SC2409

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV NO. 8 OF 2022

AILEEN GUINA
Applicant

-V-

THE STATE
Respondent

Waigani: Kariko, Shepherd & Kaumi, jJ
2023:   26th April & 23rd June

CRIMINAL LAW – application for review of sentence – s 155(2)(b) Constitution – murder - s 300(1)(a) Criminal Code – guilty plea - killing of husband’s mistress – history of infidelity – husband and mistress found having sex – applicant attacked first – deceased stabbed once with kitchen knife - error in not placing sufficient weight on extenuating circumstances – sentence not manifestly excessive – partial suspension of sentence justified.

Upon pleading guilty to a charge of murder laid under s 300(1) (a) of the Criminal Code, the applicant was convicted and sentenced to 12 years imprisonment less pre-trial period spent in custody. Pursuant to s 155(2)(b) of the Constitution, she sought review of the sentence.

Held:

1.	An applicant for review of sentence is in the same position as a person appealing and must demonstrate that the primary judge either made an identifiable error that has the effect of vitiating the sentence or imposed a sentence that was obviously (not merely arguably) excessive. Ju Maima v The State (2016) SC1504 & William Norris v The State [1079] PNGLR 605 referred to.

2.	Although the trial judge erred in exercising his sentencing discretion by not giving sufficient weight to the extenuating factors, that the offence was committed due to extreme de facto provocation and while acting in “self-defence”, the head sentence was not considered manifestly excessive.

3.	The trial judge erred in exercising his sentencing discretion by not properly considering whether there should be any suspension of the prison term.

4.	In all the circumstances, partial suspension of sentence was warranted to promote the rehabilitation of the applicant: The State v Bruce Tardrew [1986] PNGLR 91 referred to.

Cases Cited:
Brex Leo Kekepo v The State: SCRev No. 24 of 2022 (Unnumbered and Unreported Judgement delivered 25 August 2022)
Hindemba v The State (1998) SC593
Ju Maima v The State (2016) SC1504
Lawrence Simbe v The State [1994] PNGLR 38
The State v Bruce Tardrew [1986] PNGLR 91
The State v Guina (2020) N8311
The State v Julie Rex: CR 1210 of 2016 (Unnumbered and Unreported Judgement delivered 22 February 2018)
The State v Kui (2014) N5655
The State v Peter [2000] PNGLR 307
The State v Steven (2017) N6678
Steven Loke Ume & Ors v The State (2006) SC836 
Saperus Yalibakut v The State (2006) SC890
Warome v The State (2020) SC1991
William Norris v The State [1079] PNGLR 605

Legislation:
Constitution
Criminal Code
Supreme Court Act

Counsel:
The applicant in person
Mr P Kaluwin, for the respondent

APPLICATION

This is an application for review of sentence made pursuant to s 155(2)(b) of the Constitution.

23rd June, 2023

1.	BY THE COURT: Pursuant to s 155(2)(b) of the Constitution, Aileen Guina has applied for a review of the sentence imposed on her by the National Court at Waigani on 4 May 2020 after she was convicted upon her plea of guilty to the murder of Belinda Kuson, contrary to s 300(1)(a) of the Criminal Code. 

2.	The applicant was sentenced to 12 years imprisonment to be spent in hard labour less pre-trial time spent in custody. The judgment on sentence is numbered and referenced as State v Guina (2020) N8311. 

3.	Having failed to file her appeal within the stipulated statutory time-limit, she applied for the requisite leave for the application for review and that was granted on 16 August 2022.

BRIEF FACTS

4.	The trial judge convicted the applicant on the following facts that were alleged against her upon arraignment. 

5.	The applicant and the deceased (Belinda) were both apparently de facto married to the same man, Rodney Guina (Rodney); the applicant being the first wife. On 22 July 2018, between 6:30 am and 8:30 am, the applicant went to Belinda’s house at 5 Mile, N.C.D. looking for Rodney and their oldest son. She undertook the search because she did not know of their whereabouts. Although they returned from the village three days earlier, they never came home. Whilst searching, she saw her husband’s vehicle parked near Belinda’s house. She approached the house where she saw her son sitting outside. She went into the house and into Belinda’s bedroom where she saw Rodney, Belinda, and their two young daughters. A tussle ensued between the two women during which the applicant stabbed Belinda in the left breast with a small kitchen knife. The knife penetrated Belinda’s heart which caused her death. 

6.	The State alleged that the applicant intended to cause grievous bodily harm when she stabbed Belinda. 

GROUNDS
7.	The application for review raises two grounds: 

(1)	that the learned trial judge erred in law in his sentencing discretion by not taking into consideration the strong mitigating and extenuating factors of the applicant’s case; and 
(2)	that the sentence was excessive in the circumstances of the offence.

SUBMISSIONS
8.	The parties relied on and spoke to their filed written submissions. 

9.	The applicant, who represented herself, argued the trial judge erred in not properly considering these mitigating factors:

(1)	that she pleaded guilty; and
(2)	that she is a first time offender.

10.	The applicant also claimed that the trial judge erred in not placing any or sufficient weight on these factors:

(1)	that she had suffered emotionally over the years from her husband’s affairs with other women,
(2)	that she located her sick son alone and crying outside Belinda’s house, and this hurt her,
(3)	that when she went inside the house and the bedroom, she found her husband having sex with Belinda inside the house, her anger increased, and   
(4)	that it was Belinda who first attacked her with the knife. 

11.	She concluded that her case warranted a lesser term of imprisonment or partial suspension of the term.    

12.	In response, the Public Prosecutor submitted that all relevant factors (mitigating, aggravating and extenuating) were properly considered by the trial judge, and that the applicant had not demonstrated that his Honour committed an identifiable error that affected the proper exercise of the sentencing discretion; nor did his Honour impose a sentence that was manifestly excessive, as the sentence was within the range of sentences reflected by the comparative cases referred to.  

CONSIDERATION

13.	An applicant for review of a sentence is in the same position as a person appealing his or her sentence. The applicant must demonstrate that the trial judge either made an identifiable error that has the effect of vitiating the sentence or imposed a sentence that was obviously (not merely arguably) excessive; Ju Maima v The State (2016) SC1504. 

14.	The relevant principles in relation to an appeal against sentence are succinctly stated by Kearney, J in the Supreme Court case of William Norris v The State [1979] PNGLR 605 at 612–613. An appellate court will not disturb the discretionary power exercised by the trial judge in sentencing unless the appellant is able to show error by the judge in the sentencing process. Such error may be identifiable such as mistake regarding facts or a mistake in the application of the law; or an error in considering matters or omitting matters; and not giving proper weight to matters, but even if no identifiable error can be shown, the sentence may be set aside if the sentence is clearly out of reasonable proportion to the circumstances of the offence. 

15.	On appeal against sentence, the Supreme Court may quash the sentence and substitute it with another sentence it considers is warranted: s 23(4) of the Supreme Court Act. 

16.	The applicant is from Kivori village, Central Province, and she is now forty years old (thirty-seven years at the time of her trial). She had been married to Rodney for seven years when she committed Belinda’s murder. They were living at Gerehu with their two young children, then aged five and two years. She was educated to Grade 9 and later did vocational training for a catering certificate. She then found employment in a supermarket butchery. 
 
17.	The Supreme Court in Steven Loke Ume & Ors v The State (2006) SC836 affirmed that in the sentencing process, the Court must take into account all factors which are mitigating, aggravating and extenuating, and balance them to arrive at an appropriate sentence. 

18.	After noting the personal details of the applicant, the trial judge at [16]-[18] of his judgement noted what he considered to be such factors.  

19.	We agree with his Honour’s findings of the mitigating factors; that the applicant pleaded guilty to the charge, she had no prior convictions, and she was remorseful for her wrongdoing. 

20.	As to aggravating features of the case, his Honour rightly observed that the offence is prevalent; it involved violence, a weapon (knife) was used, and it was committed inside the house in front of young children. 

21.	But we also note that the offence was not premeditated, the applicant was not armed when she confronted the deceased, nor did the killing involve a multiplicity of wounds or a sustained attack to suggest a serious intent to cause grievous bodily harm.    

22.	Several matters that the applicant argued as mitigating factors under her first ground of review are more accurately categorised as extenuating factors. 

23.	Both extenuating and mitigating factors have the effect of reducing punishment, but extenuating factors relate to the circumstances of the offence which reduces or diminishes its gravity, while mitigating factors are usually unrelated to the circumstances of the offence; Steven Loke Ume & Ors v The State (supra). Extenuating factors include de facto provocation, mental stress, and emotional pain.

24.	The applicant’s account of what happened on the fateful day was related to the court when she was allowed upon her arraignment to explain why she committed the murder. She said that she went looking for her husband and their asthmatic son when the two of them did not come home after returning to Port Moresby from the village three days before. She located Rodney’s vehicle near Belinda’s house. When she got to the house, she saw her son outside alone and he was hungry and crying. He informed her that Rodney was inside the house, so she went in, pushed open the bedroom door and found him and Belinda having sex. 

25.	In her allocutus, the applicant stated that in the seven years of her marriage to Rodney, she suffered emotionally from the many adulterous affairs of her husband that resulted in her seeking help from Welfare and the Police but with no satisfactory outcome. She explained that had it not been for her husband’s infidelity, she would not have ended up in trouble (killing the deceased). 

26.	During submissions in the trial, the applicant’s counsel re-emphasized the hardship and pain endured by her client due to her husband’s affairs with other women, including Belinda. We pause to note that this submission suggested that contrary to what was indicated in the facts alleged at the time of the applicant’s arraignment, she and the deceased were not co-wives, and that Belinda was in fact Rodney’s mistress.

27.	 Counsel informed the court of one instance when the applicant tried to hang herself after she caught her husband with another woman in their house in Gerehu. She took her husband to court for adultery, but the case did not proceed after he left for Lae. Despite the long suffering, she remained in the relationship for the children’s sake as Rodney was the main provider. 

28.	At the trial, counsel also explained that the applicant undertook the search on the fateful day because she was particularly anxious for the welfare of her son who suffers from asthma. When she found him, it appeared he had not been given due care, and this angered her.  Undoubtedly her anger increased when she caught her husband and Belinda having sex. In the tussle that followed, it was Belinda who got the kitchen knife and cut the applicant first. In defending herself, the applicant managed to remove the knife and fatally stab the deceased. 

29.	The pre-sentence report by the N.C.D. Probation Officer also noted the applicant’s account that she witnessed Rodney and Belinda having sex, and that Belinda attacked her first. 

30.	The prosecution did not challenge the applicant’s version of the facts described above at the trial. She was entitled to the benefit of reasonable doubt on mitigating and extenuating raised by the applicant and her counsel that were not contested by the prosecution; Saperus Yalibakut v The State (2006) SC890. 

31.	At [18] of the judgment, the trial judge listed the following as the extenuating factors:

•	The prisoner was worried for her son and went looking for him and found him outside the deceased’s home.
•	The extra marital (sic) affairs of the husband was (sic) a factor that contributed to this offence.
•	The husband was present, he seemingly did nothing to prevent the stabbing, although he was the major cause of the conduct of his wife, the prisoner.

32.	With respect, we consider these factors only form part of the tragic story behind this unfortunate crime of passion. 

33.	In our opinion, the trial judge failed to fully appreciate all the relevant facts and circumstances of the offence in deciding the appropriate sentence. We believe his Honour the trial judge should have strongly emphasized the following significant points, to properly show this case to be one involving extreme de facto provocation and an action in self-defence (falling short of a legal defence):

•	The applicant had over several years suffered emotional and psychological strain from her husband’s continuous infidelity,
•	No doubt this played on her mind when her husband went “missing” with their son,
•	At the same time, she was a mother greatly worried for the whereabouts and the welfare of her sick son.
•	She was naturally hurt and upset at finding her son alone, crying and hungry, outside the house of a woman she knew her husband was having an affair with. 
•	Her anger increased when she soon thereafter came upon her husband having sex with his mistress.
•	Matters then turned for the worse when the mistress attacked her with a knife, and 
•	In the ensuing tussle, she managed to disarm the deceased and stab her in “self-defence”. 

34.	The trial judge referred to the following cases for comparative value: 

•	The State v Kui (2014) N5655: The offender suspected the deceased of having an affair with her husband and confronted her while armed with a kitchen knife and stabbed her several times, including in the heart. (Sentence: 13 years with 6 years suspended on conditions). 
•	The State v Peter (2000) PNGLR 307: The offender became angry after being shamed by her husband that she was uneducated unlike the deceased, a co-wife. She stabbed the deceased as she asleep, in the neck and in the chest with a kitchen knife. (Sentence: 12 years imprisonment).
•	The State v Steven (2017) N6678: The offender had to care for the children of the deceased, a co-wife, when the deceased deserted her children for some time. The offender was not happy with the deceased when she returned and confronted her. In the ensuing argument, the offender stabbing the deceased in the mouth and in the left ribs with a kitchen knife. And this led to her death (Sentence: 13 years imprisonment less pre-trial custody period).

35.	Comparative cases are useful because they provide for consistency and fairness in sentencing, but every sentence must be determined according to the facts and circumstances of the particular case: Lawrence Simbe v The State [1994] PNGLR 38.

36.	In the cited comparative cases, as in the present, the offenders pleaded guilty to murder, had no prior convictions, and had expressed genuine remorse.
 
37.	While these cases are helpful, we think it would be more appropriate if regard is had to cases with similar factual circumstances as in the present, that is, where the killing follows a wife witnessing her husband sleeping with or having sex with another woman. In this respect, we refer to these cases:  

•	The State v Julie Rex: CR 1210 of 2016 (Unnumbered and Unreported Judgement delivered 22 February 2018): In the early morning, the offender saw from her house her husband and a woman walking away from the house. She followed and found them naked and engaged in sexual intercourse. She gave chase to her husband before turning on the woman and stabbing her twice in the back with a kitchen knife that she carried with her on leaving the house.  The woman died from the stabbing. She pleaded guilty to manslaughter and was sentenced to 12 years imprisonment. The Court stated that the case involved “substantial de facto provocation”.
•	Warome v The State (2020) SC1991: The appellant went searching for her husband at his uncle’s house when he did not return home for four days after payday. After finding the door to the family room locked, she picked up a knife from the kitchen and climbed over the partition into the room. She found her husband and a woman naked and asleep. She stabbed the woman on her right breast and on her left hand causing her death. She pleaded guilty to manslaughter and was sentenced to 10 years imprisonment. On appeal, the Supreme Court did not consider it appropriate to disturb the head sentence; it suspended three years having regard to de facto provocation and the role of the husband’s infidelity in contributing to the offence, matters which it held were not considered by the trial judge.
•	Brex Leo Kekepo v The State: SCRev No. 24 of 2022 (Unnumbered and Unreported Judgement delivered 25 August 2022): The applicant went in search of his wife in the gardens and found her with her known lover naked and having sex. Overwhelmed with anger, he cut the deceased several times with a grass knife causing his death. He pleaded guilty to murder and was sentenced to 16 years imprisonment. On appeal, the Supreme Court held that although the trial judge repeatedly referred to there being de facto provocation “most extreme in the circumstances”, not much credit was given to this aspect in the sentencing. The prison term was reduced to 13 years. 

38.	In the Rex and Warome cases, the offenders were charged with manslaughter, so obviously the sentences should be lower than for murder.
  
39.	The discretionary power given to the Supreme Court to alter sentence on appeal under s 23(4) of the Supreme Court Act must be exercised judicially, that is, where there is a clear error or mistake in the exercise of the trial judge’s judicial sentencing discretion such that the appealed sentence is manifestly inadequate or manifestly excessive: Hindemba v The State (1998) SC593.

40.	We are satisfied that the trial judge, with respect, did not give sufficient weight to the extreme de facto provocation that underlined the offence. We find this to be an identifiable error on the face of the sentence. 

41.	But giving due regard to the comparative cases discussed above, we do not think the head sentence of 12 years imprisonment is manifestly excessive and should be interfered with.

42.	The next question to ask is whether partial suspension of the prison term pursuant to s 19 of the Criminal Code was merited.

43.	The offence of murder carries a maximum penalty of life imprisonment but s 19(a) allows the court to impose a shorter term and s 19(1)(d) states that the sentence for a person convicted of a crime not punishable by death may be suspended by having the offender placed on good behaviour and with conditions. 

44.	Counsel for the applicant pleaded at the trial that the court consider partial suspension of any prison sentence. 

45.	The submission was grounded mainly on the pre-sentence report which considered the applicant not to be an ongoing threat to the community and determined her a suitable candidate for probation. Further, the court was presented a reference letter from Bomana Correctional Services that stated the applicant was a model inmate involved in programs promoting the welfare of other female inmates.  

46.	The trial judge did not address whether there should be any suspension of sentence. 

47.	At [26] of the judgment, his Honour only briefly mentioned that he had read the pre-sentence report and remarked that the applicant could not pay the compensation demanded by the family of the deceased. 

48.	His Honour then continued at [27] to say that in the exercise of his discretion under s 19, he considered twelve years imprisonment appropriate. He so concluded after stating he took into account the circumstances of the case, the relevant factors, the applicant’s antecedents, the statement on allocutus, and counsel’s submissions. 

49.	We are not entirely satisfied that the trial judge properly considered counsel’s submissions on suspension of sentence. As we found earlier, his Honour did not place sufficient weight on the distinct facts and circumstances of the offence viz the extreme de facto provocation and “self-defence”. Add to this the favourable pre-sentence report and Correctional Services reference letter, it is our view that suspension of sentence was a significant aspect to consider in deciding punishment. By failing to fully address this point, we again find, with due respect, that his Honour erred in the exercise of his sentencing power.

50.	In The State v Bruce Tardrew [1986] PNGLR 91, the Supreme Court observed that a category of cases appropriate for suspending a sentence is where it will promote the general deterrence or rehabilitation of the offender.

51.	While the head sentence provides for general deterrence, we are persuaded that the applicant has real potential of rehabilitation. She pleaded guilty, had no prior convictions, and expressed genuine contrition. The Correctional Services reference letter described her as a model prisoner who is ready to help reform other female prisoners.  The Probation Officer believed the applicant is a person who is not likely to offend again. Having heard the applicant, we sense that she is keen to settle back into society after serving time to be with her young children. 

52.	It is our opinion that partial suspension of the sentence will promote the applicant’s rehabilitation back into the community, and we accordingly consider that it justifies suspension of part of her sentence. 

53.	From all the foregoing, we uphold the application for review. While the head sentence remains, it will be reduced by the pre-trial custody period, and three (3) years are to be suspended with conditions. 

ORDER

1.	The application for review of the sentence imposed on the applicant by the National Court on 4 May 2020 in proceedings CR 479 of 2019 is upheld and that sentence is quashed.

2.	In lieu thereof, a head sentence of twelve (12) years imprisonment to be served in hard labour is ordered, less the pre-trial custody period of one (1) year nine (9) months two (2) weeks.

3.	Three (3) years of the term is suspended on the following conditions:

(a)	The applicant shall be brought before the National Court prior to her release from custody so that the conditions of the suspended sentence may be further explained.
(b)	The applicant shall enter into her own recognizance without sureties to keep the peace and be of good behavior for a period of three (3) years after her release from custody.
(c)	The applicant shall report during the last week of each month to the Probation Office N.C.D. during the said three (3) years.
(d)	The applicant must have a satisfactory probation report submitted to the National Court Registry at Waigani every six (6) months during the said three (3) years.
(e)	If the applicant fails to comply with any of the above conditions, she shall be brought before the National Court to show cause why the suspension of sentence should not be revoked, and she serve out the suspended sentence in prison.

4.	A fresh warrant of commitment will be issued accordingly.
________________________________________________________________
Applicant in person
Public Prosecutor: Lawyers for the Respondent