N9905

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 232 OF 2021

THE STATE

V

MISILIU KELLY LEO

Kibil/Kokopo: Suelip AJ
2021: 5th, 14th, 22nd July & 6th August

CRIMINAL LAW – sentence – plea – murder s.300(1)(a) – wife admitted to having extra marital affair with nephew of accused – serious assault on wife – wife died – de facto provocation – sentence of 10 years – partly suspended with conditions  

Cases Cited

Goli Golu v The State [1979] PNGLR 653
Manu Kovi v. The State [2005] SC789
State v. Vira Yaurabae [2016] N6253
Public Prosecutor v Don Hale (1998) SC564

Counsel

G. Tugah, for the State
S. Pitep, for the Prisoner  

SENTENCE

6th August, 2021

1.	SUELIP AJ:	On 14 July 2021 at Kibil, the prisoner, of Pirtop village, Duke of York, Kokopo District, East New Britain Province, was indicted on a charge of murder and pleaded guilty to one count of murder, thereby contravening section 300(1)(a) of the Criminal Code. 

2.	This is my decision on sentence.

3.	The facts upon which he pleaded guilty to and was convicted on are these. On 27 June 2020 at between 2pm and 4pm, at Pirtop village, Duke of York Island, the prisoner was with his wife Liti Misiliu (now deceased) at his garden.  After finding out about the deceased’s extra-marital affairs with another man, he got angry and beat her up at the garden. He punched and kicked her several times on various parts of her body. Two women then came by and stopped him from beating up the deceased. The deceased ran away to another person’s house and died a short while after. The actions of the prisoner contravened section 300(1)(a) of the Criminal Code and he was charged with one (1) count of murder. 

4.	Section 300 of the Criminal Code Act provides: 

	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; or 
			
Penalty: Subject to Section 19, imprisonment for life. 

5.	The maximum penalty for the offence is imprisonment for life, subject to Section 19 of the Criminal Code. However, it is trite law that the maximum penalty is reserved for the worse type case as held in the case of Goli Golu v The State [1979] PNGLR 653.

6.	For purposes of sentencing, personal particulars of the prisoner are these. He is 45 years old, married to the deceased and they have 3 children. Their children are in grades 2, 4 and 6 respectively. At the time the offence was committed, he was living and working as a carpenter at Lihir Gold Mine in the New Ireland Province while his family was living at Pirtop village on the Duke York Island. He is the fourth child in a family of 8 and he has 3 brothers and 4 sisters. 

7.	During allocutus, he apologized to God, to the Constitution, to the Court and to everyone in the courtroom. He also apologized to the community. He said he was once employed but is now in custody. He said he abandoned his two blocks of coconut, 3 blocks of betelnut, a piggery and a boat. He said he is feeling sorry for his 3 children regarding their future as there is no one to look after them. He said his father is deceased, and his mother is old. He asked for the Court’s mercy and sympathy to place him on probation.
 
8.	Let’s discuss the mitigating and aggravating factors. In his favor, the mitigating factors are these. He is a first-time offender with no prior convictions, and he pleaded guilty early to the charge. He also co-operated with the police and made admissions readily. More importantly, there was de facto provocation as his wife admitted to having an extra marital affair with his nephew.

9.	Against him, the aggravating factors are these. He assaulted his wife with excessive force by punching and kicking her. He intended to cause her grievous bodily harm when he learned of her affair with his own nephew. Further, he hit her on vulnerable parts of her body and her injuries caused her death shortly after the assault. Finally, this offence is prevalent in society.

10.	I am guided by the principles outlined in Manu Kovi v. The State [2005] SC789 where the circumstance of this case falls within the range of the first category with a sentencing range of 12 - 15 years. I am not bound by these sentences.

11.	Counsel for the prisoner referred to the case of State v. Laha Joe Waluka N5788 where the offender pleaded guilty to murder. He was armed with a bush knife and was trying to stop a fight. He had been shot at with a stone, allegedly by the deceased. He ran at the deceased, swung the bush knife at him and slashed him just below the knee. The deceased was rushed to hospital and died there a month later from the bush knife wound. He was sentenced to 15 years imprisonment and the pre-sentence period in custody was deducted and four years of the sentence was suspended subject to conditions. His counsel submits that the appropriate starting point for the prisoner is 13 years, and his head sentence should be 12 years or less in consideration of the mitigating factors. 

12.	In response, the State referred to several cases but the most relevant one is the case of State v. Vira Yaurabae [2016] N6253. In that case, the offender pleaded guilty to one count of murder pursuant to section 300(1)(a) of the Criminal Code. The offender had assaulted her husband, who is the deceased during an argument and then she fled. On the next day, the deceased found her in town and an argument erupted. During the scuffle and struggle, the offender stabbed the deceased on his chest. There was de facto provocation. The Court held that the circumstances of the case fell under category 1 of the Manu Kovi case and sentenced the offender to 10 years imprisonment of which 2 years were ordered to be served in custody whilst the balance was suspended with few conditions. 

13.	The State argues that each case must be decided on its facts and circumstance and in this case, the prisoner should be sentenced within category 1 and 2 of the Manu Kovi sentencing guidelines. Further, the State says this is a serious case where a life has been lost and so it calls for a personal and general deterrence and a stern warning should be sent out to others not to commit this offence.

14.	In the presentence report, it shows that the prisoner’s father has passed on and his mother is still alive but old. His mother and siblings speak highly of him and say he is a good person. His sister Mativa Makata and his elder brother Dickson Leo blame the prisoner’s wife for being unfaithful to him but they all are willing to pay compensation in cash and in shell money.

15.	The ward member of Pirtop also praises the prisoner for his outstanding behavior within the community. He says the prisoner takes lead in organizing the young people to do community work and he sees him as a future leader as he plays the role of facilitating resolution of community issues. He said the prisoner’s motive was to discipline his wife but somehow he went too far when he hit her on the wrong part causing her death. He says further that this matter can be resolved customarily where compensation can be paid, and the community will witness the ceremony

16.	From the victim’s family, her brother spoke of the prisoner as a good person and he has paid bride price for 400 fathoms of shell money which is equivalent to K2,000. He said the issue with her sister has been going on for about 2 years and they were not told of it until it was too late. He said he is feeling sorry for his sister’s children and is concerned about their welfare. He said only 5 fathoms of shell money was paid after her death and they are now demanding K60,000 for their sister. He says it is up to the Court to deal with the prisoner. The uncle of the deceased also said that 200 fathoms of shell money was brought to the family of the deceased, but that payment was returned. He said the prisoner and the deceased are at fault. He repeated that a demand of K60,000 and 500 fathoms of shell money was made to the prisoner and his family, but that amount has now been reduced to K10,000.

17.	 This is not a worse type case and so the maximum penalty will not apply in this case. The starting point for sentence is between 12 to 15 years in prison. A life was lost and so I take that as a serious aggravating factor against the prisoner. He must be penalized for the crime he has committed. However, I also consider the circumstances that led him to commit this crime. He has worked hard for his family away in another province and he adequately provided for them. When he found out that his wife was having an affair with his own nephew, that made him upset. He had to leave work to come home and find out for himself. When he met his wife at the garden and enquired about the affair, she admitted the extra marital relationship. In the heat of the moment, he became enraged, and he assaulted her. There was therefore de facto provocation and he only wanted to hurt her to stop her from engaging in the affair, not kill her. 

18.	As it is, the mitigating factors balance out the aggravating factors. In the circumstances, I am satisfied that it warrants a sentence of 10 years on a charge of murder.

19.	The prisoner has been in custody now for a year and a month. This period will be deducted from his head sentence. This leaves 8 years and 11 months.

20.	The discretion to suspend sentence must be exercised according to proper principles. In Public Prosecutor v Don Hale (1998) SC564, the Supreme Court said that a sentence may only be suspended if it is supported by a favourable pre-sentence report and the community has shown a willingness to assist in rehabilitating or assisting the prisoner. In his presentence report, it does support his rehabilitation at home, if he is given a non-custodial sentence. Both his family and the family of the deceased say he is a good person, and his local ward member says this matter can be resolved customarily where compensation can be paid, and the community will witness the ceremony. Hence, I order that the prisoner serve a term of 2 years and that balance of 6 years and 11 months be wholly suspended on the following conditions: -

(i) 	he enters into a good behaviour bond, without sureties.
(ii)	he does not commit similar or another offence.
(iii)	he pays K3,000 cash and 400 fathoms of shell money which is equivalent to K2,000 at a reconciliation ceremony to be witnessed by his community.
(iv)	he attends his local church every Sundays.
(v)	he performs 100 hours of unpaid community work.

Orders

21.	The Orders of the Court are: 

(i)	The prisoner is sentenced to 10 years imprisonment.
(ii)	His presentence term of 1 year and 1 month is deducted.
(iii)	He will serve 2 years in prison in light labour.
(iv)	The balance of 6 years and 11 months is wholly suspended on conditions imposed.

________________________________________________________________
Public Prosecutors Office	:  Lawyer for the State
Public Solicitors Office:  	 Lawyer for the Prisoner