The State v Anita Kelly (2009) N3624

• Jurisdiction: Papua New Guinea
• Judge: Makail, J
• Judgment Date: 21 April 2009
• Citation: (2009) N3624
• Docket Number: CR NO 1167 OF 2007
• Court: National Court
• Year: 2009
• Judgement Number: N3624

Full Title: CR NO 1167 OF 2007; The State v Anita Kelly (2009) N3624

National Court: Makail, J

Judgment Delivered: 21 April 2009

N3624

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1167 OF 2007

THE STATE

V

ANITA KELLY

Minj: Makail, J

2009: 16th & 21st April

CRIMINAL LAW - Sentence - Manslaughter - Deceased adult female and co wife - Death arose from domestic dispute setting - Single stab wound - Neck - Use of kitchen knife - Death caused by internal bleeding from stab wound - Presence of very strong de facto provocation - Desertion of offender and children by husband - History of domestic violence and wife bashing - Presence of element of preplanning and viciousness - Sentence of 12 years imposed - Criminal Code - Sections 19 & 302.

Cases cited:

The State -v- Carol Alfred (2009) N3602

The State -v- Philipa Kawage: Cr No 1386 of 2006 (Unnumbered & Unreported Judgment of 12th May 2008)

The State -v- Tauseng Bange: CR No 973 of 2007 (Unnumbered & Unreported Judgment of 10th November 2008)

Manu Kovi -v- The State (2005) SC 789

The State -v- Kila Peter (2006) N 3018

The State -v- Kopol Hiol:CR No 538 of 2008 (Unreported & Unnumbered Judgment of 12 May 2008)

The State -v- Yuanis Ipiri (2008) N3512

The State -v- Juvenile “D” (2008) N3508

The Public Prosecutor -v- Panikuiaka Nopi [1979] PNGLR 536

Counsel:

Mr. J Waine, for the State

Mr. R Kasito, for the Offender

SENTENCE

21 April, 2009

1. MAKAIL J: On 16th April 2009, the offender appeared before the Court from remand at Baisu CIS and pleaded guilty to one count of unlawful killing (manslaughter) of one Janet Kombuk on the morning of 21st July 2007 at Bahala village at Minj contrary to section 302 of the Criminal Code. After perusing the Court depositions presented by the State in support of the charge, I was satisfied that the charge was overwhelmingly made out against her, I convicted her and proceeded to hear submissions on sentence.

BRIEF ALLEGATIONS OF FACT

2. The brief allegations of fact put to her on arraignment, and on which she pleaded guilty are these; the offender and the deceased are married to a common man named William Kaman. The offender is the first wife and the deceased is the second wife. The marriage between the offender and her husband was an unhappy one. There have been numerous occasions where they would argue and fight. The main reason for the arguments and fights is that, the husband had desserted the offender and her three children. He went to reside with the deceased at the deceased’s village, leaving behind the offender to raise the three children on her own.

3. Sometimes immediately prior to the alleged killing on 21st July 2007, the offender had a heated argument with her husband and the deceased. On the morning of 21st July 2007 the offender armed herself with a kitchen knife and went to the residence of the deceased at Bahala village. She approached the deceased and they argued. The argument developed into a fight where the offender produced the kitchen knife and stabbed the deceased on her neck. The stab wound was so serious that the deceased died from internal bleeding.

ALLOCUTUS

4. On her allocutus, I think it is useful that I quote in full what she told the Court hereunder and I do so:

“Thank you your Honour to give me or allow me time to speak. I don’t have plenty to say. The small words I wish to say is this. First, in the in the eyes of God, the Court, and the Court officials, I have committed the crime. I have three children and I stayed for 12 years. I have no bride price. I have done a lot of hard work.

My husband instigated this and I committed the crime. Whatever decision your Honour hands down, I will follow. That is all and God bless you”.

THE LAW

5. 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”.

6. The prescribed penalty for the crime of manslaughter pursuant to section 302 of the Criminal Code is life imprisonment. Depending on the factual circumstances of a case under consideration, the Court can either impose the prescribed maximum life imprisonment or a lesser sentence. This Court is vested with such sentencing discretion under section 19 of the Criminal Code.

OFFENDER’S SUBMISSIONS

7. Mr. Kasito of counsel for the offender first gives an account of the offender’s personal details as follows:

* The offender is from Taimal village, Minj of the Western Highlands Province;

* She is 37 years old;

* She is married to William Kaman as the first wife;

* From that marriage, she has 3 children aged between 3 years and 9 years;

* She is educated to up to Grade 3; and

* She has no formal employment.

8. Secondly, in mitigation, Mr. Kasito points to the following mitigating features operating in favour of the offender, thus justifying a lesser sentence than the maximum of life imprisonment, which are:

* The offender has pleaded guilty to the charge, thus saving the Court’s time and money to conduct a full trial to determine her guilt;

* She is a first offender, as she has not been in trouble with the law before the commission of the offence;

* She has cooperated with the police during the police investigations into the commission of the crime after she voluntarily surrendered to the police;

* She has expressed remorse for committing this offence. She said sorry to God and to the Court;

* She and her line had paid compensation in the total value of K15,000.00 comprising of K3,684.00 cash and 17 pigs to the deceased’s line;

* She acted in the way she did because of her husband’s infidelity;

* The attack on the deceased consisted of a single blow from a kitchen knife;

* There is presence of strong de facto provocation, in that, out of 12 years of marriage to her husband, she has three children, but was not paid bride price and had worked hard to raise the three children on her own whilst the husband was hanging around with the deceased;

* Her husband had assaulted her in front of the deceased and verbally abused her in front of the deceased the previous day, thus causing big embarrassment to her;

* She has spent 1 year, 8 months, 2 weeks and 2 days in pretrial custody and this period of time should be deducted from the head sentence; and

* Since being arrested and detained, she has been denied access to her three children whilst awaiting trial.

9. In his submissions, Mr. Kasito refers to my judgment on sentence in the recent case of The State -v- Carol Alfred (2009) N3602 hand down at Mendi during the last Court circuit in March 2009 where I imposed 10 years imprisonment on the offender for unlawfully killing of her husband after an argument. There, the offender stabbed her late husband, a policeman with a kitchen knife after an argument. The husband had accused her of not preparing dinner for him that evening when he returned home. One of the compelling mitigating factors that persuaded me to impose a sentence of 10 years imprisonment is that, the offender was a victim of domestic violence and wife beating at the hands of her late husband for a long time, a fact that the State conceded. The other reason is that, the killing was accidental as the offender stabbed her late husband on his left upper thigh when they wrestled each other during the scuffle.

10. He submits that given the presents of the mitigating factors in this case, and comparing this case with the case of Carol Alfred (supra), a head sentence of 9 years imprisonment is appropriate. Then, the Court should deduct 1 year, 8 months, 2 weeks and 2 days for time spent in pretrial custody.

STATE’S SUBMISSIONS

11. Mr. Waine of counsel for the State first reminds the Court that the sanctity of human life is more precious and valuable than gold or sliver and no amount of compensation or remorse can compensate life itself. That means that, a death is a death and a killing is a killing. A person’s life is lost forever. It cannot be recovered or returned. Thus, that should be underlying factor that should guide the Court in its assessment of an appropriate sentence to impose on an offender in homicide cases like in this particular case. He says that this underlying factor has been emphasized by the Courts over the years when sentencing offenders in homicide cases.

12. Returning to his submissions on an appropriate sentence for this offender, he points the following aggravating factors:

* The offender used a weapon, namely a kitchen knife to attack the deceased that fateful morning of 21st July 2007;

* The offender went to the residence of the deceased armed with a kitchen knife, which suggest that there was premeditation. That is, she had planned to do grievous bodily harm to the deceased;

* The attack was vicious. This is because, the deceased died on the spot after the stabbing;

* The offender stabbed the deceased on a vulnerable part of the body, namely the neck. It is no wonder, there was little or no chance at all that the deceased would survive; and

* The crime of unlawful killing in a domestic setting is prevalent in this country. This case is just another example of an unlawful killing case and adds to the already long list of unlawful killing cases dealt with by the Court. It is an...