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State v Tuu [2008] PGNC 235; N3706 (17 March 2008)

N3706

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 974 OF 2007

THE STATE

V

MARIA TUU
Prisoner

Mt. Hagen: David, J
2008: 06 & 17 March

CRIMINAL LAW – sentence – murder – victim killed by co-wife – guilty plea entered – prisoner surrendered to police voluntarily immediately after committing crime - cooperated with police - remorse expressed and manifested by payment of belkol compensation - de facto provocation - no prior convictions - sentence of 16 years IHL less period of pre-trial custody.

Cases cited:

Goli Golu v. The State [1979] PNGLR 653
Avia Aihi v. The State (No.3) [1982] PNGLR 92
Ure Hane v. The State [1984] PNGLR 105
The State v. Laura (No.2) [1988-89] PNGLR 98
Lawrence Simbe v The State [1994] PNGLR 38
Simon Kama v. The State (2004) SC740
Manu Kovi v. The State (2005) SC789

Counsel:

J. Waine, for the State
P. Kumo, for the Accused

17 March, 2008

1. DAVID, J: INTRODUCTION: On 6 March 2008, the State presented an indictment charging Maria Tuu (the Prisoner) that she, on 09 July 2007 at Mt Hagen, in Papua New Guinea murdered one Sina Negints (the deceased) contravening s.300 (1) (a) of the Criminal Code ("the Code"). The Prisoner was convicted of the charge after the Court accepted her guilty plea.

Indictment

2. The indictment was preferred as follows:-

MARIA TUU of WAIPIP village, Nebilyer, Western Highlands Province, stands charge that she on 9th day of July 2007 at Mt. Hagen in Papua New Guinea murdered one SINA NEGINTS.

FACTS

3. The facts to which the Prisoner pleaded are these.

4. The deceased and the Prisoner are the first and second wives of one Mr. Negints respectively.

5. During the early hours of 09 July 2007, the deceased who was with a little child and another lady travelled into Mt. Hagen in a PMV driven by Mr. Negints. They were on their way to the hospital to have the child treated who was suspected of contracting typhoid and malaria. The child could not get treated at the hospital so they left the hospital premises and walked towards the Mt Hagen main market.

6. The Prisoner followed them into town by jumping on another PMV, went to the hospital and then proceeded towards the main market where she confronted the deceased with the child in her arms and the other lady. An argument developed which led to a fight and during the cause of the fight, the Prisoner took out a kitchen knife and stabbed the deceased on her abdomen. The knife penetrated the right kidney and a portion of her liver. The deceased died as a result of the injuries sustained to those organs.

7. The Accused intended to do grievous bodily harm to the deceased.

ANTECEDENTS

8. The Prisoner who is aged twenty eight (28) years is illiterate and is from Waipip village, Nebilyer District, Western Highlands Province. She is the second wife of Mr. Negints and they have a child from their decade old marriage. The Prisoner does not have any prior convictions.

ALLOCATUS

9. On allocatus, the Prisoner admitted murdering the deceased, but said she did not mean to kill. She said her action was influenced by satanic forces.

10. The Prisoner also said that despite being the second wife and that she had a child from her marriage, her husband did not provide her with a house when a bird even had a nest to rest in. Furthermore, she said that she looks after the deceased’s children from the latter’s marriage to their common husband, but it was actually her husband who made her angry which resulted in the fight.

11. The Prisoner also acknowledged that it was God who takes away life and she was sorry for breaking God’s law. She went on to say sorry to the deceased and her immediate family, to her husband and their community, to those in the Court room including members of the public and offenders awaiting their cases to be heard and to the Court for her not heeding its warning for people not to have knives in their possession.

12. The Prisoner asked the Court to have mercy on her as she was a first time offender, had small children at home to look after and asked to be sent back to her village.

LAW

13. Section 300 (1)(a) of the Code creates the offence and prescribes the penalty. The maximum penalty, subject to s.19 of the Code is life imprisonment. I set out the relevant provision as follows:-

300. Murder.

(1) Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder:—

(a) if the offender intended to do grievous bodily harm to the person killed or to some other person; or ...........................................

Penalty: Subject to Section 19, imprisonment for life.

14. It is trite law that the maximum penalty should be imposed on cases of the worst category: see Goli Golu v. The State [1979] PNGLR 653, Avia Aihi v The State (No.3) [1982] PNGLR 92 and Ure Hane v The State [1984] PNGLR 105. It is also settled law that each case must be decided on its own particular facts: see Lawrence Simbe v The State [1994] PNGLR 38.

15. The sentencing tariff for murder cases was initially proposed by the late Chief Justice Kidu in The State v. Laura (No.2) [1988-89] PNGLR 98 in the following terms:-

(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 the youthfulness or very advanced age of the accused;

(c) on a plea of not guilty, a range of sentences from eight to twelve years;

(d) or more in a case where aggravating factors are evidenced.

16. The tariff suggested in Laura (No. 2) has been subjected to review by several Supreme Court cases with a view to adjusting it upwards. Simon Kama v The State (2004) SC740, 1 April 2004 (Sevua, Kandakasi & Lenalia JJ) and Manu Kovi v The State (2005) SC789, 31 May 2005 (Manu Kovi) (Injia DCJ, Lenalia & Lay JJ) are recent judgments of the Supreme Court on point. I will follow Manu Kovi, it being the more recent judgment.

17. In Manu Kovi, the Supreme Court, revisited the cases which set the tariff or range of sentences for the offences of wilful murder, murder and manslaughter because it considered that the tariffs for those offences should be consistent. That was a case where the Supreme Court was dealing with an appeal in person against a sentence of life imprisonment for wilful murder which the appellant considered was excessive in the circumstances. The Supreme Court using the categories suggested in Laura (No.2) as a guide, suggested the following tariff ranging from twelve (12) to fifteen (15) years on a guilty plea with ordinary mitigating factors and no aggravating factors for the first category; sixteen (16) to twenty (20) years on a trial or plea with mitigating factors and aggravating factors for the second; twenty (20) to thirty (30) years on a trial or plea with special aggravating factors and special mitigating factors whose weight is reduced or rendered insignificant by the gravity of the offence for the third and life imprisonment on a trial or plea for the worst cases of the offence where there are no mitigating factors or mitigating factors are rendered totally insignificant by the gravity of the crime as the final category. The tariff is summarised in the schedule below.

SCHEDULE

SENTENCING TARIFF FOR MURDER

SUBMISSIONS ON BEHALF OF THE PRISONER

18. Mr. Kumo of counsel for the Prisoner submitted that whilst the maximum penalty for the offence was life imprisonment subject to the wide discretion given to the Court to impose a lesser sentence under s.19 of the Code, every case must be looked at in their own circumstances.

19. Counsel then argued that this case fell under category two (2) of Manu Kovi or alternatively under category one (1). He urged the Court to consider a sentence using sixteen (16) years as the starting point there being no strong intention on the part of the Prisoner to do grievous bodily harm albeit the Prisoner using an offensive weapon.

20. Counsel after recounting the Prisoner’s antecedents alluded to above made the following submissions in mitigation:-

(a) She was a first time offender;

(b) She cooperated with the police by admitting her involvement in the offence;

(c) She surrendered to the police on the date of the offence and she has been in custody for about eight months;

(d) Belkol or mini compensation consisting of 6 pigs valued at K1,000.00 each and cash of K6,000.00 was paid;

(e) She came before the Court and openly accepted responsibility for her action, expressed remorse in Court over her action and apologised to the Court, including the victim and her relatives as well as her own and to her husband and family;

(f) There was some provocation in the non-legal sense.

21. As to provocation in the non legal sense and to show that the Prisoner did not intend to kill the deceased, Counsel submitted that:-

(a) the Prisoner’s husband should take much of the responsibility for her action. This he said stemmed from the fact that:-

(i) the Prisoner’s husband has never built her a house at his village resulting in the Prisoner together with her child living continually with her parents at their place and without any financial support from her husband; and

(ii) the Prisoner was also looking after the children borne by the deceased despite the hardship she faced.

(b) the Prisoner reacted to the kind of conversation that was exchanged between the Prisoner and the deceased when they met at the crime scene before the stabbing.

Counsel cited questions 36, 37 and 38 and answers given in response by the Prisoner in the Record of Interview conducted on 16 July 2007 (the ROI) to reflect what had transpired at the time. I set them out below:-

English version

Q36: When she saw you, what did you both do?

A. When she saw me, she got angry so she said to me saying you’re following around like a dog. Your husband has already divorced you, but you seem to be following around a lot.

Q37: When she made those remarks, what did you do?

A. I replied and said ‘listen, I normally do all the work and also take care of you and your husband’s children so you must not be smart and making these remarks.’

Q38: What happened later?

A. The lady Saina Negints replied and said you will still look after the children and where do you think you will go to.

SUBMISSIONS ON BEHALF OF THE STATE

22. Mr. Waine of counsel for the State submitted that while he agreed that this case fell under category two (2) of Manu Kovi, the circumstances leading up to the killing made it more of a category three (3) case rather than under category one (1) as was suggested by the defense in the alternative. This he said was because there was in this case; a display of a strong intention to do grievous bodily harm using a knife; some pre-planning was involved and the presence of some element of viciousness.

22. Counsel contended that the answer to question 40 of the ROI displayed an element of an intention to do grievous bodily harm by the Prisoner using a knife, an instrument which was far more dangerous than guns these days. I set out the relevant question and answer:-
    

Q40: What happened later?

A. When she punched me, I became angry so I picked up my knife inside my bilum. I didn’t mean to murder her, but I only intended to inflict pain on her.

24. As to the Prisoner’s statement on allocatus that she did not mean to kill, but for the workings of Satan and the argument advanced by the State that there was some pre-planning involved, Counsel submitted that the depositions clearly showed that the Prisoner followed the deceased from the village into town; there was no explanation given why the Prisoner was in town; a knife was bought by the Prisoner after she got off the bus in town and she then followed the deceased to the hospital and finally towards the main market where she murdered her.

25. Counsel also submitted that the kind of injuries inflicted upon the deceased’s kidney and liver told of the viciousness of the attack.

26. In his concluding submission, counsel pointed out that this was a wilful murder case down graded to murder due to plea bargaining and therefore under the circumstances he suggested that the appropriate sentence the Court should impose in striking a balance was eighteen (18) years imprisonment.

GENERAL REMARKS

27. The Post Mortem Report dated 16 July 2007 authored by one Dr. Jeffrey Tore shows that the deceased, a well built Melanesian aged 30 years was admitted to the Accident & Emergency Section of the Mt. Hagen General Hospital in the morning of 09 July 2007 after being stabbed with a kitchen knife and died at about 11:00 am. The deceased sustained multiple knife wounds to her right forearm, right ankle and right frank area just under the costal margin, the knife penetrating the abdomen cavity. The internal findings showed that a knife had actually penetrated the right kidney and went through to the right portion of the liver causing about two (2) litres of blood to gather in the abdomen cavity and the retroperitoneal area. The deceased died from haemorrhagic shock and acute renal failure as a consequence of the injuries she sustained. The viciousness of the attack upon the deceased is very apparent.

28. This is a case that could possibly be considered under category three (3) of Manu Kovi as is argued by Mr. Waine. However, one thing the Prisoner should benefit from is that whilst the Post Mortem Report confirms that the deceased sustained multiple knife wounds, this fact was not put to the Prisoner in the brief facts to which she pleaded and therefore I will treat the injuries received by the deceased leading to her death as emanating from a single stab wound. I consider for that reason that sentence should be considered under category two (2) of Manu Kovi.

29. I will treat the following as factors operating in the Prisoner’s favour namely that she pleaded guilty; she surrendered to the police voluntarily immediately after committing the crime; she cooperated with the police through her admissions; her expression of remorse manifested by the payment of belkol compensation alluded to above which the State has not contested; there was de facto provocation and she has no prior convictions.

30. By way of comparison, in The State v. Jackie Papu, CR. No.525 of 2007, Unreported Judgment delivered on 15 November 2007, I imposed a sentence of eighteen (18) years imprisonment in hard labour on an illiterate male subsistence farmer aged twenty six (26) years on a guilty plea with no prior convictions. I considered sentence under category two of Manu Kovi. The brief facts alleged there were that the prisoner and the deceased were in a group all at a village when the deceased’s brother sold some ripe bananas to one of the prisoner’s brother’s wife. The prisoner’s brother ate one of the bananas and started shivering. He took his shirt off and started calling out that he had been poisoned. At the same time, the Prisoner’s brother also started calling out saying that the deceased’s brother had poisoned him. The deceased fearing for his life fled, but was chased down by the Prisoner and others. When he was caught, the Prisoner chopped the deceased four (4) times on the head, right shoulder, forearms and the neck. The deceased was taken to the hospital where he died two (2) days later. His death was attributed to the head injury sustained which led to extensive brain damage and internal bleeding in the head. I think the gravity of the offence in that case was far more serious than in this case despite death there being not instant.

SENTENCE

31. Having taken into account all the circumstances of this case including the factors for and against the Prisoner, the law including relevant case precedents, her address on allocatus, prevalence of the offence, the Prisoner’s antecedents and submissions of counsel and in the exercise of the Court’s discretion under s.19 of the Code, I consider that a custodial sentence of sixteen (16) years imprisonment in hard labour as appropriate. Incarceration will be at the Baisu gaol. The time already spent in custody being eight (8) months at the time of judgment shall be deducted from the term of the sentence leaving a balance of fifteen (15) years and four (4) months to be served.

32. A warrant of commitment shall be issued forthwith to execute the sentence.

I so order.

__________________________________
Public prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner