N6082

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 1419 OF 2014

THE STATE

V

KRISTAN SOSO
Prisoner

Kainantu/Goroka: Polume-Kiele J
2015: 14, 31, July
2015: 21September

CRIMINAL LAW – Guilty Plea – Murder, Criminal Code Act, s 300 (1) (a) - Maximum penalty subject to Section 19 life imprisonment - Victim cut on the head and other parts of her body with a bush knife –Prisoner and victim - husband and wife relationship.
 
CRIMINAL LAW - Sentence - Early guilty plea - First time offender -Incarceration appropriate

CRIMINAL LAW – Sentence - Life imprisonment – Criminal Code Act, s 300 (1) (a) and Criminal Code Act, Section 19 

Facts

The relevant facts put to the prisoner during arraignment which were consistent with his instructions to his defence counsel and also contained on the depositions for the plea of guilty were that: On the 16th June 2014, at Samura Village, Obura Wonenara in the Eastern Highlands Province of Papua New Guinea, the prisoner had murdered one, Bukiki Kristian. The prisoner is the husband of the deceased (victim). They had been married for about 25 years with five children (four girls and one boy) however, they started having family problems thereon and the prisoner became violent towards the deceased. On numerous occasions, the relatives of the deceased intervened and fought with him to stop him from being violent towards the deceased. At the relevant time, the prisoner beat his wife and had also chopped her on the right leg so the relatives took her away and left her with her big sister namely Cathy Bop at Samura Village. The deceased stayed with her big sister Kathy for almost a year. However on this fateful day, the prisoner came to the deceased’s sister place and thereafter chopped the deceased on her neck and body and as a result, died from the injuries sustained. The prisoner was charged with the murder of his wife contrary to s. 300 (1) (a) of the Criminal Code Act. 

Held

(1)	The maximum penalty for murder is life imprisonment under s 300 of the Criminal Code.

(2)	The starting point for sentencing for this sort of killing is 16 to 20 years’ imprisonment (Manu Kovi v The State (2005) SC789 guidelines considered).

(3)	Mitigating factors: he is a first-time offender, has co-operated with the police and entered an early plea.

(4)	Aggravating factors: a premeditated attack; a vicious attack, there was a strong desire to inflict grievous bodily harm; the use of an offensive and lethal weapon, a bush knife.

(5)	A sentence of life imprisonment imposed.

Cases Cited

Avia Aihi v The State [1982] 92 
State v Carol Alfred [2009] N3602
Goli Golu v The State [1979] PNGLR 653
 Joseph Ann v State (2004) SC 742
John Kalabus v The State [1988] PNGLR 193
Kepa Wenege v State (2004) SC 738
State v Komboni [2015] PNGS 63, (17 June 2015) N5991)
Kuri Willie v The State (1987) PNGLR 298
 Lawrence Simbe v The State [1994] PNGLR 38
State v Lawrence Mattau (2008) N3865
Manu Kovi v The State [2005] PGSC 34; SC 789 
Max Java v State (2002) SC 701 (unreported) 
Mary Bomai Michael vs. the State (2004) SC737) 
State v Mavis Uraro (2012) N5164 
State v Paege and Tanda [1994] PNGLR 65
Paulus Mandatitip and Anor -v- The State [1978] PNGLR 128
SCR No 1. Of 1984: Re Maximum Penalty [1984] PNGLR 418
Steven Loke Ume & Ors v The State (2006) SC836 
Thress Kumbamong v. The State (2008) SC 1017
State v Taulaola Pakai (2010) N4125
State v Tiun [2001] PGNC 79; N2129 (30 April 2001) 
Ure Hane v The State [1984] PNGLR 105

Counsel:

Ms. Barbara Gore, for the State
Mr. John Biki, for the Prisoner

JUDGMENT ON SENTENCE

21st September, 2015

1.	POLUME-KIELE J: The prisoner, Christan Soso appeared before me on the 14th of July 2015 charged for one count of murder contrary to s.300 (1) (a) of the Criminal Code Act. The prisoner by his own guilty plea admitted to the charge of murder. The maximum penalty for murder subject to s 19 of the Criminal Code Act, is imprisonment for life.

2.	Section 300 of the Criminal Code provides as follows: 

“Section 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;

Penalty: Subject to Section 19, imprisonment for life.

(2) In a case to which Subsection (1) (a) applies, it is immaterial that the offender did not intend to hurt the particular person who was killed.

Committal Court Disposition

3.	The Kainantu District Court Deposition was tendered into evidence by consent which comprised of the following: 

(i)	The Record of interview both the original Pidgin and English Version conducted on 27th of June 2014, CR 27 of 2014; marked as Exhibit "A" relating to the defendant Christan Soso during which he admitted to using a bush knife to kill one namely Bukiki Kristan on the afternoon of Monday, 16th of June 2014 at about 3.00 p.m. at Samura Village, Obura-Wonenara.

(ii)	The Statements of State witnesses namely Sinder Nitaie dated 26th June 2014 of Samura Village; Cathy Bop dated 26th June 2014 of Samura Village; Eldon Raphael dated 26th June 2014 of Obura Primary School and Oki Memaru dated 26th June 2014 of To’okena Village, who all respectively confirmed the identity of the prisoner and his demeanour during and following the commission of the offence. Included in the Deposition was the statement of Police Constable William Melyauen, dated 27th of June 2014 and Detective Senior Constable Johnson Bunawa Joseph dated 27th June 2014 who conducted the Record of Interview and finally, also included in the Court disposition is the Incident Report dated 16th June 2014 with photographs of the victims lifeless body with the head almost severed from the body.

4.	Upon the reading of the Committal Court dispositions and being satisfied that the evidence contained in the dispositions supported the charge, the prisoner’s guilty plea was accepted and the prisoner was convicted on the charge of murder prescribed under s 300 (1) (a) of the Criminal Code.

Pre-Trial Detention

5.	The prisoner was remanded on the 30th of June 2014 and has been held in custody for a period of 1 year 2 months 22 days to the date of this decision on sentence. 

Allocutus 

6.	Upon arraignment, the prisoner was given the opportunity to speak on the question of penalty. In administering the allocutus, the prisoner said that he was sorry to God and this Court for killing his wife. He is also sorry for his children aged between 2 and 14 years who he left behind. The prisoner also asked for leniency from the court. The prisoner stated that this is his first time in court and is worried about the welfare of his children and also his aging parents who have no one to take care of them. He also stated that this problem started with his step-daughter who was taken away by his late wife’s people which made him angry.

7.	Counsel for the prisoner, Mr. John Biki submitted that this is case involving family circumstances and thus requested that the Court direct that a Pre-Sentence Report (PSR) and Means Assessment Report (MAR) be prepared on behalf of the prisoner by the Community Based Corrections Officer (Probation Officer), Kainantu for purposes of assisting this court determine the severity of penalty. In response to this request, the Court directed that the Probation Officer, Kainantu prepare these Reports and have it filed prior to the 31st of July 2015 for consideration.

Pre-Sentence Report

8.	The Community Based Corrections Officer, Mr Bennet Amuino has in response to this direction prepared the Pre-Sentence Report and Means Assessment Report which are now available before this court. According to the Pre-Sentence Report, the prisoner is about 30 years old, married with five children (four of his own and one step-child, a daughter aged 14 years. The prisoner had been married to the deceased for about 20 years. The prisoner is a member of the Evangelical Brotherhood Church (EBC). The prisoner comes from To’okena, Obura Wonenara, Eastern Highlands Province. He was educated up to Grade 6 level. The prisoner comes from a family of nine (9), six sisters and two brothers. All his sisters are married. The prisoner is the 7th child in the family and his youngest sibling, is doing grade 7 at To’okena Primary School. His parents although very old are still alive and also living in To’okena Village. The prisoner earns his living by subsistence farming. The prisoner appears to be in good health and remorseful for what he had done to his wife, the deceased. He asked that he be placed on probation so that he can go back to the village and look after his children and educate them. With regard to the prisoner’s suitability for rehabilitation back into the community, this aspect of the assessment was not carried out. This is due to the fact no member of his community were available for consultation. Similarly, no relatives of the prisoner nor victim were also available to assist the Probation Officer compile a Pre-Sentence Report or a Means Assessment Report on the prisoner. Nevertheless, whilst the prisoner appeared to be remorseful and has said sorry to the deceased relatives for the offence committed, the offender in his interview for the Pre-Sentence Report has stated that he has asked deceased for permission to marry his step-daughter but his wife refused so he chopped her right leg with a bush knife. This incident occurred prior to her death. Having considered this admission and the fact that the prisoner has in his allocutus had made mention of the cause of problems relating to his step daughter, it is has now become clearer that this could be inferred as the reasons for the killing of his late wife, the deceased. 

9.	Overall, this behaviour do not speak favourably of a man capable of taking care of his children and more so to safeguard the family unit and I quote the sentiments expressed by his Honour Lenalia J in the case of State v Tiun [2001] PGNC 79; N2129 (30 April 2001) although this case involved an incest case, the sentiments expressed by his Honour, Lenalia J are relevant to this case in that the prisoner in this case is “required to safeguard the family unit as it is sacred. Even more so, the value of relationship between a father and daughter, mother and son, a brother and his sister as a paramount factor binding the nucleus family unit. A nucleus family unit here is a reference to a family unit without reference to the common extended family unit maintained in most Papua New Guinea societies”. For this case, it can be inferred that because the deceased did not permit the prisoner to marry her daughter from a previous relationship, the prisoner decided to take matters into his own hands. Apart from the above sentiments, the overall assessment gathered from the Pre-Sentence Report is that the community will not benefit from the prisoner in his rehabilitation progress back into the society. In addition, the prisoner’s suitability for probation was not recommended. The Report concluded that the prisoner is a dangerous person and pose real danger to the community and that the prisoner has intentionally caused actual violence which has resulted in the death of his wife, the deceased. 

Mitigation factors

10.	The mitigating factors were that there was no prior conviction, an early guilty plea and the accused had surrendered and o-operated with police and is a first time offender.

Aggravating factors

11.	The aggravating factors were that this was a premeditated attack, where the accused had used a dangerous weapon, a bush knife was used in the attack. It was a vicious attack with a strong desire to inflict grievous bodily harm which had resulted in the loss of life. This was a calculated cold-blooded murder. This type of assault is prevalent.

Issue for determination before the Court

12.	The issue to be determined by the court is “Whether or not this case falls within the worst types of offences that warrant the imposition of subject to s 19 of the Criminal Code, the maximum penalty of life imprisonment” 

Submissions on sentence

13.	Mr. John Biki in his submission on sentence, submitted that the issue before the court was whether the present case is one of the worst types of murder under s 300 (1) (a) of the Criminal Code Act that attracts a term of life imprisonment. In addition, Mr Biki also submitted that this court has considerable discretion as to whether this court can impose the maximum penalty of life imprisonment by virtue of s 19 of the Criminal Code Act. A number of cases were cited in support of the line of argument, that there was no pre-planning and it was a spur of the moment incident. Mr Biki referred me to the case of the State v Lawrence Mattau (2008) N3865 in which the offender shot his uncle with a gun on the suspicion that his uncle was having a sexual relationship with his wife. He was drunk when he committed the offence. He was charged under s 300 (1) (a) of the Criminal Code and pleaded guilty to the charge. The offender was a former BRA fighter and was instrumental in the Bougainville Peace Program. He shot his uncle as a last resort after he tried to put the matter up with the formal justice system but was unsuccessful. His Honour Kandakasi J sentenced him to 10 years imprisonment with hard labour but wholly suspended the sentence on strict terms. Matters which his Honour Kandakasi J took into consideration was that the offender was instrumental in the Bougainville peace agreement and had a good standing in the community, is unlikely to re-offend and is not a threat to community. He also pleaded guilty to the offence. In contrast to the present case, although the prisoner has pleaded guilty to the offence, there are no confirmation provided in the Pre-Sentence Report to indicate as to whether or not he had good standing in the community or that he is unlikely to re-offend. In fact, the Pre-Sentence Report does indicate that the prisoner is a threat to community. 

14.	In any event, Mr. Biki further submitted that this court exercise its discretionary powers under s 19 of the Criminal Code and consider imposing a lesser sentence as the court is not restricted by the sentencing guidelines held in Manu Kovi (supra). In that this Court still had a wide discretion to go outside Manu Kovi guidelines as held in Thress Kumbamong v State [2008] PGSC 51; (29 September 2008) SC1017, as this case was not the worst type of murder as held in the case of Goli Golu v The State [1979] PNGLR 653 and thus should impose a lesser sentence in the exercise of s 19 discretion.

15.	Ms. Gore for the State in reply submitted that there is no reason provided for the killing, it was a vicious attack with a bush knife which he used to cut the victim on the neck with intention to kill the deceased. She further submitted that killing in that manner is very serious. Whilst the deceased may have left her children, this is no reason for such a merciless killing. Therefore the court must impose a stern punishment. Thus in order to determine the appropriate sentence, this is a case where the offence falls into the worst case category. Therefore the principles established in Manu Kovi v The State (2005) SC 789 may be followed to determine the severity of sentence. In Manu Kovi v The State (supra), the prisoner pleaded guilty to the wilful murder of his wife. On appeal on the severity of sentence, the Supreme Court dismissed the appeal and established the sentencing principles for all homicide cases which has been followed and these were:

(1)	First category, in a plea to murder where there are mitigating factors with no aggravating factors, no weapons used, little or no planning, minimum force and absence of strong intent to do grievous bodily harm – sentence of 12 to 15 years;

(2)	Second category in a case where it’s a trial or plea where there is no strong intent to do grievous bodily harm, weapons used, some pre-planning, some element of viciousness – sentence of 16 to 20 years;

(3)	Third category, in a case where it’s a trial or plea where there is pre-planning, vicious attack, strong desire to do grievous bodily harm, dangerous or offensive weapons used, e.g. gun or axe. Other offences of violence committed – sentence of 20 to 30 years;

(4)	Fourth category, (worse case), in a case where there is pre-mediated 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

16.	Whilst it is acknowledged that the mitigating circumstances in favour of the prisoner are important considerations; so too are matters relating to his aggravating factors. In such cases of homicide, the maximum punishment of death is reserved for the worst case of wilful murder. For this present case, it is this court’s view that this offence falls into the worst case category of murder cases. Furthermore, the Pre-Sentence Report does not speak highly of the prisoner although it is also noted that the Pre-Sentence Report may appear to be not a balanced report. In addition, there is no confirmation that the accused has paid any compensation nor shown any form of remorse and if he does say he is sorry, there is no evidence to show any form of reconciliation. Thus this gesture appeared to be not genuine. Therefore no assumption is to be made by this court on any aspect of reconciliation or compensation due to the lack of sufficient details on the accused’s behaviour to assist in the determination of penalty. 

17.	In the case of the State v Carol Alfred [2009] N3602, there was some reason provided for the attack on the deceased. In that the deceased was the husband of the prisoner, after an argument over food, the prisoner stabbed the deceased with a kitchen knife on the left upper thigh. He died due to loss of blood. The prisoner and her relatives in this case paid a sum of K15, 000.00 in cash plus 40 pigs as compensation. This compensation payment was considered special mitigating factor. The prisoner was sentenced to 10 years imprisonment. 

18.	In the case of State v Loangesa [2007] N3187, this is yet another husband and wife situation where the prisoner who is the husband of the deceased was drinking at a friend’s house. The deceased who was his wife went over to the friend’s house and accused the prisoner of misusing the family’s money and threw a stick at him. The prisoner jumped down from the friend’s house and started assaulting the deceased. During the course of the assault, the prisoner kicked the deceased in the stomach. Although the deceased managed to walk away towards their own house, she collapsed when she reached the front of their house and died. A medical report showed that she had died from liver injuries and internal bleeding caused by the assault occasioned by the prisoner on her person. The prisoner was sentenced to 10 years imprisonment. 

19.	Ms Gore submitted that the category 3 sentencing tariff applied in Manu Kovi case (supra) of 20 to 30 years to be appropriate penalty under the circumstances. Although there is acknowledgement that the mitigating circumstances in favour of the prisoner were important consideration, it should be noted that so too are the matters relating to his aggravating factors. 
 
Application of the Law

20.	According to law (s 300 (1) (a) of the Criminal Code, the maximum punishment for murder subject to s 19 is life imprisonment, it is however noted that the maximum punishment is of course reserved for the worst case of homicide. To assist determine what is the worst case of homicide, I have perused the file and evidence in the court disposition regarding the circumstances of the killing, the aggravation or extenuation of the crime or mitigation of the offence. To assist me determine an appropriate penalty, I have taken into consideration all relevant mitigating and aggravating factors including the method as to how this factors are weighed. In that I have to distinguish between ordinary or common mitigating factors including special mitigating factors. For instance, a normal ordinary mitigating factor here consist of the following: (i) the accused’s prior good character, (ii) stable good family background, (iii) education and religious background, (iv) first offender, (v) guilty plea, (vi) remorse and (vii) co-operation with the police. In circumstances where there are special mitigating factors to consider, this would include the offender’s (i) very young or very old age, (ii) poor health and (iii) payment of compensation.

21.	The payment of customary compensation is an area which is still evolving although, the practice is commonly used in traditional societies of Papua New Guinea. In addition, the amount or value of compensation also varies and is very much dependent on the special circumstances and values of each and every traditional society. Thus how the court weighs these compensation payments is also subject to the different practices of custom in traditional societies of PNG. However the Courts are guided by the procedure and principles prescribed under the Criminal Law (Compensation) Act 1991 which prescribes the maximum amount of compensation payment at K5, 000.00. However there are cases where the amount of compensation have exceeded this amount; just to mention a few cases (State v Komboni [2015] PGNC 63; N5991 (17 June 2015) N5991) (K10, 000.00); State v Carol Alfred [2009] N3602 (K15, 000.00) and State v Mavis Uraro (2012) N5164 (22,000.00). 

22.	With regard to aggravating factors, these include whether there was deliberate intention to harm, the use of dangerous or offensive weapon, pre-planning and pre-meditation, duration of the attack, multiplicity of injuries inflicted on vulnerable parts of the body, the high degree of force used, nature and extent of the injury inflicted on vulnerable parts of the body, group involvement and the infliction of other cruel or inhuman acts in effecting the crime, the special position of the victim in the community, whether victim is under disability such as old or young ages. The cases do not distinguish between ordinary and special aggravating factors. However, depending on the particular circumstances of the case, some of these aggravating factors may be regarded as special as or are more grave than others and may warrant the imposition of severe punishment (Manu Kovi v The State (2005) SC789). For this present case, there was deliberate intention to harm, the use of dangerous or offensive weapon, pre-planning and pre-meditation, duration of the attack, multiplicity of injuries inflicted on vulnerable parts of the body, the high degree of force used, nature and extent of the injury inflicted on vulnerable parts of the body are evidence of a more grave aggravating factors which warrant the imposition of a severe punishment and thus say that this type of crime is categorized to be one of the worst types of homicide and level it as a case category 4 case (Manu Kovi v The State (supra).

23.	It is settled law in this jurisdiction that the maximum penalty for an offence should ordinarily be reserved for the worst type of offence; and thus the question for this court is to consider whether this present case falls within the worst type of offence that warrants the imposition of the maximum penalty of life imprisonment as held in SCR No 1. Of 1984: Re Maximum Penalty [1984] PNGLR 418, Avia Aihi v The State [1982] 92, Ure Hane v The State [1984] PNGLR 105. 

24.	Bearing all these arguments in mind, this court now asked itself as what type of consideration would be applied in determining the severity of penalty to be imposed? If incarceration was to be imposed, what purpose will incarceration bring to the community at large, particularly when such atrocity occurs within family circumstances? Thus regard is had to the views expressed by the Supreme Court in Thress Kumbamong v the State (2008) SC 1017, where concerns were expressed in relation to the sufferings that women and children in this country endure at the hands of their spouses or partners from violence ranging from threats to beatings to sexual assaults. Given those sentiments, what type of protection would the community enjoy from putting the prisoner away? Firstly, the immediate children (particularly the step-daughter) would at least be safe from a step father who does not consider her as his daughter, one who will be protected and not preyed upon. Secondly, incarceration should also be seen as a deterrent to other men out there that such behaviour is unbecoming of fathers and partners who continue to abuse their wives and daughters. 

25.	In order to determine whether or not this case falls within the worst types of offences that warrant the imposition of the maximum penalty of life imprisonment, this court considered the case of Manu Kovi v The State (2005) N 789 which has established guidelines for sentencing in all homicide cases. The crime of murder is very serious case and whilst there were contentions that the actions of the prisoner were unintentional due to some element of de facto provocation; in that the accused was angry that his wife’s relatives had taken his step-daughter away from him and his family. This assertion alone does not justify the taking away of an innocent life. There is no reason provided for the killing, it was a vicious attack with a bush knife which the prisoner had used to cut the victim on the neck with intention to kill the deceased.

26.	In applying the principles established in Manu Kovi v The State (2005) SC 789 to determine the severity of sentence where the prisoner pleaded guilty to the wilful murder of his wife and was sentenced to life imprisonment. 

27.	In the present case, whilst there are some mitigating circumstances in favour of the prisoner which are important considerations; so too are matters relating to his aggravating factors against the prisoner. In her submission on sentence, Ms. Gore for the State submitted that the maximum punishment of death is reserved for the worst case of wilful murder and for this present case, she submitted further that this offence falls into the worst case category. A number of case law was cited which were related to a husband and wife relationship situation such a case is that of State v Carol Alfred [2009] N3602 where the deceased was the husband of the prisoner, after an argument over food, the prisoner stabbed the deceased with a kitchen knife on the left upper thigh and he died due to loss of blood. Following the death of the decease, K15, 000.00 in cash plus 40 pigs were paid as compensation which were considered special mitigating factor. The prisoner was sentenced to 10 years imprisonment.

28.	 In State v Loangesa [2007] N3187, this is yet another husband and wife situation where the prisoner who is the husband of the deceased was drinking at a friend’s house. The deceased who was his wife went over to the friend’s house and accused the prisoner of miss-using the family’s money and threw a stick at him. The prisoner jumped down from the friend’s house and started assaulting the deceased. During the course of the assault, the prisoner kicked the deceased in the stomach. The deceased however managed to walk away towards their own house and when she reached the front of their house, fell down and died. A medical report showed that she had died from liver injuries and internal bleeding caused by the assault occasioned by the prisoner on her person. The prisoner was sentenced to 10 years imprisonment.

29.	However a number of case law are also relevant to this present case and these cases are discussed accordingly. In Max Java v State (2002) SC 701 (unreported) where the Supreme Court confirmed a sentence of 20 years on a plea for murder where the appellant had chase the deceased and attacked him with a grass knife which resulted in the deceased sustaining severe injuries resulting in his death.

30.	In Kepa Wenege v State (2004) SC 738, the appellant in this case had been sentenced to 20 years imprisonment for the murder of the deceased. He appealed against the sentence of 20 years. The deceased in this case had taken some tree branches for firewood from a disputed land and after an argument with the appellant and his father, had walked home but the appellant followed the deceased from behind (unaware of the appellant following him) and cut the deceased on the head twice with an axe and hit him all over his body with sticks resulting in his death. The Supreme Court held that the sentence of 20 years was lenient and dismissed his appeal and confirmed the 20 years sentence. 

31.	Similarly in Joseph Ann v State (2004) SC 742, the appellant was sentenced to 20 years on a guilty plea on a charge of murder. In this case, the offence occurred when the appellant was at a meeting when an argument arose between the deceased, a male and a female which developed into a fight. The fight was halted and the deceased went back to where he was and was seated when the appellant got a bush knife and struck him on the back of his neck resulting in his death. The appellant appealed the excessiveness of sentence. The appeal was dismissed and the Supreme Court confirmed the sentence of 20 years.

32.	Having heard submissions on sentence from both the Prosecution and Defence Counsel on all relevant issues including the mitigation and aggravating circumstances for and against the prisoner. This Court now has to consider what is to be an appropriate sentence to be imposed in this present case. Indeed the death was tragic and unwarranted. For those family and community members affected by the victim's death, they have lost a sister, mother and valuable community member, not to mention the prisoner himself who claimed to be so affected by the death of his wife, the victim. However, remorseful the prisoner appears to be, no amount of amity will bring the victim back to life. This sort of crime is prevalent and behaviour which does not value and protect life must be dealt with. Too often the women, children and vulnerable members of the community are subjected to uncontrollable and physical abuse of their husbands, partners. Thus there has to be stern punitive actions taken to protect the vulnerable from such brutality (Mary Bomai Michael vs. the State (2004) SC737) where the Supreme Court expressed the views that the "The community looks to the Courts for justice and for the protection of its interest...” For this present case, a young life has been taken away with such brutality without any provocation in any manner or form unlike the cases of State v Loangesa [2007] N3187 and State v Carol Alfred [2009] N3602 discussed above. Furthermore, there are four young children involved whose future will be uncertain without the protection, love and attention of their mother.

33.	For the present case, a serious crime has been committed and this has occurred within the confines of husband and wife relationship (marriage). This court is minded to think that in such a relationship, there should be understanding between the husband and wife and where circumstances permit, expression of love and protection must prevail. In the prisoner’s case, he chose to act in such a manner that he had resulted in the unlawful killing of his wife, the victim. 

34.	Thus in the consideration of the factors outlined above, I am guided by the principles held in Manu Kovi v The State (2005) SC 789, and will apply the upper range of category 4 sentencing tariff applied in Manu Kovi case (supra) of life imprisonment to be appropriate penalty under the circumstances. To distinguished this case from the case of State v Lawrence Mattau (supra), this case had involved some pre-planning as the accused had walked for long distance to the location where the deceased had been staying with her big sister, namely Cathy Bop and killed his wife. Whilst the reasons did not become clear immediately, the interview during the Pre-Sentence Report does indicate that he wanted to marry his step-daughter (his wife’s child from a previous relationship) and when the wife refused, he firstly chopped her on the right left and then on this fateful day, chopped her on the head and other parts of her body resulting in her death. This is a vicious attack against the deceased, an offence which had been pre-mediated and showed lack of respect for human life.

Determining severity of sentence

35.	For this present case, the prisoner has to face the consequences of his decision in killing his wife, a person who the prisoner is supposedly meant to love and protect and not to mention his children. The extent of wounds and the force within which these wounds are inflicted indicated that the accused had intended to cause real harm to the deceased and it was a very vicious and cold blooded attack. There was a very strong desire to inflict grievous bodily harm which had resulted in the death of the victim. This case involved a lot of pre-planning and the offence was committed with real intention to cause actual harm. This was a case of a man ‘hell bent’ on causing actual harm to the victim, which had resulted in the vicious attack and murder of the deceased. This has occurred within the confines of husband and wife relationship (marriage). This court is minded to think that in such a relationship, there should be understanding between the husband and wife and where circumstances permit, expression of respect for human dignity must prevail. In the prisoner’s case, he chose to act in such a manner with no apparent reason and which has consequently resulted in unlawfully killing his wife, the victim. Thus it is the considered view of this court that the prisoner here must be placed in incarceration to protect the children, mothers, wives and community from such violent behaviour. The punishment is a consequent of his decision to unlawfully killing his wife, the victim. 

36.	Whilst the reasons for the murder of the deceased is only known to the prisoner. There are sufficient evidence gathered from the various State witnesses presented in the indictment to assist this court arrive at a safe conclusion that the prisoner in this case was very angry that his wife’s relatives had intervened and had taken his step-daughter, (a young girl whom the prisoner had already expressed a desire to marry) but his wife, the deceased had not permitted and this had resulted in all her suffering, abuse and eventual death. This is also confirmed by the prisoner in his statement on penalty. Even if the prisoner had been angry that his step-daughter had been taken away; it is also reasonable to say that judging from the period of time taken to walk the long distance from To’okena Village to Samura Village, this travel time would allow the prisoner to cool down and rethink his position. However, the prisoner did not cool down. He also did not have any compassion on his wife and how she feel about the whole affair. In the circumstances, this is a case where there was a lot of pre-planning and intention to cause actual harm to the victim. It was not a spur of the moment action on the part of the prisoner. It was a pre-planned vicious attack on the deceased.

37.	In The State v Paege and Tanda [1994] PNGLR 65, Wood J said and I would adopt the sentiments that his Honour expressed in that case where he stated that and I quote:

 “Whilst Parliament has said that the court can act under s 19 of the Criminal Code and impose a term of years as punishment for the crime of wilful murder instead of death. This immediately implies that the penalty in s 299 is not mandatory. There is some discretion. However, this discretion under s 19 cannot be an automatic moderation of the law. The application of s 19 must require appropriate circumstances, but it cannot mean there is a very wide discretion within the range of one year imprisonment to life imprisonment to death. Surely, if there was this automatic wide range, this would have been included in s 299 itself. By putting it specifically in s 19, it suggests something special”. 

 His Honour Woods J then went on to state that:

 “Similarly there are other aspects of s 19 that are considered by Judges, such as “where there is a plea of guilty”, where there is a “young offender”, where there “has been remorse” and “an attempt at compensation or paying back for the problem caused”. Thus there is that general discretion applied by the Court in determining the severity of offence and also noting that most penalty sections of the Criminal Code use the words "not exceeding" which words indicate a clear direction to make the punishment fit the severity of the crime”.

38.	Of course, most crimes do permit consideration of a range of severity. In this case, the charge of wilful murder which had been downgraded to murder. Whilst there may be different levels of violence used, the end result remained the same; death. There is no differences between one knife wound to multiple knife wounds to the body. There is an intention to kill and the carrying out of that intention, the end result of which regardless of the amount of violence used is the loss of a human life

39.	There are a number of categories of cases which have considered all these aspects of homicide and in cases of pleas of guilty where an immediate extenuating circumstance is present as in the case of Hane v The State [1984] PNGLR 105, where a list of different categories of wilful murders were discussed. However, at the end of that case, the consideration was that the plea of guilty was the extenuating circumstance, plus the highly charged domestic history… But given those circumstances, it can be argued that this murder case before me now appears to come within one of the worst categories, namely, the killing of a completely innocent woman. In Aihi v The State [1982] PNGLR 92, whilst there was no listing of the worst type of cases, the Court had taken the surrounding extenuating or aggravating features into consideration and decided accordingly. 

40.	Applying these principles to this case, it is difficult to apply some discretion in a difficult domestic situation such as this. It is therefore a situation where this attack is a cold-blooded murder and such attack are prevalent in Papua New Guinea and must be dealt with accordingly.

41.	With regard to the prisoner’s pleas for leniency and being a first time offender in court, this case can be distinguished from the case of Paulus Mandatitip and Anor -v- The State [1978] PNGLR 128 where youth was considered as a mitigating factor or the case of Kuri Willie v The State (1987) PNGLR 298 Hinchliffe, J (as he was then) discussed the need for courts to investigate alternatives to imprisonment when dealing with youthful first time offenders and the need to consider alternative mode of punishment to imprisonment. However although this prisoner is a first time offender and young man, the crime of murder which is committed with such impunity must carry with it some serious penalties as a deterrent factor.

42.	I therefore adopt the principle applied by Hartshorne J in the State v Taulaola Pakai (2010) N4125, where he stated that:

 "Court's should not lose sight of its duty to impose what is a just and fair punishment on an offender." A plea for leniency to avoid the suffering of one's family should have little or no weight when an appropriate sentence is being considered."

43.	In these circumstances, incarceration is an appropriate penalty. I therefore sentence the prisoner to life imprisonment at CIS, Bihute.

Sentenced accordingly.
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Public Prosecutor: Lawyer for the State 
Public Solicitor: Lawyer for the Prisoner