National Court of Papua New Guinea

Counsel:

N. Miviri, for the State

H. Waninara, for the Accused

6 September 1990

ELLIS J: In this matter Kipling Ture is charged that on the 19 of May 1990 at Rabaul he unlawfully killed his wife, Mary Ture.

The events leading to the death of Mr. Ture’s wife may be described as follows. On 19 May 19 about 9pm Mr. Ture had an d an argument with his wife. During the argument he slapped his wife on the right hand side of her stomach which caused the rupture of her spleen. She was taken to the hospital but, unfortunately, she died from that ruptured spleen.

A record of interview was conducted on 22 May in which Mr. Ture readily admitted his involvement in this incident. He was committed for trial on a charge of murder on 30 August 1990. His s 96 statement on that occasion read as follows:

“I did not intend to kill my wife. I did not know deceased had enlarged spleen. I will not make any alteration to record of interview.”

The State has sensibly accepted an offer from the Defence to enter a plea of guilty to a charge of manslaughter and, since the matter has become a plea, it has been dealt with straightaway. The plea was taken on Friday 31 August 1990, the day after the committal and the matter has been adjourned to today in order to enable Mr. Ture’s lawyer to have a Pre Sentence Report prepared by a Probation Officer.

I quote in full the document which set out the State’s case since that document is of a sufficient standard to warrant it inclusion in full in the hope that it may serve as a guide for future cases.

“Submission on Tendering of Prosecution Statements during committal hearing

State -v- Kipling Ture

Charge: Murder - Section 300 Criminal Code Act Ch. No. 262

The Accused Kipling Ture is charged that on 19th day of May 1990 at Rabaul in Papua New Guinea he did murdered one Mary Ture, a National female.

Thereby contravening Section 300 of the Criminal Code Act Chapter No. 262.

The Prosecution had tendered five statements of witnesses in Affidavits.

The first witness namely Isaiah Pondala. His evidence briefly were that on 19th May 1990 at about 9.00pm he was cooking at the kitchen then he went to his living room and got his radio cassette and went outside the house and sat beside a water tank playing the radio cassette.

While outside he heard Kipling Ture and the deceased Mary Ture were arguing inside their house. He open the door and notice broken glasses on the floor so he got a broom and sweep the broken glasses. Also he could see the deceased still lying on the floor without making any noise. The Accused Kipling Ture was inside the room. He called second witness namely James Kuatu who was outside the house to come in which he did. Both then got water and washed her and also give her to drink.

While they were doing that the deceased started to breath hard. He then called the Accused to come and take her to the hospital. The Accused and him took the deceased to Nonga Base Hospital and soon after been attended by the Doctor she died.

The second witness James Kuatu, evidence in affidavits were that on 19th May 1990 at 9.00pm he was outside the Accused Kipling Ture’s house when Isaiah Pondala called him for assistance, he went in and saw the deceased lying on the floor. He and Isaiah Pondala assisted in washing her with water and gave her to drink. The deceased Mary Ture told him to tell Kipling Ture to bring him to Nonga Base Hospital. He then stayed back while the Accused and Isaiah Pondala brought her to Nonga Base Hospital.

The third witness is Dr. W. T. Kurapa of Nonga Base Hospital, Rabaul is evidence in affidavits were that on 22nd day of May, 1990 at about 10.00am he did conduct a post mortem on the body of deceased namely Mary Ture aged 25 years of Kukipi Village, Gulf Province and his findings are as follows:-

A. ҈ T60; There is no ob iousrnxternal bruises noted generally over the body.

B. ـ T60; The rest of examination of the abdominal cavity or(liveomachl bladder, colon, small bowell and pelvic oric organs)gans) appe appeared grossly normal.

C. ҈ The sizthe s is 15 s 15 cms acms and apnd appearspears enlarged (lower pole extending about 4 cms below the costal margin) and weighs 490 grams.

Ther surarea e splad ‘11’ shaped teed tears mars measureasuring 1ing 10 x 7 cm with 4 cm tear bridging them. The depth of the tear is about 2-3cm. There are no obvious signs of ovulsion of the splenic vessels from the bilum.

The doctor concluded that the deceased most likely died of Hypoxia and Phpovollaemia resulting from acute blood secondary the rupture of the spleen.

The fourth witness is Senior Constable Philip Wayne of CID Section, Rabaul Police Station his statement in affidavit that he conducted a Record of Interview with the Accused Kipling Ture and Corroborator Bill Rodney a Reserve Senior Constable on the 27th day of May 1990 at about 1.20pm.

The last witness namely Bill Rodney a Reserve Senior Constable his statement of corroborating the informant Senior Constable Philip Wayne. During the Record of Interview between the Accused Kipling Ture at CID Office, Rabaul Police Station on 27th May 1990.

There is no disputed to the following issues.

A. &#D60; tte, anmeplac of t of the offence.

B. The identity of the Accused and;

60;&##160;;ټ Te did assault his wife (deceased) and caused her deer dead.

The >The issueissue is whether as the evidence in statemy wits hastands would amount to t to murdemurder or r or manslaughter charged.

I would submit that Your Worship should consider the following facts are:-

A. &##160;; T60 fore force usee used by the Accused when he assaulted the deceased.

B. ـ Wrethe athe assault was inas intended to do her grievous bodily harm and;

C. ; typenstduusecce Accused toed to assault her.

The only evidence relied by d by the Pthe Prosecrosecutionution is the Record of Interview made by tcused

Hted by thawas question by hisy his wife wife Mary Mary (dec (deceasedeased) several times and the last was in his room. He then followed his wife out to the verandah where he used his left hand and about to slap her with but she came to his right side. She then took an ashtray and threw it at him but it missed him and fell on the floor which broke. He then used his right open hand and threw it at her right side of the stomach. She went backwards, and sat down and than layed on the floor. She was later taken to Nonga Base Hospital where she died.

I would submit that if Your Worship finds that the force used (see Dr. W. R. Kurapa’s statement) was excessive which can infer from the injuries received and that he intended to caused grievous bodily harm to the person killed then Your Worship should commit him to stand trial on murder charge under Section 300 (1) (a) of Criminal Code Act but if Your Worship consider that he did not intended to kill her but the act done by the Accused in the Prosecution of an unlawful purpose and of such a nature or way as to be likely to endanger her life than he would have to be committed for trial for Manslaughter charged under Section 302 of the Code.

Respectfully submitting, sir.

(Signed)

Itama B. Koloba

Prosecutor”

It is often the case in criminal matters that the Supreme Court indicates what will normally be an appropriate sentence or range of sentences for a particular offence. That does not mean that every Judge in every case is bound to give that sentence. To do so would not take into account the particular circumstances of each case which the Court is required to do. Such pronouncements can only operate as a guide and not a rule. As Sir Fredrick Jordan, a former Chief Justice of New South Wales, said in R. v. Geddes [1936] NSWStRp 35; (1936) 36 SR(NSW) 554 at p555, albeit in the context of an appeal on the ground that a sentence was inadequate:

“This throws one back upon a preliminary question as to the general principles upon which punishment should be meted out to offenders. In the nature of things there is no precise measure, except in the few cases in which the law prescribes one penalty and one penalty only. In all others, the judge must, of necessity, be guided by the facts proved in evidence in the particular case. The maximum penalty may, in some cases, afford some slight assistance, as providing some guide to the relative seriousness with which the offence is regarded in the community; but in many cases, and the present is one of them, it affords none. The function of the criminal law being the protection of the community from crime, the judge should impose such punishment as, having regard to all the proved circumstances of the particular case, seems, at the same time, to accord with the general moral sense of the community in relation to such a crime committed in such circumstances, and to be likely to be a sufficient deterrent both to the prisoner and to others. When the facts are such as to incline the judge to leniency, the prisoner’s record may be a strong factor in inducing him to act, or not to act, upon this inclination. Considerations are broad as these are, however, of little or no value in any given case. It is obviously a class of problem in solving which it is easier to see when a wrong principle has been applied than to lay down rules for solving particular cases, and in which the only golden rule is that there is no golden rule.”

Accordingly, whilst Supreme Court decisions and comparable National Court judgments may establish a range within which a sentence should normally lie, those cases are a not a rule but rather a guide which can be departed from in cases involving special circumstances.

The State does not press for a custodial sentence in the circumstances of this case. That might seem unusual. However, a consideration of the material relied upon by the Defence demonstrates that such an attitude is appropriate in the circumstances of the present case which are exceptional such as to warrant suspension of a custodial sentence in favour of a good behaviour bond notwithstanding the fact that a human life was lost in the events giving rise to the charge.

Having set out the Prosecution’s submissions in full, I now set out the contents of the Pre Sentence Report: firstly, because that report of Noah M. Tade, Senior Probation Officer, has a content and quality which should become more widespread and it will therefore, I hope, serve a a guide to others who wish to match its standard. Secondly, I set out the material in full so that it will be apparent that the circumstances of this case and the circumstances of Mr. Ture are unusual.

“Department of Attorney General

Probation service

Probation Act, Chapter No.381 Sections 13 & 25.

Pre-Sentence Report

Ordered By: Mr Justice Ellis - National Court

Prosecutor:

Defense Counsel: Mr Himson Waninara (Namaliu & Company Lawyers

Name of Defendant: Kipling Ture

Alias: Nil

Address: Shell Papua New Guinea Pty Ltd

PO Box 64

Rabaul

East New Britain Province

Place of Residence: Grove Street

Section 100 Lot 142 Rabaul

Home Village: Asada Village

District: Afore District

Province: Oro Province

Offence: Murder

Contra Section 300 - Criminal Code

Chapter 262

To Be Presented: Wednesday 5th September 1990

Report Prepared and Compiled by: (Signed)

Noah M Tade

Senior Probation Officer

Introduction

The Pre-Sentence Report now being present to the Court was compiled and written on the request by the Defense Counsel for the accused, Mr Himson Waninara, LLB of Namaliu & Company (Lawyers).

The accused, Kipling Ture was charged with murder of his wife under Section 300 of the Criminal Code Act Chapter 262.

Your Honour, the information contain in this Report was compiled and written after interviews were conducted with the accused, on of his relatives, his church leaders and the Area Manager of the defendant’s employer.

Back Ground

Your Honour, the accused, Kipling Ture, is a young man aged about twenty-six years old (26) and is employed by the Shell Company in Rabaul. He is currently being employed by Shell Company as the Area Sales Representative of the Islands Region.

Kipling Ture is the fifth born child of a total of seven children in his family. There are four (4) males and three (3) females all now adults and are married.

The offender’s father, Alquin Ture died on the first of July 1990 (1-7-90). His mother, Mrs Ture is an old woman who is now living back at Asada Village in Oro Province. During my interviews, Your Honour, Kipling Ture told me that his mother is so worried that she gets sick every now and then - not because of old age, but rather because of the worries she has, as a result of the offence her son committed. After the offence was committed by the accused on 19th of May 1990 in Rabaul, both Mr and Mrs Ture, the Offender’s parents were alive and well. Their other children were taking care of them and were both healthy and happy couple.

After being told of what had happened back in Rabaul both were very upset, shocked and could not believe that their son had actually killed his wife.

Your Honour, the defendant’s parents were horrified on hearing the news and were very sad because they held their son in high regards. Other members of the family were also shocked and could not believe that Kipling had actually killed his wife.

Because of the worries and sadness that their son had committed such a serious offence, and the type of punishment he would get for committing such an offence, the Offender’s father’s health began to deteriorate to such an extent that he never fully recovered until he died on the 1st of July 1990.

Your Honour, whether the father of the accused died of ill health or because of his son’s actions could not be verified, however, the mere fact that he died almost one and half months after the offence was committed could very well be attributed to the death of Kipling’s wife. As a layman, Your Honour, I believed that Kipling’s father died because he was so worried, ashamed and was shocked to hear that his son had committed an offence for which, he as a father, had advised his children not to commit.

Furthermore Your Honour, Kipling committed the offence while living away from his village, his parents, his clan and his people. The parents could not really grasp what would happen to Kipling - all they knew was that Kipling had killed his wife, Mary. Physically, they could not support their son, and for the offender his is in a vice-verse situation, thus the amount of grieve, sorrow and frustrations increased because of the distance involved.

Your Honour, the offender’s mother, brothers, sisters and clan members back at Afore are keen to have Kipling return back home after whatever sentence is given to him by the Court. He is being looked upon as the future chief of his clan.

Your Honour, it is unfortunate, that the accused have no close relatives living in Rabaul, however, his nephew had given a written character report on the accused.

The report from Mr Joe Mamane is indicative to the over all views of other family members as well as other clan members. Mr Joe Mamane is a nephew of the accused. He was brought to Rabaul to assist Kipling in looking after the children and is living with Kipling and his family at Grove Street in Rabaul. Mr Joe Mamane’s report is attached herewith for His Honour’s considerations.

Education

The accused, Your Honour, completed his secondary education at Popondetta High School in 1978 at Grade 10 level. He was eighteen (18) years old when he successfully completed his secondary education. The offender had been doing External Studies towards a Commerce Certificate. His training programme is an on-going exercise and has so far completed the first part successfully. He is currently doing his second part of the correspondence course. After completing the Second part he hopes to enroll at either UPNG or UNITECH for further studies and to be sponsored by his employers. His plans for further studies, Your Honour, are realistic as he had so far been successful in his first phase. His future advancement within the company depends on how Kipling succeeds in achieving pass marks in his External Studies.

Employment

As mentioned earlier, Kipling is employed by Shell PNG Ltd as the Area Sales Representative for Shell in the Islands Region. From a young Trainee back in 1979, the accused had made his way up the ladder to a stage where he is now a member of the Management Team within the Company in the Island Region. This is an achievement which may people do not reach in the Private Sector.

An affidavit tendered to the Court for the release of Kipling from custody by his Lawyers indicated that he is honest, reliable and a very hard working man in the Company. My interviews with his Manager, Mr Richard Maru confirmed that Shell PNG holds the accused in high esteem and has a very bright prospect for further advancement within the Company. A copy of the Affidavit is herewith attached for His Honour’s considerations.

Your Honour, the Offender’s involvement with the Court could and will adversely affect his future employment prospect with the Company, Infact, I was told by the Area Manager of Shell, that it is a Company Policy that any employee who commits any offence and is imprisoned by the Court is automatically dismissed and looses his/her entitlements and benefits.

The seriousness of the offence, Your Honour, holds the prospect for the accused for a possible dismissal from his present employment in the event that a custodial sentence is imposed.

Kipling joined Shell PNG Ltd in 1979 as a Trainee and was generally a Clerk, Tea Boy, Mail Boy and was doing mediocre and odd jobs within the company. He had, however, stuck to the Company and his hard, honest and reliable performance had paid his way up and the future prospect for him is very good.

He has not been employed anywhere else except by the same company he is with now.

Your Honour, Kipling’s aims and work goals are to go further than Area Sale Representative as he is now. Depending on the outcome of his case now before His Honour, the accused would very much like to remain with Shell PNG Ltd for as long as he is needed.

With his current correspondence courses and the fact that his is a management Team Member, his plans a realistic.

Financial Situation

As an employee of Shell Company, the offender is paid an income on a fortnightly basis. He earns a nett salary of K265.00 per fortnight.

He also saves some of his salaries in the Bank. The offender does not owe any money to any one. As his employment benefits, the Company had given the offender a vehicle and a house in Rabaul. He does not own any land here in Rabaul, however, he claims to own a lot of land back at his home province.

Your Honour, the defendant had assured me during my interviews with him that he can and his is prepared to pay any amount of Court Fines the Court may order him to pay.

Marital Status

Your Honour, the accused is now a widower after hi killed his wife, Mary on the 19th of May 1990.

Before the accused killed his wife, Your Honour, the relationship between Kipling and the late Mary were always good until that fateful Saturday 19th May 1990 when the incident happened. There was no major marital conflicts such as not being faithful to one another. Both husband and wife were adherent Christians and therefore were both a God fearing couple who cared only for their children and the family’s well being.

I note from my interviews with the accused that a certain unidentified individual had told the late Mary lies that Kipling was not at Rugby Field that Saturday. That person told Mary that Kipling was driving around town in his company vehicle with a female companion. The accused strongly and honestly denies the allegation which he infact explain to Mary that Saturday evening.

The ensuing result of that gossiping was the tragic death of Mary - the wife of the accused.

Your Honour, the offender has three children of which two are boys and one is a girl. The names and ages of the children are:

1. Mrx TuMa - Sixe 6) Y(ars Oars Old;

2. &##160;; J60; Joan Tuan Ture - Female Five (5) Years Old;

3. &##160; ҈ n Tura Turale i One Nine s Old.

All tAll three hree childchildren aren are being looked after and are living ving with with their father Kipling Ture now before the C

The accused, Your Honour, appears tars to be an healthy man, with solid built. It appears that there will not be any problems which would affect him as a result of sentence of the Court. The offender does not drink alcoholic drinks, smoke nor chew betelnut.

He does not take any prescriptive drugs from doctors nor does he takes illegal drugs. Your Honour, the accused is a very healthy person.

Future Plans

· &ـʔ< W60; Work

The ad ised is a very ambitious man who loves and likes his job very much. He had proved to his employers that he can s jobhe be his ties which had resulted in hiin his stes steady rady rise within his company’s hierarierarchy.

His next step up would be to become an Area Manager or a Provincial Manager. For him to be further promoted he needs to complete his studies successfully.

· ـ҈< < Education

As mentioned ened earlier, Your Honour, Kipling is currently doing correspondence studies in Commerce for a Commerce Certificate. He has completed Part A of the Course and now is in his halfthrourt B of his studistudies.

After completing his Commerce Studies, he hopes to enroll at either UPNG or UNITECH for a B A Degree in Economics.

Your Honour, both his work and education plans are realistic as the offender had shown that he is capable of achieving his goals. He has the capabilities and will to succeed in his career with Shell PNG Ltd.

· &##160; <
a0; Mgeria>

Because of that incident and the fact that his wife died of his actions, the offender promised himself not to get married again. He will stay single to look after his children. Time will tell whether the offender will stay single or not, but while memories are still fresh, it is most likely that he will stay single for sometimes yet.

Assessment

Your Honour, the offender is very sorry and remorseful for what he had done. His sorry and blames himself for the death of his wife, Mary. He also regrets and say very sorry for his actions that also led to the death of this father.

Even though it was an accidental death, through his carelessness that indirectly led to his wife’s death. His actions immediately prior to the slapping of his wife, he had tried to avoid having any argument with her by driving away from his house to let he cool down. When he returned after a while, he went straight to bed and slept with his children. It was regrettable that his wife persisted in invoking the same questions she had asked earlier - which accordingly to Kipling, Your Honour, had replied to her with honesty. As a result of her persistence questioning, the offender slap her which unknown to him, was a small slap physically to his wife, but a tragic and big blow to his family and his life.

Typical to females (and males) the offender’s wife was gossiping with some females before the offender arrived home from the League ground. One of the female had told the late Mary that Kipling was not at the League ground that Saturday afternoon but was seen driving around town in his company vehicle with an unknown female companion.

This allegation was not true as Kipling was with his two elder children, so it was obvious that the rumour was false. As a result a serious accident happened when Mary died - because of mere lies.

The offender and the decease were with their children when the argument started. The wife gave their children bath and put them to sleep and then the argument started again. When Mary died, the offender was alone with her in the lounge room of their house.

Your Honour, the offender has never been to Court before for any similar or any other offences. This is his first offence and his first appearance in Court.

It was really but sadly that such an incident took place. It was unplanned and was very surprising to the offender that his beloved wife died.

Your Honour, after Kipling realized that he had killed his wife, he was confused and was really sad that his wife had died. He was ashamed of his in-laws, his parents and his own children. He is particularly worried that his children will grow up knowing that their father had killed their mother.

Your Honour, as a Probation Officer, I found during my interviews with offender, that Kipling had willingly given the informations in this report. On checking with CIB members in Rabaul, they confirmed that Kipling had been very helpful during their investigations into the incident. This is the same during my investigations. I found Kipling to be honest, reliable and very cooperative right through the period of compiling this Report. He is also very concerned about his children and his job and therefore had to assist in every way possible to get the matter behind him and to continue in life.

When considering sentence, Your Honour, the Court should with due respect, consider the community service the offender had render during his own time.

He was a Police Reservist during the commission of the offence. He joined the Reserved Police in October 1989 and had been a very active member. He was directly assisting in stopping the law and order problems we now have.

He is also involved in running the Rugby League Competition in Rabaul. Hi is an official of the Air Niugini Rugby Football Club.

Furthermore, Your Honour, the offender is also a Council Member of the Anglican Church in Rabaul. He has been observed to be a true Anglican who has dedicated alot of his time to assisting Youth Member of the Church.

With due respect to the Court, Your Honour, the above, points should be taken into consideration by the Court.

Suitability for Probation

Your Honour, the offender is a suitable candidate for Probation Supervision. It is the Courts discretion to decide on the period and terms of Probation Supervision. Any other conditions will also be to the Courts to decide.

My reasons for recommending Probation Supervision is based on the Medical Reports attached, the Character Evidence from the Anglican Priest in Rabaul and Mr Richard Maru, the Area Shell Manager in Rabaul.

With due respect Your Honour, his children are very young ranging from one year to six years old. To send their father to jail will cause alot of suffering and misery to the children. No one will give them the love they rightly deserved from parents. No-one will care, feed and bath them. It is through these considerations that I respectfully recommend to the Court to consider the alternatives to a jail term.

It is my believe that Kipling will not break or breach any conditions that may be imposed on him by the Court. I have pointed out his interest in his job to breach any condition will mean disaster for him and his children.

Your Honour, if it pleases the Court, I respectfully submit that the offender, Kipling Ture to be placed on Probation.

Sources of Information

The people I contacted during my interviews for informations for compiling this Report are as follows:-

1. ҈ M60; Mr Kipling Turf (Dentndant)

Shell (PNG) Ltd

Rabaul

2. &##160;; M60; Mr Joe Joe Mamane (Defend8217;hew)

Groreet

Rabaul

3.&p>3. &ـ M60; Mr0; Mr Ricr Ricr Richard hard Maru (Immediate Supervisor of Defendap>

S

Shell hell (PNG) Ltd

Rabaul

4.&#16. ; Revereni Tevfua Afu Talanoalanoa

Anglican Parish

Rabaul

5. Court Fole N 1 CB/9053p>

Court House

Rabaul

6.;ټ&##160; CIB Officefficers s

Rabaul

Your Honour, I respectfully submit this Court Report for the Court’s considerations.

Noah M Tade

New Guinea Islands Region

Attachments

Affidavit: ҈ Richard Maru