State v Kaitas [2016] PGNC 102; N6315 (9 May 2016)

N6315

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 780 OF 2015

THE STATE

V

JENIFER TAT KAITAS

Wabag: Auka AJ

2016: 19^th Feb, 7^th April & 9^th May

CRIMINAL LAW - Sentence – Murder –Guilty plea - Killing of a four (4) year old child – Use of piece of wood – De Facto Provocation – First time offender – Expression of remorse - Prevalence of offence -Partly suspended sentence appropriate – term of 10 years imprisonment imposed and partly suspended – Criminal Code – Section 300 and 19

Case cited:
Avia Aihi v. The State (No. 3) [1982] PNGLR 92
Goli Golu v. The State [1979] PNGLR 653
Lawrence Simbe v. The State [1994] PNGLR 38
Manu Kovi v. The State (2005) SC 789
The Public Prosecutor v. Bruce William Tardew [1986] PNGLR 91
The State v. Peter Pokau (2008) N5462

Counsel:
Mr. Joe Waine and Ms Shiela Luben, for the State
Mr. Robert Bellie, for the Accused

SENTENCE

19^th May, 2016
1. AUKA AJ: The accursed pleaded guilty to a count of Murder Contrary to Section 300 (1) (a) of the Criminal Code.

2. The brief facts of the case were that on Friday, 2^nd January 2015 at Naputesa Village between 3:00pm and 4:00pm the deceased aged four (4) years and the accused were in their house. During that time the victim threw a knife at the accused and it landed on her small finger. The accused became upset and she picked up a piece of wood and threw it at the victim with great force and it landed on his forehead causing him to fall down and instantly died in the house (see admission by accused in the Record of Interview answer to question 14). Then the accused wrapped the deceased body with pieces of laplap and carried him to a creek and placed the body between two rocks.

3. When the accused was asked about the victim’s whereabouts she denied having any knowledge of the body. On 6^th January, 2015 the deceased body was found at the creek. The body was taken to the hospital for post- mortem

4. A Medical report of Dr. Marcus dated 12^th January, 2015 confirm the victim sustaining a pre-death hematoma on forehead in midline measuring 3x2 cm. The Post Mortem examination of the deceased reveals the following significant findings;

1) Forehead hematoma/bruise

2) Fluid filled lungs

The report shows that the possible cause of death was drowning, however, foul play cannot be ruled out due to the forehead bruising.

5. On her statement on allocatus, the accused said the little boy’s mother left him when he was three (3) months old and went away and she adopted him. He was more like my son and I didn’t mean to kill him, I’m sorry for the victim. She asked the Court to have mercy on her.

6. On the request of Mr. Bellie of Counsel for the accused, the Court direct the Probation officer based in Mount Hagen to furnish and file a pre-sentence report on the accused and directed that the matter to return on 4^th April, 2016. I’m now in possession of that report.

7. On 7^th April, 2016 the Court heard Counsels Submissions on Sentence. Mr. Bellie submitted that accused is aged 20 years from Neputesa Village, Wabag District, Enga Province. She is married with one child and adopted another child who is the victim in this case. Her father is alive and mother deceased. She has one brother and two sisters and she is second born in the family of four (4) children. She has no formal education. She is a woman of prior good character and has no prior conviction against her. At the time of the offence she was a housewife and subsistence farmer.

8. The offence was committed on 2^nd January, 2015 and she was arrested on 4^th January, 2015. She has been in custody for 1 year 2 months and 3 days awaiting trial and sentence.

9. A compensation in the form of K17, 000. 00 in cash and 30 pigs have been paid to victims’ line and peace has been restored at the village level. A letter by Mr. Yanangu Waipapen Naputesa Village Court Clerk dated 28^th February, 2016 was handed up in court and it confirmed the payment.

10. Mr. Bellie asked the court to consider in accused’s favour the following matters;

1. Accused’s plea of guilty

2. First time offender

3. She acted alone and one single act

4. No planning and no strong intention to do grievous bodily harm

5. Readily admitted the offence to the Police

6. She expressed remorse in Court

7. Some Compensation paid

11. Mr. Bellie submitted that the case falls into the second category of Manu Kovi v. The State case with the sentence between 13 to 16 years appropriate.

12. Mr. Bellie referred the Court to the National Court case of the State v. Peter Poken (2008) N5462. In that case the accused went to victim’s house, angry and under the influence of alcohol punched the victim and then stabbed him and inflicted fatal wounds. Accused pleaded guilty to Murder and His Honour Cannings J sentenced him to 22 years less his pre-trial custodial term.

13. For the prosecution Ms. Luben submitted that the victim in this case was a child aged 4 years and the accused ended his life prematurely through her reckless behaviour. She submitted that the case falls under second category of the often cited case of Manu Kovi v. The State (2005) SC 789. She submitted that an imprisonment term between 12 and 16 years is appropriate.

14. I have had the benefit of reading the Pre-Sentence report. The report shows that accused is aged 20 years and married with one child and is the step mother of the victim. She never attended any formal education. At the time of the offence she was a subsistence farmer. She is a first time offender and regrets her action. That she is a Christian and belongs to Gutnius Luteran Church and played some role in the church. That some compensation has been paid to victim’s line and peace was restored at the Community level. She had admitted the offence and is prepared to accept the penalty imposed on her.

15. The maximum penalty for this crime is life imprisonment. The Court has a general discretion to impose Lower Sentences with or without other forms of punishment enumerated in S.19 of the Criminal Code.

16. The maximum penalty should be reserved for the worst type case; Goli Golu v. The State [1979] PNGLR 653, Avia Aihi v. The State (No3) [1982] PNGLR 92. In my view, the accused case is not the worst type.

17. It is an established principle that each case should be considered on its own facts and circumstances. Lawrence Simbe v. The State [1994] PNGLR 38.

18. The accused is young woman and is aged 20 years old and is married at the time of the offence. She is a member of the Gutnius Lutheran Church and has received no formal education. She is a woman of prior good character and has no prior convictions against her. She freely admitted the offence to the Police and co-operated with them in their investigation on the crime. She has pleaded guilty and has expressed remorse in Court. In determining the appropriate penalty, I take these factors into account in her favour.

19. I also take into account in her favour that she threw the piece of wood at the deceased for a reason. There was some provocation in a non-legal sense on the victim’s part. This is so only to the extent that the deceased threw the knife at her and landed on her small finger (see Record of Interview answer to question 14). This is an extenuating circumstance which reduces the gravity of the offences in a small way.

20. Against the mitigating factors, I take into account the following aggravating factors as follows;

1. That accused used strong force in throwing the piece of wood and hit the victim on the forehead which caused instant death.
2. That she hit a vulnerable part of victims body namely the forehead.
3. The victim did not expect to be hit on the forehead.
4. The victim was a very young four year boy and his life was pre- maturely ended.
5. That accused did not have any regard or value of the victim’s body when she wrapped the dead body with pieces of laplap and concealed the body at a creek with the Upper half of the body submerged in ther while thee the legs were faced upwards.
   

21. I cannot understand how the accused could possibly in ty she reacted given she being a Christian following the Gutnius Lutheran Church trch teachieaching. Christians are instructed by God’s word to be slow to anger. In fact the Bible in Mathew 5: 29 teaches that if someone slaps you on one side of your cheek, you should allow him or her to slap you on the other side as well. Bible teaches that you should not be retaliative in the way you acted if you are Christian. Indeed your action on that day was more unchristian.

22. Weighing the factors for and against you, I note the aggravating factors outweigh those in your mitigation. Given the sacredness of human life, the prevalent of the offence and the unnecessary use of the piece of wood on the victim’s forehead which caused instant death, I accept Counsels submission that your case falls into second category of Manu Kovis case guidelines.

23. I consider an immediate custodial sentence of 10 years appropriate. Accordingly, I impose that sentence against you. Of the head sentence of 10 years, I order a deduction of the period of 1 year 4 months and 25 days already spent in custody whilst awaiting your trial and sentence.

24. The next issue for determination is whether the sentence be wholly or partially suspended.

25. In Public Prosecutor v. William Bruce Tardew [1986] PNGLR 91, the court held that suspension of part of a sentence under s.19(6) is, or may be, appropriate if it will promote the personal deterrence, reformation or rehabilitation of the offender.

26. The accused in this case have admitted committing the offence. She has expressed remorse and has taken responsibility for her action. I consider that her conduct after the commission of the offence and the events leading up to her guilty plea and conviction in my view should be given further consideration in sentence.

27. The Pre-Sentence Report on page 4 paragraph 3 and 5 shows that the accused fully blames herself for this crime and will accept responsibility and promised not to repeat similar crime in future. As a Christian, she regrets her actions.

28. On page 5 paragraph 2 of the report it is stated that the accused is a first time offender, who regrets her actions and said of not repeating the same offence or any other crime again.

29. I give serious and appropriate consideration to what I have stated above and I consider that this is an appropriate case to suspended part of the sentence.

30. I proposed therefore to suspend 7 years from the sentence on condition that the prisoner will enter into her own recognition to be of good behaviour for the whole period of her suspended sentence.

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