State v Koki [2007] PGNC 264; N5049 (24 August 2007)

N5049

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NO 1967 0F 2005

THE STATE

V

RUDOLPH REME KOKI

Kimbe: Cannings J
2007: 13 July, 13, 14, 24 August

CRIMINAL LAW – sentence – murder – guilty plea – offender killed his wife in domestic dispute – victim beaten to death – sentence 28 years

A man pleaded guilty to murder. He came home drunk, argued with his wife, they fought and he beat her to death. No offensive weapons were used.

Held:

(1) The starting point for sentencing for this sort of killing in a domestic setting, exhibiting a strong desire to inflict grievous bodily harm is 20 to 30 years imprisonment.

(2) Mitigating factors are: surrendered and confessed incident; co-operated with police; pleaded guilty; first offender.

(3) A sentence of 28 years was imposed. The pre-sentence period in custody was deducted and 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 (2006) SC890
Simon Kama v The State (2004) SC740
The State v Augustine Tup CR No 1075 of 2004, 29.09.07
The State v Daniel Ronald Walus (2005) N2802
The State v David Yakuye Daniel (2005) N2890
The State v Jacky Vutnamur and Kaki Kialo (No 2) (2005) N2868
The State v John Kanua Siune and Kenneth Kunda Siune CR Nos 384 & 385 of 2003, 21.12.06
The State v Kevin Wakore CR No 378 of 2003, 16.08.07
The State v Sebastian Justin Kelly CR 75/2001, 20.05.05

SENTENCE

This was a judgment on sentence for murder.

Counsel

F Popeu, for the State
O Oiveka, for the offender

24th August, 2007

1. CANNINGS J: This is a decision on sentence for a man who pleaded guilty to one count of murder arising from the following facts. On 7 October 2005 the offender had been out drinking alcohol. Around 7.00 pm he returned to his oil palm block at Ismin, near Kimbe. His wife, Agnes Timo Rene, was at home with their children and daughter-in-law. He had a heated conversation with her, raised his voice, chased her out of the house, then he calmed down and she came back. He then started assaulting her and did so for quite some time. Agnes ran away again, but this time he chased her, she fell on the road, he sat on her, hit her on the head and bit her on the ears and face. He forced her back into the house, locked her in and continued assaulting her, while their children and daughter-in-law were outside. She somehow managed to run outside the house but bumped into a wheelbarrow and fell. The offender caught her and continued beating her until she became unconscious. He pulled her to the front of the house and sat there, watching over her. When his daughters came to the scene he told them to go to sleep, while still watching over Agnes. The next morning his daughter-in-law came out, the offender was not there, and found that her mother-in-law was dead. The post-mortem report shows that the cause of death was head injuries, in particular intra-cerebral haemorrhage (bleeding coming from the brain). The offender caused the death of his wife and intended to do her grievous bodily harm. I entered a provisional plea of guilty and then, after reading the District Court depositions, confirmed the plea and entered a conviction for murder under Section 300(1)(a) of the Criminal Code.

ANTECEDENTS

2. The offender has no prior convictions.

ALLOCUTUS

3. The offender stated:

I know I did wrong. I have 24 hectares of oil palm. When I am in custody there is no one to tend to my oil palm. I produce a lot of oil palm and this makes a lot of money for many people and the company and the country. I have five children; the oldest is married and the others are still young. Their grandparents are old and do not have enough money to look after them, to pay their school fees, buy clothing and attend to their other basic needs. I apologise to my wife's relatives for what I have done.

OTHER MATTERS OF FACT

4. As the offender has pleaded guilty he will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State (2006) SC890). The only significant mitigating matters arising from those materials are that the offender co-operated with the police and made admissions in his police interview. He claimed that his wife had started the fight by getting cross over trivial matters, biting him on the nose and squeezing his testicles.

PRE-SENTENCE REPORT

5. To help me make a decision on the appropriate sentence I considered a pre-sentence report under Section 13(2) of the Probation Act in relation to the offender. The report was prepared by the Kimbe office of the Community Corrections and Rehabilitation Service. A summary of the report follows:

RUDOLPH REME KOKI: male, aged 43 years.

Residence: Ismin VOP, WNB.
Family background: mother and father from Kulungi village, WNB – both parents alive – the offender is the first-born in a family of three.
Marital status: was married to the deceased until her death and they had five children – marriage not stable – he has since married a woman form Musau, NIP, who lives at Kulungi with his children – she says some members of the offender's family have told her she should not continue to live with him as she might suffer the same fate as his first wife, but he has not mistreated her – she intends to remain with him and look after the children.
Education: Grade 6, Kimbe Primary School, 1978.
Employment: never formally employed.
Health: OK.
Financial status: earns income from sale of oil palm.
Plans: redevelop his oil palm block – plus develop a new block, for his ten-year-old son.
Victim's family's attitude: the deceased is from Morokea village, near Kimbe – her family has requested K20,000.00 compensation – the deceased's father wants the offender jailed, not given probation.
Offender's family's attitude: not supportive – the offender's father is not happy with him as the offender has a history of beating his wife and the offender had not heeded advice to stop – his family is ashamed of what the offender has done – his family has paid compensation in cash and kind of K3,400.00 to the deceased's family.
Attitude of community: the offender is regarded as a hard working person but gets into trouble with other people especially when drunk.
Assessment: high risk person, prone to violence when under liquor – would be a threat to family and community if given probation.
Recommendation: not suitable for probation.

SUBMISSIONS BY DEFENCE COUNSEL

6. Mr Oiveka highlighted the guilty plea and co-operation with the police. He submitted that the murder was not within the worst category as there was no planning. The case was at the borderline of categories 2 and 3 of murder cases, according to the sentencing guidelines given by the Supreme Court in Manu Kovi v The State (2005) SC789. Because of the mitigating factors the sentence should be below 20 years (that being the sentence at the borderline of categories 2 and 3 in Manu Kovi's case). The facts are similar to those in a recent Kimbe case, The State v Daniel Ronald Walus (2005) N2802. A young man pleaded guilty to manslaughter of his sister-in-law. He got angry with her as she allegedly swore at his wife and he punched and kicked his sister-in-law to death. He was sentenced to 18 years imprisonment. Mr Oiveka submitted that the same sentence should apply in this case.

SUBMISSIONS BY THE STATE

7. Mr Popeu submitted that this was a particularly vicious assault, which took place over some hours. It falls within category 3 in Manu Kovi's case, so a sentence within the range of 20 to 30 years is warranted. It is a more serious case than Ronald Walus's case as in that case the offender was convicted of the less serious offence of manslaughter. It is also more serious than a similar case I decided last year in Buka, The State v Augustine Tup CR No 1074 of 2004, 29.09.06. A strong deterrent sentence is called for, something in the range of 20 to 25 years, Mr Popeu submitted.

DECISION MAKING PROCESS

8. 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 sentences have been imposed for equivalent offences?
• step 4: what is the head sentence?
• step 5: should the pre-sentence period in custody be deducted?
• step 6: should all or part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

9. 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?

10. The Supreme Court has in recent times laid down sentencing guidelines for murder, in two cases, Simon Kama v The State (2004) SC740 and Manu Kovi v The State (2005) SC789. As Kovi's case is the more recent decision, I will follow it. Its starting point ranges are summarised in the table below.

SENTENCING GUIDELINES FOR MURDER DERIVED FROM 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

11. This was a case of a vicious attack by a man upon his wife, who was unarmed and vulnerable, committed in the vicinity of other family members. I accept, as Mr Oiveka 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. It was an assault that continued over several hours. The offender had ample opportunity on a number of different occasions to stop what he was doing and seek medical attention for his wife. I accept Mr Popeu's submission that the case falls within category 3 of Kovi and the starting point is 20 to 30 years imprisonment.

STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED RECENTLY FOR EQUIVALENT OFFENCES?

12. Before I fix a sentence, I will consider other murder sentences I have handed down recently. These cases are shown in table 2 below.

NATIONAL COURT SENTENCES FOR MURDER, 2005-2007

No	Case	Details	Sentence
1	The State v Sebastian Justin Kelly CR 75/2001, 20.05.05, Kimbe	Guilty plea – vicious attack on a relative who was asleep and unarmed – Bialla – offender used a bushknife – suggestion that the offender was mentally unbalanced.	20 years
2	The State v David Yakuye Daniel (2005) N2890, Kimbe	Trial – husband attacked the deceased (his wife) over suspected infidelity on her part – Kandrian, WNBP – vicious attack, he stabbed her several times.	25 years
3	The State v Jacky Vutnamur and Kaki Kialo (No 2) (2005) N2868, Kimbe	Trial (first offender) and guilty plea (second offender) – police officer shot dead in course of armed robbery committed by a gang of which the offenders were members – neither offender fired any shots – convicted under prosecution of common purpose provisions of the Criminal Code Section 8.	15 years, 9 years
4	The State v Augustine Tup CR No 1075 of 2004, 29.09.07, Buka	Guilty plea – a man murdered his wife by punching and kicking her – offence committed late at night after offender came home drunk – dragged his wife out of friend's house and fatally assaulted her – offender a former Defence Force sergeant, involved in Bougainville Crisis, suffering from psychiatric disturbance brought on by involvement in Crisis.	20 years
5	The State v John Kanua Siune and Kenneth Kunda Siune CR Nos 384 & 385 of 2003, 21.12.06, Kimbe	Trial – two men murdered a man they suspected had killed a friend of theirs by sorcery – mob attack – the victim was bashed to death.	25 years
6	The State v Kevin Wakore CR No 378 of 2003, 16.08.07, Kimbe	Guilty plea – there was a dispute between clans in a village after a man was alleged to have committed adultery with another man's wife – the clans had a confrontation and in the course of it the offender shot dead the victim – significant compensation and reconciliation had occurred since the killing.	12 years

STEP 4: WHAT IS THE HEAD SENTENCE?

13. 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. However, sentencing is not an exact science. It is a discretionary process. When a factor is marked as mitigating or aggravating it does not mean necessarily that it is given the same weight as another mitigating or aggravating factor. Some mitigating factors may be 'strongly mitigating'. Others may be 'mildly mitigating'. The same goes for aggravating factors. 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 17 look at the personal circumstances of the offender and give an opportunity to take into account any other factors not previously considered.

14. The relevant considerations are:

1. Did the offender 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 offender not set out to hurt anyone? No.
   
5. Did the deceased or any other person provoke the offender in 'the non-legal sense', eg did the deceased abuse or assault the offender? No. The offender suggested that the deceased started their argument and bit him but given the ferocity of his attack upon her it cannot be regarded as any sort of provocation.
   
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. The post-mortem report shows that the offender assaulted his wife savagely. The direct cause of death was her head injury, evidenced by bleeding inside the skull and brain. She also suffered a dislocated left elbow, 13 human bites on various parts of her body and fractured nasal bones. It was a prolonged and vicious assault.
   
8. Can the death of the deceased be regarded as an unforeseeable consequence of the activity that the offender was involved in? No.
   
9. Did the offender play a relatively minor role in the activity that led to the death? No.
   
10. Did the offender give himself up and confess after the incident? Yes, that appears to be the case.
    
11. Did the offender cooperate with the police in their investigations? Yes.
    
12. Has the offender 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. He appears to have reneged on his promise to pay compensation leaving the burden to his father and other family members who have paid some compensation and bel kol money.
    
13. Has the offender pleaded guilty? Yes.
    
14. Has the offender genuinely expressed remorse? No. 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 offender be regarded as a youthful offender or are his personal circumstances such that they should mitigate the sentence? Neutral.
    
17. Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence? Neutral. I have considered that the offender's five children have been left without a mother; and also a father, given that the offender will have to be imprisoned. However, this cannot be regarded as a mitigating factor; if anything it is aggravating as it demonstrates that this crime had many victims apart from the deceased – in particular the children.
    

15. After weighing all these factors and bearing in mind that there are only four mitigating factors compared to ten aggravating factors, the head sentence should be within the starting point range. Comparing this with other murder cases I have dealt with, I find this one the most serious, with the fewest mitigating factors. The facts bear a remarkable similarity to Augustine Tup's case, another case in which a man, in a drunken condition, murdered his wife by bashing her to death. However, in Tup, there were significant mitigating factors not present here: the offender was suffering from a psychiatric disturbance; and his family and the community were pushing for a light sentence. The present case is significantly worse than Tup's case. It is also a worse case than the two trials in which I sentenced the offenders to jail terms of 25 years: David Yakuye Daniels' case and John and Kenneth Siune's case. The present case was brutal, domestic violence at its worst. The sentence must reflect the community's outrage at such assaults by men upon their wives. I take full account of the offender's guilty plea, the fact that he is a first offender and his co-operation with the police. But those mitigating factors are heavily outweighed by the many aggravating factors. I fix a sentence of 28 years imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

16. 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, which is seven months and two weeks.

STEP 6: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

17. This is not an appropriate case in which to suspend any part of the sentence. A life has been lost. A man has brutally and savagely assaulted his wife in the vicinity of other family members. The pre-sentence report does not favour suspension of any part of the sentence. The offender therefore must spend a considerable time in jail. This was such a shocking crime, it is not appropriate to suspend any part of the sentence.

REMARKS

18. A lot of publicity has been given in recent times to the "No Violence Against Women" campaign. If anyone needs convincing about the need for such educational programs, they should be directed to read cases such as this one. Mothers are the cornerstone of the family home. They keep the family together and shape the future of the children. An assault on a mother is an assault on her children. Domestic violence poses a threat to the fabric of this society and to the future of all children. It is not restricted to violence by men against their wives. It can be committed by women against men. Domestic violence can be committed by any person against another person who they are meant to love, care for and protect. It is the ultimate betrayal of trust by one human being against another. We must all learn from cases like this, understand how and why this sort of violence occurs and what we as individuals and communities must do to stop it.

SENTENCE

19. Rudolph Reme Koki, having been convicted of the crime of murder, is sentenced as follows:

Length of sentence imposed	28 years
Pre-sentence period to be deducted	7 months, 2 weeks
Resultant length of sentence to be served	27 years, 4 months, 2 weeks
Amount of sentence suspended	Nil
Time to be served in custody	27 years, 4 months, 2 weeks

Sentenced accordingly.
_____________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the accused