State v Tup [2006] PGNC 190; N4489 (29 September 2006)

N4489

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1075 OF 2004

THE STATE

V

AUGUSTINE TUP

Buka: Cannings J
2006: 22, 23 August, 28, 29 September

SENTENCE

CRIMINAL LAW – Criminal Code, Division V.2 (homicide etc) – Section 300 (murder) – sentence on plea of guilty – intention to do grievous bodily harm – former Defence Force soldier involved in Bougainville crisis – post-traumatic stress disorder – weight to be attached to psychiatric disorder as a mitigating factor when sentencing for murder.

A man pleaded guilty to murdering his wife by punching and kicking her, when he was drunk. The offence was committed late at night after the offender came home drunk after a party. His wife and children had sought refuge at a friend's house. The offender dragged his wife out of the house and fatally assaulted her. He is a former Defence Force sergeant, involved in active duty during the Bougainville crisis. His defence counsel urged the court to impose a low sentence as the offender had a psychiatric disturbance brought on by his involvement in the Crisis and he had not been counselled following his discharge from the Defence Force. The blame for what happened lay with the National Government, it was argued.

Held:

(1) The starting point for sentencing for this sort of killing in a domestic setting is 20 to 30 years imprisonment.

(2) Mitigating factors are: only one offender; gave himself up; co-operated with police; pleaded guilty; first offender; suffering from psychiatric disturbance; family and community pushing for light sentence.

(3) Aggravating factors are: direct and brutal killing; no intervening cause of death; strong intention to do serious harm; no provocation; deceased had no pre-existing, susceptible condition; extremely vicious assault; death was a foreseeable consequence of the assault; offender solely responsible; no reconciliation; no genuine remorse.

(4) A sentence of 20 years was imposed. The pre-sentence period in custody was deducted. None of the sentence was suspended.

Cases cited

The following cases are cited in the judgment:

Manu Kovi v The State (2005) SC789
Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06
Simon Kama v The State (2004) SC740
The State v Jacky Vutnamur and Kaki Kialo (No 2) (2005) N2868

PLEA

A man pleaded guilty to murder and the following reasons for sentence were given.

Counsel

R Luman, for the State
E Latu, for the accused

29 September, 2006

1. CANNINGS J: This is a decision on sentence for a man who pleaded guilty to murder under Section 300 of the Criminal Code. On the night of 11 April 2004 the accused was drinking heavily at his mother's birthday party at Malasang village, Buka Island, Bougainville. His wife, Bertha, having observed the accused drinking and in fear of him assaulting her, took herself and her three children (whose father is the accused) to a friend's house in the village. The friend, John, allowed them in to spend the night and they went to sleep. At 1.00 am, on 12 April 2004, the accused arrived at John's house and asked for his wife. John told him that Bertha and the children were in the house. The accused called out to his wife and told her to bring the children out so that they could go home. She responded and then he ran into the house, into the room in which she was sleeping and started to bash her.

2. He dragged her outside and assaulted her further. He kicked and punched her all over her body. She died some time later, as a result of massive blood loss in her abdomen and a ruptured spleen caused by the beatings she received, in the early hours of the same morning. It was alleged that the accused did not intend to kill his wife, but did intend to inflict grievous bodily harm and in those circumstances he was guilty of murder.

ANTECEDENTS

3. The offender has no prior convictions.

ALLOCUTUS

4. I administered the allocutus, ie the offender was given the opportunity to say what matters the court should take into account when deciding on punishment. A paraphrased summary of his response follows:

I would like to apologise for what I have done. I regret what I have done. But there are reasons for what I did. I have never been in trouble with the law before and never been before a court before. I would like the court to consider that I have dependants to look after, especially my children and my parents. I ask the court to be lenient. After realising the gravity of this incident, I am sorry for my children, who are now my sole priority. I am now 100% responsible for the welfare of my children.

OTHER MATTERS OF FACT

5. As the offender has pleaded guilty, he is entitled to the benefit of the doubt on mitigating factors that are apparent from the depositions, the allocutus or matters raised by his defence counsel that are not contested by the prosecutor (Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06, Supreme Court, Jalina J, Mogish J, Cannings J). The rationale is that giving the benefit of the doubt provides an incentive for accused persons to plead guilty and is a benefit accorded to them for saving the State extra resources that would have been committed to the case if a trial were necessary.

Depositions

• I cannot find mitigating factors in the depositions, only aggravating factors. The assault on the deceased was unprovoked. He assaulted her in the presence of their children. She begged him to stop. The children begged him to stop.
  

Allocutus

• The accused said there were "reasons" for what he did but did not say what they were.
  

Matters raised by defence counsel

• The accused was at the time of the offence suffering from a psychiatric disturbance known as post-traumatic stress disorder, due to his involvement on active duty in the Bougainville Crisis, and he was never counselled on his return from duty. I have considered this as a mitigating factor. However, the weight to be attached to it is a very important issue in this case and I will discuss it in detail later in the judgment.
  
• The council of chiefs for the Tsistalato constituency want the matter resolved by custom and strongly feel that a lengthy prison sentence would be counter-productive and contrary to the aspirations of the People of Bougainville expressed in the Bougainville Constitution.
  

PRE-SENTENCE REPORT

6. To help me make a decision on the appropriate sentence I requested and received a pre-sentence report prepared by the senior ARB Welfare Officer, Ms Cecily Kekun. A summary of the report follows.

AUGUSTINE GIOBUN TUP

Age: 37-year-old male.

Village: Malasang, Buka Island.

Family background: the offender's father is from Giri village, Madang Province; the offender's mother is from Malasang. The offender is the eighth born in a family of 11. Both parents are alive.

Marital status: Widower.

Education: primary education at Hahela Primary School, Buka; grade 10, Ilagunan Private School, ENB.

Employment: the offender was an officer of the Defence Force when he committed the offence, having joined the Force in 1989. He has been retrenched and is now unemployed.

Health: OK.

Religion: member of the Catholic Church.

Attitude of family members:

The offender's father, Robert Tup, says his son was a well behaved person as a boy. He assumes the Defence Force changed his attitude. He wants a non-custodial sentence for his son and he is not a threat to the community.

The offender's mother, Theresa Tup, says her son has always been well behaved and caring and used to send his parents money and clothes when he was in the Defence Force. The Bougainville Crisis caused him to commit the offence. She wants him given a non-custodial sentence so that he can look after his children.

The offender's brother, David Tup, says that his brother's attitudes changed when he joined the Defence Force. The offender did not mean to kill his wife. He wants their family to reconcile with the deceased's family. The offender needs trauma counselling.

The offender's sister, Belinda Tup, wants her brother given a good behaviour bond so that he can care for his children and think of some form of compensation for the deceased's relatives.

The deceased's sister, Taia Mara Kiapinei, lives in Kavieng. She and the deceased are from Lafu village, New Ireland Province. She says her family have still not come to terms with what happened to Bertha. The offender deserves a heavy sentence but it is best
served outside prison so that he can earn money for his children's school fees and other needs and make some form of compensation to the deceased's family.

Plans: the offender does not know what the future holds for him. He wants to raise his children and engage in some income generating activities for his children, eg a PMV service.

Danger to others: the report states that he is no danger to others as the offence was done unexpectedly.

Recommendation: the offender is suitable for probation.

SUBMISSIONS BY DEFENCE COUNSEL

7. Mr Latu highlighted that the offender pleaded guilty and he has expressed remorse. In addition, he made two very significant submissions beyond the normal type of submissions made in a sentencing hearing of this nature.

Effect of involvement in Bougainville Crisis

8. First, Mr Latu submitted that the offender was at the time of the offence suffering from a psychiatric disturbance known as post-traumatic stress disorder, due to his involvement on active duty in the Bougainville Crisis, and he was never counselled on his return from duty. The offender is a Bougainvillean and he was involved in a war with his own people. He saw many of his fellow Bougainvilleans and many of his PNGDF comrades killed before his eyes. He was trained as a soldier to kill and this has caused him to be psychologically disturbed. He has never been put through trauma counselling and he has not been trained to go back to a normal life after the Bougainville conflict finished. The conduct of the offender which led him to kill his wife was due to his state of mind, brought about directly by his involvement in the Bougainville Crisis. The fact that he was required to fight against his own people makes this a special case. He should not be heavily punished by the State for what the State made him to be. He is not solely to blame for what he did. The National Government must carry the blame as it turned him into a dangerous person.

9. In support of this part of his submission Mr Latu tendered a psychiatric report by Dr Goiba Tienang of Laloki Psychiatric Hospital, dated 3 November 2005. It states:

(i) Sgt Tup was a member of 1st Battalion Royal Pacific Island Regiment, Combat Unit based in Taurama.

(ii) Sgt Tup served during the Bougainville Crisis and was deployed 17 times since the beginning of the Crisis in 1989 to 1999.

(iii) Sgt Tup was involved in all Combat operation and on occasions where there were no officers he sometimes took command of his platoon.

(iv) During action Sgt Tup witnessed death of his fellow soldiers as well as the resistance, BRA and Civilians.

(v) Sgt Tup was the voice of the command and when duties were not carried out as expected he was usually under intense pressure. Sometimes he would become very angry towards his soldiers.

(vi) Sgt Tup was conditioned by the force to be aggressive to succeed in combat. This aggressiveness enhanced him to be effective in dealing with his men and he was promoted quickly through the ranks.

(vii) When Sgt Tup and other PNGDF soldiers returned to normal life there was no proper psychological debriefing done on them. They were allowed to live in the community despite numerous psychological complication of combat they were suffering from.

(viii) When I examined Sgt Tup's mental state on the 28th of January 2005, he was suffering from severe symptoms of Post Traumatic Stress Disorder. He also suffered severe symptoms of Depression. Due to his condition he occasionally developed bouts of intense outbursts of anger. This usually resulted in him beating his children and even his wife.

(ix) Sgt Tup was commenced on fluoxetine hydrochloride which is used to treat severe depression and symptoms of Post Traumatic Stress Disorder.

(x) When I reviewed Sgt Tup on the 2nd of November 2005, he was calm on medication. He only developed symptoms after he was triggered by events reminding him of his combat experiences. These experiences are called flashback in Psychological Terms.

Professional Opinion

Sgt Tup was conditioned to be aggressive as an infantry soldier should be, to be a successful soldier. He was involved in Bougainville Crisis seventeen times. During that period he witnessed a lot of traumatic incidences. Some of these incidences exposed Sgt Tup to severe risks of death. He also witnessed and ordered the death of Bougainvilleans as well as saw some of his men killed in combat.

Sgt Tup witnessed other activities like lining up of BRA members and shooting them, by the PNGDF.

All these soldiers are risk factor for Post Traumatic Stress Disorder. When he returned from Bougainville he was not professionally debriefed before returning to his family.

This therefore resulted in Sgt Tup developing severe symptoms of Post Traumatic Stress Disorder and Depression.

In my professional opinion I have no hesitation in concluding that Sgt Tup was suffering from symptoms of Post Traumatic Stress Disorder when he accidentally killed his wife.

Relevance of Bougainville custom

10. Secondly, Mr Latu submitted that the Council of Chiefs for the Tsistalato Constituency want the matter resolved by custom and strongly feel that a lengthy prison sentence would be counter-productive and contrary to the aspirations of the People of Bougainville expressed in the Bougainville Constitution.

11. In a document entitled "Non-custodial appeal – Augustine Tup Giobun", dated 16 May 2005, the Council of Chiefs stated:

(a) As a father, Augustine is now 100% liable for the responsibilities of maintaining his children's well-being and also support to his aging parents.

(b) Should Augustine be convicted and imprisoned, we strongly believe it would not help him in any way. This will and can further criminalize his mind after having gone through a lot of encounters regarding the nature of his role as a soldier during the Bougainville Crisis.

(c) During an interview with Augustine, our findings were; PNGDF had no proper counselling, debriefing or rehabilitation programmes whatsoever in place to properly prepare soldiers after returning from combat duties before mixing with the civil society which PNG Defence Force is fully responsible for.

(d) Furthermore, we believe that Augustine may have been psychologically ill well before the crime was committed. Eight months after he was granted bail from Buka Police Cells and upon return to Port Moresby to resume duties, he was referred to the Special Psychiatry Clinic by the military doctor, Dr Kaminiel.

Since then, Augustine has been continuously taking daily medication as prescribed by his doctor, the Chief Psychiatrist of PNG in Port Moresby, Dr Tienang. In the mean time, his mental state has been duly monitored and assessed by the Professional Psychiatrist. Evaluation reports and the description of medication can be obtained from his Doctor as advised, should the Court requests.

(e) Due to Augustine's mental state and case he has been identified and made redundant by the Force and is currently listed in the Third (3) batch, group "F" of the Defence Force retrenchment exercise funded by the Australian Government.

To conclude, we the Council of Chiefs of Tsistalato Constituency once again strongly appeal to your desk for Augustine and for the sake of his children that a proper consideration and decision be made accordingly. Should the Appeal be granted, he shall be under our observation and by his Clan Leaders of Tsistalato Constituency.

With all above, we wish to fully exercise the special powers of the Chiefs and the Council of Elders in this Appeal, and with reference to the Bougainville Constitution.

Conventional sentencing guidelines

12. Mr Latu submitted that if the Supreme Court's sentencing guidelines for murder in Manu Kovi v The State (2005) SC789 were to be applied to this case, it would fit into the least serious category. A low sentence should be imposed, he submitted, and it should be a suspended sentence in view of the special circumstances of the case. This crime can be regarded as a spill-over effect of the Bougainville Crisis and a special sentencing solution is required, Mr Latu submitted.

SUBMISSIONS BY THE STATE

13. Mr Luman, for the State, initially submitted that a heavy sentence in the range of 12 to 30 years imprisonment should be imposed. However, he later adjusted his submission, having closely considered the psychiatric report and the other factors highlighted by Mr Latu. Mr Luman conceded that the State was partly to blame for what happened and that the offender's psychiatric condition, brought on by the Bougainville Crisis, was a special mitigating factor. He submitted that a head sentence of 8 to 10 years may be appropriate

DECISION MAKING PROCESS

14. To determine the appropriate penalty I will adopt the following decision making process:

• step 1: what is the maximum penalty?
• step 2: what is a proper starting point?
• step 3: what should the head sentence be?
• step 4: should the pre-sentence period in custody be deducted?
• step 5: should all or part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

15. Section 300 of the Criminal Code provides that the maximum penalty for murder is life imprisonment. However the court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code.

STEP 2: WHAT IS A PROPER STARTING POINT?

16. From time to time the Supreme Court gives sentencing guidelines in the course of deciding criminal appeals or reviews. These guidelines are often expressed in terms of a 'starting point' or 'starting range' for various types of cases. The National Court then applies those starting points in the course of looking at each case on its merits and identifying the aggravating and mitigating circumstances. The actual sentence imposed can be above, below or the same as the starting point, depending on whether the aggravating factors outweigh the mitigating factors (resulting in a sentence above the starting point); the mitigating factors outweigh the aggravating factors (resulting in a sentence below the starting point); or the mitigating and aggravating factors are balanced (resulting in the starting point being the sentence).

17. The Supreme Court has in recent times laid down sentencing guidelines for murder, in two cases:

• Simon Kama v The State (2004) SC740 (Sevua J, Kandakasi J, Lenalia J);
• Manu Kovi v The State (2005) SC789 (Injia DCJ, Lenalia J, Lay J).
  

18. The starting points identified in these cases are summarised in the tables below.

TABLE 1: SENTENCING GUIDELINES
FOR MURDER DERIVED FROM SUPREME
COURT'S DECISION IN SIMON KAMA'S CASE

No	Plea	Details	Tariff
1	Guilty	No aggravating factors.	12 to 16 years
2	Guilty	Aggravating factors other than use of firearms and the commission of another serious offence.	17 to 30 years
3	Guilty	Aggravating factors including use of firearm or other dangerous weapons in the course of committing or attempting to commit another serious offence.	31 years to life imprisonment
4	Not guilty	No aggravating factors.	17 to 21 years
5	Not guilty	Aggravating factors including use of firearm or other dangerous weapons in the course of committing or attempting to commit another serious offence.	22 to 40 years
6	Not guilty	Aggravating factors including use of firearm or other dangerous weapons in the course of committing or attempting to commit another serious offence.	41 years to life imprisonment

TABLE 2: SENTENCING GUIDELINES
FOR MURDER DERIVED FROM
SUPREME COURT'S DECISION IN MANU KOVI'S CASE

No	Description	Details	Tariff
1	Plea – ordinary cases – mitigating factors – no aggravating factors.	No weapons used – little or no pre-planning – minimum force used – absence of strong intent to do grievous bodily harm.	12-15 years
2	Trial or plea – mitigating factors with aggravating factors.	No strong intent to do grievous bodily harm – weapons used – some pre-planning – some element of viciousness.	16-20 years
3	Trial or plea – special aggravating factors – mitigating factors reduced in weight or rendered insignificant by gravity of offence.	Pre-planned – vicious attack – strong desire to do grievous bodily harm – dangerous or offensive weapons used, eg gun, axe – other offences of violence committed.	20-30 years
4	Worst case – trial or plea – special aggravating factors – no extenuating circumstances – no mitigating factors, or mitigating factors rendered completely insignificant by gravity of offences.	Premeditated attack – brutal killing, in cold blood – killing of innocent, harmless person – killing in the course of committing another serious offence – complete disregard for human life.	Life imprisonment

19. The guidelines in Kama and Kovi are not identical but in both decisions the court highlighted the increase in murder sentences over the years and the need to consider each case on its merits. I consider that the offender's case falls within category 2 of Kama, which would result in a sentencing range of 17 to 30 years. However, as I pointed out in The State v Jacky Vutnamur and Kaki Kialo (No 2) (2005) N2868, Kovi is the more recent decision. Therefore I will apply its guidelines while at the same time paying close attention to the dicta in Kama. I have difficulty with Mr Latu's submission that this case falls within category 1 of Kovi's case. I reject the categorisation of this case as showing 'no strong intent to do grievous bodily harm'. This was a case of a vicious attack by a man upon his wife, who was entirely innocent, unarmed and vulnerable, committed in the presence of their children. I accept, as Mr Latu submitted, that the evidence falls short of showing that the killing of the deceased was pre-planned. However, it exhibited a strong desire to do grievous bodily harm. Therefore the case falls within category 3 of Kovi and the starting point is within the range of 20 to 30 years imprisonment.

STEP 3: WHAT IS THE HEAD SENTENCE?

20. There are a number of considerations to take into account in deciding on the head sentence. I have listed them below as a series of questions. An affirmative (yes) answer is regarded as a mitigating factor. A negative (no) answer is an aggravating factor. A neutral answer will be a neutral factor. The more mitigating factors there are, the more likely the head sentence will be reduced below the starting point. The more aggravating factors present, the more likely the head sentence will be above or at the starting point.

21. Three sorts of considerations are listed. Numbers 1 to 8 focus on the circumstances of the incident. Numbers 9 to 13 focus on what the offender has done since the incident and how he has conducted himself. Numbers 14 to 16 look at the personal circumstances of the offender and give an opportunity to take into account any other factors not previously considered.

22. The relevant considerations are:

1. Did the prisoner not directly kill the deceased? No. He killed her in a direct and brutal way.
   
2. Was just one person involved in the attack? Yes.
   
3. Was there some intervening cause of death? No.
   
4. Did the prisoner not set out to hurt anyone? No.
   
5. Did the deceased or any other person provoke the prisoner in 'the non-legal sense', eg did the deceased abuse or assault the prisoner? No. There was some allusion to provocation in the allocutus but the reason for the offender's actions have not been made clear to the court.
   
6. Did the deceased have a pre-existing condition making her susceptible to serious or fatal injury by a moderate blow? No.
   
7. Can the attack on the deceased be classed as 'not vicious'? No.
   
8. Can the death of the deceased be regarded as an unforeseeable consequence of the activity that the prisoner was involved in? No.
   
9. Did the prisoner play a relatively minor role in the activity that led to the death? No.
   
10. Did the prisoner give himself up and confess after the incident? Yes, that appears to be the case.
    
11. Did the prisoner cooperate with the police in their investigations? Yes.
    
12. Has the prisoner done anything tangible towards repairing his wrong, eg offering compensation to the family of the deceased, engaging in a peace and reconciliation ceremony, personally or publicly apologising for what he did? No, there is no evidence of this.
    
13. Has the prisoner pleaded guilty? Yes.
    
14. Has the prisoner genuinely expressed remorse? No, I do not think so. He gave the impression in his allocutus that he does not appreciate the gravity of his crime.
    
15. Is this his first offence? Yes.
    
16. Can the prisoner be regarded as a youthful prisoner or are his personal circumstances such that they should mitigate the sentence? Yes, the psychiatric condition that the offender was suffering from at the time of the offence, brought on by his involvement in the Bougainville Crisis, is a mitigating factor. However, I reject Mr Latu's submission that it is a compelling and overriding mitigating factor that would result in the offender being given a light sentence. The crime committed was one of the most disturbing and terrible imaginable. A man sought and killed his wife by kicking and punching her to death in front of their children. This cannot be excused – which is what might be perceived if a light sentence were to be imposed – by saying that the man was disturbed. If he were genuinely psychiatrically impaired to the extent contended for by Mr Latu, he would have had a defence of insanity available to him under the Criminal Code. The fact is, he was drunk, and angry, but there is no evidence that he did not genuinely understand what he was doing. It is of little use blaming the National Government for what happened. The offender was a serving member of the Defence Force at the time he committed the offence. If he needed help, he should have sought it out well before putting himself in the position where he might be dangerous.
    
17. Are there any other circumstances of the incident or the prisoner that warrant mitigation of the head sentence? Yes, I take into account the plea for leniency by the Council of Chiefs. I have considered what the Bougainville Constitution has to say about the need for sentencing to accommodate custom as well as introduced law. However, the Bougainville Legislature has the power and the responsibility under the Bougainville Constitution to direct the courts to take special Bougainvillean considerations into account when sentencing people for crimes committed on Bougainville. No law has yet been passed so it would be improper of me to give great weight to this as a mitigating factor. I must also consider what message the court would be sending to the rest of the People of Bougainville, and the People of Papua New Guinea as a whole, if I were to impose only a short prison sentence for a crime as horrendous as this one. All right thinking people in Bougainville and PNG generally are very concerned about domestic violence and about brutal crimes committed against women by men. This was one of the worst cases of domestic violence imaginable and if I were to take the Council of Chiefs' approach to this case, the court could well be condoning what has happened. The courts impose heavy sentences not only to punish an offender but to mark the community's condemnation for what has happened. When the victim has been killed, a heavy sentence is in some ways a mark of respect for the life that has been lost. Light sentences for murder cheapen the life of the deceased. Another thing that compels me not to regard the Council of Chiefs' submission as a weighty mitigating factor – and the same thing applies to the offender's family's plea for a non-custodial sentence expressed through the pre-sentence report – is that it is difficult to accept that the offender will not be a danger to the community and to his remaining family members if he is given a short or non-custodial sentence. The court has not had the benefit of hearing from the offender's children on their attitude to their father. They are young children and the court does not know whether they even want to live with their father.
    

23. I point out that I am not bound by the concessions made by the prosecutor, that the offender should be sentenced only to 8 to 10 years imprisonment.

24. To recap, mitigating factors are:

• No 2 – only one offender;
• No 10 – gave himself up;
• No 11 – co-operated with police;
• No 13 – pleaded guilty;
• No 15 – first offender;
• No 16 – suffering from psychiatric disturbance;
• No 17 – family and community pushing for light sentence.
  

25. Aggravating factors are:

• No 1 – direct and brutal killing;
• No 3 – no intervening cause of death;
• No 4 – strong intention to do serious harm;
• No 5 – no provocation;
• No 6 – deceased had no pre-existing, susceptible condition;
• No 7 – extremely vicious assault;
• No 8 – death was a foreseeable consequence of the assault;
• No 9 – offender solely responsible;
• No 12 – no reconciliation;
• No 14 – no genuine remorse.
  

26. After weighing all these factors and bearing in mind that there are seven mitigating factors compared to ten aggravating factors, the head sentence should be within the starting point range. I impose a head sentence of 20 years imprisonment.

STEP 4: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

27. The offender has spent seven months in custody in connexion with this offence and it is proper that that period be deducted from the total sentence. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment the whole of the pre-sentence period in custody, as shown in table 3.

TABLE 3: CALCULATION OF FINAL SENTENCE

Length of sentence imposed	20 years
Pre-sentence period to be deducted	7 months
Resultant length of sentence to be served	19 years, 5 months

STEP 5: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

28. This is not an appropriate case in which to suspend the sentence. A life has been lost. A man has murdered his wife in front of their children. He must spend a considerable time in jail. Under existing law he will be entitled to a remission of one-third of the sentence in the normal course of events. This was such a shocking crime, it is not appropriate to suspend any part of the sentence or to indicate a minimum term in custody.

SENTENCE

29. Augustine Tup, having been convicted of the crime of murder, is sentenced as follows:

Length of sentence imposed	20 years
Pre-sentence period to be deducted	7 months
Resultant length of sentence to be served	19 years, 5 months
Amount of sentence suspended	Nil
Time to be served in custody	19 years, 5 months from date of sentence

Sentenced accordingly.
_________________________

Public Prosecutor: Lawyer for the State
Latu Lawyers: Lawyers for the Accused