SC2264

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV NO. 32 OF 2020

ROBERT ISAIAH

V

THE STATE

Waigani: Berrigan, Miviri and Dowa JJ
2022: 25th May and 29th July

REVIEW - CRIMINAL LAW – SENTENCE – Applicant pleaded guilty to murdering his wife, who was pregnant, by stabbing her twice to the face and then pursuing her outside the home, inflicting a total of 11 stab wounds to various parts of her body – No identifiable error apparent on the face of the sentence – Sentence of 25 years of imprisonment not manifestly excessive – Review dismissed.

Cases Cited:

William Norris v The State [1979] PNGLR 605
Manu Kovi v The State (2005) SC789
The State v Daniel (No 2) (2005) N2890
The State v Koki (2007) N5049
Tanabo v The State (2016) SC1543
Henry v The State (2020) SC2063
Simbe v The State [1994] PNGLR 38
Regina v Peter Ivoro [1971-72] PNGLR 374
Ume v The State (2006) SC836
John Elipa Kalabus v The State [1988-89] PNGLR 19
Steven Loke Ume & Ors v The State (2006) SC836 
The State v Namaliu (2020) N8506

References Cited

Section 302 of the Criminal Code (Ch. 262) (the Criminal Code).  

Counsel

Ms F. Kulala with L. Giyomwanauri, for the Applicant 
Ms H. Roalakona, for the Respondent, State

DECISION ON REVIEW

29th July, 2022

1.	BERRIGAN J: The applicant pleaded guilty to the murder of Salome James, his wife, contrary to s 300(1)(a) of the Criminal Code. He was sentenced to 25 years’ imprisonment to be spent in hard labour, less time spent in custody.

2.	The applicant failed to file his appeal within time but was granted leave to review sentence pursuant to 155(2)(b) of the Constitution by a single Supreme Court judge.  

3.	The applicant pleaded guilty to the following agreed facts.  On 25 May 2017 the applicant was asleep at his home at 9 Mile, Port Moresby in the National Capital District.  Between 1 am and 2 am, his wife, Salome James, came to join him. She woke him up and wanted to have sex.  The applicant had been drinking earlier that evening and was under some emotional stress, after hearing from his brother back in the village that his wife had been having an affair with another man. His wife was pregnant. Upon waking up, the applicant questioned his wife about her pregnancy and told her that he would take her to the hospital to confirm it.  His wife refused to go and admitted that she was pregnant. At this, the applicant took a kitchen knife out of his wife’s handbag and stabbed her twice on the face. As the deceased tried to get away, the applicant stabbed her again multiple times on various parts of her body, causing her death.  The applicant left the house and escaped to Wabag sometime later. He was apprehended by police in Wabag and brought to Port Moresby where he freely admitted to killing his wife. 

Grounds 
4.	The applicant seeks review on the grounds that: a) the learned trial judge erred in law by not taking into account the strong mitigating factors in his case, namely that he was a first-time offender, pleaded guilty and expressed remorse on allocutus; b) the learned trial judge erred in the exercise of his discretion when there were strong extenuating circumstances; and c) the sentence is manifestly excessive.

Consideration

5.	It is well established that the Court will not readily disturb the discretionary power of a sentencing judge.  For it to do so it must be satisfied that the judge made an error that has the effect of vitiating the sentence.  Such an error may be identifiable: the trial judge may have made a mistake as to the facts; or acted on a wrong principle of law; or taken into account matters which should not have been taken into account; or failed to take into account matters which should have been taken into account; or clearly given not enough weight or too much weight to a matter properly taken into account. Even where no identifiable error can be shown, a sentence may be set aside if upon the proved facts and making the fullest allowance for the advantaged position of the trial judge, the sentence is obviously (and not merely arguably) excessive, that is out of reasonable proportion to the circumstances of the crime:  William Norris v The State [1979] PNGLR 605 at 612 to 613.

6.	There is no merit in the submission that the learned trial judge failed to take into account that the applicant was a first-time offender, pleaded guilty and expressed remorse on allocutus. Those matters were expressly considered by the trial judge, together with other mitigating factors, in his decision. The first ground of the review is dismissed. 

7.	The second and third grounds essentially raise the same issue, that is whether the sentence is manifestly excessive, and may be considered together. 

8.	As the sentencing judge correctly identified, and the parties agreed, both in the Court below and before us, the offence fell within the third category of Manu Kovi v The State (2005) SC789, attracting a sentence of 20 to 30 years of imprisonment.  This was a vicious attack, involving the use of a dangerous weapon, and demonstrating a strong desire to do grievous bodily harm. 

9.	The applicant submits, however, that the sentence of 25 years was manifestly excessive having regard to the extenuating circumstances present, in particular the presence of strong de facto provocation, and that it should be quashed and substituted with a sentence of 20 years’ imprisonment.

10.	The trial judge was not assisted at the time of sentencing by either party by reference to comparative cases, but had regard to three of his own unreported decisions. In the first he sentenced a woman to 12 years of imprisonment on pleading guilty to the manslaughter of the deceased upon finding her having sex with her husband under the banana trees.  In the second, he sentenced the offender to 10 years imprisonment on pleading guilty to the manslaughter of the deceased, whom she found sleeping naked with her husband in the house. In the third he sentenced the offender to 12 years of imprisonment on pleading guilty to murdering her husband by stabbing him in front of their children.

11.	With respect, those cases are of somewhat limited assistance. The first two concern manslaughter, for which sentences are, for obvious reasons, generally significantly lower than in murder cases.  See also the guidelines in Manu Kovi, and a summary of recent cases in The State v Namaliu (2020) N8506 at [9] and [13].  The last case referred to by the trial judge concerned murder but the details are limited.  

12.	Whilst the trial judge might not have had them to hand, the following reported cases for murder provide some assistance. 

13.	In The State v Daniel (No 2) (2005) N2890 the offender was convicted of murder following trial. There had been a period of marital disharmony and the prisoner suspected his wife of having an affair with another man. He tried to sort out the problem by peaceful means but on the night before the incident, they had an argument and she left their house. The following morning he followed her to the beach. He waited for her while she went to the toilet and then approached her when she came out. He was carrying a knife. There was an altercation and he stabbed her eight times, five of the wounds being intentional and forceful. He was sentenced to 25 years imprisonment, the trial judge observing that the de facto provocation was only “mildly mitigating”. 

14.	In The State v Koki (2007) N5049 the offender was sentenced to 28 years of imprisonment. He pleaded guilty to murder. He came home drunk, argued with his wife. They fought and he beat her to death. No offensive weapons were used.  There was a strong desire to inflict grievous bodily harm.  He was a first-time offender. He surrendered, confessed to police and pleaded guilty. 

15.	In Tanabo v The State (2016) SC1543, Makail, Geita and Nablu JJ, the applicant pleaded guilty to murdering his wife. They were walking on the road. After some argument the applicant got his bush knife and cut the deceased three times on her head and other parts of her body. She died instantly. The Supreme Court upheld the appeal on the basis that aggravating circumstances, including that the deceased was pregnant at the time, and that there were eleven stab wounds present.  It quashed the life sentence and substituted it with one of 20 years. 

16.	In the more recent case of Henry v The State (2020) SC2063, Hartshorn, Makail and Kassman JJ, the appellant was found guilty of the murder of his wife and sentenced to 27 years of imprisonment.  The deceased died after the appellant kicked her in her abdomen, rupturing her enlarged spleen and almost immediately causing her death. The Supreme Court upheld the appeal on the basis that the sentence was manifestly excessive and substituted a sentence of 23 years of imprisonment, noting the gravity of the crime and the increase in sentences imposed since Manu Kovi.  

17.	Whilst guidelines and comparative cases are important in ensuring consistency and fairness in sentencing, every case must be determined on its own facts and circumstances:  Simbe v The State [1994] PNGLR 38; Manu Kovi, supra.  

18.	A mitigating factor is usually unrelated to the circumstances of the offence itself but still has the effect of reducing the punishment: Ume, supra; John Elipa Kalabus v The State [1988-89] PNGLR 19, for instance the applicant’s early co-operation, genuine remorse, and prior good character in this case.

19.	By comparison, extenuating circumstances are “some relevant circumstances which operate so as to diminish the culpability of the prisoner, not in the strict legal sense but broadly, regard being had not only to moral considerations but to all the considerations which might reasonably be taken into account in order to determine whether it would not be just that the law should be applied in its full rigour”: see Regina v Peter Ivoro [1971-72] PNGLR 374. Or in other words, an extenuating circumstance relates to the particular circumstances in which the offence was committed and has the effect of reducing or diminishing the gravity of the offence: Steven Loke Ume & Ors v The State (2006) SC836. 

20.	In murder offences, as with all serious crimes of violence, the gravity of the offence determined in the light of relevant aggravating factors in some cases may far outweigh the extenuating circumstances and mitigating factors and render them insignificant: John Elipa Kalabus v The State [1988] PNGLR 193; approved Ume, supra. See also Manu Kovi, supra.

21.	The trial judge took into account the mitigating matters identified above by the applicant on review, and further, expressly observed that his remorse was consistent with the early admissions he made to police immediately following his apprehension.  He considered as extenuating factors that the applicant was angry with his wife, that he was under enormous pressure, was “engulfed with his marital issues” at the time he committed the offence, and that his wife’s remarks and the sight of her pregnancy constituted de facto provocation amounting to an extenuating circumstance. 

22.	As the judge observed, however, those factors were far outweighed by the specially aggravating factors in this case. 

23.	We agree.  

24.	The applicant was entitled to be hurt and angry at the fact that the deceased was pregnant to another man. But those factors reduce the gravity of the offending only to the extent that it is accepted that the applicant’s response was justified in those circumstances, or in other words, only to the extent that it is accepted that a man is justified in intentionally causing grievous bodily harm, or any violence for that matter, to his partner or wife in such circumstances.  We agree with the trial judge that the gravity of the crime in this case rendered the extenuating circumstances insignificant: see also The State v Daniel (No 2), supra.

25.	This was a case of horrific brutality.  The intent to cause grievous bodily harm was extremely high.  The applicant stabbed the deceased no less than eleven times, including twice to her face, on the bridge of her nose and her right cheek.  

26.	The offence was sustained. The victim’s last moments would have been spent in sheer terror.  When she tried to escape, the applicant pursued her outside, chased her down and inflicted multiple stab wounds to her chest, her back, her right buttock, the inside of her lower left leg, and the front of her right leg, below the knee.  

27.	To that it is further aggravating that the killing took place in the domestic context, in the deceased’s home, at the hands of her husband: Henry at [11] and [12]; The State v Namaliu (2020) N8506 at [25].

28.	The deceased was not the applicant’s possession to be disposed of in anger.  She was a young woman of 25 years of age, and a mother to a young child of three years of age. She was soon to be a mother again.  At the time of her death she was four and a half months pregnant.  The fact that she was pregnant, and known to be pregnant by the applicant, at the time of her death is a further severely aggravating factor.

29.	The offence was driven by jealousy, pride and a sense of entitlement. As observed by the trial judge the prevalence of such killings because of infidelity is high.  The community and the Courts have made it clear that they cannot be tolerated. Such offences call for strong personal and general deterrence. 
 
30.	Considering that the maximum penalty for murder is life imprisonment, and that the facts of this case place the severity of the crime committed within category three of the guidelines set out in Manu Kovi v The State (2005) SC789, which suggest a sentencing range of 20 to 30 years, and noting the specially aggravating circumstances of this case, comparative case authorities, and the wide discretion of the sentencing judge, the applicant has failed to demonstrate that the sentence imposed is out of all reasonable proportion to the crime committed.  

31.	Accordingly, we make the following order.

(1)	The review is dismissed and the sentence affirmed.

________________________________________________________________
Public Solicitor:	Lawyer for the Applicant
Public Prosecutor:   	Lawyer for the Respondent