State v Moro; State v Bamire [1995] PGNC 6; N1328 (10 February 1995)

Unreported National Court Decisions

N1328

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR 1500 OF 1994
THE STATE v LUCY MORO
THE STATE v DABRE BAMIRE

Kundiawa

Injia J
17 November 1994
24 November 1994
10 February 1995

CRIMINAL LAW - Compensation Order - observations on the appropriateness of Compensation Order in relation to serious offences such as homicide offences - Criminal Law Compensation Act 1991, S. 2 (2), 3 (1) (a) (b); 5 (3) (b); 6 (b); Schedule 1.

SENTENCE - manslaughter killing - two female prisoners applied force to their respective husbands’ testicles thereby causing severe pain and neurogenic shock resulting in death - unusual and dangerous form of killing - need to impose strong punitive and deterrent sentence - appropriate sentence - 6 years and 6 1/2 years imprisonment in hard labour respectively - Criminal Code Ch No 262, S. 302.

Cases Cited

State v Tobby Tani Unnumbered National Court Judgment of Injia AJ dated 13 September 1994

The State v Argaun Kakas & 3 Others Unreported National Court Judgment 1219 dated 28 March 1994

The State v Billy Kauwa Unreported National Court Judgment N1277 dated 24 October 1994

Counsel

F Kuvi for the State

B Aipe for the Prisoners

10 February 1995

INJIA J: These two cases involve atparate prisoners and victims but because the circumstances of the two killings are similar, I will deal with them together.&#1oth female prisoners pleaded guilty to unlawfully killing their respective husbands by appl applying force to their respective husbands’ testicles thereby causing severe pain and neurogenic shock resulting in the death of their respective husbands.

STATE V LUCY MORO

In the November 1994 sittings, the prisoner pleaded guilty to unlawfully killing her husband contrary to the Criminal Code Ch. No 262, S. 302. I adjourne matter to thesethese sittings to enable the Probation Officer at Kundiawa to furnish a Means Assessment Report on the matter of a compensation order pursuant to provisions of the Criminal Lawensation Act 1991. Th0; The Repere that the rthe relatives of the victim demanded compensation of K25,000.00 for the killing. risoner’s relatives ives responded favourably by making preliminary payments referred to as “bel kol” payment e sum of K4,200.00 plus 12 pigs. The payment of further compensation was deferred pend pending the outcome of these proceedings.

I have re-considered my previous decision to request a Means Assessment Report and decided that because of the seriousnf the offence, a compensatinsation order for future payment of compensation should not be made: see S. 2 (2), S. 3 (1) (a) and (b) of the Act. Hence there is nd for a Me a Means Assessment Report. In arriving at this decisIon, I repeat my observations regarding the scope of the Act in the case of the State v Tobby Tani, Un-numbered National Court Judgment dated 13th September 199ich I heard in Tari. I said comtion order may nmay noay not be appropriate for serious offences such as homicide offences, where the prescribed maximum penalty for the offence is over six (6) months imprisonment and the sentence considered by the Court to be appropriate in a particular case is a term in excess of six months imprisonment. I made thoservations in viin view of the statutory limit of K5,000.00 in compensation payment in default 6 months imprisonment which is prescribed by the Act: see S. 5 (3, 6(b) and Schedule 1 of the Act.

This not the firstfirst time I have considered the appropriateness of a compensation order under the Act in homicide cases. In The State v Argaun Kakas & 3 others, Un-reported National Court Judgment No N1219 dated 28th March 1994, the prisoners received sentences ranging from 12 years - 15 years for wilful murder. They were willi pay nsatiosation of K5,0005,000.00 each for which they could get their respective sentences reduced by 6 months only. This 6 m compto the total otal head sentence in each case was meaningless and I doubt whether they they paid it.

In another case, the ner was convicted of manslaughter. The relatives of the prisoner were willing to pay pay compensation to the value of some K100,000.00 which was demanded by the victim’s relatives. I d with the Probation Offn Officer’s recommendation thcause the amount of compensmpensation involved far exceeded the stat limit, a compensationation order was inappropriate. referring e case of Thof Thof The State v Bill Kauwa, Un-reported National Court Judgment No N1277 dated 24th October 1994.

Ininstase, there appearspears to be some compromise reached between the victim’s relatives aves and the prisoner’s relatives in relation to compensation. ictim’s relatives haes have already accepted the “bel kol” payment. No doubt would be hoping ting that the balance of the payment will be made. It is just unfortunate that this Court cannot accommodaeir compromise because of the monetary and default penalty limit prescribed by the Act.&#16. This Cooes not make laws baws but es laws made by Parliament. Howsoeveleasant a la a lawa law may be, this court has no option but to apply it. As for the sed paymenwouldwould urge and encourage the prisoner’8217;s relatives to pay the remaining compensation irrespective of what this cooes with the prisoner in terms of punishment. She will be punisor the crhe crime she she committed but her relatives and the victim’s relatives will have to make peace in the community by making compensation payment.

The relevant circumstanc the killing are as followsllows:

The prisoner is a young woman aged abut 20 - 25 years old. She is educated up to Grade 8 in 1987 at Mount Wilhem High School and was employed in 1988 as a typist. She was married todeceasedeased by local cust the time of the incident. The deceaas an affluent ment member of the Kundiawa Communommunity. At tme of his death hratedrated a trade store which is situated near the gate of the the Kundiawa Court House. It was at this stort on thon the night of 2/8/ about 7pm an argument occurred between the prisoner and hend her husband. There were a lot of otherlpeople at the store too.&#The argument turned into a fight between them inside the sthe store and later extended to the outside. It was in the course of fight that the deceased hit her face with a snooker stick.&ick. At time she was wearing a ng a shoe. She responded by kichim around the genital area. According toprisoner, the the kick was not targeted at d at his testicles. The kick in facted ontesticles. &160; As a result, the deceasel fell down in a state of shock and comd comma. They rushed himhe hospitalpital e died that same night. The medical post morteort port shows that there was bruising sing on both testicles. was no other abnity foundfound on his body. The cause of death“8220;8220;Neurogenic Shock” related to pain. The per says she did nan tnan to kill her husband and she is sorry for this accidentalental event.

This kind of killing is unusual. There is insufficienical nvidence before me to explain the cause of death from from the kind or degree of force applied to the testicles to cause death.& As a matter of commonsense, the application of any force to the testicles of a man resultssults in extreme pain and neurogenic shock. Depending on the degree rc force applied, death is not an unlikely event. If there was vidence that that she targeted her kick at his testicles it would be a serious killing indeed. is no evidence of this.&#is. At, I can safely sat she tshe targeted the deceased’s genital area and hit thit the deceased’s testicles by “accident”. But thhere idencshow thow thow that she applied alot of force with herh her legs to cause a bruising of both testicles.

For these reasonsiffer from Mr Aipe’s submission that this case falls into the lowest range of manslaunslaughter killings which warrant a suspended sentence. This case ison the same fome footing as enlarged spleen or thin skull cases where the victim has a latent abnormality in his body which is unknown to the assailant. Those of cases would attraattract sentences ranging from a suspended sentence to 5 years in uncontested cases. In the instant case, tisonrisoner knew or ought to have known that to kick a man d the genital area where thre the testicles are located is an extremely dangerous thing to do. I into impose a strong pung puniand deterrent sentence to d to deter other woman from causing the death of men, their own husbands and others alike, in a similar man/p>

In the prisoner’s favour, I take into account ount the following factors:

1. Her guilty plea.

20 Remorse in open Coupt.3

3. &#160-opeowithce inr invatinvation>

4. ټ&##16; He0; He0; Her prer prsviousvious good good educ education, employment and marriage background.

5. &#116060prinvictnviction.

6. &##160; < 160l Kilerd hn husband in d in a situationation where there was some provocation on ictim7;s pn hitting the deceased with a snooker sker stick tick in the course of a domestic dispute.

7. ـ C60; Compensation of K4,200.00 plus 12 pigs was already paid.

In all circumstances, the maximum penalty for this offence being one oe impment,nsideentence of 6 years imprisonmesonment in hard labour is appropriate and and I impI impose tose the same. From this, I deduct thiod riod of 8 months and 2 days she spent in custody already. Sll serve the remaining 5 ng 5 years 3 months and 29 days.STATE V DABRE BAMIRE

In this matter, I also adjourned the matter to these sise sittings for a Means Assessment Report.; My decision to request a st a Probation Report was prompted by the defence counsel’s actions in tendering a Statutory Declaration signed by 4 councillors from the victim’s area deposing to the fact that compensation was paid by the prisoner’s clan to the victim’s clan. However, details of paymadt made were not set out in the Statutory Declaration. The Pron Officer has now anow advised that he is also unable to provide the report for the same reasons as in the case of the StaLucy For reasoneasons I gave in State v Lucy Moro, I have re-considered the matter and cond consider that a compensation order should not be made and hence a Means Assessment Report is not required.

The circumstances of this killing are slightly different to those in Lucy Moro’s. The prisoner is a young woman aged about 26 years old. She from Koge in the Kamt Kamtai District. She lived in de facto ronstionship (still regarded by Chimbu custom as married couple) with the deceased.&#16e dec was also a youngyoung man aged about 26 years old. H60; He was a he young mang man. The prisoner we second &#8d “wife” of the deceased. They had beenied for only only six (6) months when the incident occurred. On94 at about .30pmy foughfought inside tide their house over a towel owned by the the deceased which was used by the prisoner’s sister without the permissf the deceased. According to adons made byde by the pthe prisoner though her counsel in Court which I accept, the deceased hit her, forced her to the floor and stamped on her neck thereby causing her to grasp for air. In aempt to remove his legs legs, she grabbed his penis and testicles and pulled them. The deceaseded out to her her twice to let go his testicles and she di60; According to the statement of State witness Dawa Amu, wmu, which statement the prisoner does not deny in her statement in the Recf Interview (Answer to Ques Question No. 55), he heard the deceased saying “you leave it, dog or pigs’ Daughter, you leave it”. That was all the deceased ased said. There wlence. Shortlhortly later, the seceased was found inside the house in state of shock and comma. One man tried mouth-to-mouth resuscitation but failed. They tim to the hol whe wahe was pronounced dced dead. According to tdical Pcal Pcal Post Mortem Report, whilst all other parts of his body were found to bmal, eft testicle was was smashed. The cof death wash was &#8s “Neurogenic Shock”.

The application of force to the testicle in this case is direct and intended to cause the deceased severe shock and pain. So tortwas the force appliapplied that the left testicle smashed. I acher story that she dide did this in order to free herself from the deceased’s grip onneck but it is clear to me that she went too far. In ; In any event,; that ihat is not the right part of the body to grab, twist and squeeze.

Once again this is an unusual type of killing and a dangerous one too. I accept death was not thet the ind cause of the prisonerRr’s action. I also accept her story that the death was an “accidental event” arisit of her deliberate action. But I thhat she did did idid in grabbing and squeezing the testicles and smashing the left testiclan extremely dangerous thin thing to do. It is to be distinguished from other types of manslaughter killings such as enlarged spleen cases or their skull cases. I t my observations in Lucn Lucy Moro’s case regarding this type of killing and the nee a strong punitive and dete deterrent sentence.

In the prisoner’s favour, I take into account the following factors:

1. & H60;guir y plta.

2

2. & Remorse in opun Court.

.

3. &ـ C60; Co-oper-operation with the police.

4. ټ&##160; S60; She is e is uneducated and a village girany srd.5. Her previous good characheracter ater and marriage background albeit for a lr a limited period of 6 months only.

6. ;ټ&##160;rior ction>

7.  Sh0; She kileedilled her hher huer husbandsband whilst trying to free herself from tsband’s grip on her neck in the course of domestic dispute or fight.

8. &160;ټ Some undisclosed amof comp compensation was paid by her relatives to the victim’s relatives.

Taking into account all these factors, those in her favour hose st hed in view of the maximum penalty of life impe imprisonrisonment,ment, I sentence her to 6 1/2 years imprisonment in hard labour. Fros I deduct the period oiod of 7 months 5 days she has spent in custody. She will serve the rema peng period of 5 years 10 s and 25 days.

Lawyer for the State: Public Prosecutor