N8939

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 883 OF 2020

THE STATE

V

VERONICA RAPHAEL

Kimbe:  Numapo, J
2021:  18th May & 09th July

CRIMINAL LAW – Particular offence – Manslaughter –s 302 Criminal Code - Guilty Plea – Court not bound by sentencing tariffs – Sentencing discretion to impose a lesser sentence – – s 19 of Criminal Code.

Held:

(i)	The factual circumstances of the case being the aggravating and mitigating factors does not place this case under the category of worst offence. 

(ii)	Court has a wider sentencing discretion under section 19 of the Criminal Code to consider a lesser sentence including a non-custodial sentence where appropriate.

(iii)	The attack was not pre-planned and there was no intention to do GBH.

(iv)	There was some degree of de facto provocation.

(v)	Mitigating factors and extenuating circumstances substantially reduces the seriousness of the offence. 

(vi)	Sentenced to 6 years imprisonment less the pre-trial custody period.

(vii)	Sentence to be partially suspended with conditions.

Cases Cited:

Goli Golu v The State [1979] PNGLR 653
Avia Aihi v The State (No 3) [1982] PNGLR 92
Manu Kovi v The State (2005) SC789
Kumbamong v The State [2008] PNGSC 51; SC1017
State v Dessie Param Belden CR. No. 1129 of 2019
State v Elda Kevau CR no. 281 of 2019
State v Roho, N4483 of 24 August 2006
State v Karo N2600 of 29 April 2004
State v Watakasi [2012] PGNC 266; N4597
The State v Samuel Kalib; CR, No. 318 of 2013
State v Mema [2012] PGNC N3602
State v Lossio John CR. No. 2012

Counsel:

A. Bray, for the State
D. Kari, for the Defence

SENTENCE 

09th July, 2021

1.      NUMAPO J:  This is a decision on sentence. The accused VERONICA RAPHAEL was arraigned on one count of Manslaughter under section 302 of the Criminal Code and pleaded guilty to the charge and was convicted accordingly.

A.	FACTS

2.     The offender pleaded guilty in that on the 13th of March 2020, the offender and deceased who were husband and wife had an argument. The argument started at Kisere in Kimbe Town and continued to Aling Settlement where they live. The deceased was suspicious when the offender was asked by a man to tell him the time on her mobile phone. The argument got heated up and the deceased hit the offender with an umbrella on her right arm and neck and she retaliated and stabbed him with a pair of scissors. The deceased died from punctured lungs.

B.	LAW

3.     The offence of Manslaughter carries the maximum penalty, subject to section 19, Life Imprisonment under section 302 of the Criminal Code.  

4.     Section 302:

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.

5.     Section 19 of the Criminal Code gives the court a wider sentencing discretion to impose a lesser sentence in place of the maximum penalty prescribed by law.

C.	APPROPRIATE SENTENCE FOR MANSLAUGHTER

6.     The offence of Manslaughter carries life imprisonment however, it is trite law that the maximum penalty is reserved for the worst type offence. See Goli Golu v The State [1979] PNGLR 653 and Avia Aihi v The State (No 3) [1982] PNGLR 92. 

7.     The Supreme Court case of Manu Kovi v The State (2005) SC 789 sets out the guidelines for Manslaughter as shown in the table below:

Category	               Description	                   Details 	             Tariff	
      1	Plea - Ordinary cases – Mitigating factors with no Aggravating factors	No weapons used – Little or no pre-planning - Minimum force used – Absence of strong intent to do GBH	    8 – 12 years	
      2	Trial or Plea – Mitigating factors with Aggravating factors	Use of offensive weapons used such as a knife etc.– vicious attack – multiple injuries-some pre-planning involved	   13 – 16 years	
     3	Trial or Plea – special aggravating factors – mitigating factors reduced in weight or rendered insignificant by gravity of offence	Dangerous weapons used, eg. gun, axe etc. – vicious attack – multiple injuries - pre-planning – some deliberate intention to harm – little or no regard for human life.	    7 – 25 years	
     4  	Worst Case – Trial or Plea – special aggravating factors – no extenuating circumstances- no mitigating factors or mitigating factors rendered completely insignificant by the gravity of the offence	Pre-meditated attack- some of viciousness and brutality – some pre-planning – killing of innocent, harmless person – complete disregard for human life.	Life Imprisonment	

8.     I wish to point out that the sentencing guidelines or tariffs like the Manu Kovi Guidelines (supra) is merely a guide provided to assist the court to ensuring that there is some degree of consistency in sentencing for like cases. It does not take away the sentencing discretion of the court. See: Kumbamong v The State [2008] PNGSC 51; SC1017.

D.	CASE LAWS

9.     A number of case laws similar to the present case were also cited by Counsels representing both the State and the Defence in their respective submissions on sentence. It shows the current trend on sentencing in manslaughter cases. I refer to them below:

(i)	State v Dessie Param Belden CR. No. 1129 of 2019

10.     The deceased came home drunk and demanded to have sex with the prisoner who at the time was 5 months pregnant and was feeling unwell. She refused to have sex with the deceased. An argument erupted and the deceased fought with the prisoner and was stabbed on his chest and he subsequently died. 

11.     Offender pleaded not guilty to a charge of wilful murder pursuant to s 299 o the Criminal Code. After the trial the Court found her guilty of a lesser charge of manslaughter pursuant to s.302 of the Criminal Code and convicted her accordingly.  

12.     Offender was sentenced to 6 years IHL less the pre-trial custody period of 1 year and 2 months. Two years was suspended with conditions that she be placed on probation for 12 months and was to serve 2 years and 10 months IHL.

(ii)	State v Elda Kevau CR no. 281 of 2019

13.     Offender and her husband were drinking with other people at their house when the offender went to turn down the volume of the music which upsets the deceased. The deceased attacked the offender and she ran into the house. The deceased chased the offender into the house and the offender picked up the bicycle paddle and threw at the deceased. It was dark at the time. The paddle hit the deceased on the head and he fell down unconscious. He died two days later.

14.     Offender was sentenced to 6 years IHL which was partially suspended with conditions.

(iii)	State v Karo, N2600 of 29 April 2004 

15.     The offender was a security guard at a club. The deceased was drunk and walked in while refusing to pay a gate fee of K2.00 charged by the club. An argument broke out which led to a fight between the offender and the deceased. The deceased punched the prisoner on his left ear. The prisoner returned the punch and hit him on his face and the deceased fell. The prisoner then pulled him up by his shirt and threw him out of the gate. That caused the deceased to land hard on the ground and raptured his enlarged spleen which led to his death. 

The court found that the prisoner was sober and therefore knew what he was doing and that he could have decided not to harm the deceased. It then sentenced him to 8 years imprisonment. 

(iv)	State v Roho, N4483 of 24 August 2006 

16.     A 28-year old man pleaded guilty to manslaughter for killing his mother by kicking her in the abdomen after he became angry over her actions in chasing his sister down a cliff during which his sister sustained injuries. The deceased died of a ruptured spleen and other internal injuries. 

17.     The court found that there was no intervening cause of death and that the offender solely responsible for the death and he was not a youthful offender. He was sentenced to 10 years imprisonment. 

(v)	State v Watakasi [2012] PGNC 266; N4597

18.     The prisoner was drinking with the deceased’s grandson when a fight broke out between them. The deceased intervened to stop the fight when the offender hit her on the head with a folded fist. She fell unconscious and died instantly. 

19.     The offender was sentenced to 8 years for manslaughter.

(vi)	The State v Samuel Kalib; CR. No. 318 of 2013 

20.     The prisoner was charged with manslaughter for killing his maternal uncle. The circumstances giving rise to the case was that the prisoner was drunk and was in the company of other drunken youths. One of the drunken youths went and caused some damage to the deceased’s house. The prisoner went to stop the youth and a fight broke out between them. Whilst they were fighting the deceased returned from his garden and without finding out first who caused the damage to his house, he assumed that the prisoner was the one who caused damage to his house so he hit him on his head with a piece of firewood. The prisoner fell unconscious and the deceased continued to hit him. The prisoner got up and ran away and the deceased chased after him. The prisoner picked up a stone and threw it at the deceased. The stone hit the deceased and he fell down and died a few minutes later. The medical report showed that he died of a ruptured spleen.

21.      In sentencing the prisoner the court took into account that K5, 000 and 2 pigs was paid as compensation and sentenced the offender to 7 years less his pre-sentence custody period.

(vii)	State v Mema [2012] PGNC 21; N3602 

22.    The offender, a 24-year old female pleaded guilty to one count of manslaughter for hitting the deceased on his head with a piece of wood to prevent him from assaulting her. The deceased is the cousin of the prisoner who was upset that the prisoner’s mother and sisters were keeping a piglet which he has already sold to another person from another village. The deceased got drunk and went to the prisoner’s house and assaulted her mother and retrieved the piglet. He then returned and slapped the prisoner three times. The prisoner got a piece of firewood and hit him and he died. Compensation of K5, 000 and a pig valued at K600 was paid as compensation to the deceased’s relatives. She was sentenced to 6 years with 5 years suspended.

(viii)	State v Lossio John CR. No. 158 of 2012 

23.     The prisoner was at the market with her husband waiting for a PMV to go to Lae. Whilst they were waiting her small sister who was newly married to the deceased ran to her as she was beaten by the deceased with a fan belt. The deceased followed her to where they were sitting and the prisoner told him not to hit her sister. The deceased without saying a word took out the fan belt from his pocket and hit the prisoner three times on her head. The prisoner retaliated by hitting him once on the side of his head with a piece of wood. The deceased died of a fractured skull as a result. The prisoner pleaded guilty and was sentenced to 6 years imprisonment. 

E.	PRESENT CASE

24.     The seriousness or otherwise of the offence is determined by its own peculiar facts being; the aggravating and mitigating factors and circumstances and the extenuating circumstances. See: Antap Yala v The State (1996) SCR 69 and Jack Tanga v The State (1999) SC602.

25.     In the present case, the following factors and circumstances are taken into account:

(i)	Aggravating factors

(a)	Offensive weapon (a scissor) was used in the attack.
(b)	Attack was directed at the most vulnerable part of the body (chest).
(c)	A life was lost.
(d)	Homicide cases are becoming too prevalent in recent times.

(ii)	Mitigating factors

(a)	The offender pleaded guilty early.
(b)	A first time offender
(c)	Some degree of de facto provocation
(d)	Absence of a strong intent to do GBH
(e)	The injuries caused were unintended
(f)	Offender co-operated well with the Police and made early admissions
(g)	Offender expressed genuine remorse for the death of her late husband.

(iii)	Extenuating circumstances

(a)	The attack was not pre-planned.  It was an attack in retaliation.
(b)	Prisoner married to the deceased and had no intention to cause his death.
(c)	The victim succumbed to his injuries and died few hours later.

F.	ALLOCUTUS

26.     In her allocutus the prisoner said:

“I ask for the Court’s mercy. I say sorry to the relatives of the deceased and ask the court to have mercy on me and give me probation.” 

G.	PRE-SENTENCE REPORT & BACKGROUND

27.     Prisoner comes from Ulupu, Maprik, East Sepik Province but was brought up in Bialla, West New Britain Province. Her parents owned a 4 hectare oil palm block and live in Bialla. She completed her grade 8 at Bialla Secondary School but could not continue due to school fee problem. 

28.     She was lured into coming to Kimbe by the deceased at the age of 20 and was forced into marrying him. The deceased was older than her. The marriage was not a happy one because the deceased was always jealous of her given her young age. He constantly accused her of having affairs with other men and had on several occasions told her to remove her clothes so he could check her private parts to find out if she has had sex with other men. This has caused her great shame and embarrassment. It is also very humiliating to her dignity as a human being.

29.     On the day in question they both finished work and met at Kisere to catch a bus down to Aling. Whist at the bus stop, a man asked her to tell him the time on her mobile phone. She showed the time on the mobile to him and that made the deceased angry. They started arguing at Kisere and got into the bus and went to Aling. The argument continued and the deceased hit her with the umbrella on her right arm and neck. She pulled out the scissor in her bag and stabbed him with it. It was an act of retaliation.

H.	COUNSEL’S SUBMISSIONS ON SENTENCE

30.     Mr Bray for the State submitted that a sentence of between 8-10 years imprisonment would be appropriate in this case given that the killing was not pre-planned but rather a spur of the moment reaction when the prisoner retaliated after she was hit by the deceased with an umbrella. The injuries caused were unintended.

31.     Mr Kari for the Defence submitted that the Court should consider imposing a term of between 6 – 8 years imprisonment given that there was some degree of provocation and the prisoner had no intention to cause GBH. Counsel further submitted that the mitigating factors and the extenuating circumstances of the case does not place it under the category of worst type offence to attract the maximum penalty prescribed for manslaughter under section 302 of the Criminal Code.  Furthermore, precedent case laws for killing in similar circumstances normally attract a 6-year term of imprisonment as shown in the recent cases of State v Elda Kevau (supra) and State v Dessie Param Belden (supra). 
 
32.     Counsel urged the Court to exercise its sentencing discretion under section 19 of the Criminal Code and not to be influenced by Manu Kovi guidelines as it is only a guide and to impose a lesser sentence.

I.	DECISION

33.     On the whole, I find that the mitigating factors and the extenuating circumstances outweighs the aggravating factors. Prisoner had no intention to do GBH. The death of her husband was unintended and unfortunate. There was some degree of provocation involved as the deceased hit the prisoner with the umbrella and threatened her. She retaliated by attacking him with a scissor that punctured one of his lungs. The incident happened in the late hours of the day. 

34.     I agree with both Counsels that the factual circumstances of this case does not place this case under the category of worst type offence to warrant a long custodial sentence.  The case falls under category one of the Manu Kovi guidelines. However, I remind myself that I am not bound by any sentencing guidelines or tariffs as the wider sentencing discretion given to me under section 19 of the Criminal Code allows me a greater flexibility to consider a lesser sentence including non-custodial sentence where appropriate (Kumbamong v The State). 

35.     Furthermore, case precedence cited by Counsels generally indicated that the current sentencing trend for manslaughter especially where a wife killed her husband, spouse or partner following a domestic argument is usually between 6 – 10 years. 

36.     Having considered the factual circumstances of the case and the submissions from Counsels including the PSR report on sentence, I am of the view that part custodial and part non-custodial sentence would be most appropriate for this case.

J.	SENTENCE

(i)	The prisoner is sentenced to six (6) years imprisonment.

(ii)	Pursuant to section 3 (2) of the Criminal Justice (Sentence) Act 1986, I deduct one (1) year and four (4) months for the pre-trial custody period.

(iii)	The prisoner is to serve the balance term of four (4) years and eight (8) months imprisonment. 

(iv)	In the exercise of my sentencing discretion under section 19 of the Criminal Code, I further order that one (1) year of the balance term of imprisonment to be suspended and the Prisoner to be placed on Probation with strict conditions for a period of one (1) year under the supervision of the Probation Office.

(v)	Prisoner to serve the remaining imprisonment term of three (3) years and eight (8) months.

Orders Accordingly.
__________________________________________________________________
Public Prosecutor	:	Lawyer for the State
Public Solicitor	:	Lawyer for the Defence