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State v Mark [2022] PGNC 127; N9563 (30 March 2022)

N9563


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR NO. 1125 OF 2018


THE STATE


V


MARGARET MARK


Baisu: Toliken, J.
2022: 7, 18 March


CRIMINAL LAW – Practice & Procedure – Presiding Judge passes on without passing sentence – Matter proceeds pursuant to Section 576(3) of Criminal Code.


PRACTICE & PROCEDURE - Sentence – Manslaughter – Guilty plea – Domestic killing - Co-wives – Mitigating and aggravating factors considered - Appropriate sentence - 10 years less time in pre-sentence detention – Suspension – Not appropriate – Criminal Code Ch. 262; s 302.


Cases Cited:


Lawrence Simbe v The State [1994] PNGLR 38
Rex Lialu v The State [1990] PNGLR 487
Aihi v The State (No. 3) [1982] PNGLR 92
Golu v The State [1979] PNGLR 653
Kumbamong v State (2008) SC1017
Manu Kovi v The State (2005) SC789
Marangi -v- The State (2002) SC702
The State v Markus (2015) N5944
The State v Kaa Tinka (2013) N5439
The State v Anita Kelly (2009) N3624
The State v Clara John Gabriel (2003) N2378
The State v Regina Mark; CR No. 781 of 2011 (Unreported and Unnumbered judgement dated 21 October 2011
The State v Mala Jackson; CR No. 448 of 2011 (Unreported and unnumbered judgment
The State v Samuel Benimo (unreported and unnumbered judgment)


Counsel:


P Tengdui, for the State
W Dickson, for the Prisoner


SENTENCE


30th March, 2022


  1. TOLIKEN J: INTRODUCTION: Margaret Mark, on 23 June 2020, you pleaded guilty before the Late Sagu J for the unlawful killing of one Beverley Awali on 26th day March 2018, at Warakum, Mt. Hagen, Western Highlands Province. You contravened Section 302 of the Criminal Code (the Code).
  2. Justice Sagu heard submissions on 26th August 2021 and adjourned for sentence but took ill and eventually passed away in April 2020 without handing down her sentence. On application by the State, for you to be sentenced before another judge pursuant to Section 576 (3) of the Code, which I granted, you now appear before me for sentence. Section 576 (3) relevantly provides:
    1. INCAPACITY OF JUDGE.

(1) ...

(2) ...

(3) If after an accused person has been convicted of an offence but before sentence the presiding Judge becomes incapable of proceeding, some other Judge may, on application by the accused person or his counsel, or by a State Prosecutor, proceed to sentence as though the accused person had been convicted by him.


Facts


  1. You admitted the following facts: On 26 March 2018, you were at your house at Warakum, Mt. Hagen, with your 7-month-old baby and your father-in-law. You are the third wife of a common husband, Mark Mapisa. The deceased Beverley Awali was the fourth wife. That time she and a friend left her home at Tarangau, Mt. Hagen, and went over to Warakum to pick up your common husband’s mobile phone which he had left behind at your place and return your own phone which he had taken with him. When they arrived at your place, the deceased called to you to bring your husband’s phone and get your own phone from her. You came out of the house and got your phone from her. And while she was not looking, and without any arguments, you struck her on the neck with a kitchen knife severing an artery. The deceased was rushed to the hospital but was pronounced dead on arrival from heavy loss of blood. After you stabbed the deceased, you surrendered to the police. You were then charged with manslaughter – the same charge you were indicted for and before this Court for.

The Offence


  1. The offence of manslaughter carries a maximum penalty of life imprisonment. However, the law says that I may only imprison you for life if I find that your case is a worst instance of manslaughter. The law also says that whatever your sentence will be, will depend very much on the particular circumstances of your case. In other words, unless your offending is so bad, the Court has the power to impose a sentence below the maximum. These are well settled principles of sentencing. (Golu v The State [1979] PNGLR 653; Aihi v The State (No. 3) [1982] PNGLR 92; Lawrence Simbe v The State [1994] PNGLR 38).
  2. To impose an appropriate sentence for you I must determine, first, whether or not yours is a worst case of manslaughter. If I decide that it is, then I may impose a life sentence. If it is not, then, I must impose an appropriate term of years below the maximum.

Antecedents


  1. You were 30 years old when you committed this offence. You would now be 34 years old. You are originally from Tangaimanda Village, Wapanamanda District, Enga Province but at the time of the offence you were residing at Warakum here in Hagen. You are the eldest in a family of 5 siblings. Your parents are both still alive.
  2. You completed Grade 10 at Paglum High School in 2009 after which you did a 3-year nursing course at Tsak Nursing School. Unfortunately, you were not able to find employment as the school was not registered. You were not deterred and so you enrolled at the Tinsley School of Nursing. You, however, withdrew from studied when you met and married Mark Mapisa.
  3. You have been in custody for a period of 3 years, 5months, and 7 days since you voluntarily surrendered to the police on 23rd October 2018. You have no prior convictions.

Allocutus


  1. In your address to the court on sentence you apologized for your offence. You also apologized to God for breaking the 6th Commandment. You said sorry four killing your sister and apologized to her family for taking her away from them. You also apologized to your own family and your husband and his relatives for the trouble you caused them and for carrying your burden. You said you were first-time offender. Your education was disrupted when your husband made you pregnant, but he had not been treating well because he was staying with his new wife (the deceased). You said it was the first time for you to see deceased when you attacked her. You admitted your guilt and asked the court to have mercy by giving you a short sentence and place you on good behaviour bond.

Submissions


  1. Your lawyer Mr. Dickson submitted that yours is not a worst case of manslaughter. Counsel referred me to the Supreme Court case of Manu Kovi v The State (2005) SC789, where the court espoused sentencing guidelines for homicide offences such as wilful murder, murder and manslaughter. The court categorized the circumstances under which each offence (manslaughter, murder, and wilful murder) may be committed and provided for sentencing tariffs in an upward scale for each of the four categories for each offence.
  2. Counsel submitted that your offence exhibited the existence of circumstances that fall within both Category 1 and 2 of those tariffs. I will return to these later in my judgment.
  3. While acknowledging that there are factors that aggravated your offence, counsel submitted that there are significant mitigating factors in your favour. I will also return to these in due course. An appropriate sentence for your then, counsel submitted, ought to be 10 years less time in pre-trial/sentence custody. And considering the substantial amount of compensation and bel kol which your relatives paid to the deceased’s people (K51,000.00 plus 85 pigs), the court may, in its discretion suspend part of the sentence.
  4. Your pre-sentence report (PSR) is balanced in the sense that the views of your father and that of the deceased’s brother were sought. Unfortunately, the views of community leaders were gauged. Despite of that, the deceased’s brother John Yadapu, confirmed that his people received K10,000.00 and 10 pigs initially as bel kol and a further payment of K41,000.00 and 75 pigs was received. Mr. Yadapu placed the blame squarely on your husband for the death of his sister and the law should deal with him. In the end the author of the PSR recommended a custodial sentence for you and further suggested that a non-custodial sentence may be considered only if the Court considers it appropriate.
  5. Mr. Tengdui, for the State, agreed with your lawyer that the circumstances of your case disclose elements of both Category 1 and Category 2 of the Manu Kovi guidelines, given the existence of the following – killing in a domestic setting, no preparation or premeditation and the existence of some de facto provocation. Counsel, however, submitted that while yours is not a worst case, there are some factors that aggravated your offence which I agree with and will presently come to. In the circumstances of your case, an appropriate sentence for you ought to be between 10 – 12 years. You were originally charged with murder, but this was reduced on plea bargaining to manslaughter and to suspend part of the sentence would amount to a double deduction.

Sentencing Principles


  1. Categories 1 & 2 of the Manu Kovi guidelines, for your information are as follows –

Category 1: Guilty plea - Ordinary cases where there are mitigating factors - no aggravating factors - no weapon is used - the victim was emotional and under stress - de facto provocation e.g., killings in domestic setting - killing follows immediately after argument - little or no preparation - minimal force used - victim has pre-existing diseases which caused or accelerated death e.g., enlarged spleen cases. Sentence Range: 8 – 12 years


Category 2: Trial or Plea – use of offensive weapon, such as knife on vulnerable parts of body - vicious attack - multiple injuries -some deliberate intention to harm - pre-planning.Sentence Range: 13 – 16 years.


  1. Earlier in Rex Lialu v The State [1990] PNGLR 487, the Supreme Court held that certain matters should be considered when considering an appropriate sentence for manslaughter. These include –
  2. The tariffs suggested in Rex Lialu are of course now outdated, but the above considerations are still very much relevant and to a large extent these had been revised by Manu Kovi.

Whether Worst Case


  1. I agree with both counsel that yours is indeed not a worst case of manslaughter. I also agree that your case would fall within Category 1 & Category 2 of the Manu Kovi guidelines and therefore should attract a sentence between 10 – 12 years. What then should be an appropriate sentence for you?
  2. As I said at the outset, an appropriate head sentence will necessarily depend on the peculiar facts and circumstances under which you committed the offence, the aggravating and mitigating factors and of course on a consideration of previous sentences in similar cases. The latter consideration being to ensure that consistency in sentences is maintained.

Mitigating Factors


  1. I find the following to mitigate the offence –

Aggravating Factors


  1. I, however, find the following factors against you –

Comparative Cases


  1. Your sentence must be consistent with what other offenders with similar circumstances have been given. And to that end, it is appropriate to consider what has been imposed on other offenders so that you get served a sentence that is consistent with the current trend. The following cases were cited to me by both counsel and I do find them to be similar to your own case.
  2. The State v Clara John Gabriel (2003) N2378 per Jalina J: There the offender set after her husband and the deceased who had been having an adulterous affair. They had previously fought over this. On the day of the incident, she waited for her husband but when he failed to arrive home at the time, she expected him to be home, she took a knife and walked towards Kindeng Market. On the way she met her husband with the deceased and another woman, so she argued with the victim. The argument soon developed into a fight during which she stabbed the deceased once on the right-hand side of the neck with the kitchen knife. The deceased did not put up a fight and was soon after rushed to Mt. Hagen General Hospital but died about an hour later. The cause of death according to the medical report was from uncontrolled blood loss (haemorrhage) due to severe laceration to major blood vessels including an artery and a vein.
  3. In passing sentence on the offender there, His Honour said that cases of manslaughter where knives or other weapons are used must be differentiated from those involving punches or kicks such as in spleen cases in terms of what the Supreme Court had said in Lialu v The State (supra.). His Honour referred to his own statement in The State v Samuel Benimo (unreported and unnumbered judgment) where His Honour had sentenced the offender to 12 years for killing his victim with a grass knife. There His Honour said –

"I would consider unlawful killing through the use of a weapon to be more serious than unlawful killing say through a kick resulting in the rupture of the spleen. Unlawful killing through the use of a dangerous and life threatening weapon such as a bush knife, grass knife, axe and so on to my mind indicates determination and total disregard for the risk of death or causing bodily injury to the victim and as such a higher sentence than that normally imposed for spleen death manslaughter would be warranted."


  1. His Honour sentenced Gabriel to 10 years imprisonment.
  2. In The State v Markus (2015) N5944, per Davani J, the offender and the deceased had been in a relationship, separated and then reunited. They had a fight after the deceased locked the offender in their bedroom after an argument. During the fight the deceased slapped the offender across the mouth then lifted her up and threw her on the bed. There was no light in the room, but she saw him approach her with a bush knife and a piece of wood. The deceased then grabbed the offender and a struggle ensued. During the struggle the offender stabbed the deceased with a small knife she was holding, causing his death. The offender pleaded guilty to manslaughter and was sentenced to 9 years of imprisonment, of which 2 years was to be served, the balance suspended.
  3. In The State v Regina Mark; CR No. 781 of 2011 (Unreported and Unnumbered judgement dated 21 October 2011 by David J), the offender and the deceased were the second and first wives of a common husband. They had a strained relationship fraught with constant arguments and confrontations. During one such confrontation, the offender stabbed the deceased on the neck with a knife. The deceased collapsed and was rushed to the hospital but was pronounced dead on arrival. On her guilty plea the offender was sentenced to 13 years imprisonment.
  4. The State v Anita Kelly (2009) N3624 per Makail J: The offender and the deceased were married to a common husband. The offender was the first wife and the deceased the second wife. The marriage between the offender and her husband was an unhappy one. They fought and argued numerous times mainly because the husband had deserted the offender and her three children leaving her to fend for herself and the children. To make matters worse, he moved in with his second wife at her village.
  5. Sometime immediately prior to the offence, the offender had a heated argument with her husband and the deceased. Then one the morning the offender armed herself with a kitchen knife and went to the deceased village. She had an argument with the deceased which turned into a fight. During the fight the offender produced a kitchen knife and stabbed the deceased on her neck. The stab wound was so serious that the deceased died from internal bleeding.
  6. The court found, among other things, that while there was evidence of extreme provocation, there was preplanning, a strong desire to do harm and the attack was vicious. The offender was sentenced to 12 years imprisonment.
  7. The State v Mala Jackson; CR No. 448 of 2011 (Unreported and unnumbered judgment of David J): There the offender suspected the deceased of being her husband’s lover. She went looking for her and found her watching a game of bingo at Kaiwe Market just outside of the Mt. Hagen city. She approached her from the back and stabbed her to death on the neck. She was sentenced 13 years.
  8. The State v Kaa Tinka (2013) N5439 per David J: The offender and the deceased are from a village in the Tambu Nebilya District, WHP. They were co-wives to a common husband. The offender, who was the first wife, complained of being neglected by the husband together with her 4 children. A mediation was arranged, and the offender and the deceased and others had gathered for the mediation by village elders. An argument erupted. In frustration the offender walked over to the deceased and stabbed her once on the chest area killing her instantly. She was sentenced to 10 years.
  9. Kumbamong v State (2008) SC1017, the appellant appealed her 9 years sentence for the unlawful killing of another woman who either was his second wife or lover. 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. She suggested that the deceased move in with her and her children in her house so that their husband could look after all of them under the one roof. Without considering the proposal, the deceased verbally instead insulted the offender. She then grabbed a knife that was on the table and attacked the offender. Seeing that she had no way of escaping, the offender wrestled the knife from the deceased, and stabbed the deceased on her head and back multiple times times causing the deceased to collapse and die instantly.
  10. After discussing at great length, the unfairness of holding an offender who takes another’s life in the circumstances under which the appellant committed the offence, and the need to hold unfaithful spouses equally responsible for their spouses’ or partners’ offending, among others, the Supreme Court allowed the appeal in part. It held that the pretrial and post-conviction detention period of 2 years and 1 month was a sufficient custodial sentence It then suspended the balance of 6 years fully on condition that the appellant shall keep the peace and be of good behaviour for the period of her suspended sentence.

Appropriate Sentence


  1. Now, yours is yet another case of one wife killing another wife which adds to the litany of such cases that have passed through this court. It is yet another case of another woman (or man for that matter) falling prey to the seemingly humble kitchen knife, which unfortunately, has become the weapon of choice for many an angry, abused, neglected and vengeful housewife or a slighted girlfriend or lover. Some 22 years ago, the Supreme Court in Marangi -v- The State (2002) SC702 expressed concern at the escalating use of kitchen knives in domestic killings. It said –

“The use of readily available kitchen knife to settle one’s domestic grievance is prevalent in this country. It is becoming a silent lethal weapon far more dangerous than other potentially dangerous weapons like axes, bush-knives or even guns. The reason for this is that the knife is readily available, it can be easily concealed, and used on unsuspecting unarmed victims who are usually taken by surprise and used in a calculating and precise manner that the human body is easily penetrated, and vital organs are damaged or even severed. It seems to us that more lives are being lost in this country today from the use of the knife than with any other weapon. Therefore, strong punitive and deterrent sentences are required”.


  1. Things have not changed much. Until the root cause of such killings – polygamy and infidelity – is eradicated, we will never succeed in ridding society of killings in the domestic setting.
  2. I agree with the Supreme Court in Thress Kumbnamong that polygamous and philandering men like your husband have much to be blamed for the numerous killings perpetrated by their unhappy and often times abused and battered wives, partners, and lovers. Strong calls have been made from the bench to hold these selfish lustful men accountable for their actions through appropriate legislation. Whether our legislators will take on the call and respond positively is unfortunately beyond our control. Until that happens the courts must continue to act within the confines of the existing law and do the best we can while acknowledging the tremendous psychological and emotional pressure that is brought to bear upon people like you who are victims themselves.
  3. Whatever your reason was for killing the deceased, you had no right to take her young life away so prematurely the way you did. For that you must be appropriately served a sentence that must deter you personally and others who may be similarly inclined.
  4. The cases cited above are all cases that were dealt with here in Mt. Hagen. They are but a fraction of numerous such cases that have been dealt with here and around the country. A few of the cases cited involved knife wounds to the neck and attracted sentence between 10 – 13 years.
  5. I agree with submissions by counsel that an appropriate sentence for you ought to be between 10 – 12 years. I accept that your mitigating factors outweigh your aggravating factors. However, I am also cognizant of the call by the Supreme Court in Lialu v The State (supra) to carefully consider the circumstances under which the killing was done. Hence, as was held by Jalina J in The State v Samuel Benimo (supra) a killing with a bare fist or a kick ought naturally to attract a lesser penalty then where a weapon, object or instrument is used. In your case, you used a knife to kill the deceased and therefore you should get a higher sentence than if you had ruptured her spleen or cracked her skull with your bare limbs.
  6. That said, it must be borne in mind that homicide cases continue to rise, and the courts need to give appropriate attention to this so that we can perhaps be able to control the incidence of homicides and other offences of violence. Manslaughter is by no means a trivial offence and that is reflected by the maximum prescribed penalty of life imprisonment. Offenders like you and others must be made to realise that life is precious and lived only once. Hence the taking of another’s life will be met with appropriate punitive as well as deterrent sentences.
  7. Sentencing offenders like you is, however, not a simple task because of the emotional, traumatic, and psychological effects abused, neglected and battered women go through, with some having to endure this for years. That is why the Supreme Court in Kumbamong went to great lengths to drive in the point that such women ought to be treated quite differently and that the courts need to change the way they treat offenders like this. At paragraph 64 of its judgment the court the justices said –

64. This Court is thus of the view that, it is high time now to review the society''s approach to dealing with offenders through the courts. Not every case of human error is criminal and not every criminal case warrants imprisonment. The courts need to re-examine and identify cases that require imprisonment for the protection of the society and the cases that do not warrant imprisonment but correction outside the prison system. This is not a new thing. The courts have been doing that for centuries but have failed to guarantee safer societies. What is new, however, is the question of what should be the primary focus of criminal sentencing and the suggested answer of correction and rehabilitation and not necessarily imprisonment in prisons. Adopting such an approach would enable the courts to address that which matters most, which is the emotional needs of an offender and the society as a whole for a safer society.


43. Davani J when following Kumbamong in The State v Markus (supra), thus held –


Battered women, who offend, fuelled by the constant assaults and abuses, are not looking for an excuse to be treated differently from other accused. The sentiments expressed by the Supreme Court in Thress Kumbamong v. the State (2008) SC 1017, must be acknowledged as the case that recognizes that women and children in this country who have long suffered at the hands of their spouses or partners, from violence ranging from threats to beatings to sexual assaults, must be placed in a category where they are to be treated in a more humane way by the Courts, rather than be lumped together with the general class of homicide cases.


  1. There is no doubt that you suffered emotionally from your husband’s neglect. Lack of financial support or financial dependency with a marriage is a form of abuse. In polygamous marriages which unfortunately is rampant in your society, neglecting one wife in favour of another can have a very negative impact of the neglected wife. It can evoke extreme jealousy and anger against the wife or partner on whom their common husband is showering all his attention. As often is the case the neglected partner soon reaches a breaking point and takes the law into her own hands. Of course, she channels all her frustration on the rival wife, often the younger one, and end up taking her life. That is what happened in your case. Should you be treated or “lumped” together with non-domestic setting killings?
  2. Kumbamong indeed makes a lot of sense. It is, however, not saying that you must not be punished for your offence, for punished you must. What it says is that your punishment must be qualitatively different from non-domestic cases. While deterrence is important, given the ever-increasing incidence of homicide killings, including those in domestic settings, meaningful consideration must be had of the underlying conditions that shaped and fermented the offender’s self-destructive choice of action, so that she is given all the help and assistance she needs to recover and be rehabilitated.

Head Sentence


  1. Considering all the above, you must be served a sentence which reflects the fact that the killing took place in a domestic setting, and you used a knife to stab the deceased on the neck which shows an intention to cause harm to her, for no one stabs another on the neck without some intention to cause that person some harm, whether grievous or not. In terms of what was said in Samuel Benimo, you ought therefore to get a higher sentence than someone who causes another person’s death with his fist, for instance.
  2. You have some good mitigating factors and I acknowledge them. I rejected de facto provocation because it was your husband’s neglect that would have provoked you in the non-legal sense. But even if the deceased’s sudden appearance at your place provided some provocation, your violent reaction was totally uncalled for disproportionate to any perceived provocation on you. She was not armed. All she wanted was your common husband’s phone. You were not by any stretch of imagination in imminent danger. By striking at the deceased’s neck with the knife there is no doubt you intended to cause harm to her. You prematurely ended another young life by your reckless use of a knife and for that you must pay for your action with your liberty.
  3. Had you not used a knife you may probably be looking at a sentence between 8 – 10 years. However, I would like to think that an appropriate sentence ought to be 11 years. I therefore sentence you to 11 years, less the period of 4 years, 5 months, and 7 days you had been in pre-sentence detention. Should any part of your sentence be suspended?

Suspension


  1. My first thought was to accord you the benefit of what the Supreme Court said in Kumbamong. However, I note that you can hardly be said to be a “battered wife.” Granted, you may have been neglected by your husband in preference to the deceased, but there is no evidence to show that he was extremely abusive and cruel to you, nor of a history of persistent domestic abuse as was the case in both Kumbamong and Markus. Because of that, you do not qualify for a suspension. In other words, the Court will not exercise its discretion to suspend a portion of your resultant sentence.
  2. The fact of the matter is that you acted recklessly and took the deceased’s life prematurely. All that she was doing was to come up the steps to get your common husband’s phone from you. You, however, thrusted the kitchen knife at her when she was not looking, and you stabbed her on her neck. In those circumstances, the Court cannot exercise its discretion to suspend a portion of your resultant sentence.

ORDERS


  1. The orders of the Court are:
    1. The prisoner is sentenced to 11 years imprisonment with light labour.
    2. The period of 4 years, 5 months and 7 days spent in pre-sentence detention is deducted from the sentence.
    3. None of the resultant sentence shall be suspended.
    4. The prisoner shall serve her sentence at Baisu Corrective Institution.
    5. The prisoner has the right to appeal to the Supreme Court within 40 days if she is aggrieved by her sentence.

Ordered accordingly.


________________________________________________________________
P Kaluwin, Public Prosecutor: Lawyers for the State
L B Mamu, Public Solicitor: Lawyer for the Prisoner


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