On authority of Goli Golu v. The State (1979) PNGLR 653, the maximum penalty is reserved for the worst type case. In my view the accused case is not a worst type case.
   
10. In Rex Lialu v. The State [1990] PNGLR 487, the Supreme Court said that the proper approach to sentencing in Manslaughter cases is to have regard to all the appropriate effect of all relevant consideration and then determine an appropriate penalty. The appropriate effect comes from several considerations which the court must consider by carefully examining circumstances of each case and how the death was caused.
    
11. By authority of the above case, the court must consider factors such as the nature and frequency of the attacks. The court must consider whether the injuries were caused by a direct hit or did the victim fall on any object. The Court must also consider whether the injuries caused were caused by the accused bare hands or did he use any weapon.
    
12. The court should also consider whether there was any intention to deliberately do harm to the victim? In the circumstances of the present case, there was some intention. The accused used a knife and stabbed the victim on his left chest. Was there any provocation in the non-legal sense? Yes I would say there was some provocation in the non-legal sense in that the deceased pull the accused to himself to have sex against her will and caused the accused to struggle. In my view, it was not a high degree of de-facto provocation.
    
13. Crimes of violence are very prevalent throughout the country and as such deterrent sentences are called for. All communities in this country are experiencing a high level of violent crimes affecting our country’s quest for progress in terms of solving disputes in more amicable manner as provided for by the law.
    
14. In this case the accused used a knife to inflict injury on the body of the deceased particularly his left chest. The chests of a human person are very vulnerable parts of the human anatomy.
    
15. The National Court has repeatedly warned that sentences for Manslaughter cases must reflect the serious view which the parliament took over the loss of a human life when it fixed the maximum penalty of life imprisonment.
    
16. For the above reason, a starting point on sentence for manslaughter case should be one of custodial as a means of protecting human life. The State v. Rex Lialu (1988-1989 PNGLR 449, Kesino Apo v. The State (1988) PNGLR 182.
    
17. By authority of Rex Lialu v. The State (Supra) the relevant considerations to determine the appropriate sentence in the present case are that accused used a knife and stabbed the victim on a vulnerable part of the victim’s body and directly caused injury from which he died. There was some intention to harm. And of cause there was some provocation in the non-legal sense for the accused to act the way she acted.
    
18. Having said all the above, I take into account in accused’s favour her plea to this serious charge. I also take into account in her favour what she said on Allocatus. I have also considered counsel’s submission on mitigating and aggravation. I also consider that the person she killed was her own husband which in itself was self inflicting and I consider that factor in her favour. See Kesino Apo v. The State (Supra).
    

19. I consider a sentence of 6 years imprisonment should be imposed. Accordingly I impose a sentence of 6 years imprisonment. The time already spent in custody awaiting trial which is 1 year 3 months shall be deducted. She shall serve the remaining term of 4 years 9 months at Baisu Jail.

Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Accused