N7625

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1276 of 2017

THE STATE

V

AMOS SIRE LAHUWE

Maprik: Geita J
2018: 5, 7 December

CRIMINAL LAW - Sentence –Guilty Plea –Unlawful killing- Victim died as a result of stab wounds on her side caused by her husband after an argument - 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 – Prisoner sentenced to 9 years less 1 year and 5 months pretrial custody - Criminal Code, section 302 -Balance of sentence wholly suspended and prisoner placed on Probation for 5 years with supervision.

Cases cited:
Kovi v The State [2005] PGSC 34; SC 789 
The State v Lucas Yovura [2003] N2366
St v Steward Yambukai N7465 .CR 1272 of 2017; Ambunti 22 August 2018
The State v Alfred [2009] PGNC 29, N3602
Counsel:
Mr.P Tusais, for the State
Mr. J Javapro, for the Prisoner

JUDGMENT ON SENTENCE
7 December, 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 of the Criminal 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 summarized as follows:

a)	On 3 July 2017 the accused was with the victim at their home at Selnau village, Drekikier. The victim had returned home to cast her vote in the 2017 National Elections.
b)	Prior to that the victim and her five children were living with her relatives in Aitape and had been away from home for three weeks.
c)	Their chance meeting ended up in an argument resulting in the accused stabbing his wife on her side, causing her to die a short time later.

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 he has lost touch with his five children. He said his relatives have paid some K7000 as compensation and asked to be placed on probation.

Submissions

5.	On behalf of the prisoner, Mr. Julius Javapro 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 although this case was serious and attracted a maximum life imprisonment however Mr. Javapro 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 (5) children and their mother, the deceased. For the moment he does not know their whereabouts.

6.	Mr. Javapro submitted that the circumstances of the prisoner’s guilty plea ought to be taken into consideration when deciding the question of penalty in light of favourable mitigating and extenuating factors. The prisoner ought to be given the benefit on his guilty plea. Furthermore his children stand to lose                                                                                                                                            big 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. On the strength of these arguments Mr. Javapro submitted that this case ought to fall within category 1 sentencing guidelines as decided in Manu Kovi v The State (2005) SC789. 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. 	

7.  	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. The wound inflicted on the side of her body manifest the violence and intention to cause grievous bodily harm. The photographic evidence also shows the kind of wounds inflicted on the victim resulting in her death. The State submitted that the crime of violence against women was on the rise each day and this case was one of such cases deserving of a longer prison term. 

8.	As to Defence submission for category 1 Manu Kovi (supra) to be considered Mr Tusais submitted that the crime committed was serious and amounted to domestic violence. On the strength of this line of arguments Mr Tusais 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

9.	The case of The State v Alfred [2009] PGNC 29, N3602 was put before the Court by Defence Lawyer. The victim died as a result of a domestic related dispute, a stab on the upper thigh by use of a kitchen knife. Guilty plea for manslaughter with mitigating factors outweighing aggravating factors. A sentence of 10 years was imposed. Mr Javapro urged the Court to use this case precedent as a guide.

10.	I also looked at a fairly recent case I did in Ambunti this year. This was a guilty plea case of manslaughter under section 302 Criminal Code. The prisoner killed his wife, leaving them with 8 children without parental care and custody. I treated that case as exceptional in light of the fact that no direct eye witnesses were brought forward to secure his guilty. His guilty plea and subsequent conviction were solely on his honesty, regret and deep remorse for what he did to his wife. I sentenced the prisoner to 10 years less his pre trial custody period of 1 year and 5 months. I did not wholly suspend the remaining sentence because of the fact that the wounds inflicted on his wife were many and vicious. Furthermore he was a habitual user of home brew and marijuana. (State v Steward Yambukai N7465 .CR 1272 of 2017; Ambunti 22 August 2018- Unpublished).

11.	In his submissions Mr Tusais urged the Court to rely on the Steward Yambukai case ahead of the State v Alfred case (supra) and imposed a custodial sentence with no suspension of parts of the sentence.

12.	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.  This concern 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.

Mitigating Factors

13.	Guilty Plea, first time offender, shown deep remorse, co-operated with police, Compensation of K7000 paid to victim’s relatives. 

Aggravating Factors

14.	The aggravating factor in this case is prevalence and a life being lost.  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. To my mind your guilty plea is mitigated heavily by the fact that no independent eye witnesses were available in this serious crime. Your sincerity and deep remorse have manifested themselves.  I am satisfied that a head sentence of 9 years is 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 this crime was domestic violence related and accused sentenced to goal with no suspension of sentence. 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.	I take note of your concern for your 5 children and their welfare. But I must warn you that Courts attitude on this point over time has hardened. I will however not place too much emphasis on this, this time around. 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”.  

18.	In your case I am satisfied that your mitigating and extenuating circumstances outweigh your aggravating factors. This is more so in light of the fact that you and your five children have come out the worst because of your wrong doing. You killed your own wife for a selfish reason and denied your 5 children of their mother. I am treating your case as exceptional and will not impose the maximum sentence. The case of Steward Yambukai (supra) is distinguished for the reasons I have given earlier. I will instead use the case of The State v Alfred as a guide in your case.

19.	Amos Sire Lahuwe, taking into consideration what has been said by you and by your Lawyer; I sentence you to 9 years imprisonment with hard labour. From that term will be deducted a period of 1 year, 5 months, 3 days to take into account the time you have already spent in custody. The remainder of the sentence will be wholly suspended and you will be placed on probation and good behavior bond for 5 years. Probation Office in Wewak will provide supervision.

20. Court Order: Amos Sire Lahuwe

Convicted and sentenced to	9 years in hard labour	
Pre trail custody period to be deducted	1 year, 5 months, 3 days.	
Balance of the remaining sentence wholly suspended.		
Prisoner to be of good behaviour and placed on Probation for a period of 5 years with supervision.		

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