State v Robin [1980] PGNC 8; N230 (23 May 1980)

Unreported National Court Decisions

N230

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
THE STATE
V
DONALD ROBIN

Rabaul

Wilson J
14 May 1980
23 May 1980

CRIMINAL LAW - sentence - murder - the plea in mitigation of penalty - personal background, the facts and sentencing principles - domestic or emotional stress - the principle of proportionality - subject to concern for public protection, courts to lean towards mercy - effective sentence of five years imprisonment imposed.

Case Referred To:

Goli Golu v. The State (Unreported) Supreme Court judgment S.C.172 dated 14th December, 1979

REMARKS ON SENTENCING

WILSON J: DONALD ROBIN, in sentencing you I can speak to you in English without the necessity for an interpreter. Because you understand English, I can speak of things that many people in Papua New Guinea convicted of the crime of 6;murder’ would not unot understand. Your lawyer will understand (and you may understand) when I speak of the principles of sentencing that are applicable to your case.

You have been convicted of the crime known as ‘murder’. You have not been convicted of ‘wilful murder’, nor of ‘manslaughter’. ‘Murder’ is generally regarded as a less serious homicide than ‘wilful murder’ and a more serious homicide than ‘manslaughter’.

You committed your crime on 5th March 1980. You stabbed your wife several times with a knife. You intended to cause her grievous bodily harm; i.e. you meant to cause her bodily injury of such a nature as to endanger or to be likely to endanger her life or cause her or be likely to cause her permanent injury to her health (see s.1 of the Criminal Code Act 1924). For the purposes of sentencing you, I am obliged to accept that all you intended to do was to stab her, something that was likely to cause her at the very least permanent injury to her health. Your wife died subsequently - within an hour of receiving her wounds. You caused her death. You murdered her.

Before I turn to consider the facts of this unfortunate killing and your personal circumstances, I want to mention the plea in mitigation of penalty as presented by your lawyer, Mr Kim Wilson of the Public Solicitor’s Office. I found his submissions most helpful, and they were presented in a manner consistent with the best traditions of criminal advocacy that I have witnessed since I have been in this country. Mr Wilson commenced with an outline of his submissions and he told me that he proposed to refer first to your personal background, secondly, to the facts surrounding the crime itself, and, thirdly, to the sentencing principles that were applicable to this case.

There is much in your personal background that operates in your favour. You are a man of 28 who was married with two children. You had a good education to Form 4 and you have had a good employment record. You have held good positions at a management level. You own three blocks of land and a small piggery. You have no relevant previous convictions, and you have spent 2 months in custody awaiting this Court hearing.

There is also much in the facts surrounding the crime itself which operates to explain how you came to commit this crime. I use the word “explain” advisedly in preference to the word “excuse”. Your crime can be explained in terms of a human response to human circumstances. I can accept that, despite the number of stab wounds and the manner of death, this killing was not the worst of its type. You and your wife came together in the beginning through mutual love. You married because you loved each other. Last year troubles started in your marriage. There were domestic problems. Your wife’s parents sided with her, and this caused great aggravation. When your wife stayed with her parents and when she took the things of the marriage to their home, this brought shame on you. Your wife made what you regarded as unfounded allegations against you. I refer to your answer to Q.34 of the English Record of Interview. The domestic arguments were unresolved. The welfare office had been visited. You felt that your love for your wife was strong; you felt that her love for you was waning. On the Monday before the crime was committed, you had gone to see your children at your in-laws’ house. The children were hidden from you. You were told you had to bring money to them.

On the day of the crime, you rang your wife on the telephone and told her that you were bringing money to her for the children. You and she agreed to meet at lunchtime. The meeting occurred. You offered her money, but she refused to take it. Your wife then said something hurtful to you about her intention to find a new father for the children. This was like the expression known to me in my custom as “the straw that broke the camel’s back” - it was as if something snapped inside you. You were so enraged that, almost as if you didn’t know what you were doing, you stabbed at your wife with the knife which you had with you. What followed need hardly be recorded in detail. Your wife died of her wounds. I accept that the knife was generally carried by you for the purposes of your work and that it was not brought by you on this day for the purpose of inflicting wounds on your wife. I know that you did not mean to kill your wife.

I accept, as Mr Wilson put it, that the following subjective factors operated when you struck out with the knife:

1. ټ loss of temper,

,

2. ;ټ anger,

3. ;ټ u60; upset,

4. frustration, and

5. desp/p>

You are extremely for you d accept that your feel feelings ings for hfor her were “very strong”. Your sorrow has been added to by your feelings for the children who will be without a father and a mother.

Having dealt in his submissions with your personal background and the facts, your lawyer, Mr Wilson, submitted that there were a number of factors to be taken into account in assessing penalty. I have been able to accept in its entirety that submission. The factors are:

(a) ـ You havo a good sold solid background.

(b) &#1ou have shown yourself telf to be a responsible and hardworking man.

(c)&##160;;ټ You have experienced, and still expl experienerience, rce, remorse.

(d) & here ware was no premeditation in this crime.

(e) ҈ You havu have pleaded guioty to the charge.

(f) &##160; Your caur caroseof ticatituatand it was one which is on thon the frie fringe onge of those crimes that are described as d as “crimes of passion”.

Your laconclhis ssions bons by referring to the sentencing prin principleciples that were applicable to your case. He referred to an extract from the First Edition of Dr Thomas’s book on “Sentencing” - at p.184. That extract reads as follows:

“DOMESTIC OR EMOTIONAL CRISIS

In a number of cases the Court has made allowance for the fact that the offence was committed in a period of acute emotional stress, most commonly the result of deterioration in the offender’s relationship with his wife. The most obvious examples are those cases where the wife becomes the victim of an attack by the husband. Unless there is evidence of predetermination on the part of the husband the Court normally expects allowance to be made for the strained situation....”

The learned author put it slightly differently in the Second Edition (at p.207) where he stated:

“DOMESTIC OR EMOTIONAL STRESS

A frequent explanation of uncharacteristic offences is that they result from acute emotional stress. The most common example is the offence of violence committed against wife or husband, or a third party who has become involved with one of them, as a result of a deteriorating marriage. In such cases the circumstances which precipitate the violent act are usually treated as significant mitigating factors....”

These two extracts are helpful commentaries on an aspect of the sentencing process. Mr Wilson also referred to Goli Golu v. The StateN230.html#_edn193" title="">[cxciii]¹ whearney J. (as he then wasn was) said (at p.9):

“It is a general principle of sentencing that the maximum penalty, the most severe sentence, should be reserved for the most serious nces of an offence, the wore worst possible cases normally encountered in practice; this is an application of an even more basic principle, that there must be proportion between offence and sentence.” (The emphis mine.)

>

In that same case I too had cause to emphasize the importance of proportionality as a factor in sentencing, and I stated that it is a fundal principle “that a man must be given the sentence ance appropriate to his crime and no more”. That is an important factor to be borne in mind in a case such as this.

When I put to Mr Wilson that it is one thing to talk of the necessity to achieve proportionality and to apply the principles thereof, and quite another to determine an appropriate sentence from within a range of, say, 3 to 10 years imprisonment for a crime of ‘murder’ of this type, Mr Wilson skilfully and without the slightest hint of impertinence urged upon me that in the instant case I should impose a sentence at the lower end of that range. A judge is required to have understanding when sentencing an offender, i.e. understanding of the wrong-doer, his victim, his community and the circumstances that give rise to criminal conduct.

After mentioning that there was little likelihood of this prisoner committing further violent crimes in the future, Mr Wilson concluded his submissions by urging me to deal with his client with restraint and mercy. I shall attempt to do just that. I shall endeavour to make the punishment fit the crime and the criminal as nearly as is possible within the limits of what is a somewhat artificial sentencing process. This court’s concern is the protection of the public but, subject to that, the court should lean towards mercy. As a sentencing judge, I ought not to award the maximum which the crime will warrant but rather the minimum which is consistent with a proper regard for the public interest.

Donald Robin, the appropriate sentence for this crime in the circumstances of your case is, in my judgment, 5 years imprisonment with hard labour. Taking into account the time already spent in custody, the sentence of the court is that you be imprisoned with hard labour for 4 years and 10 months.

Solicitor for the State: C. Maino-Aoae, Public Prosecutor

Counsel: W.J. Karczewski and M. Jalina

Solicitor for the Accused: D.J. McDermott, Acting Public Solicitor

Counsel: K. Wilson

<93">N230.html#_ednref193" title="">[cxciii]^{(Unreported) Supreme Court judgment S.C.172 dated 14th December, 1979}