N8311
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 479 of 2019

THE STATE

v

AILEEN GUINA

Waigani:   Salika, CJ
2020:   17 & 17 February; 9, 12 March, 4 May

CRIMINAL LAW – PRACTICE AND PROCEDURE – Sentence – Prisoner stabbed deceased with a kitchen knife –Fatal wound.

CRIMINAL LAW – SENTENCE – Mitigating factors – Extenuating factors taken into account – Sentence of 12 years.

Cases Cited:

Anna Max Marangi v The State (2002) SC 702
Goli Golu v The State (1979) 653 
Simbe v The State  (1994) PNGLR
State v Kui (2014) N5655
State v Peter (2000) PNGLR 307
State v Steven (2017) N6678
UreHane v The State(1984) PNGLR 105

Counsel:

Ms E Kave, for the State.
Ms A Peter, for the Accused.

04	May 2020

1.	SALIKA; CJ.INTRODUCTION; The prisoner pleaded guilty to one count of the murder of Belinda Kuson.  The murder was committed on 22 July 2018 at 5 Mile, Port Moresby in the National Capital District.  She pleaded guilty to the charge on 23 March 2020 some 1 year 8 months later.  This matter had the potential to be dealt with a lot more expeditiously than it was.  Counsel for the State and the Defence need to work together to bring such cases to a close as soon as possible.  I make this observation in passing.

FACTS	
1. 	Aileen Guina and the deceased Belinda Kuson are both married to Rodney Guina.  Aileen Guina is the first wife.  I assume each knew the fact that they had one common husband.

2. 	The State alleged that on the 22nd of July 2018, between 6:30 am and 8:30 am, Aileen Guina went to the deceased’s house at 5 Mile in the National Capital District.  She was looking for her husband and her oldest son.

3. 	The husband had taken their son on Thursday 19 July 2018 after they had returned to Port Moresby from the village and he did not let Aileen Guina know where they were.

4. 	Aileen Guina whilst searching for her husband saw his vehicle parked on the side of the freeway next to the deceased’s rental property.

5. 	She got off the bus, walked to the house where she saw her son outside.  She then walked up the stairs and into the deceased’s bedroom where she, Rodney and their two daughters, aged 2 years and 2 months respectively, were.  There was a struggle and in the course of this Aileen Guina stabbed the deceased in the left breast with a small kitchen knife.  Whether Aileen had been to that house before the murder is not stated in the facts.

6. 	 The Deceased was rushed to the Port Moresby General Hospital but was pronounced dead on arrival.  The knifed wound to the deceased left breast penetrated her heart which led to her death was the medical conclusion as to the cause of death.
7. 	The State says that the actions of Aileen Guina in stabbing the deceased with the kitchen knife was unlawful and that when she did that she intended to cause grievous bodily harm to the deceased but the deceased died from her injuries.  Her actions therefore contravened section 300 (1)(a) of the Criminal Code Chapter 262.

8. 	The prisoner pleaded guilty to those facts as presented above.

ISSUE
9. 	The issue before the Court is what is the appropriate sentence to impose on the prisoner.  This is a responsibility of the Courts given by Section 158(1) of the Constitution.

THE LAW
10. 	Section 300(1) of the Criminal Code prescribes the maximum penalty to be life imprisonment subject to Section 19 of the same Act.  However the maximum sentences are reserved for the worst cases in a given category of offences.  See Goli Golu v The State (1979) 653 and UreHane v The State(1984) PNGLR 105.

11. 	The Supreme Court in Simbe v The State(1994) PNGLR 38 said:- 
“I consider that a murder case with no special aggravating factors where the accused pleads guilty should attract a sentence of six years. Where a sentence of less than six years is imposed, I believe that it should only be in a case where there are special mitigating factors such as the youthfulness of the accused (for example, 14 or 15 years old) or the very advanced age of the accused. In a contested case, it should be between 8 to 12 years, and more in a case where aggravating factors are shown by the evidence. Such factors are too numerous to list here and must be determined on a case-to-case basis".

12. 	With respect I agree that sentences for each case of murder charges should be on a case by case basis with regard to each own circumstances.  There are some murder cases which circumstances are rather unfortunate and in the PNG context some murder cases arise out of a custom of polygamous marriages and relationships.  This was one such case.   Both women appear to be educated but both appear to continue to live in such an untenable polygamous marriage or arrangement.

13. 	The sentencing role of the Courts is a discretionary one.  The Courts must have regard to the circumstances of a case, relating to questions of how, what, where and why those events occurred.  Sentencing is not an easy task.  There is no equation or formula to arrive at a sentence.  It is an act in the mind of a judge that he or she has to balance several factors before arriving at a sentence he or she thinks is appropriate and one which befits the crime.

14. 	This is one such case which the prisoner had a husband who was having extra marital affairs with another woman who ended up dead.  The husband in the pre-sentence report wants justice for the dead woman his mistress or second wife.  He of all people is asking for justice for her? Does he conveniently forget the role or part he played in the commission of the murder?  He is partly the cause of the problem and is to be blamed as well.  He was present at the scene of the crime.  What did he do to prevent Aileen from stabbing the deceased?  He should have acted immediately to disarm Aileen or stop her from doing anything to put the lives of everyone present at risk. Where was he then when both women needed him the most.  PNG needs a law that should make those types of husbands to be also held responsible and accountable for their part in the murders.  Right now they get away with it scot free.  This to me is not fair and just.  

PERSONAL PARTICULARS
15. 	The personal particulars are noted:-
a)	She is from Kivori village, Bereina in Central Province.
b)	She is 37 years old.
c)	She lives in rental accommodation at Gerehu Stage 2.
d)	Both her parents are alive.
e)	She married Rodney Mark Guina in 2011.
f)	They have 2 children, 5 years and 2 years respectively.
g)	The husband works with the Department of Lands as an administration officer.
h)	She has 3 children from a previous marriage but got divorced.
i)	She is educated to Grade 9 level at the Mainohana High School and then attended Vocational School and did a catering course and obtained a certificate.
j)	She was a butcher at Boroko Foodworld at the time of the offence.
k)	She is in good health
MITIGATING FACTORS
16. 	The following mitigating factors are noted and taken into account:-
•	She pleaded guilty to the charge.
•	She has no prior conviction.
•	She expressed remorse for what she did.

AGGRAVATING FACTORS
17. 	The following aggravating factors are noted and taken into account.
•	She went to not only the house of the deceased but into the bedroom of the deceased.
•	She stabbed the deceased with a knife on her left breast which then penetrated the heart which caused her death.
•	She stabbed the deceased in the presence of her (deceased) 2 very young children.
•	Offence is prevalent
•	Offence involves taking the life of another, thus is a serious offence.

EXTENUATING FACTORS
18. 	The following extenuating factors are noted and taken into account:-
•	The prisoner was worried for her son and went looking for him and found him outside the deceased’s home.
•	The extra marital affairs of the husband was a factor that contributed to this offence.
•	The husband was present, he seemingly did nothing to prevent the stabbing, although he was the major cause of the conduct of his wife, the prisoner.
19. 	I note the statement of JaminKuson.  He is the brother of Belinda Kuson.  His statement is headed “Justice for Belinda Kuson”.  I have read his statement and sympathise with him for the loss of his beloved sister.  On point 3 of his statement he says the following:-
“The male (a man named) in this relationship who is the primary link between the perpetrator and Belinda Kuson must be interrogated and be penalised for his part in this regrettable relationship.  We understand that he played an equal role in causing anger and jealousy between the two women that resulted in Belinda losing her life.
Further still, we also have reasons to believe that this man has carelessly established other marital affairs while he was with Belinda and the alleged perpetrator.  These reasons stem from multiple anecdotes and they suggest that this man embraces a habit of infidelity.  Yet he has gone unpunished for his disgusting act while women around him are being gutted and Belinda dead.
As such we would be pushing for this man to be penalised appropriately by sharing the costs of educing Belinda’s children.  He must bear fifty per cent of the cost that the alleged perpetrator will carry.”
20. 	Nowhere in his statement does he say if his sister Belinda was aware or knew that Rodney Mark Guina was a married man.  I believe that it was Belinda’s business to find out from Rodney Mark Guina if he was single.  It was also the duty of Guina to inform Belinda that he was already married, however he lived that kind of lifestyle.

21. 	I note JaminKuson’s concerns for the welfare and education of Belinda’s children.  Belinda’s children are also Rodney Guina’s children.  Aileen’s children are also Rodney Guina’s children.  Altogether Rodney Guina must be held responsible for the welfare andeducation of those 4 children; 2 from Aileen and 2 from Belinda.  That is both his legal and moral duty and responsibility.  Rodney Guina is employed and must now pay maintenance of his children from Aileen and from Belinda.  Every time any of those children get sick or are taken to the hospital or private clinic Guina must pay for the medical expenses.  When they go to school, whether PNG Schools or International Schools Rodney Guina must pay each of the children’s’ school fees.  He helped bring those children into the world.  I cannot issue any orders in relation to that as I have no jurisdiction but the District Courts have the jurisdiction to deal with those issues.  For Aileen she will be punished for her crime.  Rodney Guina must pay for that crime by being made to account for the welfare and education of the two sets of his children in the absence of their respective mothers at least while Aileen is serving her prison term.   He is not 50% responsible for the upkeep of all those 4 children but is 100% responsible for their upkeep, maintenance, school, food, clothes, medical and education costs until the children are able to fund for themselves.
CASE PRECEDENTS
22. 	The following relevant case precedents relating to sentences in murder cases were referred to the Court by counsel:
(i)	The State v Kui (2014) N5655:

The prisoner in this case pleaded guilty to murder.  She had suspected the deceased of having an affair with her husband.  She confronted the deceased with a kitchen knife and stabbed her several times on her left chest.  The knife penetrated the right atrium of her heart and she died as a result of this.   The deceased at the time of her death had two young children, one of which was still breastfeeding.   The prisoner had three young children as well.  The Court sentenced her to 13 years imprisonment of those 6 years was suspended with condition.

ii)  The State v Peter (2000) PNGLR 307:

The prisoner pleaded guilty to murder.  She was unhappy with her husband for taking a third wife.  She was the second wife and was angry that  the husband has said that she was uneducated compared to the third wife who was educated woman.  The prisoner went to where the deceased was sleeping and using a kitchen knife stabbed her first in the neck and when the deceased screamed she stabbed her a second time between her breasts.   She was sentenced to 12 years in prison in hard labour.

iii)  The State v Steven (2017) N6678:

The prisoner pleaded guilty to murder.  She and the deceased were co-wives who did not get along.  The deceased had left their common husband and married someone else but when that did not work out, she returned.  The prisoner was angry because whilst the deceased was away she had to take care of her children.  Prisoner argued with the deceased at the market place and taking out a kitchen knife which she had concealed in her billum, stabbed the deceased first in the mouth and a second time in her left side rib.  The prisoner was sentenced to 13 years in hard labour minus time spent in pre-trial custody.  1 year and 8 months was deducted on account of the guilty plea and the prisoner was ordered to serve the remaining 9 years and 4 months in hard labour.
SENTENCE
23. 	The Supreme Court in Anna Max Marangi v The State (2002) SC 702 said:-
“To our knowledge, there are increasing instances of manslaughter and murder killings coming before the Courts in which a knife is used to settle domestic differences, with fatal consequences. The use of readily available kitchen knife to settle one’s domestic grievances is prevalent in this country. It is becoming a silent lethal weapon, far more dangerous than other potentially dangerous weapons like axes, bush-knives or even guns. The reason for this is because the knife is readily available, it can be easily concealed, and used on unsuspecting unarmed victims who are usually taken by surprise, and used in a calculating and precise manner, that the human body is easily penetrated and vital organs are damaged or even severed. It seems to us that more lives are being lost in this country today from the use of the knife than with any other weapon. Therefore, a strong punitive and deterrent sentence is required.”
24. 	In this case, again a knife was used to stab Belinda Kuson which led to her death.  The prisoner could have walked away after she found her son and then could have called to her husband from the outside to come out.  Instead she took the risk when she walked into the house and into the bedroom of Belinda Kuson.  She saw Belinda’s 2 year old child lying on the bed.

25. 	Life is only lived once upon birth.  It is therefore precious and its sanctity is inherent.  That is why the Constitution of PNG is foremost in ensuring that it is protected at all times.  The right to life is a fundamental right granted to each individual by not only the Constitution but by the creator God.  You cannot go any higher than that.

26. 	I have read the pre-sentence report and the means assessment report by the Probation Service.  I note the sentiments of the prisoner’s father and the sentiments of Belinda’s brother and relatives.  They asked for compensation from the prisoner.  She is in no position to give them compensation.  They might get it from their shared husband.

27. 	I take into account the general circumstances of the case, the aggravating factors, the mitigating factors, the extenuating factors, her antecedents and her allocutus statement.  I take into account submissions of counsel.  In the exercise of the Courts discretion under Section 19 of the Criminal Code I consider that a custodial sentence of twelve years in hard labour is appropriate.  Time spent in custody awaiting trial is to be taken off which is 1 year 9 months and 2 weeks.  The balance left for her to serve is 10 years 2 months 2 weeks in hard labour.

___________________________________________________________
Public Prosecutor : Lawyers for the State
Public Solicitor : Lawyers for the Accused