SC1991

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA NO. 03 OF 2018

BETWEEN:
OLIVIA WAROME
Appellant

AND:
THE STATE
Respondent

Waigani: Yagi, Polume-Kiele & Anis JJ
2020: 24th July & 27th August

CRIMINAL APPEAL — Appeal against sentence — sentence of 10 years imprisonment — one count of unlawful killing – Criminal Code Act, s. 302 —wife killing the sexual partner of the husband – wife surprised and shocked when finding husband and sex partner sleeping naked on a bed – wife acted under extreme de facto provocation – pleaded guilty and first time offender – young mother of 4 young children – conduct of the husband is a relevant factor to be taken into account in sentencing – wife did not cause or provoke the husband into engaging in extra marital affair – identifiable error in the exercise of sentencing discretion – error has the effect of vitiating the sentencing discretion – appeal upheld – head sentence within range so it is affirmed but 3 years suspended on condition to take account of the conduct of the husband to do justice in the case.

Cases Cited:

Ignatius Nalu Pomalou v The State (2006) SC834
William Norris v The State [1979] PNGLR 605
Manu Kovi v The State (2005) SC789.
Anna Max Marangi (2002) SC702
Thress Kumbamong v The State (2008) SC1017

Counsel:
Appellant in Person
Mr D. Mark, for the Respondent

					DECISION

27thAugust, 2020

1. BY THE COURT:	The appellant was convicted by the National Court after she pleaded guilty to one count of unlawful killing contrary to s.302 of the Criminal Code Act (as amended). She was sentenced to 10 years imprisonment in light labour on 07 March 2018. The pre-sentence custody period was deducted, and she was ordered pursuant to warrant of commitment to serve 9 years imprisonment.

2.	On 16 March 2018 the appellant personally filed a notice of appeal and application for leave to appeal. There are six grounds raised by the appellant in the appeal. We set out the grounds as follows:

1.	The lawyer (Pub Sol) who represented me at the time of decision on sentencing on 07/03/18 was not my lawyer. He just stood in for my lawyer and did not argue for my non-custodial sentence.

2.	Find a lawyer to do my sentence appeal.

3.	I am found guilty on manslaughter and am sentenced with 10 years minus 1 year for remand period in custody at Bomana prison.

4.	My children’s welfare and Rights are at stack. My two young daughters have started school this year. I was supporting them to go to school and also making sure their basic needs are met since I was employed and their father was unemployed and is currently still unemployed.

5.	During bail period I complied with all bail conditions and behave well.

6.	The environment in prison is not conducive for an infant aged (5 months) who is on breast feeding.

3.	At the hearing the appellant abandoned grounds 1, 2, 3, and 5 and pursued only grounds 4 and 6 which were argued together. Both grounds relate to the issue of the welfare of the appellant’s children.

4.	The law on appeals against sentence is governed by sections 22(d) and 23(4) of the Supreme Court Act. These provisions are stated in the following terms:

22.	Criminal appeals.

A person convicted by the National Court may appeal to the Supreme Court—
(a)	……………………
(b)	……………………
(c)	……………………
(d)	with the leave of the Supreme Court, against the sentence passed on his conviction, unless the sentence is one fixed by law.

23.	Determination of appeals in ordinary cases.

(1)	……………………
(2)	……………………
(3)	……………………
(4)	On an appeal against sentence, if the Supreme Court is of opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed, it shall quash the sentence and pass the other sentence in substitution for it, and in any other case shall dismiss the appeal.

5.	As this is an appeal against sentence, the law provides a two-stage process to be instituted. The first is the leave stage under s. 22(d) where the appellant is required to satisfy the Court that leave be granted and upon leave being granted the second stage kicks in where the Court then proceeds to hear and determine substantive merits of the appeal on sentence.

6.	Counsel for the State does not seriously oppose the grant of leave. It is also properly conceded that such grant of leave is discretionary. 

7.	In determining whether leave is to be granted the appellant is required to demonstrate that there is an arguable case and that it is in the interest of justice that leave be granted: Ignatius Nalu Pomalou v The State (2006) SC834.

8.	In this case we note that this is a case of killing in a domestic setting where the husband, due to his infidelity and adulterous misconduct, was the cause of the killing and where the killing occurred in circumstances that indicate strong de facto provocation. We are satisfied that the grounds of appeal raise arguable issue as to whether the sentence imposed is just, fair and proportionate to the circumstances of the case and therefore we consider that it is in the interest of justice that leave be granted. Accordingly, we grant leave.

9.	We commence our deliberation by setting out the facts we consider are relevant and pertinent in the case. By and large these are the same facts which the appellant pleaded guilty.

10.	The facts of the case resonate with the common problem and storyline of husband’s infidelity in a marriage relationship. 

11.	At the relevant time the appellant is a young married woman and was aged 26 years. She hails from Mute village, Daulo District of the Eastern Highlands Province. She was a third-year student studying Banking & Finance course at the University of Papua New Guinea.

12.	She is married to Kume Keware (husband), a man from Sinesine District of the Chimbu Province. He was employed by Digicel Foundation (PNG) Ltd as an Information Technologist or IT Officer. 

13.	They have been married for approximately 7 years and have 4 children; the 3 older children are aged 5, 4 and 2 years old respectively. The fourth born child is a baby and was only 6 months old when the appellant was first incarcerated.

14.	The family was residing at Gordons, National Capital District with the appellant’s mother and other relatives.

15.	The husband has an uncle who has a house at 5-Mile, National Capital District. The family occasionally visit the husband’s uncle at 5-Mile and sleep in his house. For this reason, a bedroom in the house is reserved for the husband and the family.

16.	On Wednesday, 15 April 2015 the husband left the house at Gordons in the morning and went to work. However, the husband did not return to the family home at Gordons that afternoon. He was away from the house for at least 4 consecutive days and nights.

17.	The week that the husband went to work and did not return home was the pay week. The husband normally receives his pay every Wednesdays on each pay week.

18.	The prolong absence of the husband without any contact caused the appellant certain level of discomfort, distress and anxiety to a point where she decided to go out and search for her missing husband. 

19.	Between 09.00 – 10.00 o’clock in the night on Saturday, 18 April 2015, the appellant took a taxi and went to 5-Mile. She went to check for the husband at his uncle’s residence.

20.	When the appellant arrived at the house at 5-Mile, she went straight to the family room. She attempted to open the door to the room, but it was locked from the inside. She then collected a knife from the kitchen and went into the room next door. She climbed over the partition and jumped into the family room. When she landed in the room she switched on the torch in her mobile phone. To her surprise and shock, she saw the husband and a woman in deep sleep together on a bed and completely naked. 

21.	When the appellant saw the husband and the woman naked in bed and in compromising position, she became very angry and stabbed the woman two times; one on the right beast and the other on the left hand. She also punched the husband before she ran out of the house. 

22.	The woman died shortly thereafter from the stab wounds.

23.	The medical evidence shows that the knife penetrated though the chest and punctured the heart. The death was “due to (the) stab wound to the Heart.”

24.	In her written extract of argument, the appellant contended that the learned primary Judge did not give proper consideration and due weight to the welfare of her children in the sentence. The children are very young. The last born is a baby whom she is breast feeding whilst serving her sentence in custody. The prison environment is not conducive to her baby’s care, wellbeing and upbringing. In the next 6 - 7 months the baby will be removed from her motherly care and custody and placed in the care and custody outside the prison confinement. The children depend on her as the mother for care and nourishment. The 3 older children who are living outside the prison facility will be without the parental care and support of their father (husband) because he is also facing a criminal charge for his failure to report on the death of the woman who was killed by the appellant.

25.	The appellant appeared and argued her appeal in person. Being educated to tertiary level she was forceful and compelling. Without fully appreciating her arguments as outlined in the preceding paragraph (24) one could easily be mistaken as to the real underlying concern and issue she raises in the appeal. There is something deeper than the words written on the paper.

26.	We understood the underlying issue is the question of whether the learned primary Judge paid due and sufficient weight to the fact that the misconduct on the part of the husband had now landed her in this unfortunate predicament thus compromising the welfare and interest of her young children. Furthermore, she was shocked by the sight of her husband and a woman naked on the bed that she acted under provocation which action has now caused hardship to and affected the welfare and interest of her children. Whilst she had the right to raise provocation as a legal defence to the charge she nevertheless pleaded guilty to the charge, despite the advice of counsel, therefore deserve credit and leniency in her favour in return. 

27.	The State submits that the learned primary Judge did not err in the exercise of his Honour’s discretion and the appellant has failed to demonstrate any identifiable error within the principles enunciated in William Norris v The State [1979] PNGLR 605. Moreover, the sentence was within the range and the guideline in Manu Kovi v The State (2005) SC789.

28.	As regards the issue of sexual misconduct by the husband it appears that the learned primary Judge did not taken that into account. The sentence was an oral judgment and the transcript appears in pages 47 – 53 of the Review Book. We have carefully perused the transcript and find nothing that shows that this factor was taken into account. 

29.	In his Honour’s deliberation, his Honour took into account the appellant’s background and the statement made during allocatus. The mitigating factors taken into account in favour of the appellant included the guilty plea, the acceptance of criminal responsibility, no prior conviction, strong de facto provocation. The aggravating features taken into account were the deliberate use of a kitchen knife which is an offensive and dangerous weapon, the attack was on a vulnerable part of the body, the attack was vicious, deliberate intention to cause harm, unnecessary loss of life and the consideration that the offence is prevalent.

30.	By way of comparison, the primary Judge also considered and discussed 4 National Court decisions on sentences imposed on offenders in homicide cases. His Honour also referred to the Supreme Court decisions relating to the sentencing guidelines in Manu Kovi (supra) and Anna Max Marangi (2002) SC702.

31.	It is apparent the primary Judge had regard to the sentencing guideline in Manu Kovi (supra) because he discussed the applicable categories in an unlawful killing case. His Honour at page 51 of the Review Book stated:

“………… the Supreme categorised unlawful killing into four categories. Of relevance are categories one and two. Category one. In plea cases where there are mitigating factors with no aggravating factors, that, no weapon used, offender was under emotional stress and a de facto provocation, killing follows immediately after an argument, little or no preparation, minimal force used, and the victim had pre-existing disease which caused or accelerated death – example; enlarged spleen case – the court suggested a range of sentence between eight to 12 years.

Category two. In trial or plea cases where there are mitigating factors as well as aggravating factors, that is, offensive weapon is used on vulnerable part of the body, vicious attack, multiple injuries, some deliberate intention to harm and pre-planning, 13 to 17 years. Both Supreme Court cases provide useful guidelines in determining an appropriate sentence.”

32.	The primary Judge went on to discuss the presence of “a high degree of de facto provocation” in the present case. After discussing the sentence in the 4 National Court cases (State v Julie Rex – CR No. 1210 of 2016; State v Tuma (2017) N6618; State v Regina Jako (2010) N4110 and State v Mara (2010) N4133),which we admit, the facts in those cases are very similar to the present case, his Honour concluded that the appropriate sentencing range is between 8 – 12 years. The primary Judge took into account the substantial provocation involved in the case and imposed a sentence of 10 years imprisonment.

33.	In our view, the primary Judge took into account all the relevant factors under the sentencing guideline in arriving at the sentence. However, there is an additional factor which we consider is relevant and ought to have been taken into account before arriving at the sentence.

34.	In our view. the adulterous behaviour of the husband, no doubt, had a direct effect on the appellant’s criminal action and ultimately the responsibility. The nexus is based on the notion of cause and effect in terms of criminal responsibility and, in our view, is a relevant factor. It is the misconduct on the part of the husband that directly resulted in the wife committing a very serious criminal offence.

35.	In Thress Kumbamong v The State (2008) SC1017, a husband deserted his wife and children and went to live with his new partner. The husband failed to provide maintenance and support to the wife and her children. The husband directed all his attention, income and resources toward supporting his new partner. The wife approached the husband’s new partner and invited her to relocate to the family home. The wife’s intention was noble and in good faith. She wanted to bring the new partner under the same roof so that the husband’s time, income and resources would be spread and shared fairly and equitably amongst the wives and children. When the new partner was approached, she resisted the invitation and reached for a knife to use against the wife. The wife reacted under provocation and stabbed the husband’s new partner resulting in death. She pleaded guilty on an indictment charging her for manslaughter. The National Court convicted her and imposed a sentence of 9 years. The wife appealed against the sentence. She argued that the sentence was excessive. The Supreme Court agreed and substituted the sentence for a lesser penalty. One of the issues deliberated by the Supreme Court was whether the conduct of the husband should be reflected in the sentence. The Supreme Court said the husband’s conduct is a relevant factor. The Supreme Court at paragraph 41 of the judgment stated: 

41.	It should be clear by now that, where offenders act in response to an extra marital conduct of their spouses, that which causes the offenders to act in the way they act, is the conduct of the other spouse, provided the offender is not responsible for causing or provoking the offending spouse to venture out of the marriage or relationship. There is always a cause and effect.  The cause in these kinds of offences is the unprovoked extra marital affairs of the offender’s spouse.  The effect is, the offender has committed an offence against the guilty spouse’s extra marital lover or girlfriend or boyfriend or wife in the case of a polygamous marriage. Simply put, without, the unprovoked extra marital conduct of the offender’s spouse, the offender could not have committed the offence.  It should logically and reasonably follow therefore that, the unfaithful spouse and his or her lover’s conduct must be addressed and dealt with if the law is to be fair to all involved.  

36.	The Court went on further and said:

52.	Having regard to all that has been said, this Court is of the view that, an offender’s spouse’s unprovoked extra martial affairs which causes an offender to kill or otherwise attack his or her spouse’s extra marital lover should be reflected in the offender’s sentence.  Of course, the question then is, to what extent should this be reflected in the sentence? Without repeating in full what we have already discussed, this Court notes that, without the offender’s spouse’s unprovoked unfaithful conduct, the offender could not have committed the offence.  It is that critical and serious. Accordingly, this Court is of the view that, the sentence of the offender should prominently reflect this fact in the offender’s mitigation.

53.	In the present case, the learned trial judge merely acknowledged, the existence of the problem and shifted the need to do anything about it to Parliament.   In so doing, his Honour with respect, failed to give any consideration to any of the matters we have discussed above.  This ignores the serious unfairness and inequalities that exists as we have tried to point out in the foregoing. Accordingly, we are of the view that, the learned trial judge failed to have this appropriately reflected in his decision on sentence, which this Court considers is a serious error that it must correct.

37.	We agree with and endorse the statement in Thress Kumbamong (supra) that the conduct of the husband is a relevant consideration that should be reflected in the sentence. 

38.	In this case the facts are clear and undisputed. It is the extra marital affair of the husband that caused or led the wife to kill the husband’s sexual partner or girlfriend. There is no evidence nor any suggestion that the appellant (wife) provoked or caused the husband to venture into extra marital relationship. We are therefore satisfied the learned primary Judge, with respect, did not bring to fore in his mind the fact that the action of the appellant was largely contributed to by the husband’s adulterous and sexual relationship with the deceased. This factor is not reflected in the sentence, and if it is, in our respectful opinion, little or insufficient weight was attached to this factor. Hence, we have identified this to be an error that has the effect of vitiating the sentencing discretion of the primary Judge.

39.	In the circumstances we uphold the appeal. 

40.	However, we think the head sentence of 10 years imprisonment is neither grossly inadequate nor excessive but otherwise well within the category 1 range as determined by the primary Judge. The Supreme Court in Manu Kovi (supra) has provided the guideline for Judges to follow in exercising their sentencing discretion by prescribing the range of sentences under four categories in unlawfully killing cases. Category 1 is at the bottom of the scale with the range of 8 – 12 years. Category 4 is on the top of the scale with the maximum penalty of life imprisonment. 

41.	The category 1 sentence involve a guilty plea being entered by an offender in ordinary circumstances where there are mitigating factors but without any aggravating factors present, particularly in cases where no offensive or dangerous weapon is used in the killing. A classic example of this type of killing falling into category 1 is where death result from a ruptured spleen or as they are commonly called the “spleen cases”.

42.	In this case, as we have alluded to, there are a number of aggravating factors present, in that, a dangerous weapon (kitchen knife) was used, it was a vicious attack because the appellant inflicted multiple knife wounds, the attack was made on a defenseless and unsuspecting victim, the attack was directed at a vulnerable part of the body (heart) and the appellant had the intention to cause serious bodily harm. These factors demonstrate the seriousness and gravity of the case warranting severe punishment.

43.	Given the number of aggravating factors involved in this case the sentence imposed by the primary Judge appears to be overly generous and lenient. To our mind a sentence within the range prescribed under category 2, that is, 13 – 16 years, would not be excessive or out of proportion to the circumstances of the case.

44.	For these reasons we find no basis to disturb or interfere with the head sentence. We also note the State has not cross-appealed against the inadequacy or insufficiency of the head sentence.

45.	However, we think that because the sentence omitted to take account of the conduct of the husband, which in our view, is a very significant and strong mitigating factor, it would do justice in the case by suspending a portion of the imprisonment term. Having said that, we hasten to caution, however, that the approach we take is not intended to set a precedent as each case must be determined on their own peculiar facts and circumstances. 

46.	Accordingly, we confirm the head sentence of 10 years, however, we order that 3 years be suspended upon the appellant entering a recognizance with upfront cash surety of K1,000.00 to keep the peace and be of good behaviour for a period of 3 years.

47.	For the avoidance of doubt, the pre-sentence custody period is to be deducted, and the appellant will serve the balance of the imprisonment term pursuant to the sentence herein imposed as follows:

	Head Sentence:				10 years imprisonment
	Less pre-sentence custody period:	1 year
	Less period of suspended sentence:	3 years
	Period to be served in prison:		6 years

48.	A fresh warrant of commitment will be issued forthwith to reflect the sentence imposed by this Court, which sentence is to take effect as from 07 March 2018.
__________________________________________________________________
Appellant in Person
Public Prosecutor: Lawyer for the State