State v Roy [2015] PGNC 46; N5968 (19 March 2015)

N5968

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1022 OF 2013

THE STATE

-V-

HENDERE ROY
Defendant

Popondetta: Toliken, J.
2015: 04th, 19th March

CRIMINAL LAW – Sentence – Murder – Plea – Guilty – Killing in Domestic setting – Single stab wound to the chest with kitchen knife piercing lung and heart – Prisoner subjected to domestic abuse and violence over 5 years – A special mitigating factor - Mitigating factors outweigh aggravating factors – Appropriate sentence – 14 years less time spent in remand – Resultant sentence, 13 years and 2 months - Appropriate case for suspension - 6 years to be served, balance suspended on condition – Criminal Code Ch. 262, s 300(1)(a).

Cases Cited:

Thress Kumbamong v The State (2008) SC 1017
Saperius Yalibakut v The State (2006) SC 890
Mann Kovi v The State (2005) SC789
Avia Aihi v The State [1983] PNGLR 92
Golu Golu v The State [1979] PNGLR 653
Public Prosecutor v Don Hale (1998) SC 564
The State v Uraro (2012) N5164
The State v Muturu (2012) N5163
The State v Maria Tuu (2008) N3706
The State v Drekore Yuana Peter (2000) N1973

Counsel:

J. Done, for the State
E. Sasingian, for the Prisoner

SENTENCE

19th March, 2015

1. TOLIKEN, J: Hendere Roy, on the 04th of March 2015, you admitted before me to killing your late husband, Roy Okere, at Evasusu Village, Sohe District, Northern Province on the 05th day of March 2013. For that the State indicted you with one count of murder pursuant to Section 300(1)(a) of the Criminal Code Ch. 262.
   
2. The brief facts put to you on arraignment were that on 05th day of March 2013, between 12.00 p.m. and 1.00 p.m. you and the deceased were at Evasusu Village. You had an argument over cooking arrangements. You refused to do the cooking and you continued to nag the deceased so he picked up a stick and hit you on the back of your shoulder blades and again on your legs. You got a kitchen knife and stabbed the deceased on the left side of his chest piercing the heart. This led to heavy bleeding and the deceased died as a result. You intended to cause grievous bodily harm to the deceased when you stabbed him. However, you ended up killing him instead.
   
3. The offence of murder carries a maximum penalty of life imprisonment. But the Court has discretion under the Criminal Code (s 19) to impose a lesser sentence. While the maximum penalty is life imprisonment, the law is well established in that the maximum penalty for any offence is reserved for the worst instances of a particular offence. Furthermore a sentence in any given case will depend very much on the particular circumstances of that case. (Golu Golu v The State [1979] PNGLR 653; Avia Aihi v The State [1983] PNGLR 92)
   
4. My task then is to determine an appropriate sentence for you. And I must start by deciding whether the circumstances of your case justify the imposition of the maximum penalty of life imprisonment. If it is not, then I must impose a sentence that befits the circumstances of your case.
   
5. And to assist me in doing that I will have to consider several things. I will need to consider your personal particulars, your address to the Court and submissions by your lawyer and the State, the circumstances under which you committed the offence, factors that mitigate or aggravate the offence, the purpose of punishment or sentencing for this type of offence, what other judges of this court have decided in similar cases and any guidelines that the Supreme Court has laid down.
   
6. You are 25 years old and come from Evasusu Village. You were married to the deceased for 5 years before his death and you have 3 children. The youngest is only 1 year and 11 months old. You were 8 months pregnant with this child at the time of the offence. You were educated up to Grade 5 only. You could not continue your education because you got married to the deceased.
   
7. I asked you to say something to the Court before I sentenced you and this is what you said:
   

“Sorry God, sorry Court and sorry to my husband [and] to the community. My husband and I were married. I was his second wife. He used to abuse his first wife and she committed suicide. I have three children. One was still in my stomach – 8 months. He got cross to me over food. I didn’t mean to do it. Thank you.”

8. Your lawyer Mr. Sasingian submitted that your case is not a worst case that should attract the maximum penalty of life imprisonment. He said that you are a first time offender, you pleaded guilty to the charge, made early admissions, you are the victim of domestic violence which he said is a special mitigating factor, and that you acted in the spur of the moment. He, however, conceded that there are factors against you. You used a dangerous weapon to fatally attack the deceased, life was lost and this is a very prevalent offence.
   
9. He therefore submitted that an appropriate sentence for you should fall somewhere between 12 – 20 years less the 10 months which you have been in remand. The range suggested by counsel falls between Category 2 of the sentencing guideline set by the Supreme Court in Manu Kovi v The State (2005) SC789. And because you have a good Pre-Sentence Report counsel submitted that half of this should be suspended.
   
10. Mr. Done for the State submitted that despite the alleged abuse on you by the deceased, you had no right to kill him. You had recourse to the police but you did not seek their assistance. You took a life by the use of kitchen knife and this is a very prevalent offence. Counsel agreed that a sentence for you should be in the range suggested by your lawyer.
    
11. The offence of murder is a very serious one as we have seen. The fact that it carries the maximum penalty of life imprisonment reflects the fact that life is precious. It is a gift from God, and once taken, cannot be replaced by us mere humans. As the Author of life God did not take the taking of life lightly. In the Law He gave to Moses the penalty for taking another person’s life was death – regardless of whether the killing was intentional or unintentional. Divine justice therefore demanded life for life. Of course because His ways are just and righteous as the Supreme Judge, his Law tempered justice with mercy so that manslayers were offered an avenue to escape the avengers of blood by escaping to designated cities of refuge. (see the Book of Deuteronomy)
    
12. The need to respect the sanctity of life continues to be the main reason why our laws also provide very stiff penalties for homicide offences. Wilful murder attracts the ultimate penalty of death while murder and other lesser offences like manslaughter attract life sentences.
    
13. Sentences for murder as well as other homicide offences have, however, continued to rise, and, for good reason. In Manu Kovi v The State (supra) the Supreme Court set out sentencing guidelines for wilful murder, murder and manslaughter. For each offence it provided four categories enumerating the circumstances and the range of penalties on a graduating scale from less serious to the worst. For murder these are –
    

Category	Circumstances	Sentence
Plea. Ordinary cases. -Mitigating factors wi h no aggravating factors.	No weapons used. -Little or no pre-planning. -Minimum force used. -Absence of s intent tont to do GBH.	12 – 15 years
Trial or Plea. -Mitigatactors with aggh aggravating factors.	No strong intent to do GBH. -Weapons used. -Some pre-planning -element of viciousness	16 – 20 years
Trial or plea -Special Aggravating factors.&#160-Mitigatingating factors reduced in weight or rendered insignificant by gravity of offence	Pre-planned. Vicious attack. -Strong desire to d. -Dangerous or offensivensive weapons used e.g. gun or axe. -Other offences of violence committed.	20 – 30 years
WORST CASE – Trial or Plea -Special aggravating factors. -Nonuating circumstancetances. itigating factors or mior mitigating factors rendered completely insignificant by gravity of offence.	Pre-meditated attack. -Brutal killingcold blood. -Killing of g of innocent, harmless person. -Killing in the course of committing another serious offence. -Complete disregard for human life.	LIFE IMPRISONMENT

14. Counsel did not cite any cases to me on previous sentences by this court. However, I shall refer to a few cases, two of which I dealt with here in Popondetta where the offenders were both women and where deaths also resulted from single stab wounds with kitchen knives.
    
15. In The State v Uraro (2012) N5164 the prisoner pleaded guilty to stabbing the deceased on the back with a kitchen knife. The deceased had been having an affair with the prisoner’s husband and after a failed mediation attempt at the Police Station the prisoner went looking for the deceased in town. She found her at the check-out counter at the Papindo Supermarket and stabbed her once on the back with a kitchen knife. The deceased was caught completely unawares. She died as a result. Among the mitigating factors that I found for the prisoner there, she was a first time offender, there was non-legal provocation, single stab wound, she was a youthful offender being on 19 years old at the time of the offence and her relatives had paid a substantial amount of K22000 as compensation. Her aggravating factors were that she used an offensive weapon; there was some preplanning and prevalence of the offence. I fixed a starting point of 14 years but taking into account her mitigating factors I imposed a head sentence of 12 years less time in custody. I ordered that the prisoner serve 5 years of the resultant sentence and suspended the balance on condition.
    
16. In The State v Muturu [2012] N5163, the prisoner pleaded guilty to one count of murder. She had gotten into an argument with the deceased who was drunk. The deceased punched the prisoner to the ground and then walked off. The prisoner got up and ran after the deceased and stabbed him on the back with a kitchen knife. The knife penetrated the deceased’s back and pierced the apex of his heart. He died as a result. There prisoner was a first time offender, she pleaded guilty at the earliest opportunity, there was no pre-planning, there was provocation in the non-legal sense, minimal force was used and there was one single blow only. But this is a prevalent offence, an offensive weapon was used and the knife was directed at a vital organ. I sentenced the prisoner to 13 years less time in custody. I ordered that the prisoner serves 6 years of the resultant sentence and suspended the balance on terms.
    
17. In The State v Maria Tuu (2008) N3706, the prisoner, the second of two wives of a man, killed the first wife during an argument by stabbing her with a kitchen knife which penetrated the right kidney and the liver. The prisoner intended to do grievous bodily harm to deceased. She pleaded guilty to murder. David J. took into account the prisoner's plea, that she was a first time offender, she co-operated with police, there was de facto provocation and that the prisoner was remorseful and had shown that by paying "belkol" compensation. His Honour held that the circumstances of the case fell under Category 2 of the Manu Kovi tariffs and imposed sentence of 16 years. Let me now consider your case.
    
18. I must first consider those factors which operate in your favour and those that are against you. You pleaded guilty to the charge, are a first time offender, you inflicted one single wound only on the deceased, hence this was not a vicious attack and there was no preplanning on your part as you more or less acted in the spur of the moment.
    
19. I find that you were the victim of domestic violence. I accept from your allocutus, Pre-Sentence Report and your Record of Interview that the deceased was a very violent and abusive man. And you are not his only victim because his first wife, who was your cousin sister, is said to have committed suicide because of the violence and abuse she received from the deceased.
    
20. On the date of the offence, the depositions show quite a different factual situation from the scanty facts put to you on arraignment. The deceased became abusive towards you and assaulted you quite badly with sticks. The altercation appears to have gone on for some time when you finally picked up the kitchen knife you had been using to prepare your lunch, ran to the deceased as he was preparing to assault you again and you plunged the knife into his chest.
    
21. You sustained some injuries yourself and was hospitalised for 5 days. This is confirmed through a Medical Report by Dr. Andrew Samuel dated 10/03/13. The State did not challenge any of these hence I take these into account in your favour. (Saperius Yalibakut v The State (2006) SC 890) The constant and recurring violence and abuse which most importantly again happened on the day in question is a special mitigating factor, if not, an extenuating factor in my view.
    
22. There are, however, some aggravating factors against you. This offence is very prevalent. You used an offensive weapon, you stabbed the deceased (albeit once only) on a vulnerable part of the body – the chest – under which vital organs like the heart and lungs are located. In fact the Medical Report by Dr. Niure Badia shows that the knife had –
    

“travelled through the chest cavity piercing through [medial] aspect of the left lung lacerating it then [entered] the pericardium (housing of the heart) from left to right. The object then travelled the left auricle of the upper parts of the heart.

These were big openings in the heart which drained all the blood in the heart plus those that entering into the pericardium and ou[t] into the left chest cavity causing Haemothorax (free blood in the chest cavity).”

23. Dr. Badira concluded that the deceased died “due to [a] through and through stab to the heart with a sharp object. No chance of survival.” So what then should be an appropriate sentence for you?
    

24. Deciding what an appropriate sentence for you is not an easy task especially because the victim here was not an innocent defenceless man. According to the Pre-Sentence Report and the depositions, your 5 years of marriage to him were punctuated by violence and abuse. He also seemed to have been addicted to substance abuse and that probably contributed to his violent behaviour. That the deceased was prone to violence could have resulted only in someone being seriously injured, even fatally, and unfortunately it was him. What then should the Court do in such a situation?

25. There is no question that you will have to pay the price for taking your husband’s life. And on the authority of Manu Kovi you should be sentenced to a period of imprisonment between 16 – 20 years. Your mitigating factors are very strong and especially so when we consider the abuse that you went through, which, needless to say would have been both physical and psychological as is true of every victim of domestic violence. I, however, do not lose sight of the fact that the taking of precious human life is something that must be punished adequately to exact respect for the sanctity of life and respect for the law.

26. Too many people continue to die at the hands of their supposedly loved ones. Sentences imposed by the courts have not succeeded in reducing, let alone deter these types of killings. As His Honour Kirriwom J. rightly put it in The State v Drekore Yuana Peter (2000) N1973, the problem of killings in domestic settings is "deeply rooted" and cannot be addressed by "simply penalising and incarcerating the already overly abused and battered wives who have the misfortune to go overboard in their emotional reactions by causing the death of another."

27. The Supreme Court in Thress Kumbamong v The State (2008) SC 1017 said that a distinction ought to be made between the real criminals who ought to be removed from society and those who should not. It said –

"The courts need to re-examine and identify cases that require imprisonment for the protection of the society and the cases that do not warrant imprisonment but correction outside the prison system. This is not a new thing. The courts have been doing that for centuries but have failed to guarantee safer societies. What is new, however, is the question of what should be the primary focus of criminal sentencing and the suggested answer of correction and rehabilitation and not necessarily imprisonment in prisons. Adopting such an approach would enable the courts to address that which matters most, which is the emotional needs of an offender and the society as a whole for a safer society."

28. With those observations in mind, together with the circumstances under which you committed the offence, on the authority of Manu Kovi I fix a starting point for your case at 16 years – that is at bottom of Category 2 in Manu Kovi. And because of your mitigating factors which far outweigh the factors against you, I am of the view that you deserve a head sentence somewhere below the starting point. A just and fair sentence in my view should therefore be 14 years.

29. I therefore sentence you to 14 years in light labour. I deduct 10 months for time you spent in remand, so that will leave you with a balance of 13 years and 2 months. Now should any of these be suspended?

30. There is no question that the Court has wide discretion to suspend a sentence. However, that discretion must be exercised according to proper principle. The Supreme Court in Public Prosecutor v Don Hale (1998) SC 564 held that a sentence may only be suspended if is supported by a favourable Pre-Sentence Report where the community has shown a willingness to assist in rehabilitating or supervising the prisoner.

31. What the Supreme Court said in Kumbamong has a lot sense. Victims of domestic violence as I alluded to above suffer untold physical, humiliating, psychological and sometimes degrading and inhuman treatment from their violent and abusive spouses and partners for years. With a society that largely views women as her husband's property resulting inaction by communities (especially relatives), the cause for the abused and battered woman is not promoted at all. How they endure this, and somehow cling on to a partner and a relationship that is obviously and latently dangerous for their very survival is hard to fathom. But they endure - if they are not killed sooner - until they will snap as you did in this case. So should you, and others like you, then be subjected to the full wrath of the law, whose agents, sad to say, often times do not come to your assistance until it is too late?

32. You are one of those prisoners, who are victims themselves, who do not deserve to be incarcerated for lengthy periods of time but rather as the Supreme Court said in Kumbamong, ought to be corrected outside our prison system.

33. For these reasons and because your Pre-Sentence Report is good, I propose to suspend a portion of your resultant sentence and order you to serve the balance outside on probation so that you can receive counselling assistance. You will, however, serve a just portion of your sentence because the offence you committed is very serious.

34. I therefore order that you will serve 6 years of your resultant sentence at Biru Corrective Institution. The balance of 7 years and 2 months is suspended on condition that upon your release you enter into Probation for a period of 5 years.

Ordered accordingly

_________________________________________________________________
The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Prisoner