N6015

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 339 OF 2009

THE STATE

-V-

GENESIS SIMBA
(NO. 2)

Wewak: Geita J
2015: April 22, May 8, 21,

CRIMINAL LAW – Sentence after trial – Wilful Murder – Prisoner doused his wife with petrol and set her alight after a domestic argument- Aggravating factors outweigh Mitigating factors –Sentencing principle of deterrence applied –Non custodial sentence on probation with conditions considered inappropriate under the circumstances- Section 299 (1) Criminal Code. 

CRIMINAL LAW – Sentence after trial – Wilful Murder – Most callous, heinous and painful form of murder – No regard for human life, more so his wife – Most heinous form of domestic violence - Sentence of 50 years imposed with no remission within the first 10 years of the entire sentence -Section 299 (1) Criminal Code. 
Cases Cited 

Kovi v The State (2005) SC789
The Prosecutor v Panikuiaka Nopi (1979) PNGLR 536
The State v Bafe (1990) PNGLR 57
The State v Goli Golu [1979] PNGLR 653 
The State v Joe Butema Arua (2001) N2076
The State v John Kalabus 1988 PNGLR 193
The State v Mark [2010] PNGC 123	
The State v Michael Pera Bolkun (1990) N879 

The State v Pakupi [2012] PGNC 52	
The State v Tabo [1990] PGNC 60	
The State v Towakra [2009] PGNC 283
Thress Kumbamong v The State (2008) SC1017
	
Publications cited

Criminal Law and Practice of Papua New Guinea 3rd Edition

Legislation cited

Family Protection Act 2013 (No 29 of 2013)

Counsel:

Paul Tusais, Sabine Dusava assisting, for the State. 
John Alman, for the prisoner 

JUDGMENT ON SENTENCE

21st May, 2015 

1.	GEITA J: The prisoner was found guilty after trial on one count of wilful murder contrary to s. 299 (1) of the Criminal Code Act. The offence carries a maximum penalty of life imprisonment however Section 19 (1) (a) (b) of the Criminal Code gives courts powers to impose lesser sentences.

BRIEF FACTS 

2.	For purposes of completeness, I set out the brief facts as found during trial and conviction on 16 April 2015. The facts reveal that between the hours of 9 pm and 10 pm on the night of Tuesday 16th December 2008 the prisoner doused his wife with petrol and set her alight after a domestic argument. Such incident happened at their house at Nuigo 4th Street in Wewak. The deceased suffered 80 % burns to her body resulting in her death a day later at Boram General Hospital. The prisoner has been on the run since absconding bail in 2008 and recently arrested in 2015. 

ANTECEDENTS 

3.	No prior convictions were recorded against him. 

ALLOCUTUS 

4.	Upon administering the allocutus pursuant to section 593 of the Criminal Code, the prisoner said he was sorry to the court and to God. He said to this day, he has yet to come to terms with the death of his wife as he loved her and his children. He said there was no one else to attend to his children and he remains helpless. He asked for leniency and to be placed on probation citing his children's education and welfare as justification. 

PRE SENTENCE REPORT

5.	Upon application by his lawyer a pre sentence report was ordered. I have gone through the report and have given it some consideration. Notable amongst the report is that your three children with ages ranging from 8 years to 18 years are technically orphaned and all out of school. They have lost their mother thanks to your actions. You do not have immediate care family members as your surviving father has shown little concern for you and your three children. You are 40 years old. You rarely attend church services. You have been married to your deceased wife for the past 14 years. The community in which you lived in previously especially the womenfolk have expressed horror and anger in this murder. The relatives of the deceased are still angered with threats abound for retaliation. The Probation Office has recommended a part custodial sentence and non-custodial sentence based on the welfare of your three children, especially your 18 year old female daughter who is now vulnerable to the outside world due to the absence of parental care and support.
 
AGGRAVATING FACTORS 

6.	The circumstances of aggravation in relation to this offence are as follows:

1.	Attack was horrific, cruel and merciless
2.	Death occurred 
3.	Highly inflammable substance used to kill the deceased.
4.	A life has been lost
5.	Permanent unsightly scars had the victim survived

MITIGATING FACTORS 

7. 1.	 No prior convictions
2. Married with family of three issues
3. Contributed to funeral expenses of K3000

SUBMISSIONS ON SENTENCE – THE PRISONER 

8.	The thrust of defence submissions on sentenced is premised on mitigation circumstances and the supposed extenuating circumstances available to the prisoner. The welfare of the prisoner's three children, the prisoner's expression of deep sorrow and his continued love for his deceased wife, his failed remarriage in Madang and his return to Wewak, only to be re arrested for absconding bail since 2009 were among some of the reasons advanced in support. In his written submissions Defence Lawyer Mr. John Alman referred me to except in page 518 of the Criminal Law and Practice of Papua New Guinea touching on courts discretion on sentencing for first time offenders and not so serious crimes of homicide. Secondly he reminded the court again of its discretionary powers under section 19 of the Criminal Code which makes the sentence of death discretionary, shying short of the maximum death penalty. Mr. Alman submitted that there were exceptional circumstances present in this case and called for a non custodial sentence instead. He relied on the case of The Prosecutor v Panikuiaka Nopi (1979) PNGLR 536. Mr. Alman also referred the court to an incident of assault occasioned on the prisoner whilst under CIS custody on 14 January 2015 and submitted that it also warranted a consideration under exceptional circumstances in assessing his sentence: The State v Bafe (1990) PNGLR 57 by Doherty J at page 61. Mr Alman submitted that the prisoner stands ready to pay compensation if allowed on probation and urged court to take note of the Probation remarks on sentencing with the prisoner be placed on probation with conditions. 

SUBMISSIONS ON SENTENCE – THE STATE 

9.	The State Prosecutor Mr. Paul Tusais submitted that a life sentence or a longer term of imprisonment between 30 years to 40 years be considered under the circumstances. The court was referred to the often quoted Supreme Court case of Manu Kovi v The State (2005) SC 789 which detailed sentencing tariffs in homicide cases ranging from a low 15 years to 30 years up to the maximum sentence of death. The prisoner pleaded not guilty and was found guilty after trail hence putting the State through great expense in running a trial. The killing was brutal and an innocent life taken away from her family and three children. Mr Tusais took issue with the prisoner's expression of remorse and his deep love for his wife adding that they were shallow and not real. His calls for compensation to be paid upon his release on probation should be ignored in that he failed to pay compensation in 2009. Mr Tusais submitted that the Prisoner's pleas in mitigation were akin to the case of "crying crocodile tears." I am not from this province and not an expert in their idioms. However, gathering from his submission I understood that idiom to be a cousin of the English idiom "crying over spilt milk". 

10.	The State Prosecutor submitted that the sanctity and value of a human life was far more precious and valuable than anything else and no amount of remorse or compensation will restore the lost life. The unlawful taking of another person's life is a serious and horrendous crime which must be adequately punished he said. (Manu Kovi v The State cited). He said this killing was the case of a mother denied an opportunity to see her grandchildren grow up in life. The State called for an exemplary deterrence sentence of life imprisonment or a term of imprisonment between 30 to 40 years, adding that probation was inappropriate in this case. 

COMMUNITY ATTITUDE

11.	In her attempts to compile a pre sentence on your behalf the Probation Officer Ms Kutan Poniou has interacted with the community that you and the deceased lived in prior to her death. Many residents living within the vicinity of Wewak at the time of the murder expressed widespread horror with the womenfolk greatly affected, she said in her report. Adding that the offence of such magnitude and brutality in a marital setting was appalling and terrifying. Quite frankly community attitudes adequately described in a few words. 

REMARKS

12.	I have had the benefit of a pre sentence report and a victim impact statement from Wewak Probation Officer Kutan Poniou to which I am grateful. Likewise I have had the benefit of written submissions from both counsels. The thrust of State's submissions on sentence is that the crime was horrendous and the prisoner punished harshly. His mitigation and extenuating circumstances are outweighed by the aggravating circumstances in that the murder was brutal and life precious.

13.	The thrust of the prisoner's submission is to see that he be released on probation with conditions notwithstanding that a serious crime had been committed. I fail to detect any genuineness, remorse and or acceptance of culpability on his part. To my mind this court is being invited to downplay his criminal culpability and have him released off lightly. Furthermore, your allegation of CIS brutality is noted however it will be disregarded. First up is that the State has not been given the opportunity to test the truth of the allegations. The State was invited to comment upon but did not take issue. In any event its utility in supporting the prisoner's plea for such evidence to be considered as extenuating circumstances remains minimal in my view.	 Now turning back to the Prisoners plea for leniency in mitigation based on his never ending love for his deceased wife during the currency of their marriage and after death in my view is a sign of total disrespect to his wife and her relatives. How on earth can you say you love your wife and set her ablaze after pouring petrol over her body, killing her almost immediately? Similarly how can you say you love your wife and marry another woman within 2 years of her death? Put simply your remorse is not genuine, hollow and self serving, to use the words of The Public Prosecutor in the hope of attracting this court's sympathy to which I agree. I agree with the Public Prosecutors views that to have the prisoner released on probation for this horrific murder would be a travesty.

14.	May I comment in passing that in my Koita custom of Port Moresby, a truly loving husband would mourn over the death of his dear wife for an extended period of time, clad in his black clothes until they rot on his body so to speak, forcing his in-laws and family members to put on a feast to break that mourning period. I am sure the people of this province also have a similar customary practise in times of death.

APPLICATION TO THIS CASE 

15.	Only the State Prosecutor made submissions relying on the often quoted case on these types of offences: Manu Kovi (supra). Defence Counsel Mr. Alman however steered clear from all references to the Manu Kovi case for obvious reasons in submissions.

However, I should point out that another Supreme Court has departed from the fixed sentencing tariffs pronounced in Manu Kovi. The discretionary powers of judges in sentencing should not be curtailed and restricted: (Thress Kumbamong v The State (2008) SC 1017). I too, hold the view that trial judges discretionary powers in sentencing should be zealously guarded and not curtailed, save for Parliamentary intervention. 

16.	 On the question of deciding whether the crime committed by the prisoner was of the worst type and whether the court should impose the maximum prescribed sentence? I remind myself that the maximum prescribed sentence are best left for the worst types of cases: (Goli Golu v The State [1979] PNGLR 653 and John Kalabus v The State 1988 PNGLR 193). I am more inclined to agree with the State submission that this act of killing was uncalled for, unwarranted and cowardly. An innocent life tragically lost as a result of the attack. For the moment I will refrain from imposing the maximum death sentence. 

17.	The next question is what than should the appropriate sentence be in your case? I have had the benefit of written submissions from both lawyers on all relevant issues including the mitigation and aggravating circumstances for and against the prisoner. I need not restate them here again. Admittedly this death was tragic, horrific and painful and not warranted and possibly bordering on the shadows of being categorized as falling within the ambit of the "worst types" wilful murder cases. 

DETERRENCE 

18.	A quick research on the on line libraries available to me on the subject of wilful murders brought about by petrol burns revealed no such recorded cases to date. There may be some around however none have been brought to my attention by both counsels. The nearest case cited to me by The State Prosecutor is the case of The State v Jimmy Bellam [1979] PNGLR N.192.0]. No other details were available save its use and relevance in four (4) known recorded cases in the Judicial Commission of New South Wales database in Sydney. All four cases refer to instances of arson on property and not on persons. I list them hereunder:

The State v Pakupi [2012] PGNC 52	Attempted arson-Twin engine Chinook Columbia helicopter set alight with kerosene in Tari. 	
The State v Mark [2010] PNGC 123	Arson-Burning of two dump trucks- Petrol used to set alight the K2.4M trucks in Tari	
The State v Towakra [2009]PGNC 283	Arson – conflicting evidence of involvement- aiding commission of offence.	
The State v Tabo [1990]PGNC 60	Wilful murder-"difficult circumstances of pain" of identification –witness burnt and in pain.	

19.	The utility of the above exercise is to demonstrate that for the moment no known or recorded cases of wilful murder resulting from petrol burns on victims were available before me to assist me in this deliberation. However, I find consolation in the two Judgments quoted hereunder relating to domestic violence a few years back and will use them as a guide in my judgment.

20.	Despite courts attempts in trying to stop wife beating in their stern judgments menfolk continue to offend. The crime appears to escalate every year instead of decreasing. In year 2001 Justice Kandakasi had this to say on the subject and I quote:

"Wife beating is now an offence in our country. This has been brought about because of husbands beating up wives as if they are not more than just mere beings fit only to be their wives. Even after the enactment of the laws against wife beating, many men are continuing to beat up their wives. Some of the beatings are ending up in deaths. Currently, the women in our country are continuing to call for violence against women and girls to stop. Yet a few men like the Defendant are continuing to beat up and even kill their wives. These men fail to appreciate the fact that their wives are human beings like them and have the right to live and to be treated with human dignity and respect. They do not appreciate the fact that women are inherently weaker than men are and as such they need to be treated with care and respect. Men need to show the women or their wives that they truly love them. If they do not love their wives, they should not have married them at the first place, or if their love has grown cold, they should let them go their own way rather than killing them. ."(The State v Joe Butema Arua (2001) N2076)

21.	I too adopt the sentiments and observations made by His Honour Kandakasi J. Sadly after 14 years of making those observations domestic violence appears to be on the increase despite new laws coming into play. I am here referring to introduction of the most recent laws in 2012. (Family Protection Act 2013 (No 29 of 2013)

22.	In another case Judge Brian Brunton had this to say on the subject of wife beating and I quote:

"The Constitution provides a guarantee for the Right to Life, so the Courts have to be assertive when there is an unlawful killing; put another way, unlawful killings, cannot go unmarked. This is particularly so in cases like this because although the Courts deal with spleen killings as individual cases, addressing the particular facts of each case and the circumstances of each offender in its peculiarity, the killing of wives and girl-friends form part of a wider pattern of oppressive acts by men against women, and by women who are controlled by men against other women. The domestic killings occupy an extreme position in a spectrum of violence, exploitation and oppression which women experience. At one end of the spectrum is child-abuse, indecent dealings, defilement of children, unlawful carnal knowledge, incest and child prostitution. The unlawful wounding, grievous bodily harm and the unlawful killings are also part of the same system of oppression. The magistrates' courts deal with domestic violence in the form of common assault. There is then a need for the Courts to emphasise the deterrent and punitive aspects of sentencing when men kill their wives or girl-friends. (The State v Michael Pera Bolkun (1990) N879: Brunton J) (Emphasis mine)

23.	Similarly I also endorse and apply the sentiments echoed by Brunton J here in this judgment.

SENTENCE

24.	Now applying and adopting the sentiments echoed by the two Judges, I say here that your case is fraught with disdain in that the wife you lived with for 14 years who gave you three children was murdered in the most inhumane, cruellest and painful deaths. Your actions were cowardly towards a defenceless woman. To this end a long term custodial sentence is warranted to deter other menfolk from committing such similar heinous crimes in future. I acknowledge that the case of Manu Kovi (supra) is the lead authority in homicide cases with recommended tariffs on the type of sentences to be imposed however this time around I have opted to adopt the Thress Kumbamong principle (supra) in this case, instead. Since my judicial discretionary sentencing powers are still intact I will instead exercise those powers in this case. I am not satisfied that a non custodial sentence on probation is appropriate in this type of murder and will refrain from exercising my discretionary powers available to me under Section 19 of the Criminal Code Act. The appropriate sentence befitting this crime in my view is a sentence of up to 50 years. I also order that no remissions be accorded to you during the first 10 years of your entire sentence. 

Orders accordingly,
____________________________________________________________

Public Prosecutor: Lawyer for the State 
John Alman Lawyers: Lawyer for the Prisoner