SC2715

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCREV NO. 8 OF 2024

VERANI METE
Applicant

-V-

THE STATE
Respondent

WAIGANI: DAVID J, HARTSHORN J, KARIKO J
24, 27 MARCH 2025

CRIMINAL LAW – application for review of sentence – s 155(2)(b) Constitution – manslaughter, s 302 Criminal Code – guilty plea - killing of co-adulterer – death due to brain haemorrhage resulting from laceration to the penis – injury caused by grabbing of the genitalia – whether key findings based on evidence – whether guidelines in sentencing tariff for manslaughter properly applied – whether sentence manifestly excessive.

The applicant was convicted upon pleading guilty to a charge of manslaughter laid under s 302 of the Criminal Code and sentenced to 13 years imprisonment less pre-trial period in custody. She failed to appeal within time, but she was granted leave pursuant to s155(2)(b) of the Constitution to have her sentence reviewed.

Held

1.	An applicant for review of sentence is in the same position as a person appealing and must demonstrate that the primary judge either made an identifiable error that has the effect of vitiating the sentence or imposed a sentence that was obviously (not merely arguably) excessive: Ju Maima v The State (2016) SC1504 and William Norris v The State [1979] PNGLR 605 referred to.

2.	The trial judge erred in finding several key facts which were not supported by proper evidence.

3.	The trial judge erred in his application of the sentencing tariffs established in Manu Koivi v The State (2005) SC789 regarding manslaughter cases.

4.	The sentence was manifestly excessive, and a reduced term of imprisonment was justified.

Cases cited
Ju Maima v The State (2016) SC1504
Manu Koivi v The State (2005) SC789 
State v Arua (2001) N2076
State v Kaupa (2002) N2266
State v Mete (2022) N9624
State v Moro; State v Bamire (1995) N1328
State v Taimpo (2021) N9261
State v Wambura (2017) N6967
Saperus Yalibakut v The State (2006) SC890
William Norris v The State [1979] PNGLR 605

Counsel
N Hukula for the applicant
J Tugali, for the respondent

JUDGEMENT

1.	BY THE COURT: Pursuant to s 155(2)(b) of the Constitution, Verani Mete applied for a review of the sentence imposed on her by the National Court at Goroka on 10 May 2022 after she was convicted upon her plea of guilty to a charged of unlawful killing or manslaughter laid under s 302 of the Criminal Code. 

2.	The applicant was sentenced to 13 years imprisonment to be spent in hard labour less pre-trial period in custody. The judgement on sentence is numbered and referenced as State v Mete (2022) N9624 (the Judgement). 

3.	Having failed to file her appeal within the stipulated statutory time-limit, she applied for the requisite leave for the application for review which was granted on 16 July 2024.

FACTS ON ARRAIGNMENT

4.	On arraignment, the applicant pleaded guilty to the following facts.
5.	The applicant and the deceased were in an adulterous relationship. On the night of 15 November 2020, she was invited by the deceased for coffee in his trade store. When she got there the deceased tried to have sex with her, but she refused, became angry, and grabbed at his genitals causing scratches and a deep tear on the head of his penis. He lost consciousness and was taken to hospital where he remained until his death on 7 December 2022. The medical cause of death was cranial haemorrhage due to penile head trauma, that is, the injury to the penis and high blood pressure led to bleeding in the brain. 
GROUNDS OF REVIEW
6.	The applicant claims the trial judge erred in exercising his sentencing discretion in these respects: 

(1)	That his Honour wrongly found that the attack on the deceased was pre-planned when this was not supported by the evidence;  

(2)	That his Honour did not properly consider several strong mitigating factors in favour of the applicant; and 

(3)	That the sentence was excessive given the facts and circumstances of the case.
SUBMISSIONS
7.	The parties relied on and spoke to their filed written submissions. 

8.	Counsel for the applicant argued that the trial judge erred: 

(1)	in finding that she pre-planned the assault on the deceased when such finding was not supported by the evidence; rather, the attack was a spontaneous response to the deceased’s unwanted sexual advances.

(2)	by not explaining his reasons for concluding that the aggravating factors outweighed the mitigating factors of the case.

(3)	in deciding the sentence of 13 years imprisonment which was disproportionate in view of the facts and circumstances of the case.

9.	The applicant asked the Court to uphold the appeal and impose a sentence of 8-12 years instead, in line with Category 1 of the sentencing tariff proposed by the Supreme Court for manslaughter cases in Manu Koivi v The State (2005) SC789. 

10.	The Court was referred to several cases for comparative sentences. The first of these was State v Moro; State v Bamire (1995) N1328. In Moro’s case, the offender who pleaded guilty to manslaughter was sentenced to 6 years imprisonment for unlawfully killing her husband who she kicked in the testicles during a fight. He fell unconscious and was rushed to hospital the same night when he died from neurogenic shock. Bamire’s case was similar. During a fight with her husband, the offender grabbed and squeezed his genitalia. The husband was shortly after found unconscious in his room. He died soon after, also from neurogenic shock. The offender pleaded guilty to manslaughter was sent to gaol for 6 ½ years.  

11.	Other guilty plea manslaughter cases relied upon were:

•	State v Arua (2001) N2076: During a domestic argument, the offender’s wife hit him with a stick to which he responded by punching her once then kicking her a few times. His wife sustained a rupture to her enlarged spleen from which she died. The offender was sent to 8 years in prison less time spent in custody. 
•	State v Kaupa (2002) N2266: During an argument, the offender punched his wife in the abdomen, rupturing her spleen, leading to her death. Sentence was 10 years less time spent in custody. 
•	State v Wambura (2017) N6967: During a drinking session, the offender was pushed by his brother-in-law. In response the offender punched his in-law on the head causing him to fall unconscious. He later died. The offender was sentenced to 7 years in prison less time spent in custody.
•	State v Taimpo (2021) N9261: The offender punched the deceased one-time in the head causing the deceased to fall backward onto the bitumen thereby causing internal bleeding in the head from which he died. Sentence ordered was 6 years imprisonment partially suspended. 

12.	In response, the Public Prosecutor submitted that all relevant mitigating and aggravating factors were properly considered by the trial judge, and that the applicant had not demonstrated that his Honour committed an identifiable error that affected the proper exercise of the sentencing discretion; nor did his Honour impose a sentence that was manifestly excessive.  

CONSIDERATION

13.	As with a person appealing his or her sentence, an applicant for review must demonstrate that the trial judge either made an identifiable error that has the effect of vitiating the sentence or imposed a sentence that was obviously (not merely arguably) excessive: Ju Maima v The State (2016) SC1504. 

14.	Often cited as setting out the relevant principles in relation to an appeal against sentence, is the statement by Kearney, J in the Supreme Court case of William Norris v The State [1979] PNGLR 605 at 612-613. An appellate court will not disturb the discretionary power exercised by the trial judge in sentencing unless the appellant is able to show error by the judge in the sentencing process. Such error may be identifiable such as mistake regarding facts or a mistake in the application of the law; or an error in considering matters or omitting matters; and not giving proper weight to matters, but even if no identifiable error can be shown, the sentence may be set aside if the sentence is clearly out of reasonable proportion to the circumstances of the offence. 

15.	In our opinion, the learned trial judge started his reasoning on sentence premised on a mistaken key fact. While the facts on arraignment alleged that the applicant’s attack was in reaction to the deceased’s attempt to have sex with her, the trial Judge instead relied on the deposition of a witness who stated the applicant had said she assaulted the deceased after he swore at her. 

16.	His Honour doubted the claim that sexual advances were made by the deceased stating at [4] of the Judgement:

So, it was not that she had refused sexual intercourse hence the reaction and the offence. In my view there is more than what she contends in the death of the deceased. Because a swear word is not disclosed to drive her over the edge to commit the crime. 
	(Emphasis added)

and instead suggested that the deceased may have said something to the applicant that angered her, and it may have been that, based on the depositions of the wife and son of the deceased, he told her of ending their adulterous relationship. See [5] of the Judgement:

He may have said something prior that was in her stewing and brewing… He obviously said something that hurt her deep to inflict the injury. It may have been to sever the relationship because there was the matter drawn out on discovery by the legal wife. And supported by the son who prompted both to desist and stop the relationship. That in my view given was enough to have the prisoner do what she did. 
	(Emphasis added)

17.	These assumptions were without proper evidentiary basis. Moreover, the Supreme Court held in Saperus Yalibakut v The State (2006) SC890 that on a guilty plea, an offender must be sentenced on the facts to which he pleaded guilty, and he must be given the benefit of any reasonable doubt regarding facts he did not plead guilty to.

18.	This fundamental and significant error influenced the trial Judge’s reasoning process which in our view vitiated his sentencing discretion and ultimately resulted in a miscarriage of justice. 

19.	Furthermore, the trial Judge then in referring to the injuries of the deceased, stated at [16] of the Judgement: 

To leave it with scratches and a hole tearing into the gland penis was a vicious attack drawing the injuries observed. If he died from it directly it was deliberate and calculated to cause injury. It showed planning because how else could he a grown mature man comparably large in size compared to her be overwhelmed, such that he is attacked in that manner. She obviously given, planned what she was going to do to him. 
		(Emphasis added)

20.	 Again, we consider that there was no evidentiary basis for the trial Judge to determine that the assault by the applicant was pre-planned.  We also note these remarks contradict his Honour’s earlier statement at [5] of the Judgement, when he said:
	
True there is little or no plans in the execution of the killing.

21.	At the trial, defence counsel, while acknowledging the seriousness of the offence and that a life was lost through the actions of the applicant, submitted the following as mitigating factors in favour of the applicant:

•	She pleaded guilty.
•	She was a first-time offender.
•	She expressed genuine remorse.
•	The offence arose out of a domestic setting.
•	There was no intention to kill.
•	The attack on the deceased was not pre-planned.
•	There were elements of de facto provocation and self-defence that caused the applicant to attack the deceased.

22.	 Prosecuting counsel also asked the court to note that:

•	A family had been deprived of their dependency on the head of the family
•	The applicant could have walked away from the situation
•	The offence of unlawful killing is prevalent.

23.	Both counsel submitted to the trial Judge for a sentence of 8 to 12 years imprisonment as they considered the case fell into Category 1 of the sentencing tariffs suggested by the Supreme Court in Manu Koivi v The State (supra) for manslaughter cases. However, the trial Judge decided instead to apply the tariff for category 2 cases which is 13 to 16 years imprisonment. 

24.	We list the two categories:

Category 1	8-10 years	
Plea.
-Ordinary cases.
-Mitigating factors with no aggravating factors.	-No weapon used.
-Victim emotional under stress and de facto provocation e.g. killings in domestic setting.
-Killing follows immediately after argument.
-Little or no preparation.
- Minimal force used.
-Victim with pre-existing diseases which caused or accelerated death e.g. enlarged spleen cases.	
Category 2	13-16 years	
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.	

25.	After identifying this case as category 2, His Honour appears to have decided that the hands of the applicant could be regarded as the weapon used on a vulnerable part of the body of the deceased. He said at [16] of the Judgement: 

There is no weapon and if he died because of the use of her hands and fingers the force was overwhelming to turn that into a weapon. And it was to a very venerable part of the male anatomy .. 
		(Emphasis added)

26.	As to whether the attack was vicious, the trial judge made these remarks at [9] of the Judgement:

…the force was excessive to give that injury, so much so that, there was a cut and tear of the gland penis in the way depicted out by the medical report and the photographs. Prisoner in my view used the hands with vigour and determination to warrant the injury that he suffered. 
		(Emphasis added)

27.	The medical evidence consisted of the death certificate of the deceased which noted these relevant details:

•	Condition leading to death - intracranial haemorrhage 
•	Antecedent causes - hypertension urgency due to dyslipidaemia
•	Injury which caused death - posterior penile head trauma

28.	No witness was called nor evidence tendered to properly explain the medical terms and their relationship resulting in the death of the deceased, and more relevantly, to describe the nature and extent of the injury and opine on the force necessary to cause the injury. While it is safe to assume that the grip on the genitals would have been forceful, we are reluctant to accept that it was a vicious attack. 

29.	It is obvious from the evidence that this was not a case where multiple injuries were inflicted on the deceased.

30.	We further note that in reaching the conclusion that this was a Category 2 manslaughter case according to Manu Koivi, the trial Judge noted the applicant’s guilty plea as the only mitigating factor: see [10] of the Judgement. The other mitigating factors urged by counsel, which we consider are properly applicable in this case, were not referred to by his Honour except that he rejected the submission on de facto provocation, stating at [5]:

In the case here the evidence of de facto provocation is not there. The word of the prisoner is self-serving and the facts surrounding do not draw to that conclusion that there was de facto provocation.
		(Emphasis added)

31.	We hold that his Honour erred on this point. Clearly, there was evidence of de facto provocation and for that matter self-defence (in the non-legal sense). The applicant was entitled to the benefit of these extenuating circumstances and the other mitigating factors.

32.	Accordingly, it is our view that the learned trial Judge erred in applying the Category 2 sentence tariff instead of category 1.  

33.	It follows that the sentence imposed was and is manifestly excessive given the facts and circumstances of this case.

34.	In the result, we uphold all grounds of review.

35.	Notwithstanding that this is an application for review, we propose to exercise powers like that provided in s 23(4) of the Supreme Court Act, which allows this Court on upholding an appeal against sentence to quash the sentence and substitute it with another sentence it considers is warranted. 

36.	The case authorities cited by the applicant’s counsel for comparative sentences are helpful, but we consider the cases of State v Moro; State v Bamire (supra) the more appropriate to refer to as the factual situations are similar to the present case, particularly the nature of the injuries resulting in death. We are mindful that those cases were decided 30 years ago. Taking that into account and weighing that together with all the relevant facts and circumstances of the present case, we consider a sentence of 8 years imprisonment is warranted.

ORDER

1.	The application for review of the sentence imposed on the applicant by the National Court on 10 May 2022 in proceedings CR 1068 of 2021 is upheld and that sentence is quashed.

2.	In lieu thereof, a head sentence of eight (8) years imprisonment to be served in hard labour is ordered, less the pre-trial custody period of one (1) year one (1) month.

3.	A fresh warrant of commitment will be issued accordingly.
________________________________________________________________
Lawyer for the applicant: Public Solicitor
Lawyer for the respondent: Public Prosecutor