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http://www.paclii.org/cgi-bin/sinodisp/pg/cases/PGNC/2022/181.html?stem=&synonyms=&query=testicles
CRIMINAL LAW – PRACTICE AND PROCEDURE – Manslaughter S302 CCA – Plea – Deceased Swore Not clear words used – Prisoner Angry – Attacked Deceased Deep Tear Penis – Vicious determined attack – Hands fingers used – sanctity of life – Section 35 Right to Life – Culmination of Adulterous affair – strong deterrent sentence.The circumstances surrounding that led eventually to the assault that she inflicted upon the deceased is not clear. Particularly her contention that he swore at her. And why he swore at her and what were the words that he used. It is the basis upon which she acted as she did. She did inflict the injuries that followed. But She made no admission to the Police in the record of interview of that fact, nor any explanation as to why she did what she did. But upon arraignment she admitted the offence corroborating the Statement of the witnesses, who had their evidence on file that deceased with her were having an adulterous relationship. She was married and so was he. On the night in question this was evident by all the lights that were put off outside for the Prisoner to enter and to have coffee with bread with the deceased. It was more than probable that there was an argument over a matter, but not what she recounted as that certainly is not in the sense she portrayed, lights outside were put off for her to come. It would not be of non-consensual act, if lights were put off as seen. So, it was not that she had refused sexual intercourse hence the reaction and the offence. In my view there is more than what she contends in the death of the deceased. The benefits due her are waived because the reasons here are not sufficient to impact the sentence upon her.
The maximum sentence under section 302 is imprisonment for life. It is clear, her case is not the worst case of manslaughter committed. And therefore, a determinate term of years will be imposed in view: Avia Aihi v The State (No 3) [1982] PNGLR 92. In this regard relevant is the application of Kovi v The State [2005] PGSC 34; SC789 (31 May 2005). These set that 8 to 12 years imprisonment is proposed for a case where, no weapons are used. And where there is de facto provocation. In the case here the evidence of de facto provocation is not there. The word of the prisoner is self-serving and the facts surrounding do not draw to that conclusion that there was de facto provocation. True there is little or no plans in the execution of the killing. But it could not be said that the force used is minimal, because there are scratches on the penis. And there is a hole cut out in the head of the penis. If it was made by hand with fingernails, the force was great to make the hole and give the injury as it did. The size of the deceased compared to the Prisoner means that she had to use a lot of force to exert the injuries he suffered. He is a comparably a very large man compared to her size. She is quite small compared. She would need to use an element of surprise to do what she did. Because certainly he would have protected himself. The injury on a venerable part of the male body, the testicles would not be committed as it did here without an element of surprise. He in my view was not expecting the attack because if the lights were off outside, preplanned, he expected pleasure not pain. He may have said something prior that was in her stewing and brewing, the opportunity pledged itself when he opened and relaxed, thinking that she would have sex only with him. But no, she exerted in the attack to his most venerable part of the human male, the testicles , and the penis. And the force was such that he could not defend nor protect himself. He succumbed to her attack. Here if viewed as a pre-existing condition it is the venerability of the human male on this part of the body. She took advantage and exerted. This is a crime of passion and could not have been committed without something that was uttered by the deceased drawing the reaction in the way he was attacked. Both were lovers and met as they did in secret and seclusion to their pleasure. He obviously said something that hurt her deep to inflict the injury. It may have been to sever the relationship because there was the matter drawn out on discovery by the legal wife. And supported by the son who prompted both to desist and stop the relationship. That in my view given was enough to have the prisoner do what she did. Because a swear word is not disclosed to drive her over the edge to commit the crime. But the facts here circumstantially lead to that conclusion open against. Which ultimately has caused his untimely death. It is a very serious aggravation against the hands of the prisoner in his death.
She is a 20-year-old married woman who was living with a husband in Bena, that she left to live in the house of the son of the deceased. It begs why leave a husband who presumably is the father of the child she now carries in jail to live as she did within reach of the deceased. The evidence of Gilla Michael speaks against her morality as a woman of sound standing. She appears to be seriously involved in the relationship with him. “Plenty of times he used to come signal her and scraped the wall were we normally put our heads and sleep so Verani used to wake up and go out and stayed for too long and comes back.” This evidence from Gilla Michael is clear evidence of a continuing relationship that could not be ended abruptly in the death of the deceased without any remarks to sever that relationship.
There is therefore in my view no special mitigating circumstances that warrant a sentence at the lower end of the scale set out by the guide in Manu Kovi (supra). There is nothing out of the ordinary to spell that her case should be treated quite apart from ordinary manslaughter cases. A Life of a human being taken in this way where death was not expected attacked on the most venerable part of a human male is a very serious aspect of the case. It does not become a special mitigating circumstance in favour of the defendant here. It does not set her out as a special case of its kind. It is not a special mitigating factor that draws out the sentence from the ordinary. Nor is it an only and an exceptional case by its own facts and circumstances drawing a sentence quite apart from the others.
Here the evidence is what was seen by the medical personal and depicted out in the photographs. He no doubt suffered greatly including humiliation for the short period of one month after the attack. Such an intimate and venerable part of the body of a 60 year old male person to be attacked in that manner. There is no sign of improvement in the medical report attached of the 23rd February 2021 made out by Medical Officer Doctor Jessie Bigam attached to in his affidavit dated 04th June 2021. It is quite a serious injury and force must have been used if it was with hands. The emotional state of the prisoner is spelt out in the injury to the deceased. This was a crime of passion committed by one half of that relationship upon the other. I am not satisfied that this is an exceptional case by these facts to distinguish that the sentence is appropriately drawn to the lowest end.
In my view given the discussion set out above, if death was by the use of her hands upon the deceased observed set out above, then the force was excessive to give that injury, so much so that, there was a cut and tear of the gland penis in the way depicted out by the medical report and the photographs. Prisoner in my view used the hands with vigour and determination to warrant the injury that he suffered. To drive him to unconsciousness and to be found in that stage to be rushed down to the hospital to save his life. Not to live out in agony for a month and to pass directly from its implications and cause.
Because the mitigation is only that, she pleaded guilty presumably to good professional legal advice of the extent of the evidence by the witnesses circumstantially. She has a baby six months old. If she was indeed with her husband six months leading no material has come out in the presentence report to that effect confirmed by the husband therein. It is the same for the means assessment report. She appears to have gone to Bena where the husband is from after the matter of their affair was brought out by wife of the deceased and son Mathew. She for reasons known to her left the husband in Bena and returned to where the deceased would come and scratch on the wall where she slept each night to draw her out hours on end with him, observed by Gilla Michael who shared the room and bed with her. It is not a mitigation where she is drawn to stop does not desist but continues to lead to eventual attack and killing of the deceased. He may have contributed to his death, but it does not set apart that she should be treated quite apart from the other cases of manslaughter that this Court has seen. In my view her case given would fall under category two drawing, balanced with her being a first-time offender, who has pleaded guilty, who may have been because of her maturity and age of 20 years old, drawn out to follow his desires by the deceased, he was a 60 year old experienced person in life. This advantage drew him to entice her, so that she was spell bound to follow every time he scratched on the wall where she laid to sleep. The draw given is sentence in the range of 13 to 16 years jail.
Submission that part of the sentence should be suspended is based on emotions than the law and that is the material in the presentence report, and the evidence as it is presented. The adjournment for both reports do not distil that. Life is not cheap when section 35 gives the right to life mandatory as a fundamental right with the use of the words that it cannot be deprived intentionally. The relatives of the deceased say this in no uncertain terms that will not be ignored to water what the defendant did. What is the life of Joe Utali to K500.00, with chickens and garden food in the amount of K1000.00? And would any amount of counselling ease when she did not heed the discovery of the relationship and end to it put by the family? No, this is not wilful murder but it is a homicide. Therefore, whether or not Joe Utali swore or not he had a right to life. To swear at some one will not take away their lives in the manner depicted out here given their relationship. They will continue to live even after the swearing has been uttered. Here it is clear there was no intention to kill. But an assault is unlawful and where it leads to death the person who is the author, cannot walk free without the force of law upon him or her. Nor should the person have part of their sentence suspended unless there are serious and exceptional facts that set out the case from any other: State v Hagei [2005] PGNC 60; N2913 (21 September 2005).
In this circuit alone the Court has dealt with cases that involve extra marital affairs that have led to assaults perpetrated with weapons leaving injuries that have become permenant, and this has been topped by the death here resulting which is not a light matter. This is a prevalence that cannot be condoned with a suspension of sentence. Especially where a persisted adulterous relationship has culminated right under the nose of the wife to this climax by the prisoner. It is clear this is behaviour that must be stopped and deterred by not just a mere sentence passed. But a stern deterrent and punitive sentence that the Court impress in bold that it will not tolerate behaviour that decays morality in society as here. Because it does not fall in line with the observation made for suspension of sentence in Tardrew, Public Prosecutor [1986] PNGLR 91. And not only have wives and children suffered given in like, but here a husband elderly man of 60 years old has died. He was attacked to his sexual organ, the head of the penis depicted by the photograph taken shows a hole infected in the head of the gland penis. It is clear the injury eventuated because She specifically stated to Mathew Utali, “When we went into the Store, he swore at me so I got angry and break his penis and testicles and he fainted and unconscious and same time his teeth was lock so I was frightened and put some water in his mouth but he didn’t move. I say sorry for what I have done to Joe I am guilty. I will go to the hospital and say sorry to him.” To break glass does not need force that is excessive because it is fragile. But a human body is not fragile in comparison. The force used was excessive to come out of only use of hands and fingers without any weapon aiding. She has shown no fingernails in the court on appearance leading up to sentence to evidence weapon used.
But it is degrading the solemnity of a marriage that is borne out by customary obligations, because there is freefall in the adulterous relationship that was mushrooming to the decay in morality and life. She was taken and warned and attempt made to put the matter to rest. But unknown to the family it continued undeterred between her and the deceased. Passion does not die because it is brought out into the family. For the Prisoner She was unfaithful to his husband who has no voice in the presentence report yet again. And to a large extent the deceased also must be blamed for his action in encouraging the continuity of the behaviour. He also was very unfaithful to his wife and grown son Mathew and to any other of his children. He bears responsibility for his demise. He chose to be unfaithful to his wife. And his sinfulness has caused him to die by the organ that allowed him the pleasures of sin. It is scripted with by the wisdom of God that those who wield the sword will die by the Sword. And that the wage of sin is death. Putting the two together it was bound to befall upon Joe Utali and the prisoner. Both are equal players to the affair that has led to where one of the parties to has died, the other will be sentenced to time in jail to canvas the seriousness of the crime.
No doubt the sentence will affect many here the prisoner with her six months old baby. Who is in prison no fault of him or her, but of the mother’s prisoner’s election. Children who are innocent are made to bear, because one parent exists a marriage for an intended green pasture than the former. He was a married man and evident before court by the statement of the wife, Mukito Utali who saw the behaviour told their son, Mathew to bring all and to solve the matter. That was done and She went and stayed with her husband at Bena and then returned back there to Seigu. On the subject night she was called awake and informed that her husband was unconscious lying in the trade store. She went and discovered that the outside lights were all off except for inside and deceased was unconscious.
This is also the evidence of one Gilla Michael who was awoken by the Prisoner in her sleep to this effect. She went and saw the deceased as described by the Prisoner unconscious and she voiced to wake up the son Mathew and his wife. Which did not run favour with the prisoner. And she shares the room with the Prisoner. She states that there was a signal on the wall and Prisoner woke up. And this witness saw her walk out switching off the lights in the living room, and the security lights and bolting the door outside. She went and stayed for almost 1 to 2 hours and I didn’t sleep as I was waiting for her.
Prisoner was the one who alerted of the unconscious of the deceased to the witnesses. I am fortified that there is no material before me to treat her any different from any other prisoner in similar situation, there is no exceptional case demonstrated: Acting Public Prosecutor v Mailai [1981] PNGLR 258 so as to deviate from that which is normal accordingly to category two like tariff and range in Kovi v The State (supra). I start with 13 to 16 years imprisonment given. The aggravation set out above outweighs the mitigation. There is no weapon and if he died because of the use of her hands and fingers the force was overwhelming to turn that into a weapon. And it was to a very venerable part of the male anatomy and composition the testicles and penis. To leave it with scratches and a hole tearing into the gland penis was a vicious attack drawing the injuries observed. If he died from it directly it was deliberate and calculated to cause injury. It showed planning because how else could he a grown mature man comparably large in size compared to her be overwhelmed, such that he is attacked in that manner. She obviously given, planned what She was going to do to him. It is therefore an offence that warrants, but for a guilty plea 13 years imprisonment with hard Labour. Range and tariff are not chains to the discretion of the Court but a guide only. The end is the facts and circumstances posed individually, Kumbamong v State [2008] PGSC 51; SC1017 (29 September 2008) and to deduce an appropriate sentence befalling.
