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State v Tombe [1998] PNGLR 373 (22 April 1998)

[1998] PNGLR 373

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

BALI TOMBE

WABAG: LENALIA AJ
21, 22 April 1998

Facts

The accused wife was charged with the manslaughter of her husband, under s 302 of the Criminal Code Act (Ch No 262). During a domestic argument, the wife had been carrying a small pocketknife and the husband tried to grab her hands. As the wife struggled to break free, the knife entered the husband’s thigh. He bled to death shortly afterwards. After the wife had pleaded guilty, the court considered the submissions by counsel as to the appropriate penalty.

Held

1. As the Supreme Court has stated, the sentencing court in manslaughter cases must consider carefully the way in which the death was caused and the surrounding circumstances. These factors include the nature and frequency of the attacks or assault; whether a weapon was used; whether there was a deliberate intention to cause the injury; whether death resulted from falling on any objects; whether there was provocation in the legal sense; and whether the victim had a thin skull or an enlarged spleen.
   

Rex Lialu v The State [1990] PNGLR 487, followed.

2. Compensation paid by the accused’s line to the relatives of the deceased may be considered in arriving at an appropriate sentence, within the range of penalties prescribed by law.
   

Acting Public Prosecutor v Aumane [1980] PNGLR 510, followed.

3. In this case, taking into account the weapon involved, the provocation in the non-legal sense, the lack of deliberate intention to cause harm, the payment of compensation, the guilty plea, and the accused’s previous good character, a term of imprisonment was nevertheless appropriate.
   
4. The accused was sentenced to two years imprisonment less the six months pre-trial period spent in custody. Of the remaining 18 months, 14 months were suspended, subject to the accused entering a 2-year good behaviour bond.
   

Papua New Guinea cases cited

Acting Public Prosecutor v Aumane [1980] PNGLR 510.

Norris v The State [1979] PNGLR 605.

Rex Lialu v The State [1990] PNGLR 487.

State v Emp Mek [1993] PNGLR 330.

State v Lelyom Kandabao Paulus CR No. 1387 of 1987.

Other case cited

R v Philips (1985) 7 Cr. App R (S) 235.

Counsels

P Kumo, for the State.
B Aipe, for the accused.

22 April 1998

LENALIA AJ. On plea to an indictment presented before this Court on 21 April 1998 charging that on 24 December 1996 at Laiagam, Enga Province, and the accused unlawfully killed her husband, contrary to s 302 of the Criminal Code, the accused has pleaded guilty.

The facts relating to the killing are fairly simple. The State alleged that an argument arose between the accused and her husband Sanda Lita. The argument was apparently over money. In the course of their argument, a fight broke out at the Laiagam High School premises. As the accused and the deceased were arguing, they slowly moved towards the school gate. The State further alleged that the accused chased the deceased down to the Laiagam/Porgera junction. In the course of the chase, the husband diverted to the Laiagam Community School premises. Upon seeing this, the accused walked into a nearby store.

When the deceased saw the accused walking into the store he walked out from the Community School grounds and proceeded towards the Laiagam Station. The accused caught up with the deceased at the Lagaip bridge whereupon another struggle ensued. It appears from the facts that the deceased upon seeing the accused having in her possession an offensive weapon namely a small pocket knife grabbed the accused by her hands and in the course of that, the accused bent down and without looking where the husband was pushed the knife backwards which caught her husband on his left thigh.

The medical report shows that the deceased suffered from a deep penetrating knife wound on the left thigh measuring some 8 cm by 12 cm wound. Death resulted almost instantly between five (5) and ten (10) minutes. The medical officer’s conclusion was that the deceased died as the result of excessive blood loss.

In response to the allocutus, being administered to her, the accused said it was true she had committed the offence but she was very sorry that she had killed her husband. She further pleaded that she was truly sorry for committing this offence and she now realizes that she has lost someone so close to her who was duly charged with caring for her and their two children and she will certainly miss him.

This Court was urged yesterday that in mitigation, it should consider the accused’s guilty plea, her previous good character and her co-operative efforts with the police. In reading the record of interview, the Court finds that the accused was quite frank and honest in admitting the offence for which she was charged. I was referred to my recent decision in the case of The State v Lelyom Kandabao Paulus CR No. 1387/97 (17.4.98) in which the Court imposed an imprisonment term of three (3) years also for unlawful killing of her husband. I said on sentence in that case that it was not a case where the prisoner blindly stabbed the deceased. She at least saw the husband standing over her and poked the knife at the direction where the deceased was standing. The facts of the instant case are somewhat different from Lelyom’s case. In the instant case the accused bent down and did not know where the husband was standing, and pushed the pocketknife to the back which caught the deceased on his left thigh.

Manslaughter is the least serious homicide killing. Despite that the penal servitude of life imprisonment prescribed by s 302 of the Code shows it is still a serious offence. Indeed this type of killing nearly always results from some forms of violence, some of which may involve vicious attacks with various objects being used to attack the deceased. In some instances it may be truly careless mistakes, which often result, in very tragic consequences and in which the Courts in the past have held that blameworthiness could not be so high as compared to cases of determinate and vicious attacks.

I must admit that it is not always easy to pass sentence on this type of homicide due to the diversity of circumstances under which manslaughter may be committed. A sentence may seem appropriate in a particular case, yet by looking at the set of circumstances in another case with quite distinct facts, there is no way a similar sentence could be arrived at. What the law requires this Court to do is to take into consideration the relevant circumstances and apply the sentencing principles to that circumstance and arrive at an appropriate sentence.

For purposes of persuasive value, I adopt the words of Watkins L.J. in R v Philips (1985) 7 Cr. App R. (S) 235 at 237 in which his Lordship said in relation to vicious attacks committed upon a deceased:

"The Court has to pay careful regard to the circumstances of death and specially to the way the death was actually caused, incoming to a conclusion as to what punishment a defendant should receive for whatever it was he did towards bringing that about".

That statement was adopted by the Supreme Court in the case of Rex Lialu v The State [1990] PNGLR 487. Earlier in another manslaughter case of Norris v The State [1979] PNGLR 605 at 611-612, the Supreme Court there said in comparison to non-vicious attacks committed upon a victim:

"I say this because this was a bad assault on the deceased. This is not one of those unfortunate cases where one angry blow has tragic consequences. There was a number of blows and it is perfectly clear that the appellant furious at the believed misbehaviour of the deceased attacked her in quite a vicious way".

I totally agree and adopt the principle stated in Rex Lialu v The State that, in sentencing a prisoner in manslaughter cases, the sentencing Court must have careful regard to the circumstances of death and the way in which death was actually caused. Factors that need to be considered in cases of manslaughter as set by the Supreme Court in Rex’s case are:-

• the nature and frequency of attacks or assault;
  
• whether the injury causing death was a direct result of falling on any objects;
  
• whether the injury was caused by the accused or a weapon;
  
• whether the harm caused was the result of a deliberate intention to cause that injury;
  
• whether there was provocation in the non legal sense; or
  
• whether the deceased had a thin skull or an enlarged spleen;
  

In the instant case there is no evidence of any deliberate intention to cause any harm to the deceased nor was there any premeditation on the part of the accused. The facts in the present case show that the accused was trying to break free when she bent down but swung her hand with the knife to her back in which process she stabbed the deceased on the left thigh.

It was submitted by the defence counsel that whilst in custody, the accused’s line has paid a large amount of compensation. Such compensation consisted of K3,000.00 cash and one hundred and sixteen (116) live pigs. Certainly by the terms of the Criminal Compensation Act, this Court is required to consider compensation as mitigation: see also the cases of Acting Public Prosecutor v Aumane [1980] PNGLR 510 and The State v Emp Mek [1993] PNGLR 330. It is noted that compensation paid customarily in this type of situation is not a form of punishment but rather an obligation customarily to ensure peace and harmony is restored between relatives of the offender and the victim. In Acting Public Prosecutor v Aumane (supra) Kapi J (as he then was) at 541, referred to s 7 of the Customs (Recognition) Act (Ch. No. 19) which says that custom may be taken into consideration when determining the penalty. His Honour further says at 542:

"Under s 7(e) of the Native Customs (Recognition) Act a Court may have regard to these matters in arriving at an appropriate sentence. This means that a judge may increase or decrease the sentence depending on whether custom mitigates or aggravates the offence and may impose the appropriate sentence within the range given by law. In this case the trial judge had only power to impose within the range given by ss 19 and 309 of the Code. While the trial judge did not err in referring to the willingness of the respondents to pay compensation in terms of pigs, in accordance with custom, he fell into error when he imposed that sentence as a matter of law. Section 7(e) of the Act does not enlarge the power of the Court under ss 19 and 309 of the Code. Section 7(e) may only operate within the range provided under ss 19 and 309 of the Code".

It is from that perspective that a person may only be convicted of an offence which is defined and for which the penalty is prescribed by a written law. As such compensation in law is not punishment but a customary obligation.

In the light of the foregoing discussion and in sentencing the accused, I take into account all those factors raised by the defence in favour of the prisoner. Further I consider that although the accused used a pocketknife it was a non-vicious attack and such attack would attract a sentence at the lower range from a suspended sentence to five years imprisonment. Spleen killings have been treated by both the National and Supreme Courts alike to be in that category of manslaughter. Other categories involve cases where death results from the use of certain offensive weapons such as a knife, an axe; a piece of wood or a stone or it may be the use of a bow and arrow. For this category, sentences imposed have ranged from four (4) to eight (8) years.

Taking into consideration the circumstances under which this offence was committed such as the weapon used, the provocation in the non-legal sense, that there was no deliberate intention on the part of the prisoner to cause any harm to her husband and taking into account all factors that have been mentioned in mitigation such as payment of compensation, her guilty plea and the previous good character, I am of a firm view that a term of imprisonment is appropriate. As I have alluded to earlier, this offence is punishable by life imprisonment, which makes it in itself a very serious crime. It is the order of this Court that the prisoner be imprisoned for a term of two years. The Court deducts a period of six (6) months being the pre-trial period. You shall serve a term of one (1) year six (6) months. The Court suspends one (1) year two (2) months from the sentence and orders that after serving the remaining four (4) months you shall be placed on a good behaviour bond on your own recognizance for a period of two (2) years.

Sentenced accordingly.

Lawyer for the State: The Public Prosecutor.
Lawyer for the accused: The Public Solicitor.