N7864
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1836 of 2016

THE STATE

V

KEVIN HENRY
(No. 4)

Kerevat:  Anis J
2019:  5, 9, 10 & 17 May

CRIMINAL LAW – Sentence – murder –section 300 – Criminal Code Act Chapter No. 262 - victim wife kicked in the stomach – rupture of spleen – sentence after trial – domestic setting - appropriate sentence – types of punishments – whether suspended sentence with imposed conditions suitable or warranted

Facts

The prisoner was found guilty of the offence, murder.  The prisoner murdered his wife in a domestic dispute.  The prisoner beat and kicked her in her stomach.  The wife had an enlarge spleen and the prisoner had known about it before the incident.  The wife died as a result of ruptured spleen caused by the assault on her by her husband.

Held

1.	The offence was committed in a domestic setting which involved serious assault on the deceased.

2.	The prisoner expressed no remorse for the death of his wife.

3.	A deterrence sentence was required for this type of offence, and five (5) years was added onto the sentence of 22 years.

4.	Despite recommendations from the Community Based Corrections, the Court considered that the prisoner was not suitable to receive a suspended sentence nor be put on probation.

5.	The prisoner was sentenced to 27 years imprisonment with hard labour less the time that he had served in custody.

Cases Cited

State v. Kevin Henry (No. 3) (2019) N7800
Steven Loke Ume v. The State (2006) SC836
State v. Lesley Warim Cletus Malo (2006) N4520
State v. John Buku Kaliomo (2007) N5023
State v. Paul Smelkit (2008) N3438
State v. Augustine Tup (2006) N4489
State v. Ngetto Rex Rongo (2000) N2035
State v. Fredinand Naka Penge (2002) N2244
State v. Douglas Mareva (2012) N4805
State v. David Carol (2009) N3762

Counsel

Ms J. Batil, for the State
Mr N. Katosingkalara, for the Prisoner

DECISION ON SENTENCE

17th May, 2019

1.	ANIS J:	On 16 April 2019, the prisoner was found guilty of murdering of his wife.  I refer to my decision in State v. Kevin Henry (No. 3) (2019) N7800.

2.	This is my ruling on sentence.

PERSONAL INFORMATION

3.	The prisoner is 27 years old.  From his marriage to his now deceased wife Getrude Joshua, they had two (2) children (boys).  The first born is seven (7) years old and the second is five (5) years old.  Both children are now being looked after by their grandparents, that is, by the prisoner’s parents.

4.	The prisoner’s level of education is up to grade eight (8) at high school.  He did not continue after that.  He was employed once as a security guard for about six (6) months.  

ANTECEDENT REPORT

5.	The prisoner has no prior conviction.

ALLOCATUS

6.	Allocatus was administered at 2:40 pm on Friday, 10 May 2019.  

7.	This is what the prisoner had to say.  He said he will respect whatever decision that Court makes.  He asked the Court to have mercy on him.  He asked that the Court give him a non-custodial sentence.  He said he wants to stay out of prison so that he could look after his two (2) young children.  He said one of the reasons was because everything that he had, had been taken away by his in-laws after the incident.  He said both his parents were old.  He said the incident had already been sorted outside of Court.  

MITIGATING/AGGRAVATING FACTORS

8.	I have considered the mitigating and aggravating factors submitted by both counsel.  In my view, the mitigating factors are, (i), no prior conviction, (ii), the deceased had a pre-existing condition, that is, an enlarge spleen, and (iii), killing in a domestic setting with no pre-planning.

9.	In regard to the aggravating factors, they are, (i), loss of life, (ii), the excruciating pain suffered by the deceased due to her ruptured spleen before her death, and (iii), the prisoner knew the deceased had a pre-existing condition which was a spleen, that is, before he kicked her in her stomach.  I will also add this as the fourth aggravating factor.  The prisoner and his father, through their evidence had tried to conceal the actions of the prisoner. As I have ruled in my earlier decision on verdict, the deceased’s dying declaration played a crucial role to the Court finding the prisoner guilty of the offence.  Had it not been for the dying declaration of the deceased, the prisoner could have walked scot-free.  The fifth aggravating factor this.  The prisoner did not express remorse for the death of his wife.  He showed no empathy towards his late wife and her relatives.

EXTENUATING CIRCUMSTANCES

10.	Both counsel submit that there was evidence of de facto provocation.  Both counsel it seems are basing their claim on the evidence of the prisoner and his father where they have said that the deceased had sworn at the prisoner in front of the prisoner’s parents or siblings, prior to the incident.  

11.	Was there de facto provocation?  When I refer to my decision on verdict, I note that I did not find the evidence of the prisoner and his father credible.  In fact, I found their evidence bad and unreliable.  And I did not find as a fact that the deceased had sworn at the prisoner and his family at that night.  As such, I find both counsels’ submission on existence of de facto provocation misconceived.   I find no extenuating circumstance which could be applied to diminish the gravity of the offence, murder.  See case: Steven Loke Ume v. The State (2006) SC836.  Having said that, this is not the same and must not be confused to a case where a prisoner had pleaded guilty.  For example, had this been the case (i.e., had Kevin Henry pleaded guilty), he would have been given the benefit of doubt and his claim or evidence that the deceased had sworn at him, may be considered favourably as de facto provocation.  See case:  State v. Lesley Warim Cletus Malo (2006) N4520.

PENALTY FOR MURDER

12.	Let me now consider the applicable penalty.  The prisoner was found guilty after a trial for murder under section 300(1)(a) of the Criminal Code Act Chapter No. 262 (Criminal Code).  The provision states, and I quote in part:

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.

13.	In this case, both counsel submit that the maximum penalty, that is, life imprisonment should not apply for this case.  I uphold the submission.  I do not find the murder committed by the prisoner to be amongst the worst of its kind.  However, I say this with qualification as I will get to later in my judgment.

COMPARABLE CASES

14.	I refer to and note the case authorities cited by the prosecution and the defence.  

15.	For the State, it submits that a sentence between the range of 14 to 17 years should be applicable for the prisoner.  The State submits that killings within domestic settings are prevalent in the society hence a deterrent sentence is required.  As for the defence, counsel submits that a sentence range between 12 to 15 years should be considered for the prisoner.  Counsel also submits that suspended sentence should also be considered for the prisoner.

16.	I have considered the case authorities including those submitted by counsel.  I will refer to those that I find similar and relevant, that is, to assist me in this regard.  I firstly refer to the case State v. John Buku Kaliomo (2007) N5023.  The prisoner pleaded not guilty to manslaughter charge against his wife.  Th assault occurred in a domestic setting.  The prisoner assaulted his wife and she died because her spleen ruptured as a result.  The Court considered, amongst others, that the starting point for manslaughter in a domestic setting be between 8 to 12 years sentence.  The Court sentenced the prisoner to 15 years imprisonment.  The Court allowed the prisoner’s pre-sentence custody period to be deducted but refused to permit any suspended sentence.  

17.	In the present case, the prisoner was charged with murder.  He pleaded not guilty, the trial was conducted, and he was later convicted with murder.  The offence was committed in a domestic setting or during a domestic argument.  But I note that the offence in this case is much more serious than in the case of John Buku because the prisoner here, amongst other things, was found guilty of murder.  This indicates to me that a higher sentence may be considered, that is, above 15 years. 

18.	Let me look at this next case, State v. Paul Smelkit (2008) N3438.  In this case, the prisoner was sentenced to 22 years for murdering his wife in a domestic setting.  This was after the prisoner had pleaded not guilty and after a trial had been conducted where he was convicted of murder.  The wife died two (2) days after the assault after suffering from a ruptured spleen and pancreas.  The prisoner had tried to blame his wife’s cousin sister to have accidently poisoned her.  The Court noted in that case that the starting point for sentencing for murders committed in domestic settings, should be between 16 to 20 years.  The prisoner’s pre-sentence custody period was deducted.  The Court however rejected to grant any suspended sentence.

19.	The present case, in my view, appears to be with level with the Paul Smelkit case.

20.	Let me move on and consider the next case, that is, State v. Augustine Tup (2006) N4489.  The prisoner pleaded guilty to murder, that is, for the death of his wife.  It was a domestic setting.  The prisoner was drunk.  He dragged out his wife from their friend’s house in the early hours of the morning.  He punched and kicked her all over her body.  The wife died of spleen rupture and massive bleeding in her abdomen.  The Court considered as appropriate that the starting point for sentencing for killing in a domestic setting, to be between 20 to 30 years.  The prisoner was sentenced to 20 years imprisonment.  His pre-sentence period was deducted.  The Court refused to grant suspended sentence.

21.	I find the case of Augustine Tup also to be a good comparable case authority, that is, despite the fact that in that case the prisoner pleaded guilty to murdering his wife which is not the same for the present case.  That said, a notable feature relates to the type of injuries sustained in both cases.  In both cases, both prisoners beat up their wives badly all over and in in their abdomen area.  For the present case, I refer to exhibits P1, P2 and P3.  Evidence show that the deceased was severely beaten-up or kicked.  There were massive lacerations to her internal organs.  For example, photographs 10 and 11 under Exhibit P3, show one of her livers as being cut in two places. In relation to one of the cuts, chucks of her liver appear missing from its full length.  Both her right and left internal organs were described as not normal.  Medical report stated that 3,000 millilitres of blood was drained from her abdomen cavity.  

22.	The conclusive findings in the post mortem, which is Exhibit P1, states, under the sub-heading, Internal Findings, and I quote in part:

Chest:	No rib fractures but the bilateral lung tissues were haemorrhagic and bruised anterior surfaces of the lungs.

Abdomen:	Distended abdomen
Massive hemoperitoneum – 3000 millilitres of blood drained from the abdominal cavity;
Spleen enlarged with multiple lacerations:
1.	Anterior upper pole of spleen laceration – 15cm X 3cm
2.	Posterior lower pole of spleen laceration extending to the anterior surface – 13cm X
Liver is intact

SENTENCE

23.	With the aid of the cases cited by both counsel and in particular those stated above in my judgment, I am now in a position to consider an appropriate sentence for this prisoner.

24.	The offence murder in this case was committed in a domestic setting.  I must say that I find this case almost suitable to impose the maximum sentence of life imprisonment.  The injuries and pain that had been imposed by the prisoner upon the deceased would have been immense.  These have apparently been revealed in evidence by those persons that have heard and witnessed the deceased suffer at the time that she was fighting for her life.

25.	The other consideration I make is this.  The deceased was 24 years old at the time of her death.  She was a young teacher at the Menabonbon Play School.  Her future ended abruptly at the time of her death.  She also now lives behind two (2) young sons whom she had given birth to from her marriage with the prisoner.  She will never see them grow up to become persons that they will become someday.  She will also never grow old before their eyes.  Her young life has been cut short by her husband, that is, by the very man who, by marriage, was supposed to love and protect her together with their children, and care for their well-being.

26.	I will impose as a starting point a sentence term of 20 years upon this prisoner.  I find the aggravating factors serious and note that they outweigh the mitigating factors.  I will therefore increase sentence by a further two (2) years.  This will see the sentence increase from 20 years to 22 years.

27.	In my view, there is also a need for a deterrence sentence.  Senseless assaults and killings of women in Papua New Guinea in domestic settings have continued to become a common occurrence.  And there is also, my view, a general misconceived view or perception in many societies in the country where compensation payment is seen as an alternative way of dealing with such crimes that are being committed against women or mothers.  These perceptions are of course wrong and are contrary to law including the Constitution.  Despite our existing laws, women continue to fall victims to senseless assaults and deaths.  

28.	I do share some of the sentiments that have been expressed by the Court in the past on the subject matter.  Deputy Chief Justice Ambeng Kandakasi, in the case, State v. Ngetto Rex Rongo (2000) N2035, stated, and I quote in part: 

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 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.

If there are differences in the family or marriage, that should be resolved in a non-violent and orderly manner. If that is not possible, then the Church or community leaders should be called to assist. If through such process, the differences or problems cannot still be resolved, they should agree to go their separate ways because of the irreconcilable differences. Entering into an argument and beating up a wife and or killing her is not the way to resolve family problems. The man as head of the family should show true leadership by acting in a manner that is not violent and treat his wife with respect and care.

29.	In 2002, His Honour also, in the case, State v. Fredinand Naka Penge (2002) N2244, stated, and I quote in part: 

Firstly, the offence of wife beating is a prevalent offence in the country.  A few years ago women’s groups and the Law Reform Commission made repeated calls and handed out leaflets and posted posters in prominent places calling for an end to this kind of offences.  Despite that, the instances of wife beating are continuously committed in increased numbers through out the country.  It therefore, calls for an immediate custodial sentence to serve both, as a personal and general deterrence for other would be offenders.  

30.	I also refer to the case, State v. Douglas Mareva (2012) N4805.  In sentencing a husband to 22 years in prison who had pleaded guilty to murder, that is, for beating his wife to death using a car jack handle, Acting Justice Gauli, stated and I quote in part, Wife bashing resulting in death has become so prevalent an offence that custodial sentence should be increased as a deterrence to any future wife bashers.  And finally, I refer to the case State v. David Carol (2009) N3762.  Late Justice Lenalia stated, and I quote in part:

In the present case, I wish to say that wife beating is an offence in our country. This has been brought about because of husbands beating up wives as if they are sexual objects and men can do anything with them….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 unnecessary deaths. Currently, the women in our country are continuing to call for violence against women and girls to stop…..Yet some men continue to beat their wives for small problems that could easily be solved. 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

31.	As for the Courts, I have observed that stiffer penalties are being imposed.  As judges, our role towards addressing the matter of course would be to impose higher or stiffer sentences within our powers as prescribed under the Criminal Code.  I will of course follow the approach.  Therefore, and for this case, I will impose a deterrence sentence of five (5) years which shall be added onto the sentence of 22 years.  This will see the sentence increase from 22 years to 27 years.  

32.	I impose a sentence of 27 years for this prisoner.

TYPE OF PUNISHMENT

33.	The obvious next question is this.  Should this Court also impose suspended sentence and consider probationary terms?

34.	I have had the benefit of perusing the two (2) reports, namely, the pre-sentence report and means assessment report, from the Community Based Corrections (probation office).  I am grateful for that and I note the details therein.  In summary, the reports state that the prisoner is a suitable candidate for probation.

35.	My view however is in the contrary.  I am not inclined to impose any suspended sentence or allow probation for this prisoner.  I say this particularly taking into account the seriousness of and level of violence involved, in the commission of the crime by the prisoner.  I also take particular regard to the medical report concerning the injuries that had been inflicted by the prisoner to his wife.  There appears to be overwhelming evidence which says that this prisoner is a type of person that should be kept well away from women and from the society at large for a long time.

36.	The other reason why I have decided against allowing any suspended sentence and probation for this prisoner is this.  At allocatus, the prisoner never for once said that he was sorry for the death of his wife or expressed remorse.  I also note that in the pre-sentence report, when he was asked of his attitude towards the offence, he said that he believed that he had paid compensation for her death and therefore that he wished for a non-custodial sentence to be imposed on him so that he could take care of his two (2) children.

37.	Having considered these, I see evidence which demonstrates that the prisoner does not seem to understand or value the life of another person, and of what it means when such a life is put to an end.  I will therefore not grant any suspended sentence.

PERIOD IN CUSTODY

38.	The prisoner has been in custody for some time.  I will allow time spent in custody to be deducted from the imposed sentence.

ORDERS OF THE COURT

39.	I thereby impose a custodial sentence of 27 years imprisonment with hard labour on this prisoner.  Time spent in custody shall be deducted from his sentence.

Sentenced accordingly
________________________________________________________________
Office of the Public Prosecutor:	Lawyer for the State
Office of the Public Solicitor:	Lawyer for the Prisoner