State v Kuru [2011] PGNC 77; N4352 (5 August 2011)

N4352

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NO 441 OF 2008

THE STATE

V

STANLEY KUMA KURU

(No 3)

Mount Hagen: Makail, J
2011: 13th May, 04th & 05th August

CRIMINAL LAW - Sentence - Wilful murder - Conviction after trial - Prescribed maximum penalty of death - Aggravating factors and mitigating factors considered - Death followed a history of abuse and assault of deceased - Use of offensive weapon - Payment of substantial customary compensation - Custodial sentence appropriate - Term of 25 years imprisonment imposed less time spent in pre-trial custody - Criminal Code, Ch 262 - Sections 19 & 299.

Cases cited:

The State -v- Tendi Kalio Ulio [1980] PNGLR 350
Manu Kowi -v- The State (2005) SC789
Anna Max Maringi -v- The State (2002) SC702

Counsel:

Messrs J Kesan & J Waine, for the State
Messrs P Kapi & R Bellie, for Prisoner

SENTENCE

05th August, 2011

1. MAKAIL, J: You were convicted on one count of wilful murder following a trial under section 299 of the Criminal Code, Ch 262. What is left for me to decide is an appropriate punishment for you.

2. You killed your second wife the late Grace Wamne Koime at Bala village in Minj District of Western Highlands Province on 22nd December 2007. Prior to her death, in 2003, the deceased was doing Grade 7. You took her as your second wife. In the ensuring years, until the fateful day of 22nd December 2007, the deceased lived a troublesome marriage life. You constantly abused her. On more than one occasion, you were summonsed before the village court and ordered to stop and also make restitution to the deceased but the orders did not deter you. You continued the abuses.

3. On the fateful day of 22nd December 2007, between 7 o'clock and 8 o'clock in the morning, the deceased was at Minj road intersection market. Armed with a long butcher knife and under the influence of liquor, you went to the market on a bicycle looking for her. You saw her and attempted to attack her by chasing her around the market but she ran away and sought refuge with some relatives, namely her sister Bai Koime and sister in-law Kine Tumbe at the market. You approached them and ordered the deceased to go home. You threatened to kill her and she went home. Later, you followed her home and confronted her. An argument ensured and you stabbed her on her chest with the knife. She suffered massive internal bleeding and was rushed to the hospital. Unfortunately, she died.

4. The prescribed maximum penalty you face for committing this offence is death under section 299 of the Criminal Code, Ch 262. I think men who kill their wives where it is unprovoked and where the woman is armless and defenceless, which is often the case in many cases, should be given the maximum penalty; death. The Court must come down hard on men who commit wilful murder in this kind of circumstances. This will send a strong message home to men that if they take their wives' lives, they must also be prepared to die.

5. I think for far too long women in this country have been silently suffering from abuse by men. Killings arising from domestic violence are prevalent and in many cases, women die because of jealousy, infidelity and promiscuity by men. I do not have to look far to find evidence to support the observations I make because the present case is proof of them.

6. The deceased was a victim of domestic violence. Her death was a result of a long history of abuse and assault by you. On the morning of the fateful day, you chased her at the market place because you said you were unhappy that she was gambling. You were seen with a long butcher knife. Luckily, she saw her relatives, her sister Bai Koime and sister in-law Kine Tumbe at the market and sought refuge with them. Her refuge with them saved her life but it was for a short while. You demanded her to go home and even threatened to kill her to force her succumb to your demand.

7. She could not resist your threats and submitted to your demand to go home. When she left them and went home, she met her fate. At home, she was alone and you took the opportunity to attack her. She was armless and defenceless. There was no-one to come to her rescue. You stabbed her with the knife on her left chest once but it was a fatal one as the knife penetrated her left chest and punctured the left lung. It resulted in massive internal bleeding and that caused her death. In my view, this is a cold blooded murder. It is brutal as it is committed with no regard to life.

8. You always had the propensity to kill and the inevitable was going to happen someday because despite the village court orders restraining you from abusing her and make restitution, you never stopped. On one occasion, you assaulted her and broke her arm. You were ordered to pay compensation of one pig and money to her. This, you did. The court order was intended to deter you from further abuse of her but I wonder whether it was an effective deterrence. I would have thought, you should have been charged with grievously bodily harm or better still, attempted murder if there was sufficient evidence that you intended to kill her and brought before the National Court for trial. If that was done at that time, may be that would have saved her life. It was not done.

9. Nonetheless, they were opportunities for you to change your ways. There were opportunities for you to repent from your sins and become a better person more importantly, a better husband; a husband who would love and cherish his wife. You did not. You continued your abuses. The end result, you killed her and despite the Court's decision that you killed her, you continued to maintain your innocence.

10. This is apparent when the Court gave you time to address the Court before sentence and you said you were unhappy with the two State witnesses Bai Koime and Kine Tumbe whom you claimed had fabricated evidence against you. You claimed, they were not interviewed by the police during the investigations and should not have testified against you at trial. They did and misled the Court to find you guilty. If the position you take is a re-affirmation of the kind of person you are, as a strong willed person who is not prepared to accept responsibility for his actions, especially where the Court has found you guilty after assessing all the evidence before it, then it is difficult to make out whether or not your expression of remorse and apology is genuine at all. I am not sure whether you are genuinely sorry for what you did. It would seem you are not prepared to accept the Court's decision that you killed your wife.

11. It is true and I accept, technically, you are a first offender as this is the first time you have been convicted by a court of law. But in reality, you are not. As I have pointed out to you earlier, you have appeared before the village court on a number of occasions, because of abuse and assault of the deceased. This shows you are not a first offender.

12. Your constant abuse and assault of the deceased has caused the parents, immediate family members and relatives of the deceased so much pain and grief. I can see they tried to resolve the conflict between you and her. It came to a point, they had enough and asked for her return but you refused. A fight almost broke out between you and them at the gathering because you refused to accept their proposal. You wanted to keep her. Their efforts in trying to find a lasting solution to the conflict were in vain.

13. That is why I can also see in the amended pre-sentence report submitted by the probation officer, one of the brothers of the deceased Thomas Masi made it abundantly clear to the probation officer that you must serve a custodial sentence for killing his sister. His views represent the views of the family members and relatives of the deceased. Her death was the ultimate end to the long struggle, pain and grief you have caused them. They will live the rest of their lives without her. You will also live the rest of your life without her but as a consolation for you, you still have your first wife to live with. They have none. That is why they have called for a strong deterrent sentence for you.

14. The other people that the probation officer interviewed like councilor Rex Kuna, community leaders Yuants Kaman and Thomas Kipi and Pastor Chris Selve spoke highly of you. They said you are a respected young man in your community and you and your relatives paid substantial customary compensation to the relatives of your late wife. They supported your request for a non-custodial sentence. However, the Court has no record of these persons being ever present in any of the village court hearings and mediations between you and the deceased's family. As a result, they remain oblivious of these court hearings and mediation. So how is it then that they speak so highly of you? I find it hard to accept their views. I reject them.

15. I also note from the amended pre-sentence report you stated you are a member of the Four Square Church but occasionally attend church services on Sundays. While in prison awaiting your trial, you gave your heart to the Lord. You repented from your sins and promised to live a trouble free life. This is good news for us all. You should be encouraged by Pastor Chris and others to pursue a "new life" in Christ. I have no doubt, when one sinner asks for forgiveness from God, God forgives and forgets the sinner's sins and I am sure He did exactly that to you when you called upon Him to save you. But you must not underestimate the seriousness of the offence you have committed. You must still pay the price for the offence according to the law of men.

16. Your family members and relatives paid substantial customary compensation comprising of 40 pigs and K20,000.00 cash to the family and relatives of the deceased within three days of the killing while you were in police custody as confirmed by yourself on allocutus and the amended pre-sentence report. There is no evidence of you contributing to this cause but the payment of compensation was done to say sorry to them and to mend the broken relationship between both sides. This is fine but the sad fact is, the substantial compensation will not bring back the deceased to life. She is dead and gone.

17. The compensation culture is so entrenched in our society, both the traditional and modern that it poses a serious threat to the maintenance of the rule of law. It is still being practised in present day Papua New Guinea despite Papua New Guineans moving away from a traditional way of life to the western and modern way of life. In the highlands region, it is an everyday thing.

18. It has its advantages and disadvantages. It is a bad cultural practice if it is a means by which offenders and lawbreakers escape criminal culpability when they have broken the laws that Parliament has enacted to govern us. In killings in domestic settings where substantial customary compensation is given to the family and relatives of the deceased and the murderer is allowed to walk free, this is where I think it is a bad cultural practice. It is repugnant to the general principles of humanity and must be outlawed: see schedule 2.1 of the Constitution and contrasted with The State -v- Tendi Kalio Ulio [1980] PNGLR 350 per Narakobi, AJ.

19. In your case, your family members and relatives have sacrificed a lot to compensate the deceased's family and relatives. By law, you and your relatives were not obliged to do that but by custom and tradition, you felt obliged and did so. However, you must still face the full force of the law for killing your wife. This renders the payment of customary compensation less significant to the gravity of the offence you have committed and I think it is a wise decision by the family and relatives of the deceased to have you prosecuted for this offence rather than accept the compensation and allow you to walk free.

20. Having considered the circumstances leading to the offence and how it was committed, I am of the view they render your plea for leniency on the basis of serious prejudice to your family's welfare insignificant. Further, they render your plea for leniency based on the death of your parents and recently the deceased insignificant in the determination of an appropriate sentence for you.

21. You also said you did not escape during the mass break out at Baisu CIS gaol last year when it was a golden opportunity to have done so. You said this was a symbol of sincerity and acceptance of responsibility and go towards supporting your plea for leniency. I accept those matters and commend you for not escaping from custody. However, weighing that against the history of the case and the manner in which you killed your wife, that good deed of yours makes very little impact on the sentence.

22. In the Supreme Court case of Manu Kovi -v- The State (2005) SC 789, the Supreme Court in using the range of sentences noted in Anna Max Maringi -v- The State (2002) SC 702 the following sentencing tariffs:

"1. In an uncontested case, with ordinary mitigating factors and no aggravating factors, a starting point of 7 years up to 12 years. A sentence below 7 years should be rarely imposed except in exceptional cases where there are special mitigating factors.

2. In a contested or uncontested case, with mitigating factors and aggravating factors, a starting point of 13 - 16 years.

3. In a contested or uncontested case, with special aggravating factors and mitigating factors whose weight is reduced or rendered insignificant by the gravity of the offence, 17 - 25 years.

4. In contested and uncontested case with special aggravating factors - Life imprisonment for the worst cases. The presence of mitigating factors is rendered insignificant by the gravity of the offence. These are cases which involve viciousness, some pre-planning, use of a weapon and complete disregard for human life."

23. The Supreme Court then set out the guidelines for wilful murder cases as follows:

"Willful Murder

1. Term of Years: 15 - 20 years

In an uncontested case, in a case with ordinary case with mitigating factors and no aggravating factors, we suggest a starting point of 15 years up to 20 years.

Sentences below 15 years should be rarely imposed except in exceptional cases with special extenuating circumstances and special mitigating factors.

2. Terms Years: 20 - 30 years.

In a contested or uncontested case, with mitigating factors and with aggravating factors a sentences in the range of 20 - 30 years is appropriate. Examples include the following types of cases:

1. No motive for killing.

2. Multiple wounds resulting in instant death.

3. Vicious attack on innocent person resulting in fatal wounds inflicted on vulnerable parts of the body.

4. Deliberate shooting with gun following argument.

3. Life Imprisonment -

If the Court considers that the case falls into the worst category then the Court should consider if there are "circumstances which operate so as to diminish the culpability of the prisoner, not in the strict sense, but broadly."

24. Taking into account the guidelines set out in Manu Kovi's case (supra), in your case here, I find no special extenuating factors exist to warrant a sentence in the first category, which is a term of sentence between 15 and 20 years imprisonment. On the other hand, this case has some common features of the second category killing described by Manu Kovi's case (supra) as it is a contested case and the death of the deceased was a result of a long history of abuse and assault. It was a case of deliberate killing following an argument involving use of a knife. You stabbed the deceased on a vulnerable part of the body with the knife. It was a vicious attack as she was armless and defenceless.

25. In the end, as the Court has discretion to impose a lesser penalty on you under section 19 of the Criminal Code, Ch 262, I will spare your life today. You will live to see another day but it will be within the confines of Baisu CIS gaol. You are therefore sentenced to a term of 25 years imprisonment. As you have served 3 years, 7 months and 2 weeks in pre-trial custody since 27th December 2007, that period shall be deducted and this leaves a balance of 21 years, 4 months and 2 weeks for you to serve.

Sentence accordingly.

____________________________________
Acting Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for Prisoner