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State v Dominic [2021] PGNC 168; N8972 (29 June 2021)

N8972

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1268 OF 2020

THE STATE

v

MARIE DOMINIC

Waigani: Salika CJ
2021: 20^th May, 10^th & 29^th June

CRIMINAL LAW – Practice and Procedure – Charge of Manslaughter – Stab with kitchen knife – Stab at back of shoulder – What is the appropriate sentence? – S 302 of Criminal Code Act.

Cases Cited:

Rex Lialu v The State (1990) PNGLR 487
Manu Kovi v The State (2005) SC 789
Ankap Yala v The State (1999)

Counsel:

Mr A Kaipu, for the State
Mr A Peter, for the Prisoner

SENTENCE

29^th June, 2021

1. SALIKA CJ: INTRODUCTION: The prisoner is a 27-year old woman from Tanipa village in the Tapini area, Central Province. She has been in custody and appeared from full custody at Bomana Corrective Institution. She pleaded guilty to one count of manslaughter, a charge brought under Section 302 (1) (a) of the Criminal Code Act.
   

FACTS

2. She pleaded guilty to the following facts:
   

On 24 October 2019 the prisoner was at the China Harbour Quarry, Sabusa settlement along the Hiritano Highway. At about 2.00 am, the prisoner was at a party hosted by a Chinese Engineering Company which is fixing the Hiritano Highway. The prisoner was sitting down minding her own business when the victim picked up two large stones to hit the prisoner. Some boys at the party shouted for her to run because the deceased was coming to hit her with the stones. She then pulled out her kitchen knife from her jeans trousers and stabbed the deceased on his back just below his shoulder. The deceased collapsed and died some minutes later.

ISSUE

3. The issue for this Court is for the Court to consider what sentence to impose on her.
   

THE LAW

4. The maximum penalty for unlawful killing is life imprisonment but the Court has a discretion to impose a lesser term of imprisonment than the maximum prescribed.
   
5. Section 302 of the Criminal Code Act says that a person who unlawfully kills another not constituting wilful murder, murder or infanticide is guilty of manslaughter, and the penalty is life imprisonment, subject to s 19 of the Criminal Code Act. Under s. 19, the Court has a wide discretion to impose a lesser penalty than the maximum prescribed.
   
6. In Rex Lialu v The State (1990) PNGLR 487, the Supreme Court held, among other things, that in sentencing an offender for manslaughter, the Court must pay careful regard to the circumstances of death and the way death was in fact caused. Those factors included:
   
   • The nature and frequency of the attacks or assault.
   • Whether the injury causing death was a direct result of falling on any object.
   • Whether the injury was caused by the accused or a weapon.
   • Whether there was a deliberate intention to cause the injury.
   • Whether there was provocation in the non legal sense.
   • Whether the deceased had a thin skull or an enlarged spleen.
     
7. The Supreme Court in Ankap Yala v The State (1999) SC 602 said:
   

‘The maximum punishment for the offence of manslaughter is life imprisonment. Whilst sentences for manslaughter will normally be lower than sentences for murder and wilful murder, there are those cases which will justify the imposition of heavy punishment and even the maximum punishment. The sentence in any given case will of course depend on its own peculiar facts. We are unable to prescribe any particular range of sentences for his offence as it is all too often difficult to fix any range of sentences with some degree of precision. However, we would suggest that in an unintentional killing case which is uncontested, whatever the mitigating or extenuating circumstances may be, the application of vicious force, with or without the use of a weapon, causing serious bodily injury resulting in death may attract sentences between 10 years and above and in some cases, even life imprisonment”.

8. The case precedent authority of Manu Kovi v The State (2005) SC 789 is another source of guide to help judges in determining an appropriate sentence. This case would fall into the second category in my respectful opinion which attracts a sentence of 13 to 16 years. The prisoner used a kitchen knife to stab the deceased.
   

PERSONAL PARTICULARS

9. The prisoner is 27 years old from Tanipa village, Tapini, in the Central Province. She completed Grade 5 education and did not continue because her father remarried. She is unemployed and sustains herself from vegetable sales at the market. She is in good health now. She said she does not take any drugs except she drinks beer occasionally. The community leaders told the probation officer that the prisoner was a good kind-hearted person, she respected others living in her community and is a hard worker growing her own food and vegetables. She was married to the deceased and has a daughter, 10 years old.
   

MITIGATING FACTORS

10. The prisoner pleaded guilty to the charge thus saving time and resources for the State. She is a first time offender. She regretted her actions and thought she was only trying to defend herself from her husband’s attacks.
    

AGGRAVATING FACTORS

11. The prisoner used a dangerous and offensive weapon to stab the deceased from which stab wound he died.
    

EXTENUATING CIRCUMSTANCES

12. The prisoner was at the party minding her own business when her husband, the victim, picked up two large stones to hit her. The prisoner was alerted by boys at the party to run for her life. She saw her husband in time as her husband was about to hit her with the stones. She stabbed the victim. The victim would be alive today had he not tried to attack the prisoner. The deceased started and orchestrated his own death. While this Court does not condone the actions of the prisoner, the victim contributed to his own death in some ways by initiating the sequence of events that led to his stabbing.
    

SENTENCING CONSIDERATIONS

13. As alluded to earlier while the prisoner’s actions might have been justified to some extent, she could have restrained herself not to kill him but to only injure him and disable and harm him, but she did not restrain herself and killed the victim.
    
14. Going by the Manu Kovi (supra) guide, this case falls within the second category which would attract a sentence between 13 to 16 years. Manslaughter case are still very prevalent and becoming more and more daring. Considering all the circumstances of the case and the fact that the Manu Kovi (supra) case was decided some sixteen (16) years ago sentences must inevitably be increased. A sentence of 13 years imprisonment in hard labour is imposed on the prisoner. Time spent in custody is deducted from the 13 years. She has been in custody since 19 October 2019, a period of one (1) year and eight (8) months. The balance for the prisoner to serve is 11 years and 4 months imprisonment.

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Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Accused