N7465

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1272 of 2017

THE STATE

-v-

STEWARD YAMBUKAI

Ambunti:  Geita J
2018: 21, 22 August

CRIMINAL LAW - Sentence –Guilty Plea –Unlawful killing- Victim died as a result of the prisoner hitting her several time on parts of her body - Victim died a day later- section 302 Criminal Code.
CRIMINAL LAW- Sentence – Favorable mitigating factors – Prisoner pleaded guilty notwithstanding the absence of any eye witness account and any direct evidence -  Any aggravating circumstances present reduced by his guilty plea and circumstances contained in his indictment. 

CRIMINAL LAW – Sentence – Prisonersentenced to 10 years less 1 year and 5 months pretrial custody. - Criminal Code, section 302. 

Cases cited:
Kovi v The State [2005] PGSC 34; SC 789 
State v Taulaula Pakai [2010] N4215.
The State v Lucas Yovura [2003] N2366.

Counsel:
Mr.Paul Tusais, for the State	
Mr. Luke Siminji, for the Prisoner

JUDGMENT ON SENTENCE
22 August, 2018
1.	GEITA, J:		The prisoner pleaded guilty to one count of manslaughter contrary to section 302 of the Criminal Code, a charge which carries a maximum penalty of life imprisonment subject, of course, to Section 19 of the Criminal Code whereby an alternative or lesser penalty may be considered. The preferred indictment was for murder under section 300 (1) (a), however after a successful plea bargaining the charge was reduced to manslaughter under section 302 Code, 

2.	The evidence for the purpose of sentencing were those agreed by the Prosecution and Defense on the depositions for the plea of guilty. The facts may be conveniently summarizedas follows:- 

a)	During the early hours of Friday 10 March 2017 between 12.30 am and 2.00 am the prisoner’s neighbor’s heard shouting and swearing coming from the prisoner and victim’s marital house. The prisoner was a habitual user of home brew and marijuana which was well known by his community. The neighbor’s heard him beating his wife Renatha inside their house and heard the deceased crying.
b)	The next day Renatha was taken to Waskuk Primary School enroute to the Ambunti Health Centre but she died along the way.
c)	Witnesses saw signs of trauma including black eyes and bruises on her abdomen. Renatha was pregnant at the time and witnesses saw her bleed from her private parts.
d)	The prisoner turned himself in to police in fear of retaliation by Renatha’s brothers.

Antecedent Reports

3.	The Antecedent Reports was tendered and admitted, without objection. The prisoner recorded no prior convictions. 

Allocutus

4.	When provided with an opportunity to address the Court in relation to what sentence should be imposed, the prisoner said he was sorry for what had happened and said he did not mean to kill his wife. The prisoner pleaded for leniency and said since his detention his children have lost touch with him and he does not know where they were staying. 

Submissions

5.	On behalf of the prisoner, Mr.Luke Siminji submitted that the prisoner has been in custody for 17 months to this day. The Court was reminded that the prisoner did not have any prior convictions and was a first time offender. It was conceded that this case was serious as it attracted a maximum life imprisonment however Mr Siminji submitted that the Court should also look at other considerations favorable to the prisoner.  The prisoner has lost his wife due to his own doing but he stands to lose his eight (8) children and their mother, the deceased. For the moment he does not know their whereabouts.

6.	The prisoner is 30 years old, married to his former wife and has 8 children. The first born child is in Grade 7 and the second born child doing Grade 2 at the nearby local school. The rest of the children were with the deceased’s brother in their village, Bangus. The prisoner’s father is dead and his mother is still alive. He is the eldest of four children who have all since married and live in their own homes.

7.	Mr Siminji submitted that the circumstances of the prisoner’s guilty plea ought to be taken into consideration when deciding the question of penalty as there were no eye witnesses. The prisoner ought to be given the benefit on his guilty plea. Furthermore his children stand to losebig time as their mother was now dead and their father now facing the possibility of a lengthy custodial sentence. The crime was committed within a family setting and resulted from a marital discourse. Although there was some form of aggravation, no hard evidence was manifested and so the prisoner ought to be given the benefit of lesser aggravation. On the strength of these arguments Mr Siminji submitted that this case ought to fall within category 1 sentencing guidelines as decided in Manu Kovi v The State  (2005) SC 789. He submitted that there was no pre-planning in this crime and invited the court to consider a head sentence at the lower end: between:  8 -12 years less the pre-trial custody period available to him. For ease of reference Category 1 is reprinted here below:-
SCHEDULE
SENTENCING TARIFF FOR MURDER OFFENCES
CATEGORY	WILFUL MURDER	MURDER	MANSLAUGHTER	
CATEGORY 1	15 – 20years	12 – 15 years	8 – 12 years	
Plea. 
-Ordinary cases. 
-Mitigating factors with no aggravating factors.	-No weapons used. 
-Little or no pre-meditation or pre-planning. 
-Minimum force used. -Absence of strong intent to kill.	-No weapons used. -Little or no pre-planning.
-Minimum force used. 
-Absence of strong intent to do GBH.	-No weapon used. 
-Victim emotional under stress and de facto provocation e.g. killings in domestic setting. 
-Killing follows immediately after argument.
-Little or no preparation.
- Minimal force used. 
-Victim with pre-existing diseases which caused or accelerated death e.g. enlarged spleen cases. 	

8.	Senior Counsel for The State Mr. Paul Tusais submitted that this case was serious in that the crime was committed within a domestic setting resulting in the death of the victim under serious aggravating circumstances. Notwithstanding any direct eye witness evidence of the assault, the wounds inflicted on her body from head to toe manifest the violence and vicious nature of attacks inflicted on the victim. The photographic evidence also shows the kinds of wounds inflicted on the victim resulting in her death. The State submitted that these were very serious factors which the Court just cannot simply ignore but take into considering penalty.

9.	As to Defence submission for category 1 Manu Kovi (supra) to be considered Mr Tusais submitted that the victim’s cries and the nature of wounds found on her body which led to her death manifest itself that some form of aggravation was present. On the strength of this line of arguments Mr Tusai’s submitted that this crime must fall under Category 2 of Manu Kovi (supra): A head sentence of between 13 – 16 years ought to be considered. Mr Tusais submission on this point is valid however, when considering the circumstances of this case as a whole in this indictment to which the prisoner pleaded guilty and surrendered his right, I am of the view that this is one of those rare cases, warranting leniency. 

Case Law

10.	No case precedents were put before the Court nor were any application made for a pre-sentence report for obvious reasons. This was a circuit location and resources and the usual support services provided by the Probation Service not readily available in Ambunti on this maiden circuit. 

11.	I will give some allowance for the fact that the prisoner pleaded guilty and has also spent a considerable time in his pre- trial custody.  By pleading guilty he has saved the State money and time from running a full trial.  The Courts’ attitude in general is that prisoners who plead guilty must be accorded some leniency in sentencing.  These concerns will be reflected in the overall sentence. It is also necessary to consider such things as the circumstances of the offence, the circumstances of the prisoner as well as the mitigating and aggravating factors in this case including any extenuating circumstances that may be available.

Circumstances of the Offence

12.	This was an attack on the victim; his wife within the marital home.This is a sad case of a villager who committed the crime under circumstances of which he has very little control due to home brew and marijuana consumption. His 8 children now deprived of their mother.

Mitigating Factors

13.	Guilty Plea, first time offenders, shown deep remorse, co-operated with police. 

Aggravating Factors

14.	The aggravating factor in this case is prevalence and a life being lost. Wounds inflicted were vicious and many. Crime committed within a marital home.

Remarks to the Offender on Sentence

15.	To your credit you have pleaded guilty for which some leniency will be accorded to you today. I have stated in many early plea cases that prisoners are entitled to the leniency that is usually given when a person enters an early plea of guilty. I am satisfied that a head sentence of 10 years to be appropriate in this case. Had this been a trial the need for a much longer deterrence sentence would be considered. 

16.	In your case I will follow the guidelines set out by earlier National Courts when sentencing people such as you.Furthermore I agree with your Lawyer that your guilty plea in the circumstances described in his submissions on your behalf ought to be given the benefit on slight leniency. Having said that I am not downplaying the Public Prosecutor’s arguments that some elements of aggravation were present and I ought to take that into account. However in the present case I am more inclined to lean towards the Defence submissions and reasons given for a lesser penalty arising from your guilty plea. For the moment you can rest easy that the maximum penalty allowed under section 302 of life imprisonment is out of contemplation notwithstanding that a precious life has been lost, that of your wife under your own hands. 

17.	Might I add here in passing that the offence that you have committed is yet another one of those long lists of marital disharmony cases and instances of domestic violence currently affecting our country?  Besides other factors recorded in your indictment to which you pleaded guilty, the abuse of home brew and marijuana by you were also contributing factors in this crime. 

18.	I take note of your concern for your 8 children and their welfare. However Courts attitude on this point over time has hardened: For instance in the case of The State v Lucas Yovura (2003) N2366 National Court Judge Kandakasi had this to say:
“It is a little too late to talk about an offender’s personal background including the needs of his family’s concerns once he is proven guilty according to Law.  His background and concerns should have little or no weight against the need to impose a sentence or punishment that best be-fits an offence he has committed in the particular circumstances in which the offence was committed”.  
19.	Similar sentiments were expressed in another National Court Judgment The State v Taulaula Pakai (2010) N4215, this is what another Judge said, I quote:
“An offender should consider his family obligation and commitments first before he goes out and commits an offence.  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.” 
20.	So the Court’s position is that, alright we can take your family concerns into account but you must remember that you brought about these unfortunate situation upon your family, therefore you must bear the consequences as they were all your own doing. I too share the same views in the two judgments and will adopt them and apply them in your case. 
21.	I also take note that you are a first time offender and a villager. However I am duty bound to ensure that justice is done and must be seen to be done. Furthermore due to the nature of this crime I must send a strong message to the people of Ambunti/Drekikire that National Court will not tolerate instances of domestic violence against women, the abuse of home brew and illicit drugs.

22.	Steward Yambukai, taking into consideration what has been said by you and by your Lawyer; I sentence you to imprisonment with hard labour for 10 years. From that term will be deducted a period of 1 year and 5 months to take into account the time you have already spent in custody. 

Sentence accordingly.

________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner