Thress Kumbamong v The State (2008) SC1017

• Jurisdiction: Papua New Guinea
• Judge: Salika, Kandakasi and Yagi, JJ
• Judgment Date: 29 September 2008
• Citation: (2008) SC1017
• Docket Number: SCRA 29 OF 2007
• Court: Supreme Court
• Year: 2008
• Judgement Number: SC1017

Full Title: SCRA 29 OF 2007; Thress Kumbamong v The State (2008) SC1017

Supreme Court: Salika, Kandakasi and Yagi, JJ

Judgment Delivered: 29 September 2008

SC1017

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCRA 29 OF 2007

BETWEEN:

THRESS KUMBAMONG

And:

THE STATE

Respondent

Mt. Hagen: Salika, Kandakasi and Yagi, JJ.

2008: 29 September

APPEALS – Appeal against sentence – Trial judge stating he was taking some factors in Thress’ mitigation into account – Actual sentence not reflecting – Identifiable error – Supreme Court ought to correct and corrected.

CRIMINAL LAW & PRACTICE – Sentencing – Principles for criminal sentence reconsidered-– Not every case appropriate for incarceration – Not all offences are committed consciously - Focus should be on rehabilitation of offenders and sparing where appropriate – Wide discretion in trial judge to impose appropriate sentence – Supreme Court has no power to curtail, restrict or interfere with the free exercise of that discretion – Guidelines set by previous Supreme Court decisions – Guidelines prescribing minimum and maximum ranges within set maximum penalties – Effect of – Amounts to legislating and restricting trial judge’s discretion- Trial judges not bound to follow such guidelines.

CRIMINAL LAW & PRACTICE – Sentence - Manslaughter – Offender killing spouse’s wife or girlfriend – Spouse spending time and money with deceased – Offender offering co-habilitation – Deceased not considering and issuing verbal insult and starting to attack Thress with knife – Thress wrestling knife away from deceased, attacking and causing her death – Defence of provocation and or self defence existed – Thress choosing not to take them up – Defence of provocation and or self defence ought to be extended to cover innocent spouses committing offences against adulterous or polygamous spouses or their girlfriends/boyfriends or wives or husbands – Setting guidelines prescribing sentencing ranges in Manu Kovi v. The State and others illegal restrictions on trial judge’s discretion – Not to be followed – Sentence of 9 years varied - Part custodial and part suspended appropriate.

Papua New Guinea Cases Cited:

Papua New Guinea Cases

Allan Peter Utieng v. The State (Unreported judgment delivered in Wewak on 23/11/00) SCR 15 of 2000.

The State v. Danny Makao (2005) N2996.

Heduru Transport Pty Ltd v. Gairo Vergoli (1977) N99.

R v. Yigwai [1963] PNGLR 40.

Timbu-Kolian v. The Queen [1967-1968] PNGLR 320.

The State v. Angeline Winara (No 1) (2008) N3345.

The State v. Lenny Banabu (2005) N2871.

The State v. David Yakuye Daniel (2005) N2869.

The State v. Murray William and 2 Ors. (No 1) (2004) N2556.

The State v So'on Taroh (2004) N2675.

The State v. Micky John Lausi (2001) N2073.

The State v. Jimmy Solomon (6/7/01) N2100.

The State v. Eric Emmanuel Vele (24/07/02) N2252.

The State v. Louise Paraka (24/01/02) N2317.

Edmund Gima v. The State & Siune Arnold v. The State, (03/10/03) SC730.

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

Simon Kama v. The State (2004) SC740.

The State v. James Yali (2006) N2989.

Anna Max Maringi v. The State (2002) SC 702

Overseas Cases Cited:

Vallance v. The Queen (1961) 108 CLR 56

Palling v. Corfield (1970) 123 CLR 52

Counsels

Thress Kumbamong in Person

R. Auka, for Respondent

29 September, 2008

1. BY THE COURT: This is yet one more of those sad and unfortunate cases. Thress Kumbamong, the Appellant, a mother of 6 children pleaded guilty to a charge of unlawfully killing another woman, Miriam Kumbamong on 20th October 2006 at Newtown in Mt Hagen. The deceased was either a girlfriend or the second wife of Thress’ husband. Thress’ husband spent much time and possibly money with the deceased while Thress and her six children lived without food and electricity for almost two months.

2. On the day of the offence, Thress went looking for her husband at the deceased residence. When she got there, she found the deceased seated on a chair in the living room of her house drinking coffee. Thress proposed to the deceased for the deceased to go with her and live with her and her children in her house so that their husband could look after all of them under the one roof. Rather than giving any consideration to the proposal, the deceased verbally insulted Thress and then armed herself with a knife that was there on the table and start to attack Thress. On realizing she had no way of escaping, Thress grabbed hold of the deceased’s hand that held the knife and struggled with her until Thress was able to get the knife off from the deceased and used it against her. Thress stabbed the deceased on her head and back many times causing the deceased to collapse and die instantly.

3. The National Court imposed a sentence of 9 years in hard labour against Thress. Ten months and 24 days were deducted from the 9 years for time spent in custody awaiting trial and order her to serve the balance of 8 years, one month and six days in prison. Thress is appealing against her sentence of 9 years and is arguing for a reduction of her sentence to 5 or 6 years.

5. Her reasons for asking for a reduction of her sentence are:-

(1) she is a sick woman;

(2) there was provocation in the non legal sense in that the deceased was having an affair with her husband; and

(3) her husband who was the cause of this trouble has not been punished by the law for this offence and she is the only one that is being dealt with .

6. The State on the other hand argues against the appeal saying, the learned trial judge did take into account, all of these factors and correctly arrived at the sentence of 9 years. As such, the State through its lawyer argues that, the 9 years sentence is appropriate and reasonable and that this Court should not disturb it.

RELEVANT ISSUES

7. The main issue in this appeal is whether the sentence of 9 years is excessive. In order to resolve that issue, we need to determine if the learned trial judge took into account Thress’ medical conditions, the existence of provocation in the non-legal sense and that the role of her husband leading to the commission of the offence? These gives rise to the following subsidiary questions:

(1) Was the learned trial judge obliged to take into account Thress’ medical condition?

(2) If the answer to question (1) is “yes”, to what extent should that be reflected in the sentence?

(3) Did the learned trial judge take into account the fact that Thress acted under some provocation in the non legal sense?

(4) If the answer to question (3) is “yes”, to what extent should that be reflected in the sentence?

(5) Was the learned trial judge under an obligation to take into account Thress’ husband’s conduct and have that reflected in the sentence?

(6) If the answer to question (5) is yes, to what extent should that be reflected in Thress’ sentence?

Was the learned trial judge obliged to take into account the Thress’ medical condition and if so, to what extent should that have been reflected in the sentence?

8. Dealing firstly with the issue of Thress’ medical condition, which is the subject of questions, (1) and (2), we note there is no dispute that Thress had such a condition. According to a medical report that was tendered into evidence at the trial, Thress’ medical condition was described as “Chronic recurrent peptic ulcer” also known as “duodenal ulcer”. At the time of her sentence, she was taking 20 milligram tablets orally as well as receiving dietary advice. The report indicated that the Correction Services institutional food may be detrimental to her speedy recovery and recommended monthly reviews.

9. The State through its then lawyer, Mr. Joseph Kesan, did not contest the medical evidence at the trial in the National Court and submitted that, the medical report spoke for itself. The learned trial judge noted the contents of the medical report and went on to observe that: the prisoner’s poor health is a special mitigating factor and that was also restated in Manu Kovi v The State.” Then before ultimately arriving at the sentence of 9 years, the learned trial judge said he did take into consideration Thress’ medical condition amongst other factors.

10. As far as we are able to work out from Thress’ arguments, the main concern was the kind of treatment she was receiving for her condition. She was concerned that, she could not be able to receive the kinds of treatment, including the kinds of diet she was advised to be on, if she was sent to prison. This was confirmed before us, when she tried to demonstrate her condition has now worsened because of her not being able to be on the kind of diet she should be on, given the tough conditions in the prison setting. The learned trial judge with respect, did not address this concern and is not reflected any where in his honour’s judgment. We are of the view that, the learned trial judge was under an obligation to address this concern but he did not. Accordingly, we are of the view that he fell into an identifiable error.

11. The question...