N9022

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 01 OF 2019

THE STATE

V

SERAH ROBIN

Bomana: Berrigan, J
2021: 5th and 18th June

CRIMINAL LAW – SENTENCE -  MANSLAUGHTER – Killing of first wife by second wife – De facto provocation present – 12 years of imprisonment, partially suspended. 

Cases Cited:

Manu Kovi v The State (2005) SC789 
Kumbamong v The State (2008) SC1017 
Warome v The State (2020) SC1991 
Goli Golu v The State [1979] PNGLR 653  
The State v Tardrew [1986] PNGLR 91
The State v Frank Kagai [1987] PNGLR 320
Rex Lialu [1990] PNGLR 487
Lawrence Simbe v The State [1994] PNGLR 38
The State v Carol Alfred (2009) N3602 
The State v Regina Jako [2010] PGNC 119
The State v Merolyn Peter (2017) N6772
The State v Guina (2020) N8311 

References Cited

Sections 19, 302 of the Criminal Code 

Counsel

Ms L Jack for the State 
Mr F Kirriwom for the Offender

DECISION ON SENTENCE
18th June, 2021 
1.	BERRIGAN J: The offender, Serah Robin, pleaded guilty to the manslaughter of Diane Robin contrary to s. 302 of the Criminal Code.

2.	On 4 July 2018 at Nautana Settlement, Baruni Road, National Capital District, the offender and the deceased had an argument over living space at their home.  At the time they were both married to the same man, Robin Kerae.  The deceased, Diane, was the first wife, and the offender, Serah, was the second.  The deceased hit the offender on the back of her head with her bilum and the offender fell down, after which the deceased ran off.  The offender then chased after the deceased with a knife.  The deceased tripped and fell face down and the offender, who had caught up with her, stabbed her once on the left side of her back with the knife whilst the deceased was still lying face down on the ground.  The offender tried to escape but was apprehended by the public and handed over to the police.  The deceased was rushed to Gerehu hospital but was confirmed dead on arrival.  The autopsy report showed death due to a stab wound to the heart. 

Allocutus 

3.	On allocutus the offender said: 

 Firstly, I want to apologise to God for breaking his law.  Secondly, I apologise to this Court for taking court’s time for my case. I say sorry to the family of the deceased and her community and her clan, and her brothers and sisters.  Fourthly, I want to say sorry to my own family for causing them this trouble and to my village, my community and my clan and my immediate family. I apologise to my family. I have three children, one is five years old, seven, the other is five months, he was with me when deceased hit me and we both fell. I apologise to my child because he is under age and a mother is responsible to take care of them.  Lastly, I am happy to stand before this Court.  I got the knife and that incident happened. 

Sentencing Principles and Comparative Cases

4.	The maximum penalty for manslaughter under Section 302 of the Criminal Code is life imprisonment. 

5.	In Manu Kovi v The State (2005) SC789 the Supreme Court suggested that manslaughter convictions could be put into four categories of increasing seriousness, as shown in the following table: 

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	

6.	Defence counsel submitted that the court should take into account that the prisoner had three children with the Robin Kerae.  She had previously lived in the village in Enga Province but moved to Port Moresby at the behest of her husband. On arriving in Port Moresby she learnt that her husband had another wife.  The deceased had no children of her own but adopted two children.  Both were entitled to the attention, affection, and love of their husband, for themselves and their children. Whilst it is unclear what caused the argument that day it was not unreasonable to presume that their husband had something to do with it, yet he walked away “scot free” as indicated by his statements in the pre-sentence report to the effect that had nothing to say about the matter.  He said that he had done his part through compensation with the deceased’s family and that the Court could use its discretion to impose the maximum or minimum penalty. 

7.	Defence counsel submitted that a sentence of 10 to 11 years would be appropriate, and suitable for partial or total suspension.  He referred to the following cases:  

a.	The State v Carol Alfred (2009) N3602: Makail J sentenced a woman to 10 years’ imprisonment in hard labour for the manslaughter of her husband.  She stabbed her husband on his thigh, unwittingly, after he physically assaulted her for not preparing his dinner in time.  She was severely assaulted at the time, and there was a history of past violence.  There was no suspension;

b.	Warome v The State (2020) SC1991:  the appellant went out looking for her husband who had not returned for four days during the pay week, which caused the offender great anxiety.  She went looking for him at his uncle’s house.  She went straight to the family room. She attempted to open the door to the room, but it was locked from the inside. She then collected a knife from the kitchen and went into the room next door. She climbed over the partition and jumped into the family room. When she landed in the room she switched on the torch in her mobile phone. To her surprise she saw her husband and a woman asleep together on a bed and completely naked.  She became very angry and stabbed the woman two times; one on the right breast and the other on the left hand. She also punched her husband before she ran out of the house.  The deceased died shortly afterwards. The offender was sentenced to 10 years in custody.  Whilst expressing the view that it might have imposed a higher sentence under category two, the Supreme Court found that the sentence of 10 years was not manifestly inadequate and so confirmed it, but suspended three years having regard to de facto provocation and the role of the husband’s infidelity in contributing to the offence. 

c.	The State v Guina (2020) N8311, Salika CJ: the offender pleaded guilty to murdering the deceased.  Both women were married to the same man.    Her husband had taken her son and did not let her know where they were. In the morning the offender went looking for her husband at the deceased’s house.  She saw his vehicle at the house, and walked up the stairs and into the deceased’s bedroom where she, her husband and the deceased’s two children were, together with her own son.  There was a struggle and in the course of this the offender stabbed the deceased in the left breast with a small kitchen knife, causing her death.  She was sentenced to 12 years of imprisonment, less time spent in custody, leaving a balance of 10 years, 2 months and 2 weeks to be served. 

d.	Kumbamong v The State (2008) SC1017 in which the Supreme Court partially upheld an appeal against a sentence of 9 years, by wholly suspending the balance after deducting the pre-trial and post-conviction period of 2 years, 1 month in detention, in circumstances where the offender went looking for her husband at the deceased’s residence. When she got there, she found the deceased seated on a chair in the living room of her house drinking coffee. The offender proposed that the deceased go and live with her and her children in her house so that their husband could look after all of them under the one roof. Rather than giving any consideration to the proposal, the deceased verbally insulted the offender and then armed herself with a knife that was there on the table and started to attack the offender. On realizing she had no way of escaping, the offender wrestled the knife from the deceased, and stabbed the deceased on her head and back many times causing the deceased to collapse and die instantly.

8.	The State agreed that in mitigation the offender acted spontaneously in this case, that de facto provocation was present and that the offender cooperated with authorities and pleaded guilty, expressed remorse, and is a first time offender. It says in aggravation that an offensive weapon was used on a vulnerable part of the deceased’s body, and the offence is prevalent.  The State submitted that the offence fell between categories 1 and 2 of Manu Kovi and that a sentence of 10 to 15 years was appropriate.

9.	The State referred to the following cases:

a.	The State v Regina Jako [2010] PGNC 119, Cannings J, unreported: The offender was a co-wife of a man, shared as a husband with the deceased.  She and the deceased lived together in the same residence and had a history of quarrelling.  Following an argument on one such occasion, the offender stabbed the victim three times with a kitchen knife and the victim died shortly afterwards.  The offender pleaded guilty to manslaughter and was sentenced to 12 years, less time spent in custody; 

b.	The State v Merolyn Peter (2017) N6772, Liosi AJ:  The offender and the deceased were co-wives to a common husband.  Both women had gotten into an argument, concerning matrimonial duties and maternal obligations, which eventually led to a physical fight between them.  In the course of the fight, the offender picked up a kitchen knife and stabbed the deceased on her right posterior skull above the ear.  She then swung the knife once on her back between the shoulder blades; thereby puncturing the deceased’s left lung and heart.  The deceased was rushed to the hospital but died due to massive internal bleeding. The offender pleaded guilty to manslaughter and was sentenced to 10 years, less time spent in custody.

Consideration  

10.	It is well established that the maximum penalty is reserved for the most serious instances of the offence:  Goli Golu v The State [1979] PNGLR 653.  This case is not in that category. 

11.	Having regard to the fact that this was a plea matter, that the offender was emotionally under stress, the killing occurred in a domestic setting, the presence of de facto provocation, and the killing occurred following an argument, together with the use of an offensive weapon on a vulnerable part of the body and the presence of some deliberate intention to harm, the case falls within the category 1 and the lower part of category 2 of Manu Kovi, and thus the starting point is 10 to 14 years.  

12.	Section 19 of the Criminal Code provides the Court with broad discretion on sentence. Whilst guidelines and comparative cases are very relevant considerations, every sentence should be determined according to its own circumstances: Lawrence Simbe v The State [1994] PNGLR 38; Kumbamong (supra).  In a case of homicide, careful regard must be had to the circumstances of death and the way death was caused: in Rex Lialu [1990] PNGLR 487.

13.	The offender is 29 years of age from Lakis Village in Kandep District, Enga Province.  She is in good health.  Her mother is alive but her father died whilst she was in custody last year. She married Robin Kerae nine years ago and has three very young children, currently aged 7, 5 and 3 years.  It seems her husband brought her to Port Moresby two years before the offence.  Prior to that she was in the village.  She is educated to Grade 10 and prior to her detention did not go out to work but looked after the home and children.  

14.	In aggravation this case involved the use of an offensive weapon and clear intention to do some harm as demonstrated by the fact that the offender pursued the deceased, and then stabbed the deceased in the back once she fell over and was lying face down and vulnerable.  This type of offence is increasingly prevalent.

15.	Against these factors, however, the extenuating and mitigating circumstances must be taken into account.  

16.	De facto provocation was present in the immediate lead up to the offence.  The deceased hit the offender over the head, hard enough to cause her to fall down.  It appears to me from the depositions that whilst there might have been a disagreement in general terms about living space at the house, the deceased and offender were not arguing immediately before the incident, and that the offender was taken by surprise when she was hit over the head.  

17.	In addition there are several mitigating factors.  

18.	The offender is a first time offender.  She is of prior good character. 

19.	The offender cooperated with police and authorities from the earliest stage and made admissions in her record of interview, admitting that “the thing is I did wrong already so what the court orders me to do I’ll follow”.  She pleaded guilty at the first opportunity at the National Court.  

20.	I take this into account as reflecting genuine remorse, which she expressed during allocutus.  I also take it into account from the perspective that it has saved the Court and authorities the time and cost of a trial.  

21.	It is also a significant factor that the offender has reconciled with the deceased’s family.  With the assistance of her family and the husband’s family, compensation in the sum of K21,000 and 84 live pigs have been paid to the family of the deceased.   Probation Services confirm that the deceased’s family has accepted the compensation.  The victim’s uncle expressed his sorrow for the offender and would like to see her released from prison.

22.	The offender is relatively young.  She is now 29 years old and was about 26 at the time of the offence. 

23.	The impact of the offence on the offender has been and will continue to be grave.  Any term of imprisonment will have a significant impact on the offender and her children.

24.	In weighing all of these factors I have placed great weight on the guilty plea and full cooperation of the offender.  I also acknowledge the circumstances in which the offending took place, including the difficult situation the offender found herself in after being brought to Port Moresby.  It appears that the offender’s husband had a history of treating both women disrespectfully and may have contributed to the incident by arguing with the deceased earlier that morning.  The offender did not go out looking for trouble, and was she was not arguing with the deceased when she herself was first assaulted.  Ultimately, however, the offender pursued the deceased and then stabbed her through the back, penetrating her heart, whilst she was lying vulnerable on the ground.  That is a shocking reaction. There is no excuse for her conduct.  

25.	Having regard to the general circumstances of the case, the person circumstances of the offender, the aggravating, extenuating and mitigating factors, the submissions of counsel, the guidelines contained in Manu Kovi , and comparative cases, I sentence the offender to 12 years of imprisonment.  

26.	I exercise my discretion to deduct the time spent in custody to date.

27.	The question remains whether any or all of the sentence should be suspended. 

28.	In The State v Tardrew [1986] PNGLR 91 the Supreme Court set out three broad, but not exhaustive, categories in which it may be appropriate to suspend a sentence, namely: where it will promote the general deterrence or rehabilitation of the offender; where it will promote the repayment or restitution of stolen money or goods; or where imprisonment would cause an excessive degree of suffering to the particular offender, for example because of bad physical or mental health.  Suspension is not an act in leniency but a form of punishment that is to be served outside the prison system in the community interest to promote restitution or rehabilitation: The State v Tardrew [1986] PNGLR 91; The State v Frank Kagai [1987] PNGLR 320.

29.	Probation Services regards the offender as suitable for probation. 

30.	There is some suggestion in the report that the offender should be released upon payment of further compensation by either the offender’s family or husband but compensation has been paid and the deceased’s family is sympathetic towards the deceased.  They don’t want more money from her.  They want better compensation from her husband.   Whilst compensation is of some relevance, it is not the issue before this court, which is the determination of an appropriate sentence. 

31.	The offender has demonstrated strong prospects for rehabilitation.  She has fully accepted responsibility for her actions.  She is not a threat to the community and has participated in church and other activities whilst on remand.   She has never sought to blame her husband despite the lack of respect shown by him for both his wives.   She has indicated, however, that she does not wish to return to live with him but wishes to make her own life.  She is under no obligation to return to him and it does appear to be in the bests interests of both herself and her children that she does not do so.  

32.	Having regard to all of the above circumstances I am satisfied that partial suspension of her sentence would be in the best interests of the community to enable her to serve part of her sentence outside of prison, both to promote her rehabilitation into the community, and to enable her to care and guide her young children.  This must also be balanced against the very serious nature of the offence and the need for deterrence.  In the circumstances I do not intend to suspend the sentence in its entirety.

33.	In the circumstances I make the following orders:

Orders

(1)	The offender is sentenced to 12 years of imprisonment.

(2)	2 years, 11 months, 14 days spent in custody is deducted from time to be served.

(3)	A further 3 years is suspended on condition that the offender enter into her own recognisance to keep the peace and be of good behaviour.

(4)	Leaving a balance of 6 years, 1 month, 14 days to be served in custody.

Sentence accordingly.
_______________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused