N2035

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR No 1324 of 2000

THE STATE

-v-

NGETTO REX RONGO

LAE: KANDAKASI, J.
2000: December 5, 12, 20

Criminal Law – Particular offence – Murder – Domestic argument ending in death – Guilty plea – Good mitigating factors – Sentence.

Criminal Law - Practice and procedure – Need to request pre-sentencing report – Pre-sentencing report not removing Court’s sentencing power – Court not obliged to accept pre-sentencing report.

Criminal Law – Customary Compensation only a factor in mitigation – Inappropriate to order compensation.

Cases Cited:
Simbe v. The State [1994] PNGLR 38;
The State v. Laura (No. 2) [1988-89] PNGLR 98;
The State v. Gori Bonu Ganitau & Another [1996] PNGLR 48;
The State v. Horou Posu Kave (1986) PNGLR 305;
The State v. Polin Pochalon Lopai [1988-89] PNGLR 48;
The State v. Sagarina Yakul [1988-89] PNGLR 129.

Counsel:
N. Miviri, for the State
M. Mwawesi, for the Defendant

20 December 2000

KANDAKASI, J: This is a case of murder contrary to s.300(1) of the Criminal Code Act (Ch. 262)(hereinafter "the Code"). The State presented the relevant indictment charging the Defendant with murder, on the 5th December 2000. On arraignment, the Defendant pleaded guilty to the charge. Upon reading the depositions, I was satisfied that there was sufficient evidence to support the guilty plea and proceed to convict the Defendant. I then adjourned the proceedings to the 12th December 2000 to allow for a pre-sentencing report from the Probation Services. The report was not ready by that date. Thus, on the request of that service, the matter was further adjourned to today. This time the report is before the Court and I am grateful to the Probation Service for having produced it in such a short time and within their limited resources. The parties were given the opportunity to make submission on the report if they wished but they declined to make any submissions.

Facts

On the 17th of April 2000 between 8.00am and 9.00am the Defendant at Lomon village, Yalumet area in the Kabwum District of the Morobe Province, the Defendant had an argument with his wife, Topo Moren ("deceased"). The argument was over a coffee strainer, 2 lamps and a wire used for cooking which were given to the deceased parents but retrieved that morning at the direction of the Defendant. In the course of the argument the deceased got very angry and was about to go out of the family house where the argument was taking place. As she was leaving, the Defendant took a piece of wood and threw it at the deceased. The piece of wood landed on the deceased back close to the neck and the deceased fell down on the floor. Not long after, she died.

The defendant then tried to leave the scene of the crime with his 2 and half year old son. He was however, stopped by a man from the village. Then through the help of community leaders and village court officials the Defendant was brought to Lae and he was arrested and charged.

The medical evidence confirming the death is dated 19th April 2000 from a Robin Peter of the Kabwum Health Centre. He carried out an examination of the deceased’s body. The report in pertinent parts reads:

Head	-	Slightly swollen lump with soft on back of the head.

Neck -	Swollen and black strap around the back of the neck, when moving neck back toward the face blood zoomed out of both nose hole with bright red colour.

Legs -	Good – Right leg has sore on the foot due to husband burn her with fire.

Diagnosis -	Brain damaged (damage to neck and nervous system). Through my investigation she was killed by her husband using hard metal stick or iron to kill his wife died instantly.

Apart from the obvious English or grammatical deficiencies, the report clearly speaks of the deceased dying of brain damage. That was caused by use of a hard and heavy metal object causing instant death. There was evidence of the deceased being burnt on her right leg.

Allocutus

In his allocutus, the Defendant said, he did not mean to kill his wife, the deceased. He was sorry for what he had done in the eyes of God and this Court. He then asked the Court to consider his background. Both his parents are still alive but very old. He has a small son. If he is imprisoned, there will be no one to take care of his son and his aging parents. He therefore, asked for a lighter term which he can serve and go back to his village. He finished by saying, he has some more things to say and those were in three separated letters, all undated, two addressed to the Court and the third addressed to the Public Solicitor all unsigned and not properly closed off. Those letters were admitted into evidence with the consent of the State.

In those letters, the Defendant recites the incident leading to the deceased’s death. He says he reported the incident to the village leaders and later surrendered to the police. He also restates what he said orally and adds that, he got married to the deceased in 1995 and their first child was born in 1997. They have not had any problems until the incident leading to the death of the deceased.

Addressed on Sentence

Mr. Mwawesi for the Defendant submitted that his client was 24 years old. His client comes from Lomon village, Yalumet area, Kabwum District, Morobe Province. He is an ordinary villager with no formal education. He is the second in a family of two children and his parents are alive. He is a follower of the Lutheran church and he has no prior convictions. Hence, this is his first offence. He has spent 7 months and 6 days as at 5th December 2000, in custody awaiting his trial.

In mitigation of the Defendant, Mr. Mwawesi asked the Court to take into account the fact that his client pleaded guilty to the charge. That saved the State and the Court the time and expenses of running a trial. His client is a first time offender with no prior convictions. He has co-operated with the village leaders and police over the incident. His parents are elderly. He has a small child out of his marriage to the deceased. The death was not intentional and that it was out of an argument.

Further Mr. Mwawesi submitted that his client appreciates the seriousness of the offence but asks for a more lenient sentence. In so submitting, he said the prescribed penalty under s.300 of the Code is life imprisonment but it was subject to s.19 of the Code.

Counsel referred to a case The State v. Betty Kondai but gave no reference and submitted that 10 years minimum would be appropriate sentence for his client.

The Court tried to find the case counsel relied on but was unable to find it. Hence, the reference to that case is of no assistance to the Court or the Defendant’s submission.

May I note for the record with disappointment the inability of counsel to assist the Court with proper submissions. It is the duty of counsel to research the law so as to ensure that their submissions are supported by proper legal authorities. Counsel should have working knowledge of the relevant and applying law.

This is very important because, not only do counsels represent the interest of their clients but they are officers of the Court. As officers of the Court, they should always be ready to assist the Court by pointing out to the relevant law, whether or not it favours their client. As counsel for a defendant in a criminal case, as is the case here, they ought to appreciate that their client’s liberty and their lives and their families are in their hands. They should therefore, seriously consider and take up their duties and responsibilities and perform to their very best. Let this serve as a warning to counsel that my Court will seriously consider taking steps that may be detrimental to counsel who are unable to perform their duties that falls short of proper preparation and presentation of cases. Such steps may include referrals to the Lawyers Statutory Committee, recommend a withdrawal of their licence to practice as lawyers or hold them in Contempt of Court.

Getting back to the case at hand, I was ably assisted by Mr. Miviri who drew my attention to the case of Simbe v. The State [1994] PNGLR 38. Other than referring to that case Mr. Miviri did not make any submissions. Against that, there can be no adverse comments because it is the acceptable practice and law that the State need not make any submissions unless the case warrants argument from them.

Sentence

Section 300 of the Code prescribes the offence of murder in a number of settings. Although the word "intended to do grievous bodily harm" is used in s.300(1)(a) and (c), subsections (2) and (4) of that provision provide that "it is immaterial that the offender did not intend to hurt the particular person killed" for a case under s.300(1)(a) or "that the offender did not intend to cause death" or that "did not know that death was likely to result" for a case under s.300(1)(c), (d) or (2).

The indictment in the present case was presented under s.300(1)(a) of the Code. Therefore, the Defendant’s claim of not having the intention to kill is of no relevance. He is thus to be sentenced for murder under s.300(1)(a) of the Code.

The State v. Laura (No. 2) [1988-89] PNGLR 98 sets out the appropriate guidelines to be followed for sentencing in murder cases. They are:

(a)	on a plea of guilty where there are no special aggravating factors, a sentence of six years;

(b)	a sentence of less than six years may be imposed only where there are special mitigating factors such as youthfulness or very advanced age of the accused;

(c)	on a plea of not guilty, a range of sentences from eight to twelve years or more in a case where aggravating factors are evidenced.

In that case, the Defendant pleaded not guilty to a charge of murder under s.300(1)(a) and was found guilty after a trial. He received a sentence of eight years where there were neither special factors in aggravation nor special factors in mitigation.

The Supreme Court in Simbe v. The State (supra) adopted the guidelines set by the Laura No. 2 case and applied them in the context of an appeal against sentence of 14 years following a plea of guilty to a charge of murder.

In that case, the appellant attacked the deceased with a bush knife and inflicted a substantial cut to the chest, which in effect sectioned most of the ribs and caused the victim’s immediate death. This was over a believe or suspicion that the deceased was trying to entice the appellant’s wife into having sexual liaison. That was after, the appellant followed the deceased to the garden where his wife was and after what he believed to be acts of enticement he chased him with a bush knife into the bush and chopped and killed him there.

In The State v. Gori Bonu Ganitau & Another [1996] PNGLR 48, the Court referred to and applied the guidelines set in the Laura No. 2 case. That was a case in which, the Defendant pleaded not guilty and after a trial they were both found guilty of murder. The murder was found to be committed out of an argument between the Defendants (husband and wife) with their brother-in-law and brother respectively, which resulted in the deceased being stabbed by a kitchen knife. The wound led to heavy bleeding and eventually the death of the deceased. The Defendants were given 7 years in hard labour subject to deductions for time spent in custody.

Then in The State v. Maria Er N1749. The defendant stabbed and hence caused the death of a woman whom she believed was seeing her husband. Before she did that, the deceased spit on her which made her angry and do what she did. After review the sentencing trend in this type of cases the court imposed a term of 7 years in light labour.

One thing that is apparent through these cases is the principle that, the guidelines are only guidelines. Each case has to be determined on its own facts. In the Simbe case the Supreme Court said at p.39:

The records show that terms of years imposed in 1991 and 1992 for murder range from four years of imprisonment to life imprisonment. This indicates quite clearly that each case has been determined on its own facts and thus, there maybe a very wide variation in the circumstances that lead to a person killing in s.300 situation.

The Court than quoted with approval a passage on point from the Laura No. 2 case at page 99 and said on its part at page 40 of the judgment:

That is the principle. Each case of murder must be decided on a case by case basis, but always remembering that the sentence laid down by s.300 is life imprisonment and the terms of years is by virtue of s.19.

Most of the reported wife killing cases involved a rupture of the spleen by just one punch or kick as in The State v. Horou Posu Kave [1986] PNGLR 305 and The State v. Pelin Pochalon Lopai [1988-89] PNGLR 48. In this category of cases, the sentence has been between 4 and 6 years. They were however, in the context of manslaughter charges which usually attract sentence lower than murder cases.

Present Case

The present case is a case of murder under s.300(1)(a). There was an argument between a husband, the Defendant and his wife (the deceased). It was therefore, a case of wife killing out of a domestic argument. There was no one present other than the Defendant and the deceased and their 2 and half year old son. Consequently, there is no one to give evidence either to contradict or corroborate what the Defendant says. There is however, the medical evidence, which apart from confirming the death states that there was evidence of the deceased being burnt on her right leg. It is hence, clear that it was not a simple case of an argument taking place between a husband and wife and the husband taking a piece of firewood and throwing it on the deceased and the deceased dying in the consequence. Instead, it is a case of a domestic argument resulting in the deceased being burnt on her right leg and being hit on the back of the head and neck area by a heavy object possibly a piece of metal. This resulted in a serious injury to the deceased leading to brain damage and her instant death. This is what appears from the totality of the depositions which I am permitted to take into account or utilise for the purpose of sentencing: See The State v. Sabarina Yakul [1988-89] PNGLR 129.

Also, as I am obliged to do, I note that the Defendant is 24 years old. His parents are alive but are old. He is the second out of a family of two children. He has no formal education and or employment. He is a villager from Lomon village, Yalumet area, Kabwum District, Morobe Province. The issue of his marriage to the deceased who was at the time of the offence two and half years old needs his support and so do his aging parents.

Further, I note that, he has pleaded guilty to a serious offence and has fully co-operated with village leaders and the police. He has not done anything to conceal the death. He has no prior convictions and this is his first offence. He has expressed remorse and said sorry for what he has done to this Court and to God. I note at the same time that the Defendant has not said anything about what if any, steps he has taken to show his remorse to the deceased’s parents and relatives.

The Defendant’s background and mitigating factors as outlined above, must then be weigh against the community or societal interest of appropriately punishing offenders. As of necessity, the need to be punitive, deterrent, rehabilitative or restitutive as the aims for punishment has to be also considered. This can be done by having regard to the prevalence of the offence, the community's response to it, the effects if any of sentences already imposed for similar offences and whether the offender is a threat to the society.

I note that the Defendant is a Lutheran Church member. I therefore trust that, he will appreciate what the Bible says about husband and wife relations and human relations generally. Without going into any details, when God created man and woman, He made woman a little lower than man by creating her out of the man’s ribs (Genesis 2: 21-23). Women are therefore, inherently not stronger than men. Because of that the Bible teaches that when a man and woman get married they become one flesh (Genesis 2: 24). Therefore a man needs to tender and care for his wife as his own flesh. The Bible also teaches that all human kind should love one another for that is the greatest commandment or law of God. Built into that is the commandment which says, you shall not kill (Exodus 20: 13). Through our Constitution our country has adopted these very principles. Therefore, all citizens of our country and more so those who claim to be Christians should be the last to act contrary to those principles.

Unfortunately, these principles have been over-looked and many people are acting contrary to those principles even by those people who claim to be Christians. This has necessitated the enactment of the criminal laws.

Wife beating is now an offence in our country. This has been brought about because of husbands beating up wives as if they are not more than just mere beings fit only to be their wives. Even after the enactment of the laws against wife beating, many men are continuing to beat up their wives. Some of the beatings are ending up in deaths. Currently, the women in our country are continuing to call for violence against women and girls to stop. Yet a few men like the Defendant are continuing to beat up and even kill their wives.

These men fail to appreciate the fact that their wives are human beings like them and have the right to live and to be treated with human dignity and respect. They do not appreciate the fact that women are inherently weaker than men and as such they need to be treated with care and respect. Men need to show the women or their wives that they truly love them. If they do not love their wives, they should not have married them at the first place, or if their love has grown cold, they should let them go their own way rather than killing them.

If there are differences in the family or marriage, that should be resolved in a non-violent and orderly manner. If that is not possible, then the Church or community leaders should be called to assist. If through such process, the differences or problems cannot still be resolved, they should agree to go their separate ways because of the irreconcilable differences. Entering into an argument and beating up a wife and or killing her is not the way to resolve family problems. The man as head of the family should show true leadership by acting in a manner that is not violent and treat his wife with respect and care.

In the case before me, I find that the Defendant acted in a manner that was contrary to his Christian principles, the Constitution in so far as that is relevant and of course s.300(1)(a) of the Code. I fail to see how a human life could equate to a coffee, strainer, 2 lamps and a wire used for cooking, being the objects over which the Defendant killed his wife, the deceased.

I also find that, whatever the object the Defendant used was as per the medical evidence a heavy one. That object gave a fatal blow to the deceased back and neck areas from the back. Clearly therefore, the deceased in my view did not think properly and use an object that was reflective of the fact that it was being thrown at a woman, not that would make the harm brought upon her any lesser and not painful.

The sentence I propose to give will reflect all of the factors or aspects I have set out above. That will include the call for an end to violence against women and girls, the kind of object used to inflict the injuries to the deceased, the circumstances in which the crime was committed and the Defendant’s background, and his mitigating factors. I have of course been guided by the cases and the law on point.

Pre-sentencing

In addition to all of the above, I have taken into account the pre-sentencing report from the Probation Service. I am grateful for that report, which has been prepared in such a short period of time (5th to 20th December) given the constraints that office faces.

The pre-sentence report recommends a non-custodial sentence. That recommendation has been arrived at without any interviews with members of the community or anybody else other than the prisoner.

Whilst I am obliged to consider the report I am not necessarily bound to follow or accept the recommendation. This is because the sentencing power is vested in this Court and not the probation service. If the situation was otherwise then, there would be no need for sentencing by the Courts.

I have carefully gone through and considered all of the matters referred to above and have come to the conclusion that a custodial sentence would be appropriate. I have also come to the conclusion that a sentence of 6 years would be appropriate. Out of that, a period of 7 months 21 days already spent in custody is deducted. The prisoner will serve 5 years 4 months and 9 days in hard labour. I have decided against suspension because of the lack of input on that from the community. In Public Prosecutor v. Don Hale, SC564, the Supreme Court highlighted the need for input from the community before allowing a prisoner out on suspended sentence and or probation. In the present case there has been no input from the community to support the recommendation form the probation service for a suspended sentence. Hence, the decision not to give a suspended sentence.
______________________________________________________

Lawyer for the State:			PUBLIC PROSECUTOR
Lawyer for the Accused:		PUBLIC SOLICITOR