SC702

PAPUA NEW GUINEA

[In the Supreme Court of Justice]

SCA 11 of 2002

BETWEEN:

ANNA MAX MARANGI
- Appellant –

AND:

THE STATE
- Respondent –

Mt Hagen: Jalina, Injia & Sawong JJ.
2002: 2 – 3 October
: 8 November

Criminal Law – Appeal against sentence – Manslaughter – Nine (9) years – Multiple stabbing with kitchen knife, by wife of husband’s "girl-friend" – Deceased seven (7) months pregnant – Sentencing tariff for manslaughter and murder cases discussed – Appeal dismissed.

Cases cited in the judgment:
Antap Yala v. The State CRA No. 64 of 1994 (Unreported)
Jack Tanga v. The State SC602 [1999]
John Kapil Tapi v. The State SC635 [2000]
Lawrence Simbe v. The State [1994] PNGLR 402
Public Prosecutor v. John Mela SCRA 17 of 2001 (Unreported)
Rex Lialu v. The State [1988-89] PNGLR 487
The State v. Laura No. 2 [1988-89] PNGLR 98
The State v. Magret John (No. 2) [1996] PNGLR 298
The State v. Maria Er N1749 [1998]
The State v. Peter Kose Wena [1993] PNGLR 168

Counsel:
B. Aipe for the appellant
R. Auka for the respondent

8 NOVEMBER, 2002

BY THE COURT:	This is an appeal against sentence imposed by the National Court at Mt. Hagen on 6 August, 2001. The appellant was sentenced to 9 years imprisonment upon pleading guilty to a charge of manslaughter. The only ground (of 3 grounds) of appeal pursued by the appellant and argued before us is that the sentence was excessive in the circumstances.

The circumstances of the killing were that the appellant is a 26 year old woman from Pasalagus village, Maramuni, in the Enga Province. She was married to a man from her area by the name of Max. They lived at Tabubil for some time where her husband worked. Sometimes in 2000, she returned to her village and lived there. On 22nd December 2000 she received information that her husband was coming home via Mt. Hagen. So she got on a MAF plane and flew down to Mt. Hagen and in the night, she went to one Nancy John’s house, where she expected Max to be staying. She entered the house and saw the deceased one Ms Juliana Ansu, "sleeping" on a lounge chair watching TV. The deceased was seven (7) months pregnant at that time. The appellant had suspected Juliana of being her husband’s girl-friend and having an affair with her husband. She then stabbed the deceased with a kitchen knife on her chest twice. The appellant then left the house with the knife in her hand which she later threw away. The deceased was immediately rushed to the hospital where she was pronounced dead on arrival.

There was some argument before us between counsel as to whether there was a fight between the appellant and the deceased which preceded the stabbing. We need to resolve this factual issue first because it is relevant on sentence.

The State’s version of facts upon which the accused pleaded guilty was that the appellant was armed with a kitchen knife which she took with her when she went to Nancy’s house. She approached the deceased who was "sleeping away" on a chair, took out the knife and stabbed her twice. The deceased died of massive internal bleeding from the wounds. 

These facts were not disputed by the appellant in her statement on the allocatus or by her counsel in his submissions on sentence. There was no suggestion from the appellant or her counsel of any fight between the appellant and the deceased which preceded the stabbing.

In the trial in submissions on sentence, her counsel Mr. Aipe who is also her counsel in this appeal, made vague references to the appellant’s answers to questions 17 – 23 of the Record of Interview. We reproduce questions and answers No. 17 – 21 below:

"Q.17	What did you do to Juliana when you saw her in the house?
Ans.	Juliana asked me saying who are you looking for and I said I came 	to look for my husband Max and Juliana said he is my husband too and not only you and she fought me with a pocket knife of hers and I got the knife and stab her with the knife."

Q.18		Where did you go after stabbing her?
Ans.		I went to the police station.

Q.19		How many times did you stab Juliana with the knife?
Ans.		I stabbed her twice with the knife.

Q.20		What type of knife did you use to stab Juliana?
Ans.		Big kitchen knife.

Q.21	After you finish stabbing Juliana, where did you put this knife?
Ans.	I throw the knife into the rubbish outside the store near the main market."

The only other evidence suggesting some form of "fighting" between the appellant and the deceased is from Nancy Takoni but her suggestion of "a person fighting another person" does not clearly indicate if the two were actually fighting each other.

The trial judge sentenced her on the State’s version of facts. This is clear from his judgment where His Honour makes no reference to any fight between the two women. His Honour sentenced the appellant on the basis that the appellant was armed with a knife when she went to Nancy’s house and that she used this knife to stab the deceased.

Mr Aipe now contends that there was a fight between the appellant and the deceased when the appellant entered the house. He did not say whether the appellant was attacked first by the deceased with her own knife and the former responded by stabbing the deceased with the same knife.

On the face of the above record, it seems to us that the appellant’s counsel and the prosecutor no doubt have engaged in some pre-trial plea bargaining which resulted in the State’s reduction of the charge from what in our view would otherwise constitute murder or even wilful murder, to manslaughter in exchange for the appellant abandoning her claim of first attack by the deceased with her knife and her retaliation using the same knife as stated in her Record of Interview. This is clear from the transcript that there was no suggestion of a fight by the appellant or her counsel at any stage of the trial. In these circumstances, we are not prepared to disturb the factual basis upon which she was sentenced.

The only submission advanced before us by Mr. Aipe for the appellant is that the present sentence is above the present range of sentences given by the Courts in manslaughter cases. He submits that for this reason, the sentence should be reduced to seven (7) years. He refers us to three decisions of the Supreme Court namely, CRA No. 64 of Antap Yala v. The State (Unreported), SCA No. 88/89 Saina Paul v. The State (Unreported) and Noring John v. The State, (Unreported), SC23 & No. 24 of 2002. He also refers us to the National Court decisions of State v. Magret John (No. 2) [1996] PNGLR 298 and The State v. Maria Err [1999] N1749. We are aware of the decisions in Antap Yala, Margret John and Maria Er because they were published whereas the other decisions were not published. The appellant’s counsel did not furnish us copies of any of the unpublished decisions he relied upon to enable us to peruse to determine if his submissions should be accepted. So we are unable to comment on them.

Mr. Auka of counsel for the respondent submits that the current range of sentences for manslaughter cases, is between 6 and 12 years. The present sentence was therefore within that range and it should not be disturbed.

In our view, it seems to us that neither counsel are fully aware of recent decisions of the Supreme Court which set out the sentencing principles and the tariff for manslaughter cases which occur in an unstable marital setting or, for want of better words, "domestic setting". The three (3) important decisions of the Supreme Court which come to mind are CRA No. 64 of 1994 Antap Yala v. The State, Unreported Supreme Court-judgement dated 31 May 1996; Jack Tanga v. The State (1999) SC602; and John Kapil Tapi v. The State [2000] SC635. The killings in all these cases occurred in domestic settings. The Courts appear to have regarded unintentional killings in a domestic setting as less serious than other types of unintentional killings and prisoners who pleaded guilty have been given somewhat lenient treatment on sentence. But the Supreme Court in Antap Yala (supra) has sounded the warning that even unintentional killings in a domestic setting, say between spouses or between co-wives, or between a spouse and girlfriends/boyfriends of one of the spouse, is becoming prevalent and that sentences will increase. The Supreme Court also re-iterated that whilst murder sentences would normally be higher than manslaughter sentences, even in manslaughter cases, there are those killings which will be regarded seriously and attract the maximum punishment of life imprisonment. These views were repeated in Jack Tanga and John Kapil Tapi.

The current range of sentences for uncontested manslaughter cases in a domestic setting as set out in the above three cases and other cases range from four (4) years to sixteen (16) years imprisonment. There are 3 categories of sentences within this range. 

The first category relates to cases which come in the lower end of this range. These cases involve application of force in an uncalculated manner, such as a single blow, punch or kick on any part of deceased’s body. For instance a single or multiple kick or punch causing rupture of the spleen. This kind of killings attract sentences between three (3) years and seven (7) years. Cases where the deceased has pre-existing disease which accelerated or contributed to the death such as enlarged spleen are treated as less serious than the death of a normal person and they attract sentences in the lower end of this scale: see Public Prosecutor v. John Mela SCRA 17/01 unpublished Supreme Court Judgment dated 28 June 2001.

The second category relates to cases which fall in the middle part of this range. These cases involve repeated application of vicious force, with or without the use of an instrument or weapon, such as repeated kicks and punches applied to the head or chest with deliberate intention to wound or cause bodily harm. An example is Jack Tanga’s case. Death caused by a single or multiple knife stab wounds applied on the head, neck, chest or abdomen or on any other vulnerable part of the body, without any other special aggravating factors, also come under this category. Unintentional killings which come under this category attract sentences between 8 and 12 years.

The third category relates to cases which fall on the top end of the range. Those cases involve application of direct force in a calculated manner, on the body using a weapon such as a knife, bushknife or axe thereby inflicting serious bodily injuries, such as piercing vital organs or severing vital parts of the body. Death caused by chopping the neck, legs and arms with an axe or bushknife are examples of this kind of killing. Death caused by single or multiple (knife) stab wounds on the head, face, neck, chest or the abdomen if accompanied by other special aggravating factors may also fall under this category. This kind of killing attracts sentences between 13 and 16 years. An example of this type of killing occurred in John Kapil Tapi. The case of Antap Yala could also come under this category although the sentence imposed in that case was 10 years.

As to which of these 3 categories a particular case falls into, depends principally on the viciousness of the assault, the manner in which the injuries were inflicted and the seriousness of those injuries which caused death.

It is worth noting that killings which come under the second and third categories may well constitute murder or event wilful murder if the necessary intentions to either cause grievous bodily harm or kill are present.

In our view the sentences commencing with Antap Yala, marks a significant increase in the sentences imposed in manslaughter cases since the case of Rex Lialu. Prior to Rex Lialu, manslaughter sentences ranging between three (3) and six (6) years were common. But those kind of sentences are no longer appropriate nowadays.

In all the above manslaughter cases and other cases both the National and the Supreme Court have given due weight to the value the society places on the sanctity of human life. It is the most precious of all gifts from God who alone gives life and takes life. Any person who takes away someone else’s life, for whatever reason, and in whatever form or manner, and irrespective of what the extravagating or mitigating factors might be, they must adequately pay for it through the sentence that is imposed. It would seem unjust or unfair to society and those relatives immediately affected by the killings that the Court should give undue weight to the prisoner’s interest and his or her call for leniency and that the interest of the community is merely paid lip-service or ignored and a lenient sentence is imposed.

During argument, we attempted to demonstrate our appreciation of the sanctity of human life in pragmatic terms in this way. Both the appellant and the deceased are young women. The medical report shows that the deceased was aged 20 years. The appellant is aged 26 years. Given the life expectancy of females in this country at 60 years, the appellant had another 34 years to live, whilst the deceased had another remaining life expectancy of 40 years of life to live. The appellant was sentenced to 9 years. She will be released from prison at the age of 35 by which time she will be a middle-aged woman. By then, she will still have many years to live. She may go on to live with her husband Max or marry someone else. One the other hand, the deceased’s long years of life expectancy has been terminated prematurely.

On the face of these figures, it would seem grossly unfair of the appellant in this case to complain of the excessiveness of this sentence because it does favour her significantly and pay little regard to the loss of a young woman’s life and the life of her unborn foetus.

We are in total agreement with the trial judge who said:

"Manslaughter is a very serious matter or offence and it carries a maximum penalty of life imprisonment. And the life imprisonment is because a life is gone and that person is never going to come back.

"No matter whose fault it is, the person is dead and it is tragic. I cannot ignore the fact that you were carrying a knife with you at the time and unfortunately this court sees time and time again women who are walking around everywhere, not just in the Highlands, in many places of the country who are carrying knives and so much harm comes out of it. You stabbed her twice and what makes this case even sadder than everything is that the deceased was seven months pregnant. And the State has asked me to take that into consideration as an aggravating circumstance. As I understand the foetus died and the whole incident is tragic. It is sad and it should never have happened. You have done something that you will have to live with for the rest of your life….

I cannot ignore the fact that not only did the lady die but the seven months foetus has died as well. Women must realize that they cannot express their anger with the use of a knife; it is just not acceptable under any circumstances. If they do so, they can expect to go to jail."

We endorse His Honour’s emphasis on the use of a knife as a lethal weapon to kill another person as unacceptable under any circumstances. To our knowledge, there are increasing instances of manslaughter and murder killings coming before the Courts in which a knife is used to settle domestic differences, with fatal consequences. The use of readily available kitchen knife to settle one’s domestic grievances is prevalent in this country. It is becoming a silent lethal weapon, far more dangerous than other potentially dangerous weapons like axes, bushknives or even guns. The reason for this is because 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, a strong punitive and deterrent sentence is required.

We are satisfied that the sentence in the present case falls within the second category or even the third category of range of sentences for manslaughter cases discussed earlier. Given the special aggravating factors present such as the vicious multiple stabbing of an unarmed and unsuspecting woman who was "sleeping" in her home and the termination of the foetus, a sentence well above that which she received was warranted. Therefore, we do not find any error on the part of the trial judge in regard to this particular sentence. 

During argument, we raised with both counsel the matter of customary compensation under the Criminal Law Compensation Act 1991. Although the appellant did not raise the matter in the Notice of Appeal as a ground of appeal, we raised this matter because of the mandatory terms of S. 3(1) of that Act.

The Court records show that Mr. Aipe raised the matter in Court but the trial judge did not pursue the matter with counsel and also did not address it in his judgment.

Mr. Aipe in his submissions on sentence simply raised the matter before the trial judge in this way:

"And I am instructed – I instructed one of her relatives to come with a stat dec. but I understand how much was paid by he has yet to turn up with the Stat Dec. but I understand from my client that a part of that compensation can be paid. And Your Honour will note that sometimes it amounts to hundreds of thousands for compensation alone." (Appeal Book page 17)."

Whilst we are mindful of the mandatory terms of S. 3(1) of the Criminal Law Compensation Act 1991, which requires the National Court to consider the application of this Act in every sentence (see The State v. Peter Kose Wena [1993] PNGLR 168), we consider that given the general and open-ended manner in which Mr. Aipe raised the matter without pursuing it further with the trial judge, the appellant’s failure to raise the matter on appeal and our view on the adequacy of the sentence imposed, any error which the trial judge may have committed in this respect, is rendered insignificant and insufficient to disturb the sentence.

Before we conclude this appeal however, we wish to make a comment in general in regard to sentences imposed for murder cases. Whilst it is clear to us that sentences for manslaughter have increased significantly over the years, the same cannot be said of murder sentences. It seems to us that manslaughter sentences have surpassed the tariff for murder cases set out in the often quoted National Court decision in The State v. Laura (No. 2) [1988-89] PNGLR 98 and other cases such as Lawrence Simbe v. The State [1994] PNGLR 402. Therefore, there is a need now for the Supreme Court to develop new tariffs for murder sentences to render consistency with manslaughter sentences. As this case is concerned with manslaughter, we leave that task for the Supreme Court on another occasion, in an appropriate case.

For these reasons, we dismiss the appeal against sentence and confirm the sentence of the National Court.
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