State v Mareva [2012] PGNC 222; N4805 (13 August 2012)

N4805

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 219 OF 2010

THE STATE

V

DOUGLAS MAREVA

Bomana: Gauli AJ
2012: 10 & 13 August

CRIMINAL LAW – Sentence – Plea of guilty – Murder – Criminal Code, Section 300 – Used iron rod and or sharp object – Inflicted bruises and blackish discolouring all over the body – Deep cuts or wounds on both legs – There was continuous beating over 3 days that protracted and sustained multiple bruises and wounds until it resulted in death – Killing in a domestic setting – Killing was brutal, vicious and in cold blood – Falls in a worst category of murder though no offensive weapon like bush knife used – First time offender – Cooperated with police – Made full admission on an earliest opportunity – No special mitigating factor present – No extenuation circumstances present – Deterrence sentence – Sentenced to 24 years imprisonment – Time in custody deducted – No suspension of sentence

Cases Cited:

The State v Manga Kunjip [1976] PNGLR 86
The State v Saul Ogerem (2004) N2780
Manu Kovi v The State (2005) N789
The State v Joseph Ulakua (2002) N2240
Thress Kumbamong v The State (2008) SC 1017
Maima v Sma [1971-72] PNGLR 49
Goli Golu v The State [1979] PNGLR 653
The State v Siwi [2003] PGNC 60
The State v Winara (No.2) [2008] PGNC 67
Acting Public Prosecutor v Umane Aumane [1980] PNGLR 510
Steven Loke Ume v The State (Unreported) SCRA 10 of 1997

Counsel

Mr. S. Collins, for the State
Ms. R. Endemongo, for the Accused

SENTENCE

13 August, 2012

1. GAULI AJ: The accused Douglas Mareva pleaded guilty to one count of murder, charged under Section 300 (1) of the Criminal Code. This offence has a maximum penalty of life imprisonment but subject to Section 19 (1) (a) of the Criminal Code. Section 19 gives the court powers to impose a sentence lesser than the prescribed maximum penalty.
   

Brief Facts

2. The brief facts are that on the 8th of April 2009 at Manabe Sub- Station at Cape Rodney Rubber Estate, the accused and his wife the deceased Jumbo Keuru and the children were in their house. At about 4.00am the accused went to his neighbours and told them that his wife was ill. The neighbours went to the house and found her dead. Police and other authorities were contacted. Medical officers from Moreguina Health Centre examined the body later that day. And noticed bruises and blackish discolouring all over the deceased's body particularly on her ears, lips, face, buttock, arms, legs and back. There were several deep knife-like wounds on both legs. She experienced and protracted these injuries before her death.
   
3. The accused was arrested on the 11th of April 2009 and he admitted to police that he killed his wife using a car jack handle. The knife-like wounds were caused by using the car jack handle. The State alleged that the accused intended to cause grievous bodily harm and that resulted in her death.
   
4. From the depositions presented to the Court by the prosecution counsel, I noted the following. The Medical Certificate of Death dated 17/04/09 by Dr. Komnapi, stated that the deceased died of multiple stab wounds to her body.
   
5. The Medical Examination of the deceased Jambo Keuru performed by the Moreguina Health Centre in Abau District on the 8th of April 2009, soon after the death of the deceased showed bruises, swollen and blackish discolouration on her face, cheeks, chin, eyes, lips, left ear, back of the neck, left shoulder, chest wall, buttock, multiple bruises on both arms, bruises on the legs and thighs, deep cut or wound on the left knee, a cut on the left forehead and a cut on the left forearm. There were no bruises or laceration on the genitalia region.
   
6. In the Record of Interview the accused admitted killing his wife. He said after he brought his wife back from Moreguina on Saturday the 4th of April 2009, both went fishing but they had an argument so they returned to the house and they fought. And they continued to fight for the next 2 or 3 days until the deceased died. In this occasion he assaulted his wife using a car jack handle. He did not use a knife or anything else.
   
7. The statement of Avea Judy and Bolo Martha stated that during the week they heard the accused and his wife fighting but they did not mind because that was normal for the accused and the deceased. Alphonse Sumanu in his statement said at times he would hide the deceased in his house from the accused whenever he beats her up every now and then.
   
8. Having read the depositions and heard the plea by the accused, I considered whether it is safe to accept the accused plea of guilty. The law is very well established in The State v. Manga Kunjip [1976] PNGLR 86 at p.88 that a judge should only accept a plea of guilty if it is made in plain, unambiguous and unmistakable terms. And the court must be satisfied that it is safe to accept the plea of guilty if the accused makes his plea unequivocally to every element of the charge: see The State v. Saul Ogerem (2004) N2780. Having considered the depositions and the plea by the accused, I am satisfied that it is safe to accept the plea of guilty and I convicted him of the charge of murder.
   

Antecedent Report

6. The prisoner has no prior criminal records. He is 32 years old and he hails from Kelekapana village in Abau District, Central Province. The prisoner was married and has two very young age children. The deceased was his wife.
   

Allocutus

7. In his allocutus the prisoner said sorry to the court and to his late wife for what he did. He said this is his first time and he asked the court to sympathise with him. He said his wife is dead and he has two young children aged 4 years and 2 years that he has left. He asked the court to consider his two children and give him a length of sentence that he can serve and be released to care for his children.
   

Mitigating Factors

8. He entered a guilty plea at an earliest opportunity. He cooperated with police and he made full admission of the offence. His early guilty plea and his cooperation with authorities and his admission of the charge is a sign of his remorse for the crime he committed.
   

Aggravating Factors

9. He used a weapon or weapons such as a car jack handle. He continued to assault his wife over a period of 2 – 3 days in his house until her death. He protracted and inflicted serious injuries on the deceased. He is said to be a common wife basher according to the depositions before the court.
   

Submissions on Sentence

10. Both the defence counsel and the prosecutor provided written submissions in court. In their submission on sentence, both referred to a number of decided cases on sentencing including the sentencing guidelines prescribed by the Supreme Court in the case of Manu Kovi v. The State (2005) SC 789. And they submitted that the present case falls within the Category 2 of Manu Kovi. The defence counsel submitted a head sentence of 20 years while the prosecution counsel submitted a starting point to be between 20 – 30 years but the court should give him some recognizance for his early plea of guilty, as per The State v. Joseph Ulakua (2002) N2240. And he submitted a sentence between 22 – 25 years be appropriate.
    

Decision of the Court

11. The sentencing guidelines in Manu Kovi (supra) have been criticized by a more recent Supreme Court decision in Thress Kumbamong v. The State (2008) SC 1017, that those prescribed minimum and maximum sentences that are already within the prescribed maximum sentences are unnecessary and illegal as they restrict the vested discretion of a trial judge in imposing sentence the judge seem fit to impose. It is my personal conviction that I should follow the recent Supreme Court decision in Thress Kumbamong than Manu Kovi case. A trial judge must exercise his or her vested discretionary powers in sentencing within the prescribed penalty legislated by the Parliament rather than be restricted by further prescribed minimum and maximum sentences by a decided case law.
    
12. The maximum penalty for murder under Section 300 of the Criminal Code is life imprisonment. But sentence is subject to Section 19 (1) (a) (b) of the Criminal Code. This provision gives the court the discretion to impose sentences lesser than the prescribed maximum penalty.
    
13. The law is very well established in Maima v Sma [1971 -72] PNGLR 49 and Goli Golu v. The State [1979] PNGLR 653 that a maximum prescribed sentence is reserved for the worst type of cases under consideration before the court. The issue is whether the present case is the worst type of a murder case. The beating of the deceased took over several days some 2 – 3 days until the deceased died. It wasn't just one of incident but the beating was repeated and or continuous attack over a period of days. The deceased was assaulted with a car jack handle, which was a metal rod and inflicted multiple bruises and wounds. The manner in which the killing took place was brutal, cold blooded and vicious. There can be no doubt that given the circumstances of the case, though no offensive weapon such as a knife was used, this was a worst type of a murder case. A man ought to love his wife just as he loves himself and not to treat the wife as an ordinary object.
    
14. The killing took place in a domestic setting between a husband and a wife. The case that is more relevant and similar to the present case is that of The State v. Joseph Ulakua (2002) N2240, as referred to by both the defence and prosecution counsel. In that case the husband continuously bashed the wife on suspicion of having extra marital affairs. The wife returned to her parents' village. Sometimes later the husband went and demanded her to go back home with him. She refused and locked herself up in the house. The husband broke into the house chased her out and he slashed her on both her legs and back with a bush knife and he left her and she bled to death. The husband was sentenced to 20 years imprisonment on guilty plea.
    
15. There are some differences noted between the case of Joseph Ulakua (supra) and the present case. In Joseph Ulakua a bush knife was used and inflicted just two wounds in the one incident. In the present case the deceased was assaulted over a period of 3 days with an iron rod until her death. In Joseph Ulakana the wife refused to go back with the husband and she locked herself up in the housed that prompted the husband to act in the manner he did. The husband broke into the house and chased her out and attacked her outside the house. In the present case the wife obediently returned with the husband to their house at Manabe and the husband assaulted her over 3 days in their marital home. In Joseph Ulakua, the wife had extra marital affairs. In the present case there were no extra marital affairs or any other form of complaints against the deceased wife.
    
16. In my view, a continuous series of assault with an iron rod over a period of days, is considered much worse than chopping a person with a bush knife in a single attack or a repeated attacks in a single day that results in death instantly. Where the victim is beaten over a period of days no doubt the deceased would have gone through and experienced pain and agony over that period before eventually dying.
    
17. The prosecutor referred to two other cases that are also relevant to the present case. In The State v. Siwi [2003] PGNC 60, late Jalina J, sentenced the husband to 16 years on plea of guilty for the murder of his wife with a dagger like object, with history of violence towards the wife. And in The State v. Winara (No.2) [2008] PGNC 67, Kirriwom J, sentenced the wife to 17 years on plea of guilty for stabbing the husband for unhappy marriage. In these two decided cases the attack took place only once that resulted in deaths unlike the present case. Wife bashing resulting in death has become so prevalent an offence that custodial sentence should be increased as a deterrence to any future wife bashers.
    
18. Sentencing serves number of purposes such as punitive, deterrence, rehabilitation or retribution, as per the Supreme Court decision in Acting Public Prosecutor v. Umane Aumane [1980] PNGLR 510. The punitive purpose is to punish the offender for the wrong he or she has committed. The view of the public is that every offender should be locked away behind the bars for the safety of the community. The deterrence purpose of sentencing is to deter other future like offenders that they will be imprisoned if they commit similar offences. The third purpose is to rehabilitate the offender by serving a sentence out in the community. Whatever sentence the court decides to impose must reflect the purposes of the criminal justice system that should balance out between the offence or offender and the effect it may have on the community.
    
19. The prisoner is 32 years old. He is neither a very young nor very old. He does not have any health problems nor has he paid some form of compensation to the deceased's relatives: Manu Kovi case referred. I find that the prisoner has no special mitigating factors available to him. I also find that no extenuating circumstances exist in this case. Examples of extenuating circumstances are clearly stated by the Supreme Court in Steven Loke Ume v. The State, (Unreported) SCRA 10 of 1997, 4th May 2010, which includes de facto provocation, duress or coercion, the degree of the offender's participation, the offenders medical condition, offenders lack of sophistication or traditional customs, practices and belief which influence the offender to act in the way he did. In the present case the prisoner was the sole attacker on the deceased that resulted in her death.
    
20. Having compared the circumstances of the present case with that of the case in The State v. Joseph Ulakua (above), I considered that a sentence higher than the sentence in Joseph Ulakua (supra) should be appropriate. And I consider that a sentence of 24 years imprisonment is not excessive for murder of a wife.
    
21. The prisoner has being in custody from 8th April 2009 till his conviction and sentence today the 13th August 2012, a period of 3 years 4 months and 5 days. His pre-trial period in custody will be deducted pursuant to Section 3 of the Criminal Justice (Sentences) Act 1986.
    
22. I have considered whether I should suspend part of the sentence. I have taken into account that the accused has no special mitigating factors nor there any extenuation circumstances present. The prisoner is a regular wife basher and also taking into account that the prisoner continuously beat up the wife for 3 or so days before the wife died, I consider that this is not an appropriate case to suspend any part of the sentence.
    

SENTENCE

23. The prisoner DOUGLAS MAREVA having being convicted of the crime of murder under Section 300 (1) of the Criminal Code, is sentenced as follows:
    

Length of Sentence imposed : 24 Years Imprisonment IHL.

Pre-Sentence period deducted : 3 Years 4 Months 5 Days.

Balance of the Sentence to be served: 20 Years 7 Months 25 Days.

Amount of Sentence Suspended : None.

Time to be served in prison : 20 Years 7 Months 25 Days.

Place of Imprisonment : Bomana Correctional Institution.

Sentenced Accordingly.

_________________________________________________________
Public Prosecutor: Lawyers for the State
Paraka Lawyers: Lawyers for the Accused