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CRIMINAL LAW – Compensation Order – observations on the appropriateness of Compensation Order in relation to serious offences such as homicide offences – Criminal Law Compensation Act 1991, S. 2 (2), 3 (1) (a) (b); 5 (3) (b); 6 (b); Schedule 1.
SENTENCE – manslaughter killing – two female prisoners applied force to their respective husbands’ testicles thereby causing severe pain and neurogenic shock resulting in death – unusual and dangerous form of killing – need to impose strong punitive and deterrent sentence – appropriate sentence – 6 years and 6 1/2 years imprisonment in hard labour respectively – Criminal Code Ch No 262, S. 302.
Cases Cited
State v Tobby Tani Unnumbered National Court Judgment of Injia AJ dated 13 September 1994
The State v Argaun Kakas & 3 Others Unreported National Court Judgment 1219 dated 28 March 1994
The State v Billy Kauwa Unreported National Court Judgment N1277 dated 24 October 1994
Counsel
F Kuvi for the State
B Aipe for the Prisoners
10 February 1995
INJIA J: These twescases involve separate prisoners and victims but because the circumstances of wo killings are similar, I r, I will deal with them together. Bemale prie prisoners pleaded guilty to unlawfully killing their ctive husbands by applying force to their reir respective husbands’ testicles thereby causing severe pain and neurogenic shock resulting in the death of their respective husbands.
STATE V LUCY MORO
In the November 1994 sittings, the prisoner pleaded guilty to unlawfully killing her husband contrary to the Criminal Code Ch. No 262, S. 302. I adjourned the matter to these sittings to enable the Probation Officer at Kun to furnish a Means Assessment Report on thon the matter of a compensation order pursuant to provisions of the Criminal Law Compensation Act 1991. The Report were that the relatives of the victim demanded compensation of K25,000.00 for the killing. rison2rRr’s relatives responded favourably by making prelimipayments referred to as “bel kol̶” payment in the sum of K4,200.00 plus 12 pigs. The payment of further compensation was deferred pending the outcome of these proceedings.
have re-considered my prev previous decision to request a Means Assessment Report and decided that because of the seriousness of the offence, a compensation order for future payment of compensation should not be made: see S. 2 (2), S. 3 (1) (a) and (b) of the Act. Hencee is e is no need for a Means Assessment Report. In arriving at this decision, I repeat my observations regarding the scope of the Act in the case of the State v Tobby Tani, Un-numbered National Court Judgment dated 13th September 1994, which I heard in Tari. I said compensation order may not be appropriate for serious offences such as homicide offences, where thecribed maxi maximum penalty for the offence is over six (6) months imprisonment and the sentence considered by the Court to be appropriate in a particular case is a term in excess of six months imprisonment. I made those observations in view of the statutory limit of K5,000.00 in compensation payment in default 6 montprisonment ment which is prescribed by the Act: see S. 5 (3) (b), 6(b) and Schedule 1 of the Act.
This not the first time I have considered the appropriateness of a compensation order under the Act in homicide cases. In The State v Argaun Kakas & 3 others, Un-reported National Court Judgment No N1219 dated March 1994, the prisoners rers received sentences ranging from 12 years – 15 years for wilful murder. They wereiwilling to pay compensation of K5,000.00 each for which they could get their reive sentences reduced by 6 by 6 months only. Thmonths cths compared to the total head sentence in each case was meaningless andubt whether they paid it.In another case, the prisoner was convicted of manslaughter. The relatives of the prisoner were willing to pay compensation to the value of some K100,000hich was demanded by the vihe victim’s relatives. I agreeh tith the Probation Officer’s recommendation that becauseamount of compensation involved far exceedeceeded the statutorytlimit, a compensation order was inappropriate. I am referto the case of The State v Bill Kauwa, Un-r Un-reported National Courgment No N1277 dated 24th October 1994.
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In the instant case, there appears to be some compromise reached between the victim’s relatives and the prisoner’s relatives in relation to compensation. The v̵’s relatives have already accepted the “bel kol” payment. No doubt would be hobe hoping that the balance of the payment will be made.t is just unfortunate that this Court cannocannot accommodate their compromise because of the monetary and default penalty limit prescribed by the Act. This Cooes does not make laws but applies laws made by Parliament. Howr unpleunpleasant a law maythis court ourt has no option but to apply it. As fo prop propoayment, I w, I would urge and encourage the prisoner’s relativepay the remaining compensatensation irrespective of what this court does with the prisoner in terms of punishment. She will be punished for the crime she committed but her relatives and the v’s relatives will have to make peace eace in the community by making compensation payment.The relevant circumstances of the killing are as follows:
The prisoner is a young woman aged abut 20 – 25 years old. She is educated up to Grade 8 in 1987 at Mount Wilhem High School and was employed in 1988 typist. She wasimarrimarried to the deceased by local custom at the time of the incident. The sed waed was an affluent member of the Kundiawa Community. At tme of e of his death he ope a trade stde store which is situated near the gate of the Kundiawa CHouse.  It t this this store that on the night of 2/8/94 at about 7pm an argument occurred between the prisoner and her husband. There wero a lot of other people at the store too. The ant tunt turned into a fight between them inside the store and laxtended to the outside. It was en then the course of this fight that the deceased hit her face with a snooker stick. At time sse wase was wearing a shoe. Sheonded bded by kicking him a the genital area. Aing to thto the pthe prisoner, the kick wastargeted ated at his testicles . The in facn fact landed on his testicles . As u restht, the deceased fell down in a statehock and cond comma. Theyed himd him to the hospital but he died that same night. The me posl post mortem report shows that there was bruising on both testicles . Thereno otno other abnormality found on his body. Thse of deof death was “Neurogenic Shoc21; relatedlated to pain. The prisoner says she did not mean to kill her husband and she is sorry for this accidental event.
kind of kilf killing is unusual. There is insufficient medical evidence before me to explain the cause of death from the kind oree of force applied to theo the testicles to cause death. As aer of r of commonsense, the application of any force to the test of a man results in extreme pain and neuroneurogenic shock. Deng on thon the degree of force applied, death is not an unlikelyt. If there was any evidence that shet she targeted her kick at his testicles it would be a serious killing indeed. There is no evidence of this. At best, I can safely say that she tar the deceased’s genital area and hit hit the deceased’s cles by y “accident”. But then, there is evidence to show that she applied alot of force with her legs to cause ising of both testicles .
For these reasons, I differ from Mr Aipe’s submission that this case falls into the lowest range of manslaughter killings which warrant a suspended sentence. This cs nois not on the same footing as enlarged spleen or thin skull cases where the victim has a latent abnormality in his body which is unknown to the assailant. kind of c of cases would attract sentences ranging from a suspended sentence toars in uncontested cases.&#es. e instant tant case, the prisoner knew or ought to have known that to kick a man around the genirea where tere the testicles are located is an extremely dangerous thing to do. I intend to impose a strong punitive and deterrent sentence to deter other woman from causing the death of men,r own husbahusbands and others alike, in a similar manner.
In the prisoner’s favour, I take into account the following factors:
1. t&##16; Her guilta plea.
2. Remirse ur Court
.
30; ɘ  Co-operwitd with police in their investigations.60;&##160;; Her; Her pHer previous good educatducation, employment and mge baund.
5. & &160;&160; #1600;  No prioviconviction.
6. &##16;& Kileed hbahusba d inta situation where there ware was some provocation on the victim’s part iting ehe deceaseceased with a snooker stick in the course of a domestic dispute.
7. ¦t Compensation of K4,200.00 plus 12 pigs was already paid.
In all circnces,mthe uaximnalty for this ofis offencefence being one of life imprisonment, I consider a sentence of 6 years imprisonment in hard labour is appropriate and I impose the same. From this, I deduct the period of 8 months and 2 days she spent in custody already. Sll sehe rthe remaining 5 ye 5 years 3 months and 29 days.
SV DABRE BAMIRE
In this matter, Ier, I also adjourned the matter to these sittings for a Means Assessment Report. My ion to n to request a Probation Report was prompted by the defenunsel’s actions in tendering a Statuttatutory Declaration signed by 4 councillors from the victim’s area deposing to the fact that compensation was paid by the prisoner’s clan to the victim’s clan. Hr, detailetails of payment made were not set out in the Statutory Declaration. robatificeificer has nhas now advised that he is also unable to provide the repor the same reasons as in thin the case of the State v Lucy Moro. For reasons I gave in State v Lucy Moro, I have re-considered the matter and consider that a compensation order should not be made and hence a Means Assessment Report is not required.
The circumstances of this killing are slightly different to those in Lucy Moro’s. The prr iser is a young woman aged about 26 years old. She comes from Koge in the Kamtai Distric60; She live lived in de facto relationship (still regarded by Chimbuom as marrimarried couple) with the deceased. Tceased waed was also a young man aged about 26 years old. He waealthealthyg man. The prisoner wner was the second “wife” of tceased. They had been been married for only six (6) months when the incident occurred. On 6/7/94 at about 6 – 6.30pm, they fought inside their house over a towel owned by the deceased which was uy the prisoprisoner’s sister without the permission of the deceased. Acco to adto admissions made by the prisoner though her counsel in Court which I accept, the deceased hit her, forced her to the floor and stamped on her neck thereby causing her to grasp for air. In an attempt to remove his legs, she grabbed his penis and testicles and pulled them. The ded caed callt to her twer twice to let go his testicles and she did. Accordo the statement of State wite witness Dawa Amu, which statement the per does not deny in her statement in the Rehe Record of Interview (Answer to Question No. 55), he heard the deceased saying “you leave it, dog or pigs’ Daughter, you leave it”. That was all that the deceased said. There ilensilence. Sh later, ter, the deceased was found inside the house in sta shoc comma. One; On tran tried mouth-to-m-to-mouth resuscitation but failed. They him thim to the hospital where he was pronounced dead. Accordinthto the Medical Post Mortem Report, whilst all other parts of his body were found to be normal, the left testicle was smashed. The cause of death was “Neurogenic Shock”.
The application of force to the testicle in this is direct aect and intended to cause the deceased severe shock and pain. So tor wass was the force applied that the left testicle smashed. I a her ster story that she did this in order to free herself from the deceased’s grip on her neck but it is clear to me that she went too far. In any event, that is not the right part of the body to grab, twist and squeeze.
In the prisoner’s favour, I take into account the following factors:
1. r; Heltguilty plea.
2. &&##1;0;; R0;; Remin opurt.
3
3.. <;&160;&160; ټ Co-; Co-tion tith the pohe police.
4. She is unndd and a vila village girl by any standard.
5. #10;&&#H0;&#H60; rer puevioos good chad character and marriage background albeit for a limited p of 6hmonths onls only.
6. ҈ ; No prior rior convictions.
7. illrdhhewhnd whilst trying ying to frto free herself from the husband’s gn her neckhin tue coorse mf domesticestic dispute or fight.
8. ҈ ; Some undi undisclosed amount of compensation was paid by elatio theim̵’s relatives.
Taki>Taking into account all these factors, those in her favour and those against her, and in view of the maximum penalty of life imprisonment, I sentence her to 6 1/2 years imprisonment in hard labour. From this I deduct the period of 7 months 5 days she has spent in custody.he will serve the remaining period of 5 yea5 years 10 months and 25 days.
Lawyer for the State: Public Putsecutor
Lawyer for the Prisoners: Publlicitoicitor
