The State v Enni Pok

• Jurisdiction: Papua New Guinea
• Judge: David, J
• Judgment Date: 21 May 2014
• Citation: (2014) N5606
• Court: National Court
• Year: 2014
• Judgement Number: N5606

Full : CR No.791 of 2012; The State v Enni Pok (The prisoner) (2014) N5606

National Court: David, J

Judgment Delivered: 21 May 2014

N5606

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR No.791 of 2012

THE STATE

V

ENNI POK

The prisoner

Mt. Hagen: David, J

2014: 9 & 21 May

CRIMINAL LAW – sentence – conviction for manslaughter after trial for wilful murder – statutory defence of self-defence rejected - prisoner committed offence whilst trying to defend herself from immediate harm, but excessive force used - prisoner killed co-wife by stabbing her in the neck – offensive weapon used – vicious attack - some deliberate intention to harm - life of a 28 year old female prematurely and unlawfully terminated leaving small child motherless – prevalence of offence - single stab wound – de facto provocation, killing in domestic setting - killing immediately after an argument – little or no preparation - no prior conviction – co-operation with police , early admissions – surrendered voluntarily – substantial belkol paid – expression of genuine remorse – prior good background - sentence of 10 years in hard labour – Criminal Code, Section 302.

Cases cited:

Goli Golu v The State [1979] PNGLR 653

Avia Aihi v The State (No 3) [1982] PNGLR 92

Public Prosecutor v Thomas Vola [1981] PNGLR 412

Ure Hane v the State [1984] PNGLR 105

Public Prosecutor v William Bruce Tardrew [1986] PNGLR 91

The State v Frank Kagai [1987] PNGLR 320

Lawrence Simbe v The State [1994] PNGLR 38

Public Prosecutor v Don Hale (1998) SC564

Edmund Gima and Siune Arnold v The State (2003) SC730

The State v Clara John Gabriel (2003) N2378

Manu Kovi v The State (2005) SC789

Richard Liri v The State (2007) SC883

The State v Aipani Elekane, CR 405/2001, Unreported & Unnumbered Judgment of Jalina, J delivered at Wabag

The State v Anita Kelly (2009) N3624

The State v Regina Jako (2010) N4110

The State v Jenny Dei (2011) N4260,

The State v Mala Jackson, CR No.448 of 2011, Unreported & Unnumbered Judgment of David, J delivered in Mt. Hagen on 13 October 2011

The State v Regina Mark, CR No.781 of 2011, Unreported & Unnumbered Judgment of David, J delivered in Mt. Hagen on 21 October 2011

The State v Gilbertha Kerowa, CR No.774 of 2009, Unreported & Unnumbered Judjment of David, J delivered in Mt. Hagen on 16 January 2012

The State v Helen Dominic, CR No.466 of 2013, Unreported & Unnumbered Judgment of David, J delivered in Mt. Hagen on 9 August 2013

The State v Enni Pok (2014) N5588

Counsel:

Philip Tengdui, for the State

Philip L. Kapi, for the Prisoner

SENTENCE

21st May, 2014

1. DAVID, J: The prisoner, Enni Pok of Minjim village, South Waghi in the Jiwaka Province was on the 23rd of April 2014 convicted of the unlawful killing of her co-wife namely Betty Pok on 14th of June 2012 at Minjim village under Section 302 of the Criminal Code after a trial on a charge of wilful murder under Section 299(1) of the Code. The statutory defence of self-defence under both Sections 269 and 270 of the Code was unsuccessfully raised. The full reasons for my verdict are contained in The State v Enni Pok (2014) N5588. This is my decision on sentence.

2. For purposes of sentence, the brief facts are these. The prisoner and the deceased were co-wives to a common husband. The deceased was the senior of the two and they lived in separate houses which were about 15 to 20 metres apart. Early in the morning of 14th of June 2012 after 8:00 o’clock, the prisoner and the common husband arrived back at the village from a campaign trail and asked the prisoner to boil his tea and cook some kaukaus. The prisoner refused to cook kaukaus. She told the common husband that as he was going to the deceased’s house to sleep, the deceased should do the task. Overhearing this statement, the deceased berated her and an argument followed between the two of them. The deceased returned to her house, picked up a kitchen knife which she concealed, returned to the prisoner’s house and attacked her with it. The prisoner who was bigger than the deceased put up a fight, struggled with the deceased and overpowered her. She then removed the knife from the deceased and stabbed her once on the left side of her neck. The wound was 8 to 12 cm deep which extended into the neck and diagonally into the mediastinum which severed large neck vessels and the trachea and there was bleeding in the mediastinum. The deceased died shortly thereafter from acute hypovolaemic shock from loss of blood from a punctured trachea.

3. The prisoner has no prior convictions.

4. On her allocutus, she admitted killing the deceased and said sorry to the deceased and her family, the common husband and his people and for breaking the law.

5. A pre-sentence report and a means assessment report were compiled and filed by the Probation Service, Mt. Hagen Branch and I commend Ms. Lilly Songoa, Probation Officer for her efforts. The prisoner is originally from Kokop village, Hagen Central in the Western Highlands Province, but her parents and family settled at Minjim village, Aviamp, South Waghi in the Jiwaka Province. She is now aged 30 years and is a subsistence farmer. She is married to the common husband who is also from Minjim and has no children. Her father is deceased and her mother is alive. She is the only female in a family of seven children. She has had no formal education and is illiterate. Her health both physically and mentally is sound. The prisoner was arrested and detained on 15th of June 2012 and has remained incarcerated at the Baisu Correctional Institution since that time. She has been in custody for 1 year, 11 months and 6 days. She was committed to stand trial in the National Court on 27th of September 2013 for wilful murder. The means assessment report concludes that the prisoner has no means and financial capacity to meet neither an order for compensation nor an order of a financial nature. Belkol in the sum of K13,000.00 cash and 36 pigs was paid to the deceased’s relatives soon after the incident. The pre-sentence report recommends a custodial sentence.

6. Mr. Kapi for the prisoner submitted that the present case fell between the first and second categories of the guidelines propounded by the Supreme Court in Manu Kovi v The State (2005) SC789 as some elements of these two categories are present. He urged the Court to impose a custodial sentence between 10 and 11 years.

7. Mr. Tengdui for the prosecution submitted that the present case fell within the top end of the first category and the bottom end of the second category of the Manu Kovi guidelines which warranted a custodial sentence of between 13 and 15 years.

8. Section 302 of the Code creates the offence of unlawful killing or manslaughter and prescribes the penalty for the offence. The maximum penalty is life imprisonment subject to the Court’s discretion to impose a lesser determinative term under the various options available to the Court under Section 19 of the Code.

9. The Manu Kovi guidelines apply to sentences for manslaughter convictions whether they are entered on a plea or after a trial. They are reproduced below.

CATEGORY 1: 8 – 12 years

Plea: Ordinary cases. Mitigating factors with no aggravating factors. No weapons 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.

CATEGORY 3: 17 – 25 years

Trial or plea: Special aggravating factors. Mitigating factors reduced in weight or rendered insignificant by gravity of offence. Dangerous weapons used e.g. gun or axe. Vicious and planned attack. Deliberate intention to harm. Little or no regard for safety of human life.

CATEGORY 4: LIFE IMPRISONMENT

Trial or Plea (Worst case): Special aggravating factors. No extenuating circumstances. No mitigating factors or mitigating factors rendered completely insignificant by gravity of offence. Some element of viciousness and brutality. Some pre-planning and pre-meditation. Killing of innocent, harmless person. Complete disregard for human life.

10. The present case falls under the second category of the Manu Kovi guidelines as some of the elements of this category are present and these are; the use of an offensive weapon on a vulnerable part of the body; the attack was vicious attack; and there was some deliberate intention to harm. I will now consider a sentence within the range recommended there of 13 to 16 years which I will ascertain shortly after considering the factors in mitigation against those in aggravation and a number of comparable sentences.

11. I find that the factors which mitigate the offence in the present case are:

1. There was only a single stab wound.

2. The prisoner has no prior conviction.

3. The prisoner co-operated with the police...