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State v Pupu [2024] PGNC 453; N11382 (15 June 2024)

N11382

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 237 OF 2024

BETWEEN:

THE STATE

AND

ROSE PUPU

BAISU: KUPMAIN. AJ
06^th, 7^th, 10^th, 11^th & 15^th June 2024

CRIMINAL LAW – Sentence – Domestic Violence –Nagging wife stabbing husband – Strong desire to cause death – Mitigating and aggravating factors considered – Attempt to solve Domestic Violence unsuccessful – Criminal Code, Section 300 (1)(a) (Ch. 262).

Cases Cited:

Avia Aihi -v- The State (No.3) [1983] PNGLR 93
Goli Golu -v- The State [1979] PNGLR 653
Manu Kovi -v- The State (2005) SC789
State -v- Hendere Roy [2015] PGNC 46, N5968
State -v- Rachael Waim, CR No. 90 of 2021 (2021)
State -v- Relvie Joe (2020) 127; N2832
State -v- Pauline Muturu [2012] PGNC 322; N5163
State -v- Evelyn Yapa [2023] PGNC 479; N10615

Counsel:
Philip Tengdui, for the State
Luke Toke, for the prisoner

SENTENCE

15 June 2024

1. KUPMAIN. AJ: This is my decision on sentence of the prisoner Rose Pupu who pleaded guilty to one count of murder under Section 300 (1) (a) of the Criminal Code Act.
   

Charge

2. On an Indictment dated 7^th of June 2024 and presented on the same date, State charged the accused with one count of murder. This charge was brought under Section 300 (1) (a) of the Criminal Code Act. Ch. 262. The charge on the indictment was that the prisoner, Rose Pupu of Yalis Village, Wapenamanda, Enga Province, on the 12^th day of March 2023 at Wapenamanda, in Papua New Guinea murdered Saul K Pupu. The maximum penalty for this charge under Section 300 (1) (a) of the Criminal Code Act Ch.262. is subject to Section 19, life imprisonment.
   

Issue

3. The main issue before this court is “what is the appropriate sentence to be imposed in this case?” In determining this issue, the courts have over the years developed some general principles to guide the courts to arrive at the appropriate sentence.
   

General Principles on Sentence

4. The general principles relating to sentence is clear in our jurisdiction. Starting off with the court’s Section 19 sentencing discretion under the Criminal Code to impose penalty other than the maximum. This court is also aware that the maximum sentence is normally reserved for the worst category of cases. Goli Golu -v- The State [1979] PNGLR 653 and Avia Aihi -v- The State (No.3) [1982] PNGLR 92. It is also understood that each individual case must be decided on its own facts and circumstances. Lawrence Simbe -v- The State [1994] PNGLR 38. This court will adopt and apply these general principles of law on sentencing in this case before me.
   
5. The approach to sentencing which I adopt and apply in this case is the principle as stated in the case of Rex Lialu -v- The State [1990] PNGLR 487. That is that the court must have regard to the all the aggregate effect of all relevant considerations and then determine an appropriate penalty. The aggregate effect comes from several considerations such as the circumstances giving rise to the commission of the offence; the personal circumstance of the offender; and the mitigating and aggravating factors and whether there are any extenuating circumstances or special aggravating circumstances.
   

Facts

6. The facts which the accused pleaded guilty to were that on Sunday the 12^th of March 2023, between 10.00am to 12.30pm, the offender Rose Pupu was atWapenamanda at the Four-Square Secondary School grounds. Sometime after

10.00 am that morning, she went looking for her husband, the deceased Saul
K Pupu at the Wapenamanda Airport area. She was accompanied by three others of her family members. Having located the deceased, she then forced the deceased to return to the school where they were residing. After arriving at the school, the offender started arguing with the deceased. In the process of the argument, the offender stabbed the deceased on his right thigh with a kitchen knife that she had on her person. The knife wound severed a main blood vessel which resulted in heavy bleeding. The deceased was rushed to the hospital at Mambisanda but died because of loss of blood. The offender was later arrested and charged.

7. The offender pleaded guilty and was subsequently convicted of the charge of murder on the indictment.
   

Antecedents

8. As per the antecedent report the prisoner has no prior conviction, which means this is her first time to be before the court and this goes in her favour.
   

Personal Particulars

9. Prisoner is 30 years of age. She comes from Yalis village, Wapenamanda, Enga Province. She is married with two children. Her first born son is 7 years old while the second born is 1 year and 2 months old. The children are living with the deceased’s relatives but without proper care and support.
   
10. Her parents are still alive. Prisoner is the fourth born in the family of five siblings. She graduated with a Certificate in Nursing at Kungumanda CHW College in 2022. While she was working as a trainee with Mambisanda Rural Hospital the incident took place. She is a member of the Four Square Gospel Church.
    

Allocutus

11. In her statement on allocutus she thanked the court for coming and hearing her case. She stated;
    

“In the eyes of God, I have done the biggest wrong. I thought I had the right to talk about the rights and welfare of the kids and myself. My late husband obtained a bank loan and used that money with a prostitute. I and my children were suffering in the house. I told my husband why he was doing this to me and my children. ‘You are the head of the family’. He started fighting me. He lifted me and tried to throw me down from the verandah and I thought of my life. He put me down on the floor and tried to squeeze my neck. I felt shortness of breath so I stab his leg knowing that he will free me. But he lost a lot of blood because he was under the influence of liquor so I myself took him to the Hospital.

I took him to the hospital but he died on the way. I took my dead husband to the morgue and I thought of killing myself and dying as well but I thought about my children and I went to the Police. I surrendered to the police station. He is not my enemy, he is my husband. I loved him and I married him and we have under age children. The baby is one year and 2months old. They are with other people.

I say sorry to God that I have violated the 6^th Commandment.

I say sorry to my late husband and to his immediate family members and our innocent children.
I say sorry to the Constitution and state that I have violated the law.

Finally, I did not intent to kill my late husband, but he died and I was surprised.

Father is gone, mother is in jail. Whilst here I heard that my children are with other people. Life is expensive and I am concerned about my kids. I’m worried about the welfare of my kids. I’m worried that they left school and staying back at home. I’m worried about the future of my kids.

Honourable court, can you have mercy on me and give me little time please. If I can be placed on probation and I can stay outside. Honourable court, I’m begging, have mercy on me. Thank you that’s all and God can bless you all”.

Submissions

12. Mr. Toke for and on behalf of the prisoner cited several mitigating factors for the court to consider and they are:
    
    1. Prisoner pleaded guilty at his earliest opportunity and save court’s precious time.
    2. First time offender with no prior conviction;
    3. She surrendered to the police right away;
    4. Prisoner showed genuine remorse for the offence during allocutus;
    5. Prisoner admitted to the offence right from the beginning, and it made the job of police so easy;
    6. No pre-planning, and she acted alone; and
    7. Customary compensation was paid in the sum of K110, 850.00 cash and 110 live pigs. (Reference is made to the Village Court Settlement Order).
       
13. Mr. Toke further submitted that there were some extenuating circumstances present; Firstly, such as defacto provocation. Yes, I find that there was some degree of provocation in a non-legal sense, but I do not see it as an extenuating circumstance. The evidence from Kerando Wagowa a fellow teacher (deceased’s neighbour) inside the Four-square Primary School, portrays the prisoner as an aggressive person and the deceased as a caring person. In his statement on file which is dated 15^th March 2023 he stated;
    

“ The deceased ‘s wife is so vocal and aggressive type woman who has got no respect for her husband.”

14. On number of occasions the couple were called to for counselling before the school administration and the board of management of the school.

The Principal Mr. Peter Nukunts in his report dated 23^rd March 2023. described their domestic situation as follows;

“From schools’ point of view, domestic argument and fighting among this couple is a chronic issue as I have witnessed during my stay in this school since 2019. I have called them to the principal’s office to discuss this ongoing problem...in front of BOG Members and school administration. We tried to establish the root cause of the problem but every time when we discuss it, we often come up with the same issue as ‘normal wife and husband disagreements’....Sometimes they use things like spades, pieces of iron like pipes, bush knives or what ever they could lay their eyes on. Observing their fighting for a couple of years, I made this statement in front of the Board and themselves during one of our normal counseling sessions that, “the way you are fighting is quiet dangerous so in the future if this fighting continues, I will not be surprised if one of the partner receives a permanent disability or loses his or her life.”

Last year, late Mr. Pupu’s sister in-law came and was with the family as a babysitter. She was another added nightmare to Mr. Pupu as she was seen arguing with him on many occasions and was even fighting with him. She even chased him out of his own house in the school in one incident.”

15. From this I find the following:
    
    1. The prisoner and husbands’ family life was not a good one over many years. Their domestic life was full of violent fights.
    2. School Administration tried on numerous occasions to counsel and assist them to put an end to this domestic violence,
    3. The domestic violence was due to “normal wife and husband disagreements.” What these normal wife and husband disagreements were not put to the school administration and so we will never know. They did not assist the BOG to find a solution.
    4. The Board of Governors of the school found nothing to administratively deal with the deceased who was a teacher at that school.
    5. Who was the cause of these continuous domestic violence is not known, only to say that the husband must respect the wife and wife must respect the husband. There was no respect in their family. In my view the domestic violence continued over time because of lack of respect for each other.
       
16. Secondly the prisoner was infected with the HIV/AIDS which the prisoner contracted from her late husband. Mr. Toke asked the court to refer to a medical report attached. I have searched the court file and there is no medical report of such and also Mr. Toke’s submission does not attach a medical report to that effect and so I will not take that into account.
    
17. Firstly, I do not see how this matter of HIV/AIDS infection can be used as a matter of mitigation. Secondly, this is a confidential matter which should not be raised which the public will know about. This will have a bad effect on the prisoner as people will treat them differently and they will be marginalized. Therefore, I reject the submission as there is no evidence of such.
    
18. Mr. Toke submitted that according to the Manu Kovi guidelines this case will fall within category 2 and submitted that there was the;
    
    1. Use of a dangerous weapon,
    2. No strong intention to do grievous bodily harm, and
    3. Some elements of viciousness are present.
    4. Prisoner did not pre-plan to attack the deceased.
       
19. He asked the court to follow the five cases set out below, which the court imposed term of years by considering certain factors. Most importantly, emphasis has been placed on the presence of provocation in the non-legal sense. The circumstances noted there are so serious. Having considered the precedent cases and others discussed elsewhere in this submission, the current case is less serious.
    
20. In support of his submission, Mr. Toke referred the court to 5 comparable cases of murder to guide this court. The sentences in these case range from 10 to 14 years imprisonment. The cases referred to are:
    

State –v- Hendere Roy [2015] PGNC 46; N5968:

Here, deceased and prisoner were married couple. They had an argument over cooking arrangements. Prisoner refused to cook. Deceased hit her on her shoulder blades and legs with a stick. Prisoner grabbed a kitchen knife and stabbed the deceased on his left chest that pierced the heart. This led to heavy bleeding and the deceased died as a result. Sentenced to 14 years in prison. Time spent in pre-trial custody deducted. From the balance, only 6 years shall be served in prison, and the balance to be suspended with conditions.

State –v- Rachael Waim, CR No. 90 of 2021 (2021)

Here Prisoner and her husband had an argument over money. They also argued because the prisoner had searched for her husband the previous night and couldn’t find him. When the husband went close to the prisoner during the argument, prisoner raised a kitchen knife and stabbed him on his neck. The knife penetrated through the neck and the upper part of his lung thereby causing his death. Offender was sentenced to 10 years imprisonment IHL. Time spent in custody has been deducted.

State –v- Relvie Joe [2020] 127; N2832:

Here, the prisoner attacked his partner at a beach front. He assaulted her at one location and followed her to another location on the beach and further assaulted her with hands. Then he stabbed her once from the back on her left shoulder with a kitchen knife. The massive bleeding that resulted from a penetrating wound to the heart let to the death of the deceased. Sentenced to 12 years imprisonment less pre-trial custody period.

State –v- Pauline Muturu [2012] PGNC 322; N5163:

Here, the offender pleaded guilty to murder. Prisoner saw the deceased standing in front of a canteen. He was drunk. Deceased called out to her. When she approached him, an argument erupted between them. During the argument, deceased punched the prisoner, and she fell to the ground. Deceased walked away when prisoner lay on the ground. Prisoner woke up, ran after the deceased and stabbed him from behind with a kitchen knife. The knife penetrated the left chest and pierced the heart which resulted in death. Sentenced to 13 years less pre-trial custody period of 1 year, 1 month and 28 days. From the balance she should serve only 6 years in prison. After 6 years, she shall be released and placed on Good Behaviour Bond for the balance of sentence.

State –v- Evelyn Yapa [2023] PGNC 479; N10615:

Here, the prisoner pleaded guilty to Murder when charged for killing her co-wife. When her husband took the deceased as his wife, marital problems surfaced. The husband paid more attention to the deceased than the prisoner and his children. Upon meeting the deceased, a fight erupted in which the prisoner took a knife and stabbed the deceased several times. The deceased died as a result. She was sentenced to 12 years imprisonment. The period in pre-trial custody was deducted. From the balance, prisoner would serve only 6 years. Upon completion of the 6 years, she shall be placed on probation for the balance of the sentence with terms and conditions.

21. Mr. Toke submitted that the appropriate sentence in this case should be 12 years or below. The pre-trial custody period of 1 years and 3 months shall be deducted from the balance, prisoner can be ordered to serve only 6 years. Upon completion of the 6 years, she shall be placed on probation for the balance of the sentence with terms and conditions.
    
22. Mr Tengdui for the state on the other hand, submitted by way of rebuttal that compensation was paid, but in the amount of K35, 000, 24 pigs and 1 goat. Not in the amount as submitted by Mr. Toke, counsel for the prisoner. He asked the court to refer to the Village Court Settlement Order but that has not been provided to the court. I accept that compensation was paid in the amount of K35 000, 24 pigs and 1 goat.
    
23. Mr. Tengdui also submitted by way of rebuttal that the prisoner’s 2 sons were taken care of properly by the deceased’s family members. One is attending Wapenamanda International Christian School. Photographs of both children were produced to the court. They are being properly looked after. However, this court notes that the prisoner is the biological mother of the two children. The thought of the prisoner not being with her two children is stressful to her mentally and can be detrimental in the long run. I take that into account.
    
24. Mr. Tengdui for the state submitted also that this case fell within category 2 of the Manu Kovi guidelines and suggested 18 years as a starting point to be appropriate. He advanced the following as aggravating factors;
    
    1. Dangerous weapon was used.
    2. There was some preplanning as the prisoner was armed with a kitchen knife.
    3. Offence is prevalent
    4. That a young working man lost his life.
    5. He left behind 4 children who depended on him.
    6. And that the prisoner is a nagging woman.
       
25. Mr. Tengdui for the State agreed with the comparable cases referred to by Mr. Toke on charge of murder to guide this court. The sentences in those cases range from 10 to 14 years imprisonment.
    
26. Mr. Tengdui further submitted that this case fell within category 3 of the guidelines set out in the case of Manu Kovi v The State (2005) SC789. He suggested a term of years between 24 and 28 years to be appropriate in this case. Mr. Tengdui by way of rebuttal submitted that no compensation was paid as claimed by the prisoner and that the prisoner has not produce any evidence of such compensation being paid.
    

Deliberation

27. The mitigating factors which I find present in this case are that;
    
    1. That it was an early guilty plea which saved the court and the state time and resources.
    2. Surrendered to police soon after the incident.
    3. Offender showed genuine remorse and apologized for the death of the deceased.
    4. No prior convictions. It was her first time.
    5. There was some degree of provocation.
    6. There was no planning.
    7. The prisoner is going through a hard time thinking about her children
    8. Compensation of K35,000.00, 24 pigs and 1 goat was paid to the deceased’s relatives.
       
28. The aggravating factors which I find present in this case are that;
    
    1. A life was lost.
    2. An offensive and dangerous weapon was used namely a kitchen knife.
    3. I also find that there was some desire to do grievous bodily harm. The prisoner stabbed the deceased and twisted the knife and that created the wound described by the good doctor as;
       

“A wound measuring 6-8 cm x 15 cm deep with punched out soft tissue was seen at the right medial surface of his right thigh. The wound was inflicted by a sharp widened blade which was seen to have been twisted to cause the dugout soft tissue. It penetrated deep damaging the muscles and severed the deep femoral artery causing him to bleed to death.”

4. I also find that the prisoner was a nagging woman who did not respect her husband as per the witness statements highlighted above.
5. This sort of offences are very prevalent in our country today. Hence the need for sentences to reflect deterrence as well.
   
29. I take these factors for and against the prisoner into consideration. I also accept that it is not a worst case of murder and so the maximum is not applicable.

Having considered the mitigating and aggravating factors present in this case and the circumstance surrounding the commission of the offence, this case falls within category 2 of the Manu Kovi guidelines which attract sentences between 16 to 20 years on a charge of murder. I am also guided by the comparable cases referred to me by Mr. Toke and relied on by Mr. Tengdui showing the sentencing trends in relation to murder cases on guilty plea and arising out domestic setting.

30. I have taken into consideration the personal particulars and the lack of prior conviction as per the antecedent report of the offender. I have also taken into account her statement on allocutus, her appeal for mercy of the court and also the mitigating factors which are in her favour. I have also taken into account the aggravating factors which are present in this case and the circumstances surrounding the commission of the offence. I have also considered the comparable cases which both counsel have referred the court to and have arrived at my decision on sentence.
    

The Sentence

31. The prisoner is sentenced to 12 years IHL less time in custody which is 1 years 3 months. The prisoner shall serve the balance of 10 years, 9 months, IHL.
    
32. In the exercise of my discretion, I suspend 4 years 9 months on condition that the prisoner be placed on probation to keep peace and be of good behavior for 4 years. I order that the suspension takes effect after completion of the 6 years IHL in custody here in Baisu.
    
33. Those are the orders of the court.

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