State v Nope [1979] PGNC 9; N195 (20 June 1979)

Unreported National Court Decisions

N195

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
THE STATE
V
PANIKUIAKA NOPE

Goroka

Wilson J
20 June 1979

CRIMINAL LAW - sentencing - wilful murder in the context of attempted suicide - child killing - reasons for wide sentencing discretion for wilful murder considered - severity of punishment to be related to level of blameworthiness or moral guilt - degree of culpability as a factor in sentencing - punishment to be no more than fits the circumstances of the crime and the offender - deterrent sentence not called for when no deterrent effect is likely - diminished responsibility as a mitigating factor.

Cases Cited

Secretary for law v. Ulao Amantasi and Others (1975) P.N.G.L.R. 134 applied.

REMARKS ON SENTENCE

WILSON J: Pinakuiaka Nope has been convicted of the crime of ‘wilful murder’. At the outset it must be made clear that this case is a most tragic and unusual one. The crime was committed by this accused in a somewhat technical sense only.

The accused is a very unsophisticated uneducated woman, about 36 years old, who comes from the Marawaka sub-province of the Eastern Highlands Province, a remote area where suicide and attempted suicide are prevalent, especially by woman. Such conduct is a part of the custom of the locality and is frequently resorted to as an emotional response to a dramatic situation. The accused’s village is 30 miles from the nearest administration station and mission. Contact with either Government influence or the influence of the church has been minimal.

The evidence before me discloses that the accused and her husband over the years had had many violent quarrels. On at least three occasions the accused had been seriously injured by her husband. She carries to this day three large and conspicuous scars which indicate where on her body she was severely cut with sharp weapons. I saw these scars on her thigh, her shoulder and her neck. I was not surprised to learn that on more than one occasion she nearly died of her injuries suffered at the hands of her husband. It is hard to imagine, let alone describe, the relationship of cruelty and violence that must have existed between this husband and wife.

On the night of 27th February, 1979 another quarrel developed, and the accused’s husband made a violent attack upon her. He came at her with an axe, and she was frightened that she would be hurt again. He threw the axe which became embedded in the door of her house. Thereafter, whilst in the depths of depression, whilst feeling frustrated and rejected, and in an atmosphere of hopelessness, the accused decided to do away with herself and her approximately 18 months’ old child. She set fire to the kunai house, closed her eyes, and then waited for death. Both she and the child were burnt; but before they were both incinerated the accused’s husband, who had heard the child’s cries, burst in, after breaking down the door with a tomahawk, to rescue them both. The accused miraculously was saved from death; she eventually recovered from her burns. The child sadly died of his burns within a few hours.

The accused was charged with the ‘wilful murder’ of her child; she pleaded guilty to the charge; and she has, as I have stated, been convicted of the crime.

The accused has been in custody for three months awaiting trial. She has no prior convictions. She co-operated with the police, and at all times was honest and frank. She has been jolted from her state of emotional crisis and is now very sorry for what happened.

To regard suicide (the taking of one’s own life) as a form of homicide is an intellectually neat classification; to regard this accused’s conduct, which was an attempt to take her’s and her son’s life (unsuccessful as far as she was concerned but successful as far as her son was concerned), as ‘wilful murder’ is also an intellectually neat classification, and is, I consider, legally sound: BUT as a matter of legislative policy and practical law enforcement the killing of this child, in circumstances where the mother’s suicide, through clearly intended, quite fortuitously was prevented, raises very different social and ethical considerations from the more usual killing of a person by another. I use the words “mere usual killing” with some hesitation, because who can define what is usual in homicide and where is the end to the unusual in Papua New Guinea?

No one questions either the reprehensibility of unjustified homicide or that the law ought to set itself strongly against it. The preponderance of responsible opinion at the present day, however, as evidenced both by the practice of prosecuting authorities in many jurisdictions where human rights and freedoms are valued and by pronouncements of the major churches is that, although suicide and attempted suicide (and, by parity of reasoning, attempted suicide in conjunction with child killing, as here) may be regarded by some as sins, even grave ones, there is no case for treating these supreme manifestations of human misery as offences against the criminal law and, in any event, no need to prosecute as criminals those who attempt unsuccessfully to do away with themselves. Nevertheless, this accused’s conduct is against the criminal law of Papua New Guinea and she has been prosecuted. It is classified as ‘wilful murder’, the very serious crime in respect of which moves are currently being taken to restore the death penalty in this country as the maximum penalty.

Because I am sworn to uphold the law, and because I must attempt to do justice according to law, remembering, as I do, that justice not administered according to law is not justice at all, I cannot treat this undoubtedly special case of ‘wilful murder’ as something other than an offence. I must discharge my sentencing responsibility. However, I hasten to state, and do so as strongly as I am able to in the circumstances, that this case must surely be one of the least serious ‘wilful murder’ cases (in terms of the moral blameworthiness) ever dealt with in Papua New Guinea. It must surely be less serious than most cases of ‘infanticide’ which generally result in a penalty involving a few months’ imprisonment. The legislature must have had in mind that in Papua New Guinea especially there are serious cases of ‘wilful murder’ at one extreme which deserve the maximum penalty of life imprisonment and other cases at the opposite extreme where little or no punishment may be called for when it (in 1976) amended s.309 of the Criminal Code Act to remove the mandatory penalty of life imprisonment for ‘wilful murder’ and substituted a wide discretionary penalty with life imprisonment being the maximum and no minimum. The wide discretion which the Court has is a strong indication that the legislature intended that the severity of the punishment should be related to the level of blameworthiness.

A difficulty I have had to face up to in this case arises from the fact (and there is no room for dispute about this) that, but for the conduct of the accused’s husband in knocking down the door of the blazing house and carrying his wife and child outside, the accused would most certainly have achieved her objective, namely her own, as well as her child’s, death. Had she succeeded, she would not, of course, be before this Court for punishment. Furthermore, if she had not had her child with her, she would not, as a matter of current practice in Papua New Guinea at this time, be before this Court for punishment, because the Prosecutor in this case tells me that in the exercise of the State Prosecutor’s independent discretion such a person, in the absence of special circumstances, would not be charged on indictment before this Court with the offence of ‘attempted suicide’, an offence which, it is to be observed, is punishable by a maximum of one year’s imprisonment.

Where is the difference in principle between the case of the woman who succeeds in committing suicide, the case of the woman who, having attempted to commit suicide, is unsuccessful because she is prevented by outside intervention from achieving her aim, and the case of the woman (as here) who having attempted to commit suicide and taking with her her infant child is unsuccessful for the same reason, but the child dies? How either in principle or in fact can it be said that there is any difference in terms of culpability, criminality, criminal responsibility or moral blameworthiness?

I see nothing sinister in the fact that the accused decided to take her child with her to an intended death. By custom the child was very close to her, and it was natural to her that where she went so she would take him. To her simple way of thinking, not to have taken him with her would have been to desert the child. As it happened, the child tragically went to his death alone, and in a sense she is being punished by the knowledge that her actions were a substantial cause of this death.

By the processes of reasoning just outlined I am led to the firm conclusion that this woman’s level of moral guilt was, at the time she set fire to the kunai house and prepared, with her infant child, to die, minimal. On that account and knowing that she has spent three months in custody waiting trial (a punishment in itself) and knowing that in other ways too she is being punished, I propose to punish her no more. I discharge my sentencing responsibility in a manner understood by those working within the legal system, viz.by sentencing her to be imprisoned till the Rising of the Court. This means in practical terms that she will have to serve no more time in prison than the time already spent.

In further explanation of the decision I have reached in this case, I should say that I regard this woman as more a victim than a criminal. Her conduct, though tragic in the result, was in reality the impulsive manifestation of emotional and customary pressures as distinct from deliberate criminality. As a sentencing judge my duty is to see that punishment is no more than fits the circumstances of the crime and the offender. Those circumstances in this case are exceptional.

In August last year when presiding over the circuit sittings of the National Court at Daru in the Western Province, I had something to say about certain difficulties which arise from time to time in the sentencing process and I emphasised the artificiality of that process in certain situations. I also spoke of the need for Courts to try to keep in balance the often competing purposes of punishment. I refer to The State v. Aubafo Feama and 2 others N195.html#_edn161" title="">[clxi]¹ - a case involving cannibalism. In that case I explained how, in a case like that, there was a need for the notions general deterrence and to a lesser extent retribution to be emphasised, even though the offenders’ culpability or level of moral blameworthiness was diminished. I was referring to general deterrence in the sense of a sentence which would provide, in the long term and in the historical context, a measure of public protection.

In the present special case I see no place for the notion of retribution in the sentencing process nor do I see a need to impose a sentence designed to provide a measure of public protection; persons contemplating suicide are unlikely to be deterred by the knowledge that another, who attempted unsuccessfully to commit suicide, has been punished, assuming (which it would not be safe to do) that such persons are likely to become aware of this Court’s sentencing practice. The notion of rehabilitation can only be given effect to in the present case by this Court, in the absence of probation facilities, doing what it can to offer such social welfare support and assistance as may be available in this Province. To that end I request the community development officer, who is in Court, to help this woman with such social welfare support and assistance. There is no other principle of sentencing that should be applied in this instance to support or justify the imposition of further punishment.

There are several purposes of punishment and there are, as I have been explaining, several principles to be observed in sentencing. What I should emphasise is that the degree of moral guilt of an offender being considered for punishment is very important; it ought not to be treated as irrelevant. It is the almost complete, if not total, absence of moral guilt of this unfortunate woman that leads me to refrain from ordering that she undergo any more punishment than she has already received.

The criminal law recognises that insanity is completely exculpatory. It also recognises that provocation which deprives a person of the power of self-control and leads him to act aggressively in the heat of passion is either exculpatory or mitigatory, depending on the result of the response and the intention of the person provoked. In a similar fashion I should regard this woman’s diminished responsibility as at least mitigatory.

I have explained these things at some length lest it be thought that there is something unsatisfactory about a conviction for a crime normally associated in men’s minds with a high degree of moral guilt being recorded against a woman whose conduct involved little or no moral fault or that there is something incongruous about a woman receiving very little punishment for a crime normally considered to be a very serious one. Unsatisfactory and incongruous it may be to the layman, but to me, as one charged with the duty of administering the criminal law, it is in accordance with reason and commonsense. If I have fallen into error, there is a right in either the prisoner or the State Prosecutor to appeal against my decision.

My attention was drawn earlier this afternoon to a decision of the pre-Independence Full Court of the Supreme Court in Secretary for Law v. Ulao Amantasi and Others N195.html#_edn162" title="">[clxii]². I find nothing in the judgment of Prentice S.P.J. (as he then was) or in the judgment of Raine, J. (as he then was) which constrains me to depart from the course that I had previously thought was the proper one, viz. to inflict no more punishment upon this woman. I note in passing that Prentice S.P.J. gave appropriate emphasis to the “degree of culpability” (as he put it ) as a factor in the sentencing process.

I further add that it appears, from what I have been told by those at the Bar table, that no claims for compensation are likely to be made against this woman or her line nor is there any real likelihood of pay-back or further trouble developing. I have no reason to suppose that an inability or refusal on the part of the people at Marawaka to understand what the Court sees as its duty will increase that likelihood. In an attempt to minimize that possibility, I rely upon the community development officer, the police, and administration personnel to make the necessary explanations to such people as may be affected. I note that the accused’s husband is in Court - some explanation will be made by me to him after my sentencing responsibility has been discharged. Mr. Kapi informed me that he thought the accused’s husband appeared satisfied with the time the accused had already spent in custody and appeared desirous of his wife returning home.

The accused is sentenced to be imprisoned to the Rising of the Court.

(His Honour then, with the assistance of two interpreters, explained to the accused and her husband in simple language the sentence of the Court and the reasons for the Court’s decision. His Honour also made an offer of the welfare and advisory services of the community development officer and counselled both the husband and the wife.)

Solicitor for the State: K.B. Egan, Public Prosecutor

Counsel: W.J. Karczewski

Solicitor for the Accused: M. Kapi, Public Solicitor

Counsel: M. Kapi

N195.html#_ednref161" title="">[clxi]^{(1) 1978 National Court Judgment No. N 165}
N195.html#_ednref162" title="">[clxii]^{(2) (1975) P.N.G.L.R. 134}