N4667

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 724 OF 2008

THE STATE

V

MARGARET TOPI

Bulolo: Gabi, J
2010: 22 July, 11th & 22nd August
Lae: 14th October

CRIMINAL LAW – Criminal Code s300 – murder – sentence - guilty after a trial – deceased 8 months pregnant at death – aggravating factor.

Facts

The offender killed the deceased with a single blow to the head with a bush knife. The deceased was 8 months pregnant at the time of her death. The offender believed the deceased was having an affair with her husband.

Held

1. The destruction of an unborn child in the later part of pregnancy is a special aggravating factor, at [10];
2. The use of a weapon is an aggravating factor;
3. There was provocation in the non legal sense;
4. The appropriate sentence is 14 years in light labour less time spent in custody.

Cases Cited

Manu Kovi v The State (2005) SC789
The State v John Anthony Lesley (1990) N927
The State v Maria Paul (2003) N2434

Counsel

N. Lipai, for the State
D. Wayne, for the Prisoner

SENTENCE

14th October, 2010

1. GABI, J: Introduction: Margaret Topi, the prisoner, was found guilty of murder contrary to s 300 of the Criminal Code. The maximum penalty for the offence is life imprisonment.

Facts

2. The brief facts are that on 5th February 2008, between the hours of 3.00 pm and 5.00 pm, the prisoner was at Angiya village, Menyamya, Morobe Province. She was selling cooked pork meat when Nela Martin, the deceased, whom she suspects of having sexual relationship with her husband, came by. The deceased was about eight months pregnant at the time. When the deceased came close to the prisoner, she took out her bush knife from under her and chopped the deceased on the right side of her head despite attempts by her elder sister to stop her. The wound was about 16 to 17 cm in length and 1 to 2 cm deep. The deceased was taken to Menyamya Health Centre where she died two (2) days later.

Antecedent Report

3. I was informed that the prisoner had no prior convictions and confirmed that with the antecedent report. 

Allocutus

4. The prisoner was given an opportunity to address the Court on sentence. She expressed remorse and said that she was an ordinary villager and a first time offender. She asked the Court for mercy and leniency.

Mitigating circumstances

5. The prisoner is about thirty-two (32) years of age and married with two (2) children aged four (4) years and one (1) year respectively. She is an ordinary subsistence villager with no formal education and is a member of the Lutheran Church. She cooperated with the Police. There was evidence before me to show that her husband had an adulterous relationship with the deceased, who was about 8 months pregnant, at the time of her death. The prisoner made a number of complaints to the Village Court regarding the husband's adulterous relationship with the deceased. There was no evidence to show how the Village Court dealt with the matter. It is clear to me that the prisoner was very bitter about it as she kept saying "the deceased stole my husband."

Aggravating features

6. The aggravating factors are the use of a bush knife in the commission of the offence, that it was a vicious attack, that the offence is prevalent and the destruction of eight months foetus due to the death of the mother carrying it.

Sentence 

7. Both counsel referred me to Manu Kovi v The State (2005) SC789. The sentencing guidelines for murder from Manu Kovi's case are:

SENTENCING TARIFF FOR MURDER OFFENCE
CATEGORY
NO	DESCRIPTION	DETAILS	TARIFF	
1	Plea – ordinary cases – mitigating factors with no aggravating factors.	No weapons used – little or no pre-planning – minimum force used – absence of strong intent to do GBH.
	12 – 15 years	
2	Trial or Plea – Mitigating factors with aggravating factors.	No strong intent to do GBH – 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 GBH – weapons used – some pre-planning – some element of viciousness.	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 offence.
	Pre-meditated attack – brutal killing, in cold blood – killing in the course of committing another serious offence – complete disregard for human life.	Life Imprisonment.	

8. Counsel for the prisoner submitted that this case falls into the second category while Ms. Lipai of counsel for the State submitted that it falls into the third category. I consider that this case falls into the third category in Manu Kovi case. This is particularly so because the deceased was 8 months pregnant at the time of her death. Counsel for the prisoner submitted that there were no special aggravating factors in this case. I do not accept that argument as the deceased was 8 months pregnant and the foetus was destroyed when she died. That is a special aggravating factor. 

9. In The State v John Anthony Lesley (1990) N927, the deceased was about 3 months pregnant. His Honour Jalina J said: 

"Although the deceased was found by Dr. Barua to have had a ten (10) week old foetus at the time of her death it has not satisfied the requirement of Section 290 of the Criminal Code to be considered a human being. He has therefore not killed two persons but only one person, namely the deceased. Furthermore, as the deceased was not about to be delivered of a child it cannot be said to constitute manslaughter pursuant to Section 312 of the Criminal Code. The destruction of the foetus therefore has no consequence in law. The destruction of the foetus through the death of the woman carrying it (in this case through the death of the deceased) may however become an aggravating factor in my view depending on the stage of pregnancy. I would consider destruction of an unborn child during the early part of pregnancy, say three (3) months (as in this case) less serious than the destruction of an unborn child during the later part of pregnancy, say, six (6) months or eight (8) months."

10. I agree with the view of Jalina J that destruction of an unborn child in the later part of pregnancy is a special aggravating factor. I note that the deceased died from a single knife wound to the head. The injury was inflicted despite attempts by the prisoner's sister to stop the prisoner, which is a clear indication that the prisoner intended to do grievous bodily harm. On the other hand, there is evidence from the prisoner that the deceased had threatened to kill her and her conduct must be viewed in the light of that threat. I am unable to hold that the killing was pre-mediated or pre-planned as there is no evidence before me to suggest that she armed herself and went in search of the deceased. Although she was armed at the time, it is not unusual for a woman from the same background or environment as the prisoner to go to the market or garden with a knife.

11. It is clear to me that the underlying cause or reason for the crime is the husband's adulterous relationship with the deceased, who was suspected of being pregnant with the child of the prisoner's husband. There was evidence that the stable family relationship once enjoyed by the prisoner and her husband was affected by the adulterous affair and the prisoner was put under emotional stress, which led her to commit this offence. In their evidence, the prisoner and her sister said that the deceased had "stolen" the prisoner's husband. There was therefore provocation in the non legal sense in this case. I agree that an adulterous relationship is a mitigating factor in homicide cases (see The State v Maria Paul (2003) N2434). 

12. I am of the view that fourteen (14) years is an appropriate sentence in this case. The prisoner has been in custody since 5th February 2008, so I deduct two (2) years, eight (8) months, one (1) week and three (3) days from the head sentence. The prisoner is to serve the balance of eleven (11) years and three (3) months in light labour.

________________________________

Public Prosecutor: Lawyer for the State
Paul Paraka Lawyer: Lawyer for the Prisoner