State v Chris [2016] PGNC 186; N6370 (20 July 2016)

N6370

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO.1194 OF 2014 & CR No.1195 OF 2014

THE STATE

V

JULIE CHRIS & ELUIDA CHRIS

Wewak: Geita J
2016: 19 April & 20 July

CRIMINAL LAW - Sentence –Guilty Plea –Manslaughter –Victim caught in the act of sexual intercourse with a female guest by his wife and hit on the head with a timber – Prisoner Julie assisted by his son Prisoner Eluida from the victim’s attacks – Victim died a day later- section 302 Criminal Code.

CRIMINAL LAW- Sentence – Favorable mitigating factors – Extenuating circumstances present – Victim’s infidelity throughout the cause of marriage – Prisoner homemaker and village woman –Prisoner son Eluida no formal education, villager – Marital disharmony – Prisoners each and severally sentenced to 6 years less 2 years and 3 months pre trial custody – Balance of the sentence suspended to the rising of the court. Nominal compensation considered inappropriate - Criminal Code, section 302.

Cases cited:
Manu Kovi v The State (2005) SC785
Steven Loke Ume & others v The State SC 836
The State v Elisha Mema [2012] N602

Counsel:
Ms. Cathleen Sopa & Mr Paul Tusais, for the State
Mr. Francis Fingu, for the Prisoners

JUDGMENT ON SENTENCE

20 July, 2016

1. GEITA, J: The prisoners have pleaded guilty to one count of manslaughter contrary to section 302 of the Criminal Code, a charge which carries a maximum penalty of life imprisonment subject, of course, to section 19 of the Criminal Code.
   

2. The evidence for the purpose of sentencing were those agreed by the Prosecution and Defense on the depositions for the plea of guilty. The facts may be conveniently summarized as follows:-

1. The deceased and his family own and operate a guest house at Pinebus/Wom in Wewak.
2. Eight female and male guests had gone there to spend the night.

100. A female companion was assigned to the guesthouse owner, the victim to entertain that night.

4. Between 6am - 7am on 4^th May 2014 the deceased was caught having sexual intercourse with a lady guest in one of the rooms by his wife the accused.
5. The two got embroiled in a fight resulting in the accused Julie hitting the victim with a piece of timber causing him to fall to the ground.
6. The prisoner Eluida came and assisted her mother beat the victim.
7. The victim was rushed to Boram General Hospital but died a day later.
   

Antecedent Reports

3. The Antecedent Reports were tendered and admitted, without objection. The prisoners do not have any prior convictions. The prisoners, mother and elder son are aged 36 years and 22 years. Julie Chris is married with six children with the co accused Eluida Chris, second in the family. The prisoner is from Kuminum village in Dagua but resides at her husband’s village at Wom village up to the time of the crime. She is of Catholic Faith and an unsophisticated village woman. Prisoner Eluida is single and does not have any formal education. Lives with his parents at Wom village.

Allocutus

4. When provided with an opportunity to address the court in relation to what sentence should be imposed, the prisoners apologized profusely to the Court, the Constitution and to the victim. The prisoners pleaded for leniency and asked to be considered for Probation. Prisoner Julie expressed remorse to her husband’s relatives and to her children for what happened and asked to be imprisoned for a shorter period of time. Prisoner Eluida expressed remorse to his father’s relatives and to his siblings.

Submissions

5. On behalf of the prisoners, Mr. Francis Fingu indicated that the prisoners have been in custody since 10 April 2014, a period of 2 years and 3 months. The Court was reminded that the prisoners have no prior convictions. It was submitted that the case of The State v Elisha Mema [2012] N602 should be used as a guide in determining a sentence. In that case the prisoner was convicted upon his plea for hitting the victim on his head, causing him to fall down heavily resulting in his death later. He was sentenced to six years imprisonment of which five years was suspended to be served on probation. Defence Counsel submitted that extenuating circumstances in this case were such that the gravity of the crime committed by the two prisoners is diminished: the deceased was found committing adultery in the family guest house; the deceased attacked the prisoner Julie first prompting their son Eluida to protect the mother, the deceased was drunk at the time. (Steven Loke Ume & others v The State SC 836).

6. Mr. Fingu submitted that category two sentencing guidelines in the Supreme Court case of Manu Kovi was applicable in this case however Courts have gone below the maximum 7 years sentence in extenuating circumstances and mitigating factors: The State v Elisha Mema, (supra).

7. Senior Counsel Mr. Paul Tusais stood in for Ms. Sopa and advised Court that he has perused the prisoners’ files and was content and that the State will not be making any submissions on sentence.

Case Law

8. For the moment I will rely on the case referred to me by Defence Counsel and will be guided by the sentencing principles for charges of manslaughter set out therein. The decision in the case referred to me suggests that the sentence in such a case should be within category two of Manu Kovi sentencing guidelines: 8 years to 12 years.

9. I will give some allowance for the fact that the prisoners pleaded guilty and have also spent a considerable time in their pre- trial custody. By pleading guilty they have saved the State’s money and time from running a full trial. The Courts’ attitude in general is that prisoners who plead guilty must be accorded some leniency in sentencing. The cases referred to me only provides guidance and it is necessary to consider such things as the circumstances of the offence, the circumstances of the prisoners as well as the mitigating and aggravating factors in this case including any extenuating circumstances that are available.

Pre-sentence Report

10. I have had the opportunity of reading through your pre-sentence report and have taken your good points into consideration. I note also that the Probation Officer has made favorable recommendations on your suitability for probation. This now rules out the caution sounded out by the Public Prosecutor in her submissions.

Circumstances of the Offence

11. This was an attack on the victim, their father, caught in the act of committing adultery within the family guest house. This is a sad case of an unsophisticated village woman stumbling on her husband caught having sex with a customer at their family guest house.

Mitigating Factors

12. There was defector provocation, first time offenders, shown deep remorse, co-operated with police. The two prisoners pleaded guilty with early admissions. The deceased instigated the commotion which led to the argument and the subsequent fight which resulted in his own death.

Aggravating Factors

13. The aggravating factor in this case is prevalence and a life being lost.

Remarks to the Offender on Sentence

14. To your credit you both have pleaded guilty for which some leniency will be accorded to you today. I have stated in many early plea cases that prisoners are entitled to the leniency that is usually given when a person enters a plea of guilty. I am satisfied that a head sentence of 6 years to be appropriate in this case. Had this been a trial the need for a deterrence sentence would be considered.

15. In your case I will follow the guidelines set out by earlier National Courts when sentencing people such as you both. Furthermore I agree with the Public Prosecutor that your case is not the worst type of manslaughter and will refrain from considering the maximum sentence of life imprisonment.

16. Might I add here in passing that this is another one of those long lists of marital disharmony cases due to a spouse’s infidelity over a long period of time? The pre-sentence report records of the victim’s extra-marital affairs and a continuous in fighting between husband and wife. The other spouse is forced to live and suffer in that painful environment due to reasons of family unity and self- worth and her inability to get on with her own life once removed from the marital home by the offending spouse. Often ending up in tragic results as has happened in this case.

17. Julie Chris and Eluida Chris, taking into consideration what has been said by you and by your Lawyer; I sentence you to imprisonment with hard labour for 6 years. From that term will be deducted a period of 2 years and 3 months to take into account the time you have already spent in custody. That leaves a term of 3 years and 9 months to be served from today. A nominal compensation order under the Criminal Compensation Act is not considered appropriate in this case.

18. I further order that the remainder of the sentence will be suspended to the rising of this Court for both prisoners.

Sentence accordingly,

___________________________________________________________
Public Prosecutor: Lawyer for the State

Solicitor Public: Lawyer for the Prisoners