N9566

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 822 OF 2021

BETWEEN
THE STATE

AND
ESTHER PENI NEMA

Mt Hagen:  Toliken, J
2021:  13th August
2022: 14th, 30th March

CRIMINAL LAW – Practice and Procedure – Sentence – Murder – Guilty plea – Killing in domestic setting – One stab wound to chest with kitchen knife – Co-wives – Lack of equal attention to wives – First-time offender – No strong intention to cause  grievous bodily harm – Remorse – De facto provocation – Deceased initial aggressor – Prevalence of this type of killings and weapon of choice – Appropriate sentence – 14 years less time in pre-sentence detention – Suspension inappropriate – Criminal Code Ch.  262, s 300 (1) (a).

Cases Cited

Lawrence Simbe v The State [1994] PNGLR 38.
Avia Aihi v The State ((No 3) [1982] PNGLR 92
Goli Golu v The State [1979] PNGLR 653
Thress Kumbamong v The State (2008) SC1017
Manu Kovi v The State (2005) SC789
The State v Robert (2021) N9002
The State v Kiaro (2020) N8610
The State v Kumine (2018) N7532
The State v Kondo (2018) N7483
The State v Pinapang ((2017) N6616
The State v Matai (2011) N4256
The State v Sandra Piamnok; CR 998 of 2013 (Unreported and unnumbered judgment dated 13th November 2015)
The State v Christine Omui, CR No 384 of 2007 (Unreported and unnumbered judgment)

Counsel:

J Kesan, for the State
D Pepson, for the Prisoner

SENTENCE

30th March, 2022

1.	TOLIKEN J:	Esther Peni Nema, on 13th August 2021 you pleaded guilty to an indictment charging you for the murder of one Carolyn Nema pursuant to Section 300 (1)(a) of the Criminal Code, Ch. 262.  For numerous reasons principal among which were the lockdowns we had in Hagen due to Covid-19 infections and deaths among court staff, coupled with my going on recreation leave on the first two months of this year we were not able to receive submissions on sentence until 14 March 2022.   	

2.	The deceased Carolyn Nema is your stepdaughter. You and her mother are married to one husband, Samuel Nema. Her mother is the first wife while you are the fourth.  On 24th January 2021, you and the deceased’s younger sister had an argument over a family plot. You did not resolve your argument and so, the day after, 25th January 2021, sometimes between 7.00 – 8.00p.m you picked an argument with the deceased Carolyn over the same plot of land. During the argument you called the deceased a prostitute. This made her angry and she struck at you with a mug. You retaliated by stabbing her twice on her arm, intending to cause her grievous bodily harm. However, the cut severed a main blood vessel and the deceased died from severe loss of blood. 

3.	The postmortem report revealed that the deceased sustained “Two deep lacerations to her left arm. One under axillar measuring about 4cm and another on her posterior arm measuring 5cm.” The left axillary artery was severed. The report concluded that the deceased died from multiple organ failure caused by severe blood loss. 
  
4.	I convicted you after satisfying myself from the depositions that your guilty plea was supported by the material therein and thus safe.

THE OFFENCE

5.	The offence of murder carries a maximum penalty of life imprisonment subject to the court’s discretion under Section 19 of the Code to impose a lesser sentence.

6.	The maximum penalty is, however, usually reserved for the instances of offending. Each case must also be treated on its own peculiar facts and circumstances so that an offender gets a sentence that befits his crime. (Goli Golu v The State [1979] PNGLR 653; Avia Aihi v The State ((No 3) [1982] PNGLR 92; Lawrence Simbe v The State [1994] PNGLR 38).

SENTENCING ISSUE(S)

7.	Is your case therefore a worst case of murder such that it ought to attract the maximum penalty; or does it deserve a lesser sentence for a term of years?  What then should be an appropriate sentence for you.

SENTENCING GUIDELINES

8.	A sentencing judge or court is often guided by sentencing guidelines (and tariffs) set by the Supreme Court from time to time. The Supreme Court has done that for homicide offences including the offence of murder. The current leading case in this regard is Manu Kovi v The State (2005) SC 789. 

9.	The Supreme Court there categorized the circumstances of offending in terms of gravity and seriousness and suggested a sentencing range for each category. The following are the guidelines and suggested tariffs for murder according to Manu Kovi:  

CATEGORY	MURDER	
Category 1	12 – 15 years	
Plea
Ordinary cases
Mitigating factors with no aggravating factors	No weapons used – Little or no pre-planning
Minimum force used
Absence of strong intent to do GBH.	
Category 2	16 – 20 years	
Trial or Plea
Mitigating factors with aggravating factors	No strong intent to do GBH
Weapons used
Some pre-planning
Some element of viciousness.	
Category 3	20 – 30 years	
Trial or Plea
Special Aggravating factors
Mitigating factors reduced in weight or rendered insignificant by gravity of offence	Pre-planned. Vicious attack
Strong desire to do GBH
Dangerous or offensive weapons used e.g. gun or axe
Other offences of violence committed.	
Category 4	Life Imprisonment	
Worst Case – Trial or Plea
Special aggravating factors
No extenuating circumstances
No mitigating factors or mitigating factors rendered completely insignificant by gravity of offence.	Pre-meditated attack
Brutal killing, in cold blood
Killing of innocent, harmless person
Killing in the course of committing another serious offence
Complete disregard for human life.	

10.	These are, however, guidelines only and do not remove or fetter the sentencing discretion of the Court under Section 19 of the Code to impose a sentence that best fits the circumstances of each individual case. (Thress Kumbamong v The State (2008) SC 1017) 

COMPARATIVE SENTENCES 

11.	In determining an appropriate sentence for you, I am guided also by what sentences other offenders who killed in similar circumstances like yours. Both counsel cited several cases to me but none of them are similar to your case. I, however, find guidance in the cases that follow. 

12.	The State v Robert (2021) N9002, Batari J): the offender and his brother had been arguing over their father’s oil palm block for some years. One night while his brother was sittings with others, the offender stealthily approached him from the back and struck him on the head with an axe. He then followed through by cutting him on the leg when he fell. The court held this to be a brutal surprise killing which it likened to a public execution. The offender also had a strong intention to cause grievous bodily harm. The offender had some good mitigating factors, but these were rendered insignificant by the gravity of the offence. The court was of the view that the circumstances of the case placed it within Categories 2 & 3 of the Manu Kovi tariffs and sentenced the offender to 18 years imprisonment. 

13.	The State v Kondo (2018) N7483, Miviri AJ: The offender and his brother the deceased had a dispute over harvesting arrangements over a family oil palm block. The offender went looking for the deceased and when he found him, he cut him several times on his arms and legs with the intention of causing grievous bodily harm only. The deceased lost aa lot of blood and died. The court held that the case fell under category 3 of the Manu Kovi tariffs because a dangerous weapon was used, there was a strong intention to cause grievous bodily harm, and the attack was vicious. The prisoner was sentenced to 25 years. 

14.	The State v Matai (2011) N4256: The prisoner pleaded guilty to murdering his brother-in-law by cutting him with a bush knife. He inflicted several cuts to the deceased on various parts of his body. The prisoner and the deceased had long running tensions between them. The court found that there was non-legal provocation, but the viciousness of the attack warranted a heavy sentence hence he was sentenced to 22 years.

15.	The State v Sandra Piamnok; CR 998 of 2013 (Unreported and unnumbered judgment dated 13th November 2015), the offender had an argument with the deceased, a fellow student at the Salamo School of Nursing, Esa’ala. They got into a scuffle and the offender stabbed the deceased with a small knife just above the armpit. The deceased died from massive blood loss. I sentenced the offender there to 10 years imprisonment, less time in custody, on a plea of guilty. She was a first-time youthful offender. I suspended 4 years and 6 months from her resultant sentence of 7 years and 6 months largely because the offender was a youthful offender.

16.	The State v Kiaro (2020) N8610, Narakobi J): The offender had a confrontation with the victim and inflicted 2 stab wounds on victim - one to his right arm and another to his left chest. The victim died from those wounds. There was an element of de facto provocation. The prisoner is a first-time offender, pleaded guilty. He was sentenced to 13 years imprisonment. 

17.	The State v Pinapang ((2017) N6616, Cannings J: there the offender, aged 20 years at the time of the offence, had an argument with his adopted mother in a bush location and used a bush knife to cut her on the neck. It was a severe wound and she died instantly. He pleaded guilty to murder. The court there rejected the defence’s submission that the case fell under Category 2 of the Manu Kovi tariffs. It agreed with the State that it fell under Category 3. It held that the starting point for sentencing for this sort of murder (special aggravating factors, mitigating factors reduced in weight or rendered insignificant by gravity of offence, vicious attack, strong desire to do grievous bodily harm, offensive weapon used) is 20 to 30 years imprisonment.

18.	Even though the offender had mitigating factors such as that he was the sole attacker, high level of cooperation with the Police, early admissions, pleaded guilty very early, was a first-time offender, had a difficult family upbringing, and had expressed remorse, these were not sufficient to warrant a sentence below the starting point. This was because of the aggravating factors which included the use of lethal weapon, brutal killing and killing of a defenseless, harmless and an entirely innocent person. The court therefore imposed a sentence of 21 years, none of which was suspended.

19.	The State v Kumine (2018) N7532, Numapo AJ (as he then was):  the prisoner pleaded guilty to one count of murder. On the morning of the date of the offence the prisoner was on her way to work when she saw the deceased at Lae Biscuit bus stop. She picked up a piece of wood and hit the deceased several times on her head and body intending to cause her grievous bodily harm. The deceased sustained serious injuries and received medical assistance on that day. The next day she, however, collapsed and was rushed to Angau General Hospital where she later died. The offender was sentenced to 12 years.

20.	The State v Christine Omui, CR No 384 of 2007 (Unreported and unnumbered judgment): The offender stabbed the deceased with a knife following an argument. The deceased was pregnant when she was stabbed. There was a de facto provocation in that the deceased mocked the Prisoner that she was old and cannot find a husband. The offender pleaded guilty and was sentenced to 16 years imprisonment.

21.	 Let me now move on to your case.

ANTECEDENTS
 
22.	You are from Yanakale Village, Magarima District, Southern Highlands Province. You are married with 2 children – a girl aged 5 years and a 2-year-old boy. You are a member of the Christian Apostolic Church. You have never been to school. Prior to your offending you lived a subsistence life, sustaining yourself and your children by gardening and selling your produce. You have no prior convictions and had been in pretrial/ sentence detention since you voluntarily surrendered to the police on 02nd February 2021 that is 1 year, 1 month and 28 days.

ALLOCUTUS

23.	You apologized to God for breaking his law and to the State for breaking State law. You said that the deceased was your daughter and you said sorry for taking her life. You also apologized to your family for your trouble and for the pain you have put them through. You pleaded for mercy and leniency. You said that if you were to be gaoled for a long time your two children will suffer.

SUBMISSIONS

24.	Mr. Pepson submitted on your behalf that yours is not a worst case and ought to fall within the first category of Manu Kovi, thus, attracting a sentence between 12 – 15 years. But it can also easily fall under the first two categories for manslaughter because you had very little intention to cause harm on the deceased.  Mr. Pepson submitted that there are mitigating factors and as well as extenuating circumstances in your favour. Your offence is extenuated by the fact that you were provoked in the non-legal sense by the deceased’s sister when she uprooted coffee trees from your coffee garden. The deceased further insulted you by calling you a prostitute and describing your two children as illegitimate. Furthermore, the deceased was the aggressor, having attacked you first. You merely retaliated and cut her with a sharp bottle. 

25.	Given the circumstances of the case counsel submitted that an appropriate sentence for you ought to be in the range of 8 to 10 years. 

26.	The Court unfortunately does not have the benefit of a pre-sentence report (PSR).

27.	Ms. Kagl, standing in for Mr. Tengdui submitted on behalf of the State that the prisoner’s sentence should be between 16 – 20 years placing it within Category 2 of the Manu Kovi Tariffs.  Given the prevalence of homicide offences, attempted murders, grievous bodily harm and wounding cases which bespeaks of a lack of respect for the sanctity of life a strong deterrent sentence is needed. Given the circumstances of case an appropriate sentence therefore ought to be 18 years. The Court may then its discretion suspend a part of the sentence. 

MITIGATING FACTORS

28.	I accept the following factors as mitigating the prisoner’s offence:

(i)	She pleaded guilty early to the charge.
(ii)	She is a first-time offender.
(iii)	She was provoked in the non-legal sense.
(iv)	She was of prior good character.
(v)	There was no pre-planning involved.
(vi)	She acted alone.
(vii)	She appears remorseful for her actions.
(viii)	The deceased was the initial aggressor.  She attacked the prisoner with the mug which she eventually used to stab the deceased.
(ix)	The offence was self-inflicting as the deceased was the offender’s stepdaughter. 

AGGRAVATING FACTORS

29.	Against her, however, are the following:

(a)	The prisoner used a dangerous weapon.
(b)	There was intention to cause grievous bodily harm. 
(c)	There was some viciousness in the attack as the prisoner struck the deceased twice. 
(d)	The offence was committed in the night thus impeding the chances of the deceased to defend herself.   
(e)	Killings in the domestic setting, as are other types of killings, are very prevalent. 

WHETHER WORST CASE

30.	So, is this a worst instance of murder?  I agree with both counsel that it is not.  Therefore, it should not attract the maximum penalty of life imprisonment.  There was little or no pre-planning, no strong intentions to cause grievous bodily harm, but a dangerous object – a broken bottle - was used to commit the offence.  The case would indeed fall in the upper end of Category 1 and the lower end of Category 2 of the Manu Kovi tariffs.  It should therefore attract a sentence between 15 and 17 years. What then should be an appropriate sentence for you?

DELIBERATIONS

31.	It must be stated quite clearly or categorically that killings or homicide offences are prevalent and despite heavy sentences by this court, these do not seem to have had any impact at all. Everywhere around the country people continue to kill others for all sorts of reasons. Some kill people deliberately. Others, only intend to cause their victims grievous bodily harm, while others do not have such intentions but end up killing their victims, nonetheless. 

32.	 In the wake of all this, lives are destroyed, families are left without support, children become destitute and of course offenders are gaoled and their own families suffer as well. In a country where violence seems to be second nature in some areas, the sanctity of life unfortunately is not respected or valued at all. People feel no compunction at all in taking a precious life.

33.	Some killings, like yours, are completely unnecessary and avoidable. People simply cannot control their anger. They get into arguments which soon turn physical and because they cannot simply walk away for fear of losing face, they end up injuring or worse still taking a precious life.

34.	In your case I accept that you have some very good mitigating factors. You pleaded guilty very early to your charge and co-operated with the police and you are a first-time offender. You were provoked in the non-legal sense, by the fact that the deceased’s sister uprooted your coffee trees and when you remonstrated against that you were called a prostitute by the deceased who further insulted you by saying that your two innocent children were illegitimate.
  
35.	You did not take these insults lying down. Rather you retaliated by calling the deceased a prostitute as well. That angered her and she lunged at you with a coffee mug. You reacted, not with the intention of defending yourself, I would say, but of fighting her for the insults she threw at you.

36.	While the deceased and her sister were the initial aggressors, you are not entirely blameless yourself. You challenged your assailant and fought her, and armed as you were with a broken bottle, cut her arms severing a major blood vessel which directly caused her death due to heavy loss of blood. 
 
37.	You took a young life away. And as I have said, this killing was totally unnecessary. It could have been avoided had you chosen to solve your differences amicably. In all these, the man who was supposed to take the lead in resolving disputes between his wives and their children is conspicuously absent. 

38.	Polygamous men like your common husband should have the balls to rise up and control things in his household. Unfortunately, they do not, and their wives end up killing or seriously injuring themselves.

39.	Be that as it may, your husband is not before the court. You are. You decided to confront and fight the deceased. You decided to arm yourself with a broken bottle and attacked the deceased with it and you ended up killing her. And for that you must be served your just dessert.
 
40.	The sentences in the cases I have cited above ranged from as high as 25 years to a low 10 years. I do not think that you should receive a sentence as high as 25 years, let alone, anything beyond 20 years. But I do not also think that you should get anything as low as 10 or 12 years. The circumstances in The State v Christine Omui (supra) appear to be somewhat similar to yours and so, you ought to get a similar sentence.

41.	As I said your case falls between Category 1 and 2 of Manu Kovi and an appropriate sentence ought to be between 15 – 17 years. Because of the prevalence of this offence and other homicide offences in this province, a deterrent and punitive sentence must be imposed. Whether you are personally deterred is not something that the court can guarantee will happen. That is matter that is entirely within your control, but what we can be sure of is that you have already started to reap the reward or consequences of the actions as obviously are regretting your impulsive behaviour.
 
42.	You have left behind two very young children who will grow up not knowing their mother. That is not something that any loving mother wants for her children. Unfortunately, you have put your children in dire straits, and you have nobody else to blame but yourself for their predicament. (Utieng v The State; SCR No. 15 OF 2000 (Unnumbered and unreported judgment 23rd November 2000)

43.	Considering all the above, I am of the view that an appropriate sentence for you ought to be 14 years. I therefore sentence you to 14 years imprisonment less the period of 1 year, 1 month and 28 days you had been in pre-sentence detention.
 
44.	None of the resultant sentence will be deducted.   

ORDERS

45.	The orders of the Court are:

1.	The prisoner is sentenced to 14 years imprisonment with light labour.

2.	The period of 1 years, 1 month and 28 days spent in pre-sentence detention is deducted from the sentence.

3.	 None of the resultant sentence shall be suspended.

4.	The prisoner shall serve her sentence at Baisu Corrective Institution.

5.	The prisoner has the right to appeal to the Supreme Court within 40 days if she is aggrieved by her sentence. 

	Ordered accordingly. 

__________________________________________________________________
P Kaluwin, Public Prosecutor:  Lawyer for the State	
L B Mamu, Public Solicitor: Lawyer for the Prisoner