The State v Carol Alfred (2009) N3602

• Jurisdiction: Papua New Guinea
• Judge: Makail, J
• Judgment Date: 26 March 2009
• Citation: (2009) N3602
• Docket Number: CR NO 1008 OF 2008
• Court: National Court
• Year: 2009
• Judgement Number: N3602

Full Title: CR NO 1008 OF 2008; The State v Carol Alfred (2009) N3602

National Court: Makail, J

Judgment Delivered: 26 March 2009

N3602

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1008 OF 2008

THE STATE

V

CAROL ALFRED

Mendi: Makail, J

2009: 23 & 26 March

CRIMINAL LAW - Sentence - Manslaughter - Deceased adult male - Death arose from domestic dispute setting - Stab wound - Left upper thigh of deceased - Use of kitchen knife - Death caused by loss of blood from stab wound - Mitigating and aggravating factors considered - Mitigation factors out weigh aggravating factors - Sentence of 10 years imposed - Criminal Code - Sections 19 & 302.

Cases cited:

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

Rex Lialu -v- The State [1990]PNGLR 487

Anna Max Maringi -v-The State (2002) SC702

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- Nande Garaipe: CR No 227 of 2008 (Unnumbered & Unreported Judgment of 16th May 2008)

The State -v- Ronnie Kipol Pona: CR No 508 of 2008 (Unnumbered & Unreported Judgment of 16th May 2008)

The State -v- Yuanis Ipiri (2008) N3512

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

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)

Counsel:

Mr. J Waine, for the State

Mr. F Kirriwom, for the Offender

SENTENCE

26 March, 2009

1. MAKAIL J: On 23rd March 2009, I convicted the offender on one count of unlawful killing (manslaughter) of one Pius Fidelis under section 302 of the Criminal Code after she pleaded guilty to the crime and also after having satisfied myself from the depositions presented by the State that the charge has been sufficiently made out against her.

BRIEF ALLEGATIONS FACT

2. The brief allegations of fact put to her on arraignment, and on which she pleaded guilty are these; the deceased is her late husband and a policeman. On 30th June 2007, at about 6:30 pm at Yame village, Kagua of the Southern Highlands Province, the offender was in the house when the deceased arrived. An argument arose between them. The deceased accused the offender of not preparing dinner for him. A fight followed the argument whereby in the course of the fight, the deceased took a torch and hit the prisoner on her left forearm and also on her head. She was badly injured and in the ensuring scuffle, she accidentally stabbed the deceased with a kitchen knife she had in her possession. The kitchen knife pierced the left upper thigh of the deceased, severing the muscle and blood vessels. As a result of the stab wound, the deceased lost a lot of blood and died at the hospital.

3. The fight between the offender and the deceased was not a one off incident but rather one of the many instances where they would fight and the offender would receive injuries. She was a victim of constant abuse by the deceased.

ALLOCUTUS

4. On her allocutus, she says that she is very sorry to the Court for committing the offence. She is also very sorry to God for committing this offence. She is also very sorry for the line of the deceased for the passing away of the deceased. She acknowledges the grief and pain that has befell the line of the deceased as a result of her actions. She says that she is a young woman and first offender. She further says that she did not mean to kill the deceased. It was an accident as the stabbing occurred during the fight. She says that the deceased was the first to assault her with a torch where she received injuries to his left forearm and head.

5. She also says that she and her line paid a hefty compensation of K15,000.00 and 40 pigs to the line of the deceased. She says that she is indebted to her own line for assisting her to pay compensation and it will be very difficult for her to repay them. Finally, she asks for leniency.

THE LAW

6. 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".

7. 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

8. In the present case, Mr. Kirriwom of counsel for the offender first gives an account of the offender’s personal details as follows:

* The offender is from Yame village, Kagua of the Southern Highlands Province;

* She is 24 years old;

* She is educated to Grade 10 at Kagua High School;

* She is a member of the Catholic Church;

* She was previously married to the deceased but now a widow; and

* She does not have any children from the marriage to the deceased.

9. Secondly, in mitigation, Mr. Kirriwom points to the following as 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 hold 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 expressed remorse for committing this offence. She said sorry to the Court, to the deceased and his line and also to her own line;

* She and her line had paid compensation of K15,000.00 cash and 40 pigs to the deceased’s line;

* She has been a victim of constant abuse by the deceased; and

* She has spent 1 year and 8 months in pretrial custody and this period of time should be deducted from the head sentence.

10. Mr. Kirriwom stresses that the offender has been a victim of constant abuse and domestic violence where she had received serious injuries at the hands of the deceased. He says that though this factor does not exonerate the offender, the Court should take that into account as a special mitigating feature of this case apart from the compensation given to the line of the deceased.

11. He submits this case cannot be categorized as a worst case of manslaughter. It is said that the maximum penalty is usually reserved for the worst cases and this case is not one, of which the maximum penalty should be imposed. He refers to Rex Lialu -v- The State [1990] PNGLR 487, where the Supreme Court held inter alia that in sentencing an offender in manslaughter cases, the sentencing Court must have careful regard to the circumstances of death and the way in which death was actually caused. The factors 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.

12. In the instant case, he submits that there is no evidence of any deliberate intention to cause death to the deceased nor was there any premeditation on the part of the offender. The facts in the present case show that the offender was struggling with the deceased in a fight and swung her hand with the knife and stabbed the deceased on the left upper thigh.

13. Finally, in respect of the sentencing tariffs set by the Court in past cases of manslaughter, he refers to Manu Kovi -v- The State (2005) SC 789. He submits that given the presence of mitigating features in this case, this case falls under category 1 where a sentence of 8 to 12 years imprisonment maybe imposed on the offender. He further submits that this is only a guideline but the Court has discretion under section 19 of the Criminal Code to impose a lesser sentence and asks for a sentence between 6 to 8 years would be fair and reasonable in the circumstances of this case.

STATE’S SUBMISSIONS

14. Mr. Waine of counsel for the State submits that there are present aggravating factors. First, the death arose from a domestic violence as a result of a domestic dispute. It was a fight between husband and wife over the wife’s failure to prepare dinner for the husband. Secondly, a kitchen knife was used. It is a dangerous weapon when it is used against another person and this is only aggravates the circumstances of the offender’s case. Thirdly, he submits that the sentencing tariffs for unlawful killing have increased over the years as a result of the prevalence of the offence. This is despite the tireless efforts by police in trying to apprehend and charge people like the offender so that they could be dealt with by the Court. He acknowledges that the maximum penalty for unlawful killing is life imprisonment subject of course to the Court’s discretion to impose a lesser sentence under section 19 of the Criminal Code.

15. Fourthly, in respect of the issue of compensation, he submits that the offender has not...