State v Uratigal [2018] PGNC 492; N7603 (6 December 2018)

N7603

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR N0. 1831 OF 2016

THE STATE

V

PETER URATIGAL

Kokopo: Susame, AJ

2018: 18, 22 -24 October & 6 December

CRIMINAL LAW ––Sentence After Trial - Murder – S 300(1)(A)Criminal Code – Sentencing Considerations and Guidelines - Aggravating Factors Outweighed Factors in Mitigation - Use of a Metal Spade, A Dangerous Working Tool - No Provocation – Vicious Attack of The Wife – Strong Intention to Cause Grievous Bodily Harm - Force Was Quite Excessive Causing A Deep Wound to the Right Side of Head – Penetrating Through the Skull & Exposing Brain Tissue – Prisoner Has History of Physical Violence Towards his Wife- No Special or Extenuating Circumstances to Justify Partial Suspension of Sentence - 18 Years Imprisonment

Cited Cases
Manu Kovi v The State (2005) SC789
Simon Kama v The State (2004) SC740
The State v Laura (N0.2) [1988-89] PNGLR 98
The State v Simbe [1994] PNGLR 38
The State v Kore Ase (2001) N2220.
The State v David Yakuye Daniel (No 2) [2005] PGNC 58; N2890
The State v Winara (N0.2) [2008] PGNC 67; N3352
The State v Muturu [2012] PGNC 322; N5163
Tanabo v The State [2016] PGSC61; SC1543
The State v Rex Lialu [1988-89] PNGLR 449

Counsel
Miss. Batil, for the State
Ms. Ainui, for the prisoner

DECISION ON SENTENCE

06 December, 2018

1. SUSAME, AJ: Prisoner is in court to receive his sentence after having been convicted for the crime of murdering his wife pursuant to s 300 (1)(a) of the Criminal Code.
   

300 MURDER

(1) Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder:–

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

...................

Penalty: Subject to Section 19, imprisonment for life.

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Allocutus

2. With regard to his sentence the prisoner asked court for mercy. He has children at home to look after. He was a first time offender and pleaded for the court to place him on probation.
   

Pre-Sentence & Means Assessment Reports

3. Information worth mentioning from the reports are firstly, prisoner has 5 children from his marriage to the deceased. Four children are in school and the last is a toddler. Secondly, there is a demand of K5000.00 compensation with 500 fathoms of tolai traditional shell money equivalent to K2,500.00 of which 100 fathoms of shell has been paid as basic protection payment to maintain peace between the families and met funeral expenses. Prisoner’s family members interviewed and the Pastor generally gave a good report of the prisoner. On the contrary, the victim’s parents made mention that prisoner has often acted violently towards his wife. There have been few incidents of prisoner threatening and severely beating up his wife. One occasion he chased her with an iron bar and on another occasion he broke her arm.
   
4. The prisoner’s uncle asked for a reduced sentence because death was unintentional. The father-in-law also asked for a shorter sentence if their compensation demand is met and that the children need their father around to take care of them properly.
   
5. The author of the pre-sentence report considered prisoner was a danger to others because of his violent tendency. Given the severity of the offence prisoner was not a suitable candidate for probation sentence.
   
6. In her address for and on behalf of the prisoner Ms. Ainui considered the following were the mitigating factors. The prisoner was a first time offender. He has trouble free life within the community with his family. Prisoner is a husband and father to 5 children. He is a family man and has a family to look after. Ms. Ainui was of the view mitigating factors outweighed the factors in aggravation. She submitted the present case is not the worst kind of case and asked for an 8 year sentence as the starting point but to be suspended.
   
7. Miss Batil for the State considered the following to be the aggravating factors. Firstly, a life had been lost. A dangerous or offensive weapon was used. Injury sustained by the deceased was serious. Argument was trivial over money and should have been settled peacefully and did not warrant the actions of the prisoner. The deceased was the prisoner’s own wife. Finally, the prisoner denied committing the offence and trial had to be conducted.
   
8. Miss. Batil submitted killings within the domestic setting are far too prevalent in the society. Hence there was a need for a strong punitive and deterrent sentence to be imposed. She submitted the case should fall under category 2 of offence of murder in the light of Manu Kovi guidelines which should attract a sentence between 16 to 20 years, towards the upper end of the scale. Considering the fact that aggravating factors outweigh the mitigating factors.
   

REASONS FOR DECISION

Facts

9. What is the appropriate sentence prisoner should receive? First, the facts of the case. In the morning of 14 July 2016 the prisoner had an argument with his late wife just as she was going out to do marketing. He was cross at the wife excessing funds from his account using his credit card without his permission. The prisoner stayed home and left for work in the afternoon. But he returned home at about 7:00pm not feeling too well. His wife had arrived home and was having her shower at the back of the house. The wife walked passed him after having her shower. To vent his anger at her the prisoner got hold of a metal spade and applied it on her head causing the fatal injury that caused her death. The wife received a large wound on the right temporal side of the head, cracking the skull and penetrating right through the skull exposing the brain tissue. The wife died of cardiorespiratory arrest due to a penetrating right skull fracture with cerebral hemorrhage.
   

Aggravating factors against Mitigating Factors

10. I consider these factors weigh against the prisoner. Rather than pleading any known statutory defence prisoner generally denied causing the injuries that led to his wife’s demise. There was no provocation or de facto provocation by the wife. Prisoner attacked his wife viciously with dangerous gardening tool with excessive force with intention to cause her grievous bodily harm. Injury and death was foreseeable. It is immaterial to argue that prisoner never intended to cause his wife’s death because of sub-section (2) of s300 which states that “....it is immaterial that offender did not intend to hurt the particular person who was killed.”
    
11. The prisoner forced the case to be tried with the State incurring extra cost. Though there is no known record of prior conviction under his name prisoner has a known history of domestic violence. That was captured in the pre-sentence report. This death was a direct result of such violence.
    
12. The wife was a young 35 year old woman. Her life expectancy of 30 plus years was pre-maturely cut short. She was a mother of her 4 children, the oldest being 16 years of aged and the youngest being 4 years old. They have all been deprived of their mother’s love and care and separated from her for the rest of their life.
    
13. Some amount of compensation has been paid which goes to the prisoner’s favour. I will make further comments on issue of payment of compensation later on in my discussion.
    

Sentencing Guidelines

14. Next is consideration of sentencing guidelines. Simon Kama v The State (2004) SC740 and Manu Kovi v The State (2005) SC789 are perhaps two leading authorities most often referred to in homicide cases. Tariffs in Simon Kama are more on offence of murder while those in Manu Kovi are for homicide cases of wilful murder, murder and manslaughter. Going by standards in Simon Kama the circumstances of the present case falls within category E which sentencing is between 22 – 41 years. Going by Manu Kovi the sentence should fall within category 2, that is range between 16 – 20 years. Manu Kovi is the latest Supreme Court Judgment and tariffs in that case will be adopted.
    

Comparable Judgments

15. Thirdly, consideration of kinds of sentences courts have been passing should also serve as a guide. Counsels offered some assistance with cases listed below:
    
    1. The State v Laura (N0.2) [1988-89] PNGLR 98,
    2. The State v Simbe [1994] PNGLR 38
    3. The State v Kore Ase (2001) N2220.
    4. The State v David Yakuye Daniel (No 2) [2005] PGNC 58; N2890
    5. The State v Winara (N0.2) [2008] PGNC 67; N3352
    6. The State v Muturu [2012] PGNC 322; N5163
    7. Tanabo v The State [2016] PGSC61; SC1543
       
16. The first three cases involved deaths arising outside of domestic violence settings. I prefer to be guided by cases that dealt with deaths arising in a domestic setting.
    
17. The State v David Yakuye Daniel (supra). Prisoner was convicted after pleading not guilty for murder of his wife who he suspected of marital infidelity. He used a knife to stab her. Court considered there was de facto provocation which was a mild mitigating factor. Court considered it was a serious case of murder but not in the worst-case category which fell within category 3 of Manu Kovi. There was a vicious attack of the deceased involving the use of a dangerous weapon, a knife, exhibiting a strong desire to do grievous bodily harm. The prisoner was sentenced to 25 years imprisonment. Suspension of sentence was considered inappropriate in murder cases unless special circumstances or reconciliation and compensation process with deceased’s relatives is complete.
    
18. In The State v Winara (supra) the prisoner pleaded not guilty to a charge of murder. The prisoner stabbed her husband with a kitchen knife during a domestic argument. Court considered the circumstances of the case which was precipitated by history of violence and unhappy marital relationship. Court in rejecting the defence which was pleaded sentenced the prisoner to 17 years non-suspended sentence.
    
19. In The State v Muturu (supra) Prisoner pleaded guilty to a charge of murder. She stabbed her husband with a kitchen knife which penetrated his heart. Court considered her plea and that there was provocation in a non-legal sense. In the Court’s assessment case fell within category 2 of the Manu Kovi guidelines. Court considered the mitigating factors outweighed the aggravating factors which swayed the court to imposing a sentence of 13 years with partial suspension.
    
20. Next is Tanabo v The State (supra). The appellant appealed against life sentence imposed by the primary court for murder of his wife. He had used a bush knife to murder his wife. Court considered prevalence of offence particularly in domestic settings. Though it found the trial court made some error in considering factors which were not part of the State’s case and reduced the sentence to 20 years imprisonment.
    
21. As often said each case is decided on its peculiar facts and circumstances. The facts in the above cases are distinguishable from the present case. Using Manu Kovi guidelines the present cases falls within category 2. Sentence should fall within 16 - 20 years.
    

Payment of Compensation

22. Let me make further comments on compensation as I have said above. The customary practice of payment of compensation is unique and is an honorable practice in our society. It varies from society to society. Its significance was for restoration of peace between conflicting parties.
    
23. In criminal law however, payment of compensation is not and cannot be taken as penalty for any particular offence. That is expressly stated in s 2 (1) of The Criminal (Law) Compensation Act 1999 which states “payment of compensation is not specified as a punishment for an offence.” Payment of compensation does not and cannot be extended to obtaining a total expulsion of the offender. It may be considered a mitigating factor in sentencing.
    
24. But, let me state this what is money to the value life? No amount of material wealth paid as compensation equates the value of a human life. Similarly, no amount of punishment or remorse expressed in word or deed can restore it if lost. As such prisoner or his family cannot expect a total expulsion from being imprisoned even if compensation was paid.
    
25. In The State v Rex Lialu [1988-89] PNGLR 449 at p 452-453 Amet J in his wisdom expressed this stated:
    

“I should stress categorically that compensation, however large or small, cannot exonerate the offender from criminal liability. Nor do I think that sentence will or should be reduced relative to the size of the compensation, such that it can be thought that the larger the compensation the greater the reduction in sentence should be. This cannot be the effect of compensation. If it is a genuine method of restoring peace and harmony by custom or tradition and whatever form and size it takes, it should not now be extended to obtain total exculpation of the offender. The natural flow-on effect of the acceptance of such a belief is obvious and would lead to the rich believing they can buy their way out of criminal responsibility, and the less rich feeling aggrieved if they do not receive the same treatment.”

Sentiments on Domestic Violence

26. Furthermore, court has a duty to educate and disseminate information to the general population that domestic violence is now a global issue. PNG and many other Pacific Island Nations are member countries that ratified the Convention on Elimination of All forms of Discrimination Against Women (CEDAW).
    
27. There is so much publicity in the mainstream media on domestic violence in PNG. Government of PNG has been criticized by human rights activists and advocacy groups, particularly against family violence for not doing enough to curb this social issue which is becoming so prevalent and endemic.
    
28. One report has described this social issue in PNG as pandemic. According to the report published wife bashing is widespread throughout PNG. Sixty seven percent (67%) of women suffer from domestic violence. (R. Moley Report 1994). World Health Organisation report of 2013 have rated PNG as one of the worst pacific nations having the highest lifetime prevalence rates in the world with 68% of women experienced physical and sexual violence. That reflects badly on our nation in the world setting.
    
29. Courts therefore are agents to bring about positive change in our collective efforts in minimizing if not eradicating family violence. Judicial authority of the people is vested in the courts by s 158 (1) of Constitution. It is therefore imperative for the courts to be responsive to the society’s call for stiffer penalties against family violence. When a person is killed by another sentence imposed must be heavy, reflective of the gravity of the offence for general and personal deterrence.
    
30. I know that with the mother gone forever children will be without their father for the duration of his sentence. Unlike in developed countries PNG does not have welfare institutions or child care & support centers for children faced in situations such as the present case. Nonetheless PNG has a unique culture where extended family member from either the father and mothers side take on that responsibility to look after the children. Prisoner no doubt will be separated from his children while he is in prison. He has no one to blame except himself to creating such a situation the children now have to go through.
    
31. Following on from all of the discussions, with respect court is not moved by the defence plea for an 8 years sentence as a starting point. Alternatively, a prison term at the upper end of scale within category 2 of Manu Kovi tariffs would be appropriate.
    
32. Accordingly, prisoner is sentenced to 18 years imprisonment. Suspension of part of the sentence is discretionary by virtue of s.19. That requires proper exercise of court’s powers in view of special or extenuating circumstances of the cases. Needless to say such circumstances are absent in the present case. As such no portion of the sentence will be suspended except for time in custody. I hope the sentence will sound out a strong message to the general populace against deaths arising from domestic violence setting.
    
33. Summary of the sentence:
    
    1. 18 years custodial sentence.
    2. A rebate is allowed for time spent in custody.
    3. The balance of the sentence to be served at Kerevat Gaol with hard labour.
    4. Court further orders that bail monies be refunded forthwith.

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