N11290

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR NO.  1454 OF 2024

THE STATE 

V
 
RICKSON EPE KUA

WALUME: WOOD J
      9 APRIL, 12, 13, 14 MAY 2025

CRIMINAL LAW – sentence - the prisoner pleaded guilty to the manslaughter of his wife – the prisoner returned home to find his wife having sex with his nephew – the prisoner struck his wife on the back with a hard piece of wood and killed her

The prisoner then carried his wife’s body to bushes at the rear of their house and buried her body – the deceased wife’s body was discovered about two weeks later in an advanced state of decomposition

Aggravating and mitigating factors and consideration of gravity of the offence 

Held:

1.	The prisoner is sentenced to 11 years imprisonment.
2.	1 year and 9 months is deducted for time spent in custody.
3.	The prisoner is to serve the remaining term of 9 years and 3 months in custody.
4.	No part of the sentence is suspended.

Cases cited
Goli Golu v. The State [1979] PNGLR 653
Manu Kovi v The State [2005] SC789
Simbu v the State [1994] PNGLR 38
The State v Billy Patrick [2021] PGNC 618; N9458
The State v Desmond Wadae [2021] PGNC 510; N9322
The State v Gunan [2011] PGNC 342; N4317
The State vs Lahuwe [2018] PGNC 518; N7625
The State v Christopher Dubun (2010) N4109
The State v Muli [2016] PGNC 130; N6325
The State v Ruben [2008] PGNC 263: N3941
The State v Albert Kududu (2010) N4108

Counsel
Ms T Kagl for the State
Mr D Pepson for the prisoner

JUDGMENT ON SENTENCE

1.	WOOD J: This is the decision on sentence in which the prisoner Rickson Epe Kua pleaded guilty to the manslaughter of his wife pursuant to section 302 of the Criminal Code and was convicted of that offence.

Brief facts

2.	The brief facts to which the prisoner pleaded guilty were that on 2 August 2023, the accused left his wife, Kialu Jonah at home in the morning and went to the village market at Wanga Village in Nipa Kutubu, Southern Highlands Province.  Around midday, the accused decided to go home so he left the market and walked back towards his house.  When the accused approached his house, he opened the main door and entered the house.  Upon entering the house, the accused saw that his room door was locked from the inside and further saw a pair of shoes and long pants which belonged to his nephew, Elizah Mosi, that were placed on a shelf outside the room.  He heard noises coming from inside the room so he picked up a stick and pushed the door open and saw his wife and nephew having sex.  The room was dark inside.

3.	The prisoner then lifted the stick he had and hit his wife with great force on her back.  Shocked by this, the prisoner’s nephew got up and ran out of the room.  Seeing that his wife laid motionless on the bed, the prisoner moved her and tried to wake her up but the deceased did not move.  She had died.

4.	The prisoner then carried his wife’s body to the bushes at the back of their house and buried it.  The body of the deceased was discovered two weeks later by locals and by that time it had already decomposed.

5.	The State alleged the prisoner unlawfully killed Kialu Jonah and that his actions contravened section 302 of the Criminal Code.

6.	The offender was arrested and charged with one count of manslaughter in contravention of section 302 of the Criminal Code.

The law

7.	Section 302 of the Criminal Code provides as follows:

302   MANSLAUGHTER
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.
8.	Section 19(1)(a) of the Criminal Code provides as follows:

19	 CONSTRUCTION OF PROVISIONS OF CODE AS TO PUNISHMENTS
 (1) In the construction of this Code, it is to be taken that, except when it is otherwise expressly provided–
(aa) .........; and
(a)	a person liable to imprisonment for life or for any other period, may be sentenced to imprisonment for any shorter term
Sentencing in manslaughter cases

9.	 The Supreme Court case of Manu Kovi v The State (2005) SC789 details the sentencing guidelines for manslaughter, which guidelines are extracted below.

Category	Description	Details	Tariff	
1	Plea - Ordinary cases – Mitigating factors with no aggravating factors	No weapons used – victim emotional under stress and de facto provocation e.g. killings in domestic setting – killing follows immediately after argument - little or no preparation - minimum force used – victim with pre-existing diseases which caused accelerated death eg. enlarged spleen cases	8 – 12 years	
2	Trial or Plea – Mitigating factors with Aggravating factors	Using offensive weapon, such as knife on vulnerable parts of body - vicious attack – multiple injuries – some deliberate intention to harm - pre-planning	13 – 16 years	
3	Trial or Plea – special aggravating factors – mitigating factors reduced in weight or rendered insignificant by gravity of offence	Pre-planned. Vicious attack. Strong desire to do GBH. 
Dangerous or offensive weapons used e.g. gun or axe.
Other offences of violence committed. 	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 the gravity of the offence	Pre-meditated attack.
Brutal killing, in cold blood.  
Killing of innocent, harmless person.
Killing in the course of committing another serious offence.
Complete disregard for human life.	Life Imprisonment	

Case law

10.	The State submitted that this case falls within category 1 of the Manu Kovi guidelines, which it was submitted attracts a penalty between 8 to 12 years, and that the starting point should be a custodial sentence of at least 10 years.  In this regard, the State submitted that the prisoner should receive a custodial sentence of between 10 to 12 years.  As part of its submissions, the State relied on the following cases, which are summarised below, namely:

a)	The State v Billy Patrick (2021) PGNC 618; N9458. 
Offender pleaded guilty to one count of manslaughter where she used a piece of wood to scare off people during a commotion and accidently landed the wood on the head of the deceased. Deceased died as a result of the head injury. Court held that the killing wasn’t intentional. Offender was sentenced to 10 years imprisonment. 

b)	The State v Desmond Wadae [2021] PGNC 510; N9322
The offender pleaded guilty to manslaughter. Offender fought with his wife and deceased tried to stop the fight. Offender used a stick to hit the deceased on his head. Deceased was rushed to the hospital but died as a result of the head injury. Offender was sentenced to 10 years imprisonment, none of the sentence was suspended.

c)	The State v Ruben [2008] PGNC 263: N3941
The offender pleaded guilty to manslaughter. During a dispute with his wife, the offender threw pawpaws at his wife and ruptured her spleen. She died as a result. It was held in that case by His Honour Cannings J. that the starting point for this type of manslaughter cases (no offensive weapons used) is 8 to 12 years imprisonment. Offender in that case was sentenced to 10 years imprisonment, none of the sentence was suspended.  

11.	  I have also extracted below another part of the State’s written submissions, namely:

The State submits this is not a worst case of Manslaughter however, there are factors of 
aggravation which makes this case serious:-

F.	AGGRAVATING FACTORS
10.	-    Prisoner used a stick as a weapon to hit the deceased.
	-    A life was terminated prematurely.
	-    Prisoner failed to surrender to the police or report the matter after killing the 
            deceased.
	-   Prisoner buried the body of the deceased in the bushes behind his house until it was 
      discovered by fellow villagers some two weeks later. 
	-   The offence of Manslaughter in domestic setting is very prevalent in our societies
             today. 

11.	The State also acknowledges the mitigating factors in this case that the prisoner is a first-time offender, there was a high degree of provocation in the non-legal sense, prisoner pleaded guilty and he admitted to the police when he was interviewed that he was responsible for the death of his wife.    
 
12.	 The prisoner through his lawyer, made submissions and I have extracted part of the written submissions below, namely:
Cases on principles of Sentencing Guidelines
-	Goli Golu vs. The State [1979] PNGLR 653. 
It is trite law that the maximum penalty should be reserved for the worst type of cases in terms of facts and circumstances leading up to, during and following the crime. We submit the facts and circumstances in this case are not the worst of Grievous Bodily Harm and therefore do not warrant a maximum penalty which is life imprisonment.
-	Manu Kovi vs The State 
The Case of Manu Kovi vs the State sets out Sentencing guidelines for homicide cases that can be adopted and taken into consideration by Courts when imposing sentences.
Manu Kovi sets out the following Four categories for manslaughter:

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	
We submit that this case would clearly fall under the lower end of category one of Manu Kovi guidelines which suggests head sentences of 8 to 12 years. This is as the prisoner only swung the piece of wood towards the deceased and the nephew once causing the death of the deceased.
Sentencing trends for similar cases:

1	State v Muli [2016] PGNC 130; N6325
Ipang J	Following a trial, the Prisoner was found guilty of Manslaughter.
Prisoner was the wife of the deceased man. During a domestic argument between the couple, the prisoner got a single wheel spanner and hit the deceased on the left abdomen which caused a ruptured spleen, resulting in the death of the deceased.
Main Mitigating factors considered were;
i)	First time offender
ii)	Prisoner was continuously Assualted for two days prior to killing deceased
iii)	She was pregnant and gave birth to male child whilst remanded at CS custody
iv)	Was not worse type of killing

Aggravating Factors considered:
i)	An object (Single Wheel Spanner) was used
ii)	No compensation paid
iii)	She took the law into her own hands
	Imprisonment of 9 years.
1 year, 6months pre trial custody deducted
Time left to serve in custody 7 years and 6months.	
2	State v Gunan [2011] PGNC 342; N4317
Cannings J	Prisoner Pleaded guilty to manslaughter. He argued with his wife, assaulted her, ruptured her spleen and fractured her neck.
Mitigation factors considered were:
i)	Sole attacker; surrendered to police; some compensation paid; reconciliation and forgiveness; pleaded guilty; some remorse; first time offender.
ii)	Directly killed deceased; Vicious attack; multiple injuries
	12 years imprisonment imposed
Pre- Sentence spent in custody 6 months, 2 weeks was deducted.
	
3	State vs Lahuwe [2018] PGNC 518; N7625

Geita J	The prisoner pleaded guilty to one count of manslaughter. The prisoner and the deceased got into an argument after being separated for three weeks.
The prisoner ended up stabbing the deceased wife on her side causing her to die a short time later.
Only witnesses were not independent. Court considered this in prisoner’s favour that he dispite their being no independent witnesses, the accused owned up and pleaded guilty.
“To my mind your guilty plea is mitigated heavily by the fact that no independent eye witnesses were available in this serious crime. Your sincerity and deep remorse have manifested themselves. I am satisfied that a head Sentence of 9 years is appropriate in this case.”
	9 years imprisonment
1 year, 5 months and 3 days pre sentence custody was deducted.
Remainder of the sentence was wholly suspended	
4	The State v Steven Ruben (2008) N3941	the offender threw pawpaws at the victim, killing her by rupturing her spleen.	10 years imprisonment.	
5	The State v Albert Kududu (2010) N4108	the offender hit his wife three times on her back with an open hand, which ruptured her spleen and caused her death soon afterwards.	12 years imprisonment.	
6	The State v Christopher Dubun (2010) N4109	the offender kicked his wife on the buttocks and on the sides of her body. She died shortly afterwards due to a ruptured spleen
		12 years imprisonment.	

B.	SUBMISSION ON APPROPRIATE SENTENCE

In assisting this Honorable Court to arrive at an appropriate sentence, we submit that an appropriate head sentence would be 9 years.

We further submit that because the mitigating factors and extenuating circumstances far outweigh the aggravating factors, 7 years would be appropriate sentence for the court to consider imposing on the Prisoner.

We ask that this Honorable Court uses its discretion to deduct the time spent in pre-trial custody and further consider suspended whole or part of the sentence considering the highly favorable Pre-Sentence Report that recommends non-custodial sentence.

Case law comparisons

13.	It is important to remember that the sentence to be imposed depends on the facts of the case as held in Simbe v the State [1994] PNGLR 38, including an aggravating and mitigating factors as well as any extenuating circumstances.  In this matter, I consider the following are relevant factors.

Aggravating factors

a)	the prisoner used a hard piece of wood as a weapon;
b)	the deceased was the prisoner’s wife;
c)	the prisoner committed the act in a domestic setting when he was supposed to care for and protect his wife;
d)	the prisoner failed to report the matter to the police; and
e)	the prisoner buried his wife behind their house until it was discovered by locals.  This was abhorrent and insensitive behaviour by the prisoner.

Mitigating factors

a)	the prisoner pleaded guilty to the charge and did so at an early stage;
b)	the prisoner admitted the offence in his Record of Interview with the police; and
c)	the prisoner has no prior convictions.

Sentence

14.	  In his allocutus, the prisoner said that the matters leading up to the death of his wife were an accident.  He says that he thought he was going to strike his nephew, however, this can never change the events, which is that he struck his wife and her life has been lost.  I do not accept that her infidelity can be used in mitigation or an excuse as to why her actions in having sex with the prisoner’s nephew could justifiably lead to her death.  In any event, his actions led directly to the death of his wife, whereby the life of Kialu Jonah was tragically cut short.  In consideration of what appropriate sentence should be imposed, I note the prisoner pleaded guilty to manslaughter.  If he had not pleaded guilty and was found guilty at trial, I would have most likely imposed a much higher sentence.

15.	 I note in the Pre-Sentence Report that a recommendation is made that the prisoner receive a part non-custodial sentence.  In the prisoner’s written submissions, it is also submitted that part or whole of the prisoner’s sentence should be suspended.  Notwithstanding that the prisoner expressed remorse in his allocutus, I am not satisfied that he has full insight into the gravity of what he did.  I consider this is partly demonstrated by his request for a part or whole suspended sentence.  Moreso, not only did he kill someone he was supposed to care for and love, he effectively buried his wife in their backyard, which was abhorrent and insensitive behaviour.  In this regard, the memory of Kialu Jonah should not be forgotten.    
  
16.	 I have taken into account the cases on sentence which were referred to by the State and Defence in their submissions.  While I accept submissions by both counsel that this matter falls within the Category 1 guidelines as detailed in the decision of Manu Kovi v The State (supra), I consider the sentence to be imposed on the prisoner must be at the upper end of that sentencing range, which I consider is also necessary to deter others from the same or similar conduct.

17.	 Accordingly, I make the following orders:

1.	The prisoner is sentenced to 11 years imprisonment.
2.	1 year and 9 months is deducted for time spent in custody.
3.	The prisoner is to serve the remaining term of 9 years and 3 months in custody.
4.	No part of the sentence is suspended.

Lawyer for the State:  Public Prosecutor
Lawyer for the prisoner: Public Solicitor