State v Yaurabae [2016] PGNC 71; N6253 (26 April 2016)

N6253

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1021 OF 2013

BETWEEN

THE STATE

AND

VIRA YAURABAE

Prisoner

Popondetta: Davani, J

2016: 10^th & 26^th April

Counsel:

Mr D. Kuvi, for the State
Mr E.Yavisa, for the Prisoner

SENTENCE

26^th April, 2016

1. Davani J: On 10^th April, 2016, Vira Yaurabae (the “Offender”) pleaded guilty to one count of murder, charge laid under s.300 (1) (a) of the Criminal Code. This provision reads;

“S. 300. Murder

(1) (a) if the offender intended to do grievous bodily harm to the person killed or to some other person; or

....”

Facts

2. The facts which the offender pleaded guilty to are that, Malcus Wali (‘the Deceased”) is the Offenders husband. On 19^th march, 2013, the Offender and the Deceased had an argument after which the Deceased assaulted the Offender. Fearing for her life, the Offender fled, but left behind her infant child, in the care of the Deceased’s relatives.

3. The next day, 20^th March, 2013, early, the Deceased went to the main Killerton Highway, bottom town Popondetta, and there she met the Deceased. An argument ensued and escalated into a scuffle. This happened at the back of the Bird Wing Lodge. During that scuffle and in that struggle, somehow, the Deceased was stabbed once in the left chest. The Deceased bled to death.

Arraignment

4. When she was arraigned, the Offender agreed that she had killed the Deceased and also said words to this effect;

“I want to talk about my situation since we got married. When we got married and were living together, he (the Deceased) was taking drugs and home brew. Sometimes he is a “raskol man”. Whilst we were living together, I gave birth to our first child. He would often get drunk then come home and beat me up. He drinks everyday and we always fight. My life was not good. After our second child, he continued to do the same thing. Even after the Police shot him in the leg, he continued to do the same thing. We left him and moved in with my parents but he continued to beat me up. He would also keep raskols in our house. That day, he did the same thing to me, and that’s when “I met this problem”.”

Pre Sentence Report (“PSR”)

5. After confirming the guilty plea, Defence Counsel applied for a PSR. The State did not object. I granted the production of the PSR and for submissions on the report on a return date. I ordered the production of a PSR mainly because I wanted before the court, evidence from neutral persons, in relation to the kind of life the Offender lived, the general characteristics of the Deceased and basically, statements from people who had a close relationship with the Offender and the Deceased and would be in a position to tell the court the kind of life both the Offender and the Deceased led, prior to his death. Below are my brief reasons in relation to the production of the PSR:

“Having heard the Prisoner’s statement on arraignment, I will order the production of a pre sentence report which report must include interviews by the probation officer with persons who have had a close relationship with the offender, more particularly her parents, neighbours and others in the community she comes from. The court prefers also that 1 or 2 ‘neutral people’, who are not related to both the Deceased and the offender, are interviewed”.

6. As I had placed particular emphasis on the need for the probation officer to interview a neutral person, the PSR before me dated 22^nd April, 2016, does provide such a report. Probation Officer Wep Ninau interviewed several people, one of which was a Mr Justus Yavisa, a Popondetta Law and order Committee member and a long time Popondetta town resident. Mr Yavisa is not related to the Deceased and the Offender and in my view, is very neutral.

7. Mr Yavisa states in the PSR that since their marriage in about 2005, that the Offender and the Deceased have always encountered issues and that their relationship was turbulent. That he was invited by the Offender’s parents to the Offender’s home on 2 occasions to counsel both the Offender and the Deceased. Mr Yavisa knew the Deceased to be an aggressive and violent man and was constantly engaged in heavy drinking. He is also aware that both the Deceased and the Offender were constantly fighting and that as a result of the beatings, that the Offender often sustained wounds and bruises to various parts of her body.

Mitigating features

8. The Offender’s guilty plea saved the Court a lot, in the way of time and money. This is also her first offence and that she does not have previous convictions.

Aggravating features

9. The use of a knife together with the loss of a life, are aggravating.

Analysis of submissions and the law

10. The offender is aged 27 years old. She comes from Indewari village in the Oro Province. She has remarried and has 2 children, aged 6 and 9.

11. Defence Counsel submits that the court should impose a non custodial sentence, and relies on the case of Thress Kumbamong v The State (2008) SC 1017, when making those submissions. He relied on the fact that it was apparent from the facts that there was provocation in the non legal sense, a factor, he submits, that is also present in this case.

12. He submits further that when making its decision, the court must consider the PSR and the fact that independent witnesses have given their account of the Offenders life and the hardship she had to undergo, when living with the Deceased.

13. The State on the other hand, pointed out the differences in Thress Kumbamong to this case and submits that the circumstances in both cases vary, more particularly, in Thress Kumbamong, where she was charged with manslaughter whereas in this case, the Offender is charged with murder. He submits that the sentence to be imposed by this court must be higher than in Thress Kumbamong, where a sentence of 9 years was imposed and then, wholly suspended.

14. The State also referred the court to The State v Hendere Roy (2015) N5968, a case where the court discussed the difference between real criminals and ordinary members of the public, amongst others. The offender in that case was charged with murder after she killed her husband over an argument in relation to cooking arrangements. She was sentenced to 14 years in light labour, of which 7 years and 2 months were suspended and for her to serve 6 years at Biru CS.

15. The state submits that a sentence between 9 to 12 years is appropriate and can be partly or wholly suspended.

16. What then would be an appropriate sentence for a killing by a woman who has undergone much suffering at her husband or partners hands?

17. The courts in this country have always imposed a custodial sentence in murder cases, or have partially suspended sentence. There have been many cases decided in this jurisdiction involving women who have killed their husbands or partners because of the violence and abuse exerted upon them and their children, over the years, by these husbands and partners. Thress Kumbamong is the first Supreme Court case in this country, that recognizes the plight of abused women and their children, and who have had to kill or maim their partners, when confronted with a violent situation..

18. Although counsel for the State submits that a distinction must be drawn between the type of offence which the offender is charged i.e. manslaughter, murder or manslaughter, in my view, in domestic violence related killings, the court’s focus must be on the suffering undergone by the Offender before she took the law into her own hands. In fact, all domestic violence related cases, have been all “lumped” together and dealt with as an ordinary homicide case, even though allowance has often been made by the courts, for defacto provocation in the non legal sense, especially where the prisoner has pleaded guilty. E.g In The State v Carol Alfred (2009) N3602, the prisoner was sentenced to 10 years by the court, in a killing in a domestic setting. The prisoner killed her policeman husband after she stabbed him in the thigh during an argument. He bled to death. The deceased assaulted the prisoner because she did not prepare his dinner. Prior to that, her children and her had been subjected to much physical violence from the deceased.

19. In The State v Anita Kelly (2009) N3624, the prisoner stabbed a co-wife in the neck with a kitchen knife and she died. It was a surprise attack with some element of viciousness and pre planning. There was very strong defacto provocation and a history of domestic violence and abuse by the deceased of the prisoner. The court sentenced her to 12 years.

20. The Supreme Court in Thress Kumbamong said this about the courts sentencing discretion;

“Section 19 of the code makes it clear that a trial judge has a wide discretion to impose any punishment from a term of years to life imprisonment. It is worth noting that the discretion thus vested in the courts is not subject to any guidelines to be set by the Supreme Court or anybody. The discretion is instead left entirely within the discretion of a trial judge. That discretionary power ought to be exercised judicially and according to law and not arbitrarily, vaguely or fancifully. It must be exercised on proper grounds for good reason and not capriciously...”

21. The Supreme Court said further that a trial Judge must be allowed to exercise a wide discretion to impose a penalty that “...the particular circumstances of the case warrants. That discretion cannot be curtailed, restricted or interfered with except for very good reason...where there is a total improper exercise of the discretion...that in the exercise of that discretion, the trial judge should be at liberty to impose a sentence ...that warrants the kind of sentence imposed.” (my emphasis)

22. What would be a just and fair sentence for a woman who has been subjected to much physical abuse from her late husband/partner?

23. Firstly, the penalty must be one that is suitable for the circumstances of the case. In this case, the knife wound that was inflicted upon the deceased occurred when there was a scuffle and struggle between the Deceased and the Offender. It was whilst the both were grappling, that the Deceased sustained the knife wound. It is not as if the Offender intentionally stabbed him.

24. The intention to do grievous bodily harm is very much clouded by what occurred during the scuffle. However, the fact that the Offender had the knife in her possession is inexcusable. And that could have been done for many reasons.

25. Although the Offender admitted the offence, the court is obliged to consider those facts as mitigating circumstances and that is where the defacto provocation becomes very relevant.

26. The circumstances of this case falls within the first category of Manu Kovi v The State ( 2005) SC 789, which carries a term of 12 to 15 years.

27. Considering all the above, this court finds that a term at the lower end of the scale in the first category, is appropriate. A term of 10 years is appropriate.

28. This will be reduced by the time spent in custody on remand of 1 year and 2 months, leaving a balance to be served of 8 years and 10 months.

29. Should or can any of that reduced term be suspended?

30. The discretion to suspend sentence must be exercised according to proper principles. In Public Prosecutor v Don Hale (1998) SC 564, the Supreme Court said that a sentence may only be suspended if it is supported by a favourable pre sentence report and the community has shown a willingness to assist in rehabilitating or assisting the prisoner.

31. The PSR before me does support the offender’s rehabilitation, if she is given a non custodial sentence. I order that the Offender serve a term of 2 years and that 6 years and 10 months be wholly suspended, upon the Prisoner entering into a good behaviour bond, without sureties, for the prisoner to be on good behaviour.

32. So ordered.

Public Prosecutors Office : Lawyer for the State;
Public Solicitors Office : Lawyer for the Offender