N5163

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 176 OF 2012

BETWEEN

THE STATE

V

PAULINE MUTURU

Popondetta: Toliken AJ
2012: 17th October, 28th November

CRIMINAL LAW – Sentence – Murder – Prisoner stabbed deceased with kitchen knife – Fatal wound to the heart - Intention to cause grievous bodily harm - Criminal Code Act Ch. 262, s 300 (1)(a).

CRIMINAL LAW - Sentence – Mitigating factors – First time offender – De facto provocation – Expression of remorse – Minimal force used – No pre-planning – Aggravating factors – Use of offensive and dangerous weapon – Prevalence of offence.

CRIMINAL LAW – Sentencing tariffs considered – Guideline sentences considered – Sentence of 13 years less period of pre-sentence custody – Partial suspension considered appropriate in the circumstances – Criminal Code Act Ch. 262, s 19.

Cases Cited

The following cases are cited in the judgment:

Goli Golu v. The State [1988] PNGLR 193
Manu Kovi v. The State (2005) SC 789 
Mangi v The State (2006) SC 880
The State v Tupis Tom; The State v Nathan Bobi (No. 2) (2009) N3675
Lawrence Simbe v The State [1994] PNGLR 38
The State v Wakore (2007) N3222
The State v Parao (2009) N3625
The State v Amos Young (2008) N3548
The State v Angeline Winara (No. 2) (2008) N3352
The State v Relvie Joe (2005) N2832 (10 May 2005)
The State v Laura (No.2) [1988-89] PNGLR 98
CRA No. 64 of 1994 Antap Yala v. The State, Unreported Supreme Court-judgement dated 31 May 1996
Jack Tanga v. The State (1999) SC602
John Kapil Tapi v. The State [2000] SC635; 
Anna Max Marangi v. The State (2002) SC 702; 
Simon Kama v. The State (2004) SC 740)
Thress Kumbamong v. The State (2008) SC 1017 
The State v. Mavis Uraro, CR 235 of 2012 (Un-numbered and Unreported
Judgment dated 26th November 2012)

Counsel:

D Kuvi, for the State
E. Yavisa, for the Defendant

SENTENCE

28th November, 2012

1.	TOLIKEN AJ: Pauline Muturu, on 17th October 2012 the State indicted you before me on a charge of the murder of Livity Mupang on 01st October 2011 at Bangoho Compound, Popondetta Town, Oro Province.
 
2.	You pleaded guilty to the charge. I confirmed your plea after perusing the District Court committal depositions and finding that the evidence supported your plea. I reserved my sentence until today.
 
BRIEF FACTS

3.	Briefly the facts which you also pleaded to are these. On the night of 01st October 2011, you were at Bangoho Compound, Popondetta Town. That time the deceased was standing in front of a canteen. He was drunk. The deceased called out to you. When you approached him an argument erupted between the two of you. In the course of the argument the deceased punched you and you fell down. The deceased walked away leaving you on the ground.

4.	You got up and ran after the deceased. You then stabbed the deceased from behind with a kitchen knife. The knife penetrated the left side of the deceased's chest and pierced the apex or top of his heart. This resulted in the deceased losing a lot of blood from which he died almost immediately. You intended to cause him grievous bodily harm but ended up killing him instead.

 ISSUES

5.	The main issue for me to determine is what an appropriate sentence for you should be. This will depend on various factors such as the factual factors surrounding your case, your antecedents, mitigating and aggravating factors and the sentencing trend in this type of cases. These, I propose to discuss in this short judgment.

ANTECEDENTS
 
6.	You are 26 years old and come from Garaina, Kira District, Northern Province. Your parents have separated. Prior to the offence you were living with your 7 year old daughter at Bangoho Compound in Popondetta Town. You were once married, had separated from your partner before the offence. You were educated only up to Grade 8 and you were not formally employed at the time of the offence. You have no prior criminal convictions. 

ALLOCUTUS

7.	You gave a long story when you addressed the Court on allocutus. This is what you said:

"I was at the haus krai of Noel Tivakuri and we had sent the body home to Tufi. After I had helped the Tivakuri girls I was going back to my house. The boys had returned from a dance at Hegata and were playing music and dancing in from of the club. When we arrived the boys were assaulting another boy from New Guinea Compound. After that all the other girls left. Two other boys came and asked me what the fight was about. I told them of the assault on the boy from New Guinea Compound. As I was talking to these two the deceased came and wanted to talk to me. I told him that I was not his wife. He then showed me a knife and said; "You will catch this knife!" I knew that he was drunk. He tried to hit me with the knife. I struggled with him. I pulled out the knife and stabbed him to make him feel pain but somehow he died from that. 

"I had problems with my husband and he has left me with my 7 year old daughter. I had been looking after her myself. She is now doing Grade one (1). Since I have been in custody I do not know how my daughter is being cared for. I now say sorry to the deceased's family, the community and to the Court. I ask the Court to have mercy on me."

SUBMISSIONS

Your Lawyer

8.	Your lawyer Mr. Yavisa submitted that yours is not the worst of murder cases and therefore should not attract the maximum penalty which is life imprisonment. He asked though that the court should exercise its discretion and impose a term of years instead.

9.	Mr. Yavisa referred me to the case of Manu Kovi v. The State (2005) SC789 where the Supreme Court had set sentencing guidelines and tariffs in homicide offences. He submitted that the circumstances of your case fall under Category 2 of the Manu Kovi tariffs which attract a sentence ranging between 16 - 20 years.

10.	Counsel submitted that there are only two aggravating factors against you – you used an offensive weapon and you fatally stabbed the deceased once only. Counsel said that there are several mitigating factors in your favour, the main ones being that you pleaded guilty, have expressed remorse and that you were provoked in the non-legal sense.

11.	He also submitted that there are extenuating circumstances – circumstances that diminish the seriousness of your offence. These are that you acted alone and you stabbed the deceased once only. Mr. Yavisa then referred me to cases with similar circumstances to yours including Mangi v The State (2006) SC 880 which he said could help me in arriving at an appropriate sentence for you. I will return to these cases later in this judgment.

12.	So in the circumstances, counsel submitted that a starting point for you should be lower than Category 2 of the Manu Kovi tariffs. A head sentence of between 12 – 15 years should therefore be imposed less 1 year and 15 days for pre-sentence custody.

The State
 
13.	Mr. Kuvi for the State submitted that the aggravating factors in your cases are; you used a weapon to kill the deceased, the stab wound penetrated the heart and the deceased lost his life. He said that the Supreme Court in Manu Kovi (supra.) stated that life is precious and no amount of compensation or expression of remorse can restore the life lost. A further aggravating factor is the prevalence of this type of offence which has been on the rise in the province as of late.

14.	Mr. Kuvi agreed that your case falls within Category 2 of the Manu Kovi tariffs but conceded that there are elements of Category 1 (12 – 15 years) as only minimum force was used and there was no pre-planning. And even though there was no strong intention by you to cause grievous bodily harm you nonetheless used a weapon. So because your case falls in between Category 1 and 2 the appropriate sentence should be between 14 – 17 years.

15.	Mr. Kuvi further submitted that yours is a peculiar case because there is no evidence of some kind of a relationship with the deceased. Most cases of this type arise in the domestic setting because of extra-marital affairs and continuous violence against offenders. 

16.	Mr. Kuvi referred me to the case of The State v Tupis Tom; The State v Nathan Bobi (No. 2) (2009) N3675. In that case the co-accused got involved in a drunken brawl. They got into an argument with the deceased. One of them landed a heavy blow to the deceased's ribs fracturing them and the deceased consequently died. Counsel said that His Honour Makail J sentenced the accused to 12 years imprisonment.

17.	Counsel therefore said that you used a weapon to kill the deceased unlike that case where the prisoners only used their bare hands. Your sentence should there be greater. He suggests a sentence between 14 – 17 years. 

THE LAW

18.	The crime of murder is created by Section 300 of the Criminal Code Act Ch. 262 which also prescribes those circumstances that constitute the crime and the penalty. You were charged under Section 300 (1) (a) which provides:

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.

19.	Murder is the second most serious category of homicide offences after wilful murder and thus appropriately attracts life imprisonment. This is a reflection of the value to which society through the State values the sanctity of life. 

SENTENCING TREND

20.	Let me now run through some of the cases that this court has dealt with in order to gauze the attitude of the court and to assist me in determining what an appropriate sentence for you should be.

#	Case	Particulars	Sentence	
1	Mangi v. The State (2006) SC 880	Trial – Prisoner and deceased argued while drinking together – Prisoner stabbed deceased on chest with a knife – Found guilty 	Sentenced to 35 years - Sentence reduced to 16 years on appeal 	
2	Simbe v The State [1994] PNGLR 38	Plea – Prisoner believed that deceased was enticing his wife – Attacked him with a bush knife, inflicting a substantial chest wound causing death of deceased - Sentenced to 14 years – Appealed sentence	
Sentence of 14 years confirmed on appeal	
3 	State v Wakore (2007) N3222	Plea – Prisoner in the company of relative while armed with a home-made gun – Cut deceased twice with bush knife and shot him once on chest with gun – Vicious killing but no pre-planning. 	
12 years, 4 years suspended.	
4	State v Parao (2009) N3625	Plea – Court accepted prisoner's version of fact in absence of sworn evidence by State – Deceased, drunk, tripped over a tools where prisoner was helping to change truck tyre – Attacked prisoner by hitting him repeatedly – Prisoner took out knife and stabbed him, killing him – First time offender, remorseful, de factor provocation, substantial amount of compensation paid, no pre-planning, . 	
15 years. 	
5	The State v Tupis Tom; The State v Nathan Bobi (No. 2) (2009) N3675	Trial - Murder - Co prisoners - Death arising from night club drunken brawl - Mob attack - Powerful blow from fist - Left chest and abdomen - Respiratory failure and broken rib - First offenders - Prevalence of 	12 years	
6
	The State v Amos Young (2008) N3548
	Trial - Prisoner was a bystander, watching a group of men shouting obscenities - Was armed with a double edged knife - Prisoner assaulted one of the men – Deceased chased the prisoner, who then used the knife to stab the deceased and one other. The deceased died from the stab wound.
	17 years
	
 7	The State v Angeline Winara (No. 2) (2008) N3352	Murder – Wife stabbed husband with kitchen knife during domestic argument – Deep penetrating wound causing left lung to collapse – Deceased died of massive internal bleeding – Prevalent offence – Offence precipitated by history of violence and unhappy marital relationship – Sentenced to 17 years imprisonment.	17 years	
8	State v Joe [2005] PGNC 127; N2832 (10 May 2005)
	 Plea - Murder - Accused stabbed deceased ( a relative) with kitchen knife – Single stab wound from back on shoulder penetrating the heart – De facto provocation (that accused was a prostitute) - Mitigating factors – Need to consider all compelling interests for and against the accused – Purpose of sentencing considered
	12 years	

YOUR OFFENCE/SUBJECTIVE CONSIDERATIONS

21.	I find the following in your favour as mitigating factors:

•	You pleaded guilty to the offence at the earliest opportunity
•	You are a first time offender
•	There was no strong desire on your part to kill the deceased though you intended to cause pain when you stabbed him with the knife.
•	There was non-legal provocation when the deceased knocked you to the ground
•	You have shown remorse despite the fact you have not done anything to reconcile with the deceased's relative by way of paying compensation
•	You only inflicted a single though fatal stab wound on the deceased hence your attack on him cannot be regarded as vicious.
•	Only minimal force was used
•	There was no pre-planning

22.	On the other hand I find the following against you:

•	You used an offensive weapon
•	 Stab was directed at the location of a vital organ of the body and in fact inflicted a cut to the heart.
•	Prevalence of offence

23.	So with those circumstances what should be an appropriate starting point for you to start off with?

24.	What must be emphasized at this stage is that life is precious which, until a permanent cure for death by divine intervention comes around, is only lived once. To take someone else's life is take away something that one does not have the right to take away. The right to life is God-given and is guaranteed under our Constitution. The unlawful taking of a life by whatever means has legal consequences. You are charged with murder and that means that you can be sentenced to life imprisonment if the circumstances of your case so warrant.

25.	Of course as every lawyer practising criminal lawyer knows, the maximum penalty is always reserved for the worst offences. The authorities say that. It is also trite that sentences are meted out on the merits of each individual case. Does your case fall under the worst category of murder cases?

26.	 Both counsel agree that it is not and I agree with them. They also agree that your case falls under Category 2 of the Manu Kovi tariffs though Mr. Kuvi seemed to think that it actually falls somewhere in between the first and second categories. I agree with Mr. Kuvi that it indeed does. So when considering the objective seriousness of your case I would set a starting point of 14 years. What will be an appropriate head sentence for you?

27.	I note that your mitigating factors outweigh the aggravating factors and hence a sentence of 13 years would be appropriate given the fact that there are no very strong mitigating or extenuating circumstances.

28.	I therefore impose a sentence of 13 years. From this I deduct the period you sent in pre-sentence custody – 1 year 1 month and 28 days. That will leave a balance of 11 years 10 months and 2 days. Should any of the balance of your sentence be suspended?

SUSPENSION

29.	Yes I think that this is also a case that warrants the exercise of my discretion to suspend at least part of the sentence. I do not think that you are a continued danger to your community or society at large. Of course you must serve part of your sentence in gaol as due punishment for taking someone's life.

30.	The court here is not weakly indulgent or lenient on you. You will serve 6 years at Biru Corrective Institution. I suspend the balance of 5years, 10 months and 2 days from your sentence on the condition that you will enter into recognizance to be of good behaviour without surety for 5 years 10 month and 2 days – the suspended portion of your sentence. If you breach your recognizance you will be committed to prison to serve the full term of the suspended portion of your sentence.

31.	That is my sentence and I order accordingly.

____________________________________________

The Public Prosecutor: Lawyer for the State
Paraka Lawyers: Lawyer for the prisoner