State v Kui [2014] PGNC 98; N5655 (6 June 2014)

N5655

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO.687 OF 2012

THE STATE

V

BERTHLYNE KUI

Wewak: Kirriwom, J
2014: 6 June

CRIMINAL LAW – Sentence – Murder – Pleaded guilty – Prisoner suspected deceased of having affair with her husband – She confronted deceased with a kitchen knife and stabbed her several times on her left chest – Deceased had a child still breast-feeding at the time of death – Prisoner also had three children in her marriage to her husband – Both prisoner and deceased got married into the same family – First Offender – Expressed remorse – Genuine – Deterrent punishment appropriate – Sentenced to 13 years, six years suspended on conditions and placed on probation.

Cases cited

Manu Kovi v The State [2005] SC789
State v Mavis Uraro (2012) N5164
The State v Drikore Yuana Peter [2000] PNGLR 307
The State v Maria Paul (2003) N2434
The State -v- Laura (No.2) [1988-89] PNGLR 98
Anna Max Maringi v The State [2002] SC 702
The State v Taulaola Pakai (2010) N4125
The State v Lucas Yovura (2003) N2366

Counsel:

P Tusais, for the State
F Fingu, for the Accused

REASONS FOR SENTENCE

6th June, 2014

1. KIRRIWOM, J.: Berthlyne Kui of Parimbe village Wosera Gawi District East Sepik pleaded guilty to murder. She was charged with unlawfully killing another woman one Judith Omi Maniwo at Yawasoro Second Road on 16 May 2012.

2. The prisoner suspected the deceased of having affair with her husband. When the husband failed to return home on the night in question she went looking for him. Upon reaching the deceased at her place she argued with her verbally which soon followed with a stab wound on the left chest of the deceased. The knife pierced the right atrium of the heart through and through and continued to the posterior wall exiting at the level of T6 vertebrae area. The cause of death was hypovolaemic shock and internal bleeding from the penetrative injury sustained to the right atrium of the heart.

3. At the time of her attack by the prisoner, the deceased was carrying her small child whom she was still breast-feeding.

4. When pleading guilty to the charge, the prisoner expressed remorse particularly to the deceased's child and her own two children for her action that led to the death of another woman and a mother.

5. The prisoner is a young woman aged 31 years married with two children ages two years and one year. She was educated to Grade 8 and married to one Genesis X. She was employed by South Sea Tuna prior to this trouble until remanded in custody following this offence. The husband does part-time driving job for living. She is a first time offender with good family background.

6. She is the child of her mother's first marriage to a Kerema man who left her and got married to another woman. The prisoner's mother comes from Kararu village, Angoram District, East Sepik Province and is now married to another man from Parimbe village Wosera Gawi District. She speaks well of her step-father who raised her very young upon marrying her mother.

7. Murder carries life imprisonment as the maximum penalty under section 300 of the Criminal Code. However the maximum penalty is reserved for the worst case of murder. Since the case of Manu Kovi v The State [2005] SC789 the Supreme Court fixed some sentencing guidelines for the National Court to adopt in considering appropriate sentences in the case of wilful murder, murder and manslaughter. Different categories were created according to the gravity of the homicide offence charged. In murder cases the Court classified murder for purposes of sentencing to these categories:

8. In an uncontested case, in an ordinary case with ordinary mitigating factors and no aggravating factors, a starting point of 12 years up to 15 years. A sentence below 12 years should be rarely imposed except in exceptional cases where there are special mitigating factors.

9. In a contested or uncontested case, with mitigating factors and aggravating factors, a sentence of 16 – 20 years imprisonment.

10. In a contested or uncontested case, with special aggravating factors and special mitigating factors whose weight is reduced or rendered insignificant by the gravity of the offence, 20 – 30 years.

11. In contested or uncontested cases, the maximum of life imprisonment should be reserved for the worst case of its kind such as the unexplained pre-planned vicious and brutal killing of an innocent and unarmed person using dangerous or lethal weapons substances; summary execution style killings; killings in full view of public without regard for the safety and lives of others, etc .These are cases where there are no mitigating factors or mitigating factors or are rendered completely insignificant by the gravity of the crime.

12. This is an uncontested case where there are both mitigating and aggravating factors. Mitigating factors are that the prisoner is a first offender, saved court time and expense by pleading guilty to the charge, her plea is evidence of her contrition for her action that led to the death of the deceased and for she also expressed remorse in open court. It is also noted that as the result of her action, her family suffered enormously when the deceased's relatives burnt down her family's home at Yawasoro Second Street. As the result the family had to relocate to Kararau Settlement where they presently reside in a make-shift temporary accommodation along the road to Boram Prison.

13. There are also aggravating factors which include the prevalence of this offence. Domestic related killings have been on the rise where wives kill their husband's girl friends or wives kill co-wives of the same common husbands. A special aggravating factor in this case is that the deceased was with her one year old child when the prisoner stabbed her on the upper left chest area, knowing full well that plunging the knife in that part of the body can lead to instant death once the knife finds the heart. She had no mercy for the little child with the deceased who might become motherless by her action because of her jealous rage. She has now realised what she had done but that is far too late.

14. Applying the guidelines in Manu Kovi v The State (supra) this case borders between category 1 and 2. As first offender, I will treat her under category 1. What is then the appropriate term of imprisonment and whether there is to be any suspension as recommended by the Pre Sentence Report?

15. In State v Mavis Uraro (2012) N5164, the prisoner stabbed to death her husband's girl-friend. She was a youthful offender aged 22 years married young with two children aged 5 and 1 respectively. She pleaded guilty to murder, paid substantial compensation of K22,000.00. The court took into account her youthfulness, her husband's infidelity, expression of remorse and the substantial compensation payment and sentenced her to 12 years imprisonment less time spent in custody and suspended five years eight months and two days. It is not known how long the prisoner spent in custody which was deducted from the head sentence of 12 years.

16. In The State v Drikore Yuana Peter [2000] PNGLR 307 the prisoner who was wife number two was unhappy with husband bringing home a third wife. She used a kitchen knife to stab the deceased two times as she lay asleep in bed. There was suggestion that the husband provoked her by comparing her intelligence with the deceased who was literate and the prisoner was not. She was sentenced to 12 years imprisonment.

17. In The State v Maria Paul (2003) N2434 the prisoner stabbed to death with a single stab wound the deceased who was brought into the house while the prisoner was away in the village following countless domestic fights and quarrels because of the husband's infidelity and continuous adultery with the deceased. When she returned and found that the deceased had moved into her house and used her belongings fight erupted and deceased was stabbed to death. Trial judge applied the sentencing precedent in The State -v- Laura (No.2, [1988-89] PNGLR 98 and imposed a sentence of six years.

18. Contrasting those cases with the one before me the prisoner had no concrete proof that the deceased was actually having an affair with her husband, she was only suspicious because of her husband's conduct towards her. Otherwise she knew that she and the deceased married their husbands who belonged to the same family or clan. She therefore reacted without justification and brought about the death of an innocent woman who did no harm to her.

19. Considering the sentences imposed on those cases I referred to above, I believe that a strong deterrence sentence is called for. In doing so, I am mindful of the prisoner's plea of guilty, her prior good record, expression of remorse and cooperation with the police since her arrest. But a precious life has been heedlessly lost and a young child has been left to grow up without a mother's love and care, all because of this prisoner's jealousy based on pure suspicion. That life lost cannot be restored.

20. I considered adverse effects and implications of a long custodial punishment on the prisoner who is a mother of two children who need her. But equally important is the sanctity of human life she heedlessly took without regard for her and her child or children. She had no proof to accuse the deceased of having affair with her husband and yet she used a deadly knife to do her talking. She made her own bed and so she must lie in it. The Supreme Court in Anna Max Maringi v The State [2002] SC 702 presided by Justices Jalina, Injia and Sawong stated the following:

"During argument, we attempted to demonstrate our appreciation of the sanctity of human life in pragmatic terms in this way. Both the appellant and the deceased are young women. The medical report shows that the deceased was aged 20 years. The appellant is aged 26 years. Given the life expectancy of females in this country at 60 years, the appellant had another 34 years to live, whilst the deceased had another remaining life expectancy of 40 years of life to live. The appellant was sentenced to 9 years. She will be released from prison at the age of 35 by which time she will be a middle-aged woman. By then, she will still have many years to live. She may go on to live with her husband Max or marry someone else. On the other hand, the deceased's long years of life expectancy have been terminated prematurely."

21. The Court said further:

"We endorse His Honour's emphasis on the use of a knife as a lethal weapon to kill another person as unacceptable under any circumstances. To our knowledge, there are increasing instances of manslaughter and murder killings coming before the Courts in which a knife is used to settle domestic differences, with fatal consequences. The use of readily available kitchen knife to settle one's domestic grievances is prevalent in this country. It is becoming a silent lethal weapon, far more dangerous than other potentially dangerous weapons like axes, bushknives or even guns. The reason for this is because the knife is readily available, it can be easily concealed, and used on unsuspecting unarmed victims who are usually taken by surprise, and used in a calculating and precise manner, that the human body is easily penetrated and vital organs are damaged or even severed. It seems to us that more lives are being lost in this country today from the use of the knife than with any other weapon. Therefore, a strong punitive and deterrent sentence is required."

22. Various case authorities in our jurisdiction have said that family circumstances or situations should have no bearing on the court's duty to impose what is a just and fair punishment on an offender. Hartshorn J in The State v Taulaola Pakai (2010) N4125 said:

"An offender should consider his family obligations and commitments first before he goes out and commits an offence. A plea for leniency to avoid the suffering of one's family should have little or no weight when an appropriate sentence is being considered."

23. Similar views were expressed by Kandakasi J in The State v Lucas Yovura (2003) N2366 which I quote:

"Indeed I note what the Supreme Court in Allan Peter Utieng v. The State (Unreported judgement delivered in Wewak on 23/11/00) SCR 15 of 2000 said is relevant. In that case, the Court observed that an offender should consider his background first before committing any offence. Implicit in that is the fact that, it is a little too late to talk about an offender's personal background including the needs of his family concerns once he is proven guilty according to law. His background and concerns should have little or no weight against the need to impose a sentence or punishment that best befits an offence he has committed in the particular circumstances in which the offence was committed."

24. Essentially what this means is that before a person makes that critical decision to use a knife or to consciously engage in a criminal act, he or she must first think of his or her family and his or her own personal circumstances. One cannot use family or personal commitments and obligations to escape punishment from the court after he or she has been found guilty or convicted of an offence.

25. Considering all these matters in the light of the sentences imposed in those cases I alluded to, I sentence the prisoner to 13 years imprisonment in light labour. I take away time spent in custody before release on bail on 25 February 2013 which is 9 months and 8 days. This now leaves her with 12 years 2 months 3 weeks and 2 days to serve.

26. I suspend six years 2 months 3 weeks and 2 days and order that she serve that portion of her sentence on probation subject to the following terms and conditions:

1. That immediately upon her release she shall pay compensation in the sum of K2000.00 to the child or children of the deceased Judith Omi Maniwo.
   
2. She shall perform 10 hours of unpaid community work every week at such times and places assigned to her by CBC.
   
3. She shall keep peace and stay out of trouble for the duration of her probation.
   

27. The probation sentence shall commence running after she had served the remaining term of six years at Boram CS.

28. I order that her bail money of K300 be paid to the deceased's child or children as part compensation of this sentence.

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Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Defence