N8849

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 621 of 2020

THE STATE

V

FIDELMA KOLOKOLO

Kimbe: Tusais AJ
2021: 18th & 26th February

CRIMINAL LAW – Manslaughter section 302 Criminal Code Act – Guilty plea – Killing of husband by wife on suspicion of adultery - Factors in mitigation and aggravation- Appropriate Sentence 

Cases Cited

Rex Lialu v The State [1990] PNGLR 487
State v Maria Waieng (2017) N6755
State v Serah Joe Wennis (2011) N4661
Jack Tanga v The State [1999] SC 602
 Anta Yala v The State [1996] SCR 69, 
Anna Max Marangi v The State SC 702.
 Simon Kama -v- The State (2004) SC740 
Avia Aihi vs the State (No 3) [1982] PNGLR 92
Goli Golu v the State (1979) PNGLR 653
 Ure Hane vs The State (1984) PNGLR 105

Counsel:

Mr. A. Bray, for the State 
Mr Takua, for the Defendant

26th February, 2021

1.       TUSAIS AJ: INTRODUCTION: The prisoner pleaded guilty to Manslaughter contrary to section 302 Criminal Code Act. This is the decision on sentence after hearing submissions by counsel earlier today. I promised to give full reasons later and I do so now.

Facts:

2.      The deceased Simon Sireh was the husband of the offender. He was a high school teacher living and working at Talasea High School. The offender lived back at their oil palm block in Buvusi, near Kimbe. Both of them had been married previously to other spouses. 

3.     On the 02nd day of October 2019 her daughter (from first marriage), Jaylene Peter rang her on her mobile phone and told her that her husband had brought another woman into the house he was living in at Talasea. She told her mother that the two had been living together for a week. After hearing this, the offender immediately went to Talasea with her daughter arriving at about 3.00 pm that same afternoon. There she confronted her husband and asked him about the new woman. He denied taking any woman into the house and the two argued. During that time the husband tried to leave the scene but the offender chased after him and stabbed him one time each on both legs using a kitchen knife she had brought with her. The stab to his right thigh severed his popliteal artery, a major blood vessel which led to severe blood loss. The husband died on a vehicle as he was driven back to Kimbe for treatment. 

Antecedents:

4.     Offender is aged 40 years from Penatabotong village, Bali Island, West New Britain province. She was married to the deceased in her second marriage. They did not have any children but both had children from earlier marriages. She was looking after all their children, five of her own and two of the deceased at the time of the offence. Offender has had limited education only up to grade 2.  

Mitigating Factors:

(a)	Plea of guilty. She saved the court time and the state expense to conduct a trial. I give a lot of weight to this factor.
(b)	Prisoner is a first-time offender.
(c)	There was de facto Provocation. I find this to be a mitigatory factor because the state lawyer did not take issue with it. However, the deceased did deny the fact when confronted and the offender did search the house but found no evidence of the new woman moving in.
(d)	This was done in a spontaneous manner without any prior plan to stab the husband.
(e)	Payment of compensation
(f)	Remorse expressed. In Allocutus she said...

“I say sorry to the court. It is my first time to appear. I say sorry to everyone who is here. I say sorry to my husband who has lost his life. I say sorry to my husband’s family. I have reason for doing what I did. He took another woman to the house. My daughter saw it. What I did is not good but when I asked him he denied it. When he tried to run away, I stabbed him. I have no right to do what I did but he died because lost a lot a blood and could not be taken to Kimbe hospital sooner. The problem was lack of transport. I paid K13,985 as compensation (‘belkol’ money). I ask the court to have mercy on me and place me on probation.”

5.     I accept her remorse to be genuine regret over her actions. Her payment of compensation even before order of court is further confirmation of her remorse.

6.     I give great weight to all the above factors and especially to her plea of guilty, lack of previous convictions and expression of remorse. I will give the prisoner a lesser penalty because of these factors. However, I must balance these against other matters which go against the offender. Those aggravating factors are -

Aggravating Factors:

a)	The offence of manslaughter or unlawful killing in domestic settings is prevalent in PNG. 
b)	A life has been lost.
c)	Use of dangerous weapon a kitchen Knife. I agree with the State Prosecutor in his submissions referring to Kassman J’s decision – Bush knives are lethal instruments – Potential for causing fatal results or serious bodily injury real.
d)	Two stab wounds were inflicted.

7.     Defence counsel referred to various cases of unlawful killings arising from domestic situations, usually when the husband has been unfaithful leading to the offender killing him or more frequently killing the female involved in the adulterous relationship. I note in particular the following cases:

State v Maria Waieng (2017) N6755

Offender killed her husband’s new mistress because he was spending all his pay on her and neglecting her and their 4 children. Liosi AJ imposed 10 years head sentence, deducted 2 years spent in remand, further suspended 2 more years and ordered the prisoner to serve the remaining 6 years in custody.

State v Serah Joe Wennis (2011) N4661

Killing of husband. Stabbed him with a very long kitchen knife while he was chasing her. Some provocation. Sentenced to 8 years part suspended.

8.     Defence submits that terms of 7 to 12 years imprisonment is appropriate. He submitted that this is a suitable case for major suspension of sentence.

9.     State submitted that the use of knives is prevalent. Deterrent sentence was called for and argued that 10 to 12 year sentence be imposed. 

10.     I find that the aggravating and instigating factors are even. The crime is prevalent, and a dangerous weapon was used causing death.

11.     Probation report is favourable to the offender. It says that she is a good candidate for probation over an extended period.

12.     The prescribed sentence under section 302 is life imprisonment. Maximum sentence for any offence is usually reserved for those crimes described as the worst of its kind. The Supreme Court in the cases Avia Aihi vs the State (No 3) [1982] PNGLR 92, Goli Golu v the State (1979) PNGLR 653 and Ure Hane v The State (1984) PNGLR 105 all restate this principle of law. Does this particular case fit into the category of worst type case? To decide that I must weigh up both mitigating and aggravating factors and consider the seriousness of the injuries sustained.
13.       I repeat what Batari J said in the case of State v Wenis and adopt his reasoning as applicable to this case:
“Any form, type or category of unlawful killing is always the most serious breach of the criminal law. It is repugnant to the civil norm and abhorred by those who treasure the right to life in fellow human beings. And needless to say, any type of killing violates the sanctity of a God-given life. Hence, the ultimate punishment by death is prescribed by Parliament for wilful murder while the maximum penalty of life imprisonment is reserved for murder and manslaughter.

6. The indeterminate penalty of life imprisonment for manslaughter is not mandatory because of the operation of s. 19 of the Code which sets out different sentencing options the court can use and apply in the particular circumstances of each case. But one must start from the maximum penalty prescribed as a guide to the seriousness of the offence and the relative punishment to be imposed.

7. The court is also guided by settled principles from precedent cases that are applicable to the offence. In Rex Lialu v The State [1990] PNGLR, 487 the Supreme Court initially prescribed different categories of manslaughter killings. It also suggested sentencing guidelines for each category. The range of sentences suggested in that case has however been reviewed by the Supreme Court in a number of cases in Jack Tanga v The State [1999] SC 602, Anta Yala v The State [1996] SCR 69, Anna Max Marangi v The State SC 702. The Supreme Court in Simon Kama -v- The State (2004) SC740 took one step further to recommend revised guidelines for homicide cases. The following year the Supreme Court in the often cited case of Manu Kovi v The State (2005) SC789 prescribed another set of guideline for unlawful killing sentence.

8. I have had regard to those cases and the suggested guiding principle. I bear in mind that, sentences for manslaughter will normally be lower than sentences for murder except in the most serious cases where manslaughter is charged as a result of plea bargaining and any further reduction of sentence would be inappropriate. In the worst case of manslaughter killing, life imprisonment may be justified.

9. The increase in sentences has come about due to the escalation and growing trend of killings committed in varying type, form and degree of violence.”
14.      In Manu Kovi v The State (Supra), the Supreme Court suggested sentencing guidelines for 4 types of manslaughter killings as follows:

"1. In an uncontested case, with ordinary mitigating factors and no aggravating factors, a starting point of 7 years up to 12 years. A sentence below 7 years should be rarely imposed except in exceptional cases where there are special mitigating factors.
2. In a contested or uncontested case, with mitigating factors and aggravating factors, a starting point of 13 - 16 years.

3. In a contested or uncontested case, with special aggravating factors and mitigating factors whose weight is reduced or rendered insignificant by the gravity of the offence, 17 - 25 years.

4. In contested and uncontested case with special aggravating factors - Life imprisonment for the worst cases. The presence of mitigating factors is rendered insignificant by the gravity of the offence. These are cases which involve viciousness, some pre-planning, use of a weapon and complete disregard for human life".

15.      These prescribed guidelines reinforce and enhance the basic sentencing principle that the sentencing authority must have careful regard to the circumstances of death and the way in which death was actually caused. His Honour Kapi DCJ (as he then was) made this observation in a manslaughter killing case in Rex Lialu v The State (supra) at 497:

"In considering the penalty for manslaughter cases, I adopt the words of Watkins LJ in R v Phillips (1985) 7 Cr App R (S) 235 at 237.

'The Court has to pay very careful regard to the circumstances of death, and especially to the way the death was actually caused, in coming to a conclusion as to what punishment a defendant should receive for whatever it was he did towards bringing that about.'" as stated in R v Phillips [1985] CR APP (RS) 235 at 237.”

16.     The death in this case was most unnecessary. Unlike a lot of other cases cited to me, the deceased did not attack the offender. He was not found in ‘flagrente delicto’ or was not caught in the act of sexual intercourse. He was not found together with the new woman. He denied doing what the offenders daughter alleged and was trying to leave the scene when he was attacked. He was chased down, attacked with a sharp kitchen knife and he died from loss of blood. It is no excuse at all that the main reason he died was lack of transport to take him to the Kimbe Hospital. The offender should not have attacked him in the first place.

17.     In considering the appropriate penalty to impose in this case, I take into account the submissions made by both counsels on sentence, the prisoner’s statement in Allocutus and the Pre-sentence reports compiled by Probation Officer, Mr Kelemi. I thank him for the PSR and MAR and Victim Impact Statement all of which contain helpful information that has greatly assisted the court.

18.     The State prosecutor has submitted that a sentence between 10 to 12 years is appropriate. He referred to a number of cases, some of which had also been relied on by the defence counsel. Most of the cases they referred me to had sentences ranging between 10 to 12 years with suspended terms in some.

19.     This is not the worse type of manslaughter case. I treat this case as falling into the higher end of the Manu Kovi case and will impose head sentence as suggested by both counsel who seem to be in agreement.

Sentence

1. 10 years IHL

2. 1 year 4 months Pre-trial period is deducted.

3. A further 2 years is suspended because of the plea of guilty and payment of compensation.

4. Prisoner is to serve the balance of 6 years and 8 months IHL

Sentence accordingly.

______________________________________________________________
Office of the Public Solicitor:	Lawyers for the Accused
Office of the Public Prosecutor:  Lawyers for the State