N2890

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 947 OF 2002

THE STATE

V

DAVID YAKUYE DANIEL (NO 2)

KIMBE: CANNINGS J
21 JULY, 25 AUGUST, 8 SEPTEMBER 2005

Criminal law – sentence – Criminal Code, Section 300 (murder) – prisoner convicted after pleading not guilty – murder of wife, who he suspected of marital infidelity – stabbing – whether provocation in a non-legal sense a factor in mitigation. 

Criminal law – sentencing guidelines for murder cases – recent Supreme Court decisions – identification of starting point for head sentence – identification of relevant considerations – application of relevant considerations.

Criminal law – sentence – suspension inappropriate in murder cases unless special circumstances or reconciliation and compensation process with deceased’s relatives is complete.

The prisoner was convicted of the stabbing murder of his wife, who he suspected of having an affair. There was evidence that the prisoner had, prior to the incident in which he killed his wife, attempted to sort out their marital problems by peaceful means. The defences that he raised at the trial – self-defence and provocation – were rejected. 

Held:

(1)	This was a serious case of murder but not in the worst-case category. 

(2)	Guidelines given in recent Supreme Court cases taken into account. Simon Kama v The State (2004) SC740 considered; Manu Kovi v The State (2005) SC789 applied. 

(3)	This case falls within category 3 of Kovi in that it was a vicious attack involving the use of a dangerous weapon, a knife, exhibiting a strong desire to do grievous bodily harm. Therefore the starting point is within the range of 20 to 30 years imprisonment.

(4)	One of the mitigating factors was provocation in the non-legal sense in that the prisoner suspected that his wife had been having an affair. However, it was only a mildly mitigating factor.

(5)	The prisoner is sentenced to 25 years imprisonment. 

Cases cited:
The following cases are cited in the judgment:

Manu Kovi v The State (2005) SC789
Simon Kama v The State (2004) SC740
The State v Daniel Ronald Walus (2005) N2808
The State v David Yakuye Daniel (2005) N2869
The State v Hiliong Gunaing (2005) N2803
The State v Jacky Vutnamur and Kaki Kialo (No 2) (2005) N2868

SENTENCE

This was a judgment on sentence for murder.

Counsel:
F Popeu for the State
R Inua for the prisoner

CANNINGS J: 

INTRODUCTION

This is a decision on sentence for a man convicted of the murder of his wife. 

BACKGROUND 

The murder took place at Kandrian, West New Britain, on the morning of Sunday 24 December 2001. There had been a period of marital disharmony and the prisoner suspected his wife of having an affair with another man. He tried to sort out the problem by peaceful means but on the night before the incident, they had an argument and she left their house. The following morning he followed her to the beach. He waited for her while she went to the toilet and then approached her when she came out. He was carrying a knife. There was an altercation and he stabbed her eight times, five of the wounds being intentional and forceful. 

At the trial, I rejected the defences of self-defence and provocation. The prisoner was charged with wilful murder. He pleaded not guilty. I concluded that he did not intend to kill his wife but that he did intend to inflict grievous bodily harm. Therefore he was convicted not of wilful murder but murder (The State v David Yakuye Daniel (2005) N2869).

RELEVANT LAW

Section 300 of the Criminal Code provides that the maximum penalty for murder is life imprisonment. However the court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code. For example:

•	a shorter term of imprisonment may be imposed (Section 19(1)(a)); or

•	a fine up to K2,000.00 may be imposed instead of or in addition to a term of imprisonment and the prisoner can be imprisoned until the fine is paid (Sections 19(1)(b), 19(1)(c)); or

•	the prisoner may be given a ‘good behaviour bond’ (Section 19(1)(d)); or

•	the prisoner can be discharged and the sentence postponed (Section 19(1)(f)); or

•	the court can suspend all or any portion of the sentence imposed, subject to conditions (Section 19(6)). 

ANTECEDENTS

The prisoner has no prior convictions.

ALLOCUTUS

I administered the allocutus, ie the prisoner was given the opportunity to say what matters the court should take into account when deciding on punishment. 

He stated:

I respect the decision of this court. But this woman, my wife, stabbed me first and I defended myself when I stabbed her. If I didn’t do that to save my life I would have died. I would not be standing here. That woman would be standing here. I did not want my wife to die. But somehow she did die and I am very sorry that she died. When this incident happened the people at Kandrian backed the police officers. The officers at the health centre did not treat me properly. They did not help me get a medical report and my properties have been lost. There were some small amount of compensation and the police witnessed this. But this has not been reported to the court. I did not have any family and relatives to look after my things. So I forgive them in God’s name for what they have done. I say sorry to the relatives of my wife for her unexpected death. However, to quote Romans 6:23: "Pei bilong sin em dai tasol" [the wages of sin is death]. I apologise in the eyes of God and I say sorry to the Court for breaking the laws of this country. I say thank you to God for saving my life. I was not the cause of this trouble. I have been in custody for three years and seven months and there have been many escapes in that time. I have not run away. I respect the laws of the country and I respect the warders at the gaol. I respect the community in this province and the people of this country. In the time I have been in custody I have faced many illnesses including typhoid, malaria, diarrhoea and scabies. My eyes have gone bad. I am not in a good condition staying in the jail and I ask the court to take this into account. I ask the court to look at my age and my future. What I have done will stay with me now and forever and I do not want to look stupid in the eyes of the public. My mother and my father are deceased and they died when I was very young. I was still a child when the people of Kandrian adopted me. I have no brothers or sisters and so my life will be very difficult. I respect the grace of the high court. I have not had a bad name in the community or the police or the public. This is my first time to be in this sort of trouble. I am still shocked about what happened. I ask the court to consider this and show me mercy and consider a non-custodial sentence. I will look for some money to pay some more compensation to my wife’s relatives. If I am in custody and unable to pay more compensation my wife’s relatives will have grudges against me forever. I have left them properties worth K8,500.00. That should be considered as part of the compensation. I would also like to be transferred to Kerevat because that is where my adopted father is. The court must think about what purpose would be served in sentencing me to a long period in custody. There are plenty of youths at the jail and they have committed great crimes and the court has sentenced them for very long periods in custody. It serves no purpose because life in gaol is so bad they are always thinking about escaping. Plenty of them escaped. I ask for the mercy of this court. I sincerely apologise from my heart to God our creator and, in the eyes of the Court, to the Judge and the Court staff and to the State and the Public Solicitor and Public Prosecutor lawyers and my lawyer and to everybody here for what I have done. 

SUBMISSIONS BY DEFENCE COUNSEL

Mr Inua submitted that if the Court follows the sentencing guidelines laid down in the recent case of Manu Kovi v The State (2005) SC789, Supreme Court, Injia DCJ, Lenalia J, Lay J, then the Court should look at a starting point of 16 to 20 years imprisonment. This was not a case of vicious murder. There was provocation in the non-legal sense in that the prisoner knew of an affair his wife had been having with another man and he wanted to sort out the matter peacefully. It was not a case of pre-planning or stalking. It was not a killing committed in the course of committing another offence. The prisoner has at all times, apart from this incident, been a law-abiding citizen. He has expressed remorse and it was a shock to him when the deceased died. It is certainly not a case of a summary execution. It was not in full view of the public. There are no other aggravating circumstances. 

SUBMISSIONS BY THE STATE

Mr Popeu agreed with Mr Inua that the case falls within the second category of cases outlined by the Supreme Court in Manu Kovi’s case. The starting point for the sentence would be in the range of 16 to 20 years. There have been cases decided by the National Court in Kimbe in which the court has sentenced prisoners on charges of manslaughter of women to sentences in that range. He referred to The State v Hiliong Gunaing (2005) N2803, Cannings J and The State v Daniel Ronald Walus (2005) N2808, Cannings J. In Gunaing the killing was by stabbing with a knife and the sentence was 15 years. In Walus the killing was of a next door neighbour by the prisoner by kicking and punching and the sentence was 18 years. Mr Popeu submitted, however, that as the present case was a trial on a charge of wilful murder, reduced to murder because of the lack of intention to kill, it falls just short of wilful murder. Given the nature of the wounds suffered by the deceased and the intention to do grievous bodily harm, the appropriate sentence would be within the upper range of category 2 or the lower range of category 3 in Kovi.

PRE-SENTENCE REPORT

To help me make a decision on the appropriate sentence I requested and received a pre-sentence report under Section 13(2) of the Probation Act. The report, including a supplementary report requested on 25 August 2005 and filed on 6 September 2005, was prepared by the Kimbe office of the Community Correction and Rehabilitation Service. It is summarised below.

Of Menyamya, Morobe heritage – raised in West New Britain – age 32, no children – his parents died when he was four years old – an aunty brought him to West New Britain in 1980 – raised at Buvussi oil palm settlement – completed grade 6 at Buvussi Primary, then did grades 7 and 8 at Bialla High School – while at Bialla his aunty and uncle separated – he had become friends with Jack Narom, who is from Kandrian, and his wife, and they took him with them to Kandrian in 1988, when he was aged 15 – he then grew up in Kandrian, found employment (worked in guest house as leading hand for eight years; then in trade store as shop assistant) and got married.

The prisoner says that his properties at Kandrian worth thousands of kina were ransacked by the deceased’s relatives. He is concerned about his health inside the prison. He wants to settle at Sarakolok oil palm settlement, with Pinas Kondou’s family. They are willing to accept the prisoner into their family and assist with compensation. Also a pastor of South Seas Evangelical Church at Sarakolok is willing to be a volunteer probation officer. 

He does not want to go back to Kandrian, as he may face reprisals there. Various people at Kandrian were contacted. One of his guardians, Thomas Pikling, and his guardian’s son, Alois, of Pala village, said that they are not ready to assist him pay compensation and that they do not want him to go back to Kandrian. An uncle of the deceased, Thomas, indicated that the deceased’s relatives would not be happy to see the prisoner given a non-custodial sentence.

His education and employment history show him to be a reliable, hard working, well meaning citizen, not a troublemaker or a threat to the community. However, the report concludes that he is not a suitable candidate for probation supervision. 

DECISION MAKING PROCESS

To determine the appropriate penalty I will adopt the following decision making process: 

•	step 1: what is the appropriate head sentence, in terms of years? 

•	step 2: should all or part of the sentence be suspended? 

•	step 3: if all or part of the sentence is suspended, what conditions should be imposed? 

STEP 1 - WHAT IS THE APPROPRIATE HEAD SENTENCE? 

Approach

In setting an appropriate head sentence I will take this approach:

•	firstly I will identify an appropriate starting point; 

•	secondly I will set out the considerations that should be taken into account in deciding whether to impose a sentence equal to, lesser or greater than the starting point; and 

•	thirdly I will apply those considerations to the circumstances of the prisoner, thus arriving at a head sentence. 

Starting point

The Supreme Court has in recent times laid down sentencing guidelines for murder, in two cases.

Firstly in Simon Kama v The State (2004) SC740, Sevua J, Kandakasi J, Lenalia J, the Court stated:

On the court’s part, we suggest that following the establishment of the guilt of an accused, either on a plea or after a trial, the Court approach sentence with a serious consideration of the maximum prescribed penalty first. Then allow the prisoner to make out a case for a lesser sentence. A prisoner could easily do that by pointing out to the factors in his mitigation with the appropriate evidence where evidence is required. Once the prisoner is able to do that only then should the Court carefully consider the factors, both for and against an imposition of the maximum penalty. At that stage, the categorization of the kind of offence under consideration could become relevant and useful. With these qualifications in mind we are of the view that the guidelines set by State v Laura (No 2) and Simbe v The State for murder cases are relevant with the following variations based on the sentences imposed to date and the prevalence of the offence:

(a)	Where there is a guilty plea with no factors in aggravation, a sentence of twelve (12) to sixteen (16) years;

(b)	Where there is a guilty plea with aggravating factors other than the use of firearms and the commission of another serious offence, a sentence between the range of seventeen (17) to thirty (30) years;

(c)	Where there is a guilty plea with aggravating factors and where there is a use of firearms and such other dangerous weapons in the course of committing or attempting to commit another serious offence, a sentence of thirty-one (31) years to life imprisonment;

(d)	On a plea of not guilty, with no other aggravating factors a range of sentences from seventeen (17) to twenty-one (21) years;

(e)	On a plea of not guilty, with aggravating factors other than the use of firearms and in the course of committing or attempting to commit another offence, a range of sentences from twenty-two (22) to forty (40) years;

(f)	Where there is a not guilty plea with aggravating factors where there is a use of firearms and or such other dangerous weapons and or in the course of committing or attempting to commit another offence, a sentence of forty-one (41) years to life imprisonment.

Of course, where there are some very good mitigating factors, such as a very young prisoner persuaded by other older persons to commit the offence, [that] may warrant a sentence lower than any of the tariffs suggested above. These suggested tariffs are guides only and not a rigid set of rules requiring strict adherence in every case. A Judge may therefore depart from them in appropriate cases for very good reasons.

More recently the Supreme Court revisited the Kama guidelines in Manu Kovi v The State (2005) SC789, Injia DCJ, Lenalia J, Lay J. It was suggested that murder convictions could be put in four categories of increasing seriousness, as shown in the table blow.

SENTENCING GUIDELINES FOR MURDER DERIVED FROM SUPREME COURT’S DECISION IN MANU KOVI’S CASE

No	Description	Details	Tariff	
1	Plea – ordinary cases – mitigating factors – no aggravating factors	No weapons used – little or no pre-planning – minimum force used – absence of strong intent to do grievous bodily harm	12-15 years	
2	Trial or plea – mitigating factors with aggravating factors	No strong intent to do grievous bodily harm – weapons used – some pre-planning – some element of viciousness	16-20 years	
3	Trial or plea – special aggravating factors – mitigating factors reduced in weight or rendered insignificant by gravity of offence	Pre-planned – vicious attack – strong desire to do grievous bodily harm – dangerous or offensive weapons used, eg gun, axe – other offences of violence committed	20-30 years	
4	Worst case – trial or plea – special aggravating factors – no extenuating circumstances – no mitigating factors, or mitigating factors rendered completely insignificant by gravity of offences	Premeditated attack – brutal killing, in cold blood – killing of innocent, harmless person – killing in the course of committing another serious offence – complete disregard for human life	Life imprisonment	

The guidelines in Kama and Kovi are not identical but in both decisions the court highlighted the increase in murder sentences over the years and the need to consider each case on its merits. 

I consider that the prisoner’s case falls within category (e) of Kama, which would result in a sentencing range of 22 to 40 years. However, as I pointed out in The State v Jacky Vutnamur and Kaki Kialo (No 2) (2005) N2868, Kovi is the more recent decision. Therefore I will apply its guidelines while at the same time paying close attention to the dicta in Kama. 

I have difficulty with Mr Inua’s submission – conceded to by Mr Popeu – that this case falls within category 2 of Kovi’s case. I reject the categorisation of this case as showing ‘no strong intent to do grievous bodily harm’. The court is not obliged to accede to the prosecution’s concession, which I consider to be misguided. This was a case of a vicious attack by a man upon his wife, with a knife, involving multiple, deep, fatal stab wounds. I accept, as Mr Inua submitted, that the evidence falls short of showing that the killing of the deceased was pre-planned. However, it exhibited a strong desire to do grievous bodily harm. Therefore the case falls within category 3 of Kovi and the starting point is within the range of 20 to 30 years imprisonment.

Relevant considerations

I will now set out the issues I consider should be taken into account when determining whether to increase or decrease the head sentence or leave it within the starting point range. 

The relevant considerations are:

1	Did the prisoner not directly kill the deceased?

2	Was just one person involved in the attack?

3	Was there some intervening cause of death?

4	Did the prisoner not set out to hurt anyone?

5	Did the deceased or any other person provoke the prisoner in ‘the non-legal sense’, eg did the deceased abuse or assault the prisoner?

6	Did the deceased have a pre-existing condition making her susceptible to serious or fatal injury by a moderate blow?

7	Can the attack on the deceased be classed as ‘not vicious’?

8	Can the death of the deceased be regarded as an unforeseeable consequence of the activity that the prisoner was involved in?

9	Did the prisoner play a relatively minor role in the activity that led to the death?

10	Did the prisoner give himself up and confess after the incident?

11	Did the prisoner cooperate with the police in their investigations?

12	Has the prisoner done anything tangible towards repairing his wrong, eg offering compensation to the family of the deceased, engaging in a peace and reconciliation ceremony, personally or publicly apologising for what he did?

13	Has the prisoner pleaded guilty?

14	Has the prisoner genuinely expressed remorse?

15	Is this his first offence?

16	Can the prisoner be regarded as a youthful prisoner or are his personal circumstances such that they should mitigate the sentence?

17	Are there any other circumstances of the incident or the prisoner that warrant mitigation of the head sentence?

Rationale

The above considerations have been framed so that an affirmative (yes) answer to any one can be regarded as a mitigating factor, a negative (no) answer will be an aggravating factor and a neutral answer will be a neutral factor. The more mitigating factors that are present, the more likely it is that the head sentence will be reduced. The more aggravating factors present, the more likely it is that the head sentence will be lifted above the starting point. However, sentencing is not an exact science. It is a discretionary process. When a factor is marked as mitigating or aggravating it does not mean necessarily that it is given the same weight as another mitigating or aggravating factor. Some mitigating factors may be ‘strongly mitigating’. Others may be ‘mildly mitigating’. The same goes for aggravating factors.

Another thing to note is that there are, in general, three sorts of considerations listed. 

Numbers 1 to 9 focus on the circumstances of the incident that led to the death. 

Numbers 10 to 14 focus on what the prisoner has done since the incident and how he has conducted himself. 

Numbers 15 to 17 look at the personal circumstances of the prisoner and give an opportunity to take into account any other factors not previously considered. 

Application of considerations

1	No, the prisoner directly killed the deceased.

2	Yes, only the prisoner was involved in the attack on the deceased.

3	No, there was no other intervening cause of death.

4	No, it cannot be said that the prisoner did not set out to hurt his wife.

5	Yes, there was provocation in the non-legal sense. It is possible to discern a motive for what happened. The prisoner believed that his wife was having an affair with another man. He tried to resolve the problem by peaceful means. He was frustrated. He was angry and upset. This does not justify what he did but it does to help to explain how the death happened. I accept Mr Inua’s submission that it is a mitigating factor. However, I do not consider that it can be regarded as a strong mitigating factor. The court cannot convey the message that if a person suspects their partner of being involved in an affair that it is justifiable to kill them.

6	No, there was no evidence that the deceased had a pre-existing condition making her susceptible to this sort of injury.

7	No, the attack on the deceased cannot be regarded as not vicious. He stabbed his wife eight times. It was a vicious attack as evidenced by the number of deep wounds to vital organs of his wife’s body.

8	No, the death of the deceased cannot be regarded as unforeseeable.

9	No, the prisoner was the person directly responsible for the death.

10	No, the prisoner did not give himself up immediately and confess.

11	Yes, the prisoner co-operated with the police.

12	No, the prisoner has not done anything tangible about remedying his wrong. He continues to talk about compensation. But that has all it has been: talk. I can appreciate that he has been in a difficult situation, in that the offence was committed in Kandrian and he has been in custody, at Lakiemata corrective institution, near Kimbe, for more than three years. He is a person of limited financial means, so even if he had desperately wanted to, compensation would have been difficult to organise. However, this is a case in which a person’s life has been lost, so it is doubtful, if compensation had been paid, whether it would have been a strong mitigating factor. Another consideration is that the deceased’s relatives have apparently shown little interest in being compensated. It appears that they want to see the prisoner punished for what he did, by being imprisoned for a long time. The upshot is that I regard this as a neutral factor.

13	No, he did not plead guilty.

14	No, it is not clear that the prisoner is genuinely remorseful. On the one hand he says that he is very sorry about what happened. On the other hand he still protests his innocence. In his allocutus, his quote of Romans 6:23 from the Holy Bible gave the impression that he was saying that ‘my wife sinned, therefore she deserved to die’. I cannot accept that the prisoner has shown remorse. This is to be regarded as neutral factor.

15	Yes, this is his first offence. 

16	No, he can’t be regarded as a youthful offender.

17	No, there are no other circumstances that warrant mitigation of the sentence. I have considered very carefully the prisoner’s detailed allocutus and the pre-sentence report. Both his parents died when he was young and he was adopted into different families in West New Britain. His life appears to have been a difficult one. But there is no history of abuse or neglect or mental infirmity. Many young people in Papua New Guinea are brought up by people who are not their biological parents. It is not necessarily a great disadvantage in the same way that it is in many other parts of the world. The prisoner, as the pre-sentence report indicates, was, prior to the incident, a law-abiding individual, not a troublemaker. He faced marital problems. But they were not of such a magnitude that they can be a mitigating factor (other than what has already been referred to above as provocation in the non-legal sense arising from the prisoner’s view that his wife was having an affair). I have considered what he has said about conditions inside Lakiemata. I am aware of the problems at the gaol. There is no evidence, however, that the prisoner is in a worse position than any other detainee. He appears to have had a good conduct record as a remandee; and that is something that will put him in good stead if and when the time comes for remission of his sentence or consideration of any application for early release. If he encounters problems while in custody, they can be dealt with. There is, otherwise, nothing within his personal circumstances to mitigate the seriousness of what he did or the sentence he deserves to get. 

I have found no strong mitigating factors. Those numbered 2, 5, 11 and 15 are only mildly mitigating. Nos 1, 4, 7 and 9 are significantly aggravating factors. Nos 3, 6, 8, 10, 13 and 16 are not significantly aggravating. Nos 12, 14, and 17 are neutral.

I accordingly fix a head sentence in the middle of the range previously identified. Thus the head sentence is 25 years imprisonment.

STEP 2 - SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED? 

This is a serious case of murder and I do not think it is appropriate for the court to consider suspending any part of the sentence at this stage. I gather from the prisoner’s allocutus and from the pre-sentence report that he wants to be given the opportunity outside of the gaol to reconcile with his wife’s relatives and resume a normal life. There is a family at Sarakolok who have indicated their preparedness to look after the prisoner when he is released. This is an encouraging development, but the pre-sentence report concludes that he is not a suitable candidate for probation supervision. I have closely considered everything the prisoner has said but I consider that to suspend any part of the sentence at this stage would tend to diminish the gravity of the crime that he had committed. He has taken the life of his wife in vicious circumstances. Current sentencing principles require that he serve a considerable time in custody. I have considered qualifying the sentence by indicating a minimum term in gaol which the prisoner has to serve. However I have decided not to set a minimum term in view of the nature and gravity of the crime and the lack of any tangible reconciliation with the victim’s relatives.

Step 3 of the sentencing process will therefore not be considered.

SENTENCE

The Court makes the following order:

1	David Yakuye Daniel, having been convicted of the crime of murder, is sentenced to 25 years imprisonment in hard labour.

2	For the avoidance of doubt there shall be deducted from the term of imprisonment the period in custody that the prisoner has already spent in relation to this matter.

Sentenced accordingly.
_________________________________________________________

Lawyers for the State			:	Public Prosecutor
Lawyers for the prisoner		:	Paul Paraka Lawyers