N2434

PAPUA NEW GUINEA

[In the National Court of Justice]

CR NO. 1099 OF 2003

THE STATE

-v-

MARIA PAUL

KUNDIAWA: GAVARA-NANU, J
2003: 17th & 18th April,

CRIMINAL LAW – Sentence – Murder – Plea of guilty -- Special mitigating factors – Killing done with a kitchen knife – Single stab penetrating the heart – Deceased having a long time affair with the accused’s husband – Accused being able to tolerate such affair – Accused attacking the deceased in accused’s own house – The deceased living in the accused’s house with the accused’s husband during the accused’s brief absence from the house following a domestic fight. 

Facts:

The accused is the wife of a prison officer at the Barawagi gaol in the Chimbu Province. She and her husband come from the Chimbu Province. On 21st November, 2002, she had a fight with her husband during which she was beaten badly by her husband. She had to be treated at the Kundiawa General Hospital. 

When she returned to Barawagi from the hospital, the gaol Commander spoke to her and her husband about the fight, following which, the husband told her to go to her village for a month to give him time to cool down. At that time, the husband was already in a serious adulterous relationship with the deceased. One day after the accused left for her village, the deceased moved into the accused’s house with the accused’s husband. A week later, when the accused went to check her house, she found the deceased inside the house. She was angry that the deceased was living in the house with her husband and using her things, so she attacked the deceased with a kitchen knife and stabbed her once on the chest. The knife penetrated the heart and the deceased died almost immediately.

Held: 

1.	The fact that the accused had tolerated the husband’s long adulterous relationship with the deceased is a mitigating factor.

2.	The fact that the deceased was found by the accused living in her house with her husband and using her things was a special mitigating factor.

3.	There was provocation in a non legal sense, which had to be given due weight.

Sentence of six years considered appropriate. The State -v- Laura (No.2, [1988-89] PNGLR 98, applied.

Cases Cited:
The State -v- Laura ( No.2) [1988-89] PNGLR 98.
John Elipa Kalabus -v- The State [1988] PNGLR 193.
The State -v- Bepi Molo Komaip N1557.

Counsel:
J.Waine for the State.
M. Apie-e for the Accused.

GAVARA-NANU, J: The accused pleaded guilty to murdering one Mega Dube on 27th November, 2002, at Barawagi in the Chimbu Province, contrary to s. 301 (a) of the Criminal Code Act. The maximum penalty for this crime is life imprisonment.

Back ground facts. 

On Thursday 21st November, 2002, the accused and her husband who is a prison officer at the Barawagi gaol had a fight. They both come from the Chimbu Province. During that fight, the husband beat the accused quite badly, and she had to be treated at the Kundiawa General Hospital.

After the accused and her husband returned to Barawagi from the Kundiawa General Hospital, the goal commander spoke to both of them about the fight. Following that, the husband told the accused to go and stay in her village for a month to give him time to cool down. The husband assured her that he would not get another woman including the deceased into the house when she was away. Upon that assurance, the accused left for her village on Friday, 22nd November, 2002, the day after the fight. On Saturday, 23rd November, 2002, the day after the accused left for her village, the deceased moved into the accused’s house with the accused’s husband. 

On the following Wednesday, the 27th November, 2002, the accused went to her garden at Barawagi to harvest some sweet potatoes. After harvesting sweet potatoes from the garden, she went to check her house. Upon arrival, she found the deceased in the house. She found out that the deceased had been living in the house with her husband since the day after she left for her village. That angered her, so she attacked the deceased with a kitchen knife and stabbed her once on the chest. The knife penetrated the heart and the deceased died shortly after being stabbed.

Accused’s reasons for the fatal attack on the deceased.

The accused said, when she found out that the deceased had been living with her husband in her house and using her things since the day after she left for her village, she could not hold herself back from attacking her. She said, she was angry because the husband beat her badly in the previous week because of the deceased who was having an affair with her husband. The accused had tolerated that affair for a long time. She said the husband was also spending all his fortnightly wages on the deceased. She said, those factors confirmed to her that the husband was trying to marry the deceased. 

In the confessional statement she made to the police, she also said the husband had tricked her when he sent her to the village, because only a day after she left, the deceased moved in to the house with him. 

In her allocutus, she also said she fought the deceased because the husband had paid her bride price and she is the only legal wife of the husband. She said the CIS records also show that she is the only legal wife of the husband. 

Reasons for the decision.

It is clear that had the deceased not moved into the house with the accused’s husband, the accused would not have attacked her. The husband was also already in a very serious relationship with the deceased because the deceased was six weeks pregnant at the time of her death. That also appears to be the reason why the husband sent the accused to her village because, that made it possible for the deceased to move into the house with him. 

In those circumstances, it can be fairly said that the husband’s extra marital relationship with the deceased was the underlying reason or cause for this crime. 

The accused also said that, she attacked the deceased because of the fear and anger in her that, if her husband married the deceased, she would lose him to the deceased, and she would also lose everything which she is entitled to, as the wife of a prison officer. For instance, the house, financial support, status and perhaps more importantly, the financial benefits on the husband’s retirement, like pension and so on. I think she was indirectly referring to her right to claim these benefits when she made reference to her being the only legal wife recorded in the official CIS records. 

The accused said, she did not mean to kill the deceased and has expressed deep remorse for the crime.

The accused’s fears were in my view genuine because, if the husband had married the deceased and the accused had to go and live in the village, she would have to fend for herself from what ever she could grow from the garden. And being uneducated, she cannot be employed in any paid work. 

The accused’s case stands in contrast with some one who is educated or some one from a more sophisticated and developed society where such person may be able to obtain a paid job and thus support herself quite easily. No such opportunities can be availed to the accused, who is uneducated and totally dependent on the husband. Thus accused’s fears and sentiments are not unreasonable or far fetched. They are genuine indeed when viewed in the context of an ordinary Chimbu housewife.

The sentence for the accused must therefore be determined in the light of all the circumstances. In that regard, the case must be viewed broadly. It must thus be noted that, it was not just the discovery of the deceased living in her house and using her things on 27th November, 2002, that provoked or caused the accused to fatally attack the deceased. There were the other factors, such as the long time love affair between the husband and the deceased, which the accused had tolerated. The husband spending most, if not, all of his fortnightly wages on the deceased and little if any, on the accused. The violent treatments the accused received from the husband. Then the husband sending her away so that the deceased could move into the house with him. 

It must also be born in mind that it was the actions of the deceased, which forced the accused to fatally attack the deceased. It was not as if the accused went looking for the deceased and killed her.

I am mindful of the fact that this is the second most serious type of homicide, which carries the maximum penalty of life imprisonment. And indeed the Courts have taken a very serious view of these types of killings, which have now become quite prevalent. It is of particular concern to the Courts because, kitchen knives have proved to be very lethal and effective weapons to kill people. They are also conveniently and readily available in every house and are therefore very easy for the offenders to obtain, and further more they are very easy to conceal. And indeed on many occasions, the victims are caught by surprise when attacked by their assailants because the weapons are conveniently concealed in bilums or in the clothes worn or even in the hands. 

I should say here that I have found these types of killings to be particularly common with the women from the highlands region and it needs to be deterred. 
Having said that, I remind myself of the fundamental principle that I must decide the punishment for the accused on the merits of the case. And in so doing, I find that there are factors, which distinguish this case from many similar cases that I have dealt with. For instance, in those other cases, the offenders went looking for the victims and attacked them in such places as public gatherings, market places, roads, gardens and so on. And most of such killings were based on rumours or even mere suspicions. An example of such a case is seen in the case of The State -v- Bepi Molo Komaip N1557. In that case, the accused stabbed the deceased on the neck at the market place because she suspected the deceased to be having an affair with her husband. The husband had left the accused with their two children for about six months and the accused had to take care of the children by herself. And on the day of the incident, the children were sick so the accused had to take them to the hospital. While on their way to the hospital, the accused saw the deceased with her husband in the market. And when the deceased saw the accused, the deceased made the thumbs up sign to the accused – meaning ‘top’. The sign indicated that, she had the accused’s husband. That angered the accused so she attacked and stabbed the deceased on the neck, severing an artery, which resulted in her death. The accused pleaded guilty to murder and she was sentenced to 8 years.

In this case, the deceased was living in the accused’s house with the accused’s husband and using accused’s things, while the accused was temporarily away from her house. The deceased’s long time love affair with the accused’s husband, which the accused had tolerated, was evidenced by the fact that, she was six weeks pregnant at the time of her death. And as far as the accused was concerned, the deceased was an intruder who had no right to be in her house. 

It is noted that the accused had co-operated fully with the police from the beginning by making full confession of her crime in a confessional statement. She also made full admissions of the crime in her record of interview, then eventually pleaded guilty before this Court. She has expressed deep remorse for her crime, which I accept as genuine. Her remorse is consistent with her desire to admit her crime right from the beginning. That must be considered in her favour. This point was stressed by Kidu C.J in, John Elipa Kalabus -v- The State [1988] PNGLR 193 at page 197, where his Honour said:

"The plea of guilty was in my view properly rejected as a mitigating factor. There was no remorse or contrition shown in the appellant’s confessional statement dated 7 October 1986, a statement made two days after he committed the offence. Up to the time he pleaded guilty there was no sign of remorse or contrition. It was his lawyer who said in his address on mitigation that he was remorseful.

Remorse and contrition are factors weighed in the matter of sentence in favour of accused persons, particularly if they are manifested in a plea of guilty. Whether remorse or contrition are shown by a plea of guilty depends upon the time and circumstances in which the plea is advanced. The earlier the expression of remorse or contrition after the commission of the offence the more favourable it will be for the accused. Remorse and contrition expressed at the trial weighs very lightly. It is easier to believe remorse expressed earlier than remorse expressed at the time of the trial, especially in serious cases like this one." (my underlining).

I consider this case to be very close to manslaughter. In fact, I seriously considered refusing the plea to murder because of the possible defence of provocation, but I decided against it because of the use of the knife. But still, there is provocation in the non legal sense, which must be given due weight.

I am of the view that this is a case, in which the sentencing guidelines and principles stated by Kidu C.J in, The Sate -v- Laura (No.2) [1988-89] PNGLR 98, are very relevant and appropriate. In that case, his Honour at page 99 said: 

"I consider that a murder case with no special aggravating factors where the accused pleads guilty should attract a sentence of six years. Where a sentence of less than six years is imposed, I believe that it should only be in a case where there are special mitigating factors such as the youthfulness of the accused (for example, 14 or 15 years old) or the very advanced age of the accused. In a contested case it should be between eight to 12 years and more in a case where aggravating factors are shown by the evidence. Such factors are too numerous to list here and must be determined on a case-to-case basis."(my underlining).

His Honour gave only two examples of youth and very advanced age as providing special mitigating factors, which would attract sentence of less than six years in a plea of guilty. But his Honour also said, where there are no special aggravating factors, sentence of six years would be appropriate.

In this case, the following emerge as special mitigating factors:- 

1.	The accused had tolerated a long time affair between the husband and the deceased, which resulted in the deceased falling pregnant.

2.	The accused suffered violent treatment and long neglect in financial support by the husband because of his extra marital relationship with the deceased.

3.	The deceased was living in the accused’s house with the accused’s husband, and using accused’s things during the accused’s brief absence from the house.

4.	The deceased was attacked by the accused in accused’s own house. The deceased had no right to be there. 

The collective effect of these special mitigating factors is that, this case attracts the sentencing range recommended in The State -v- Laura (No.2), (supra). That case may have been decided over ten years ago, but I find the principles stated and applied there to be relevant and applicable to this case. I therefore adopt them in general. 

I find no special aggravating factors in this case. The attack on the deceased by the accused with the knife may be an aggravating factor, but when that is viewed against all the special mitigating factors I have alluded to, it is greatly outweighed and its significance diminishes greatly. Therefore in that regard, I do not find it as a special aggravating factor.

If I was to strictly apply the sentencing guidelines stated in The State -v- Laura (No.2) (supra), I would impose the sentence of less than six years, because the accused pleaded guilty and there are special mitigating factors but no special aggravating factors in the case. However, because these types of killings are now becoming prevalent, as I observed earlier in the judgement, I do not think the head sentence should be any less than six years.

Consequently, the accused is sentenced to 6 years in light labour. I deduct the time spent in custody which is 3 months 2 weeks and 4 days. That leaves the balance of sentence at 5 years, 8 months 1 week 3 days.

I will deduct 1 year 8 months 1 week and 3 days on the condition that after serving 4 years, the accused will keep peace and be of good behaviour for 2 years starting from the date of her release from the prison.

The accused will therefore serve 4 years in light labour.
_____________________________________________________________________
Lawyer for the State:			Public Prosecutor.
Lawyer for the Accused:		Public Solicitor.