State v Sawi [2019] PGNC 113; N7828 (19 March 2019)

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CRIMINAL LAW–Sentence after trial of Wilful Murder ––Victim cut on both her thighs and lower leg causing her death -Section 299 Criminal Code

CRIMINAL LAW- Verdict – Both accused found guilty on alternate charge of murder –Another accused found guilty by operation of s.7 Criminal Code.

CRIMINAL LAW- Sentence – Both accused found to be equally responsible for the crime – Each and severally sentenced to 16 years.

Counsel:
Mr. Mr Paul Tusais & Augustus Bray, for the State
Mr. Julius Javapro, for the Accused

3 The Antecedent Reports was tendered and admitted, without objection. The prisoners do not have any prior convictions.

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 Mary Sawi expressed remorse and said she has paid K1000 to the victims’ relatives’ as Bel-Kol. I am a sick woman and all my property have been destroyed. My children are out of school and there is no one to take care of them. I ask for leniency and to be considered for probation. Prisoner Jerry Sawi expressed remorse to the victim, said sorry to the Court and to God. He said all his three houses together with his cocoa patches, cash monies have been destroyed and lost. I have 5 children and I don’t know where they are. I ask for leniency and to be placed on probation.

5. I have had the opportunity of reading through your pre-sentence reports and have taken your good points into consideration. I note also that the Probation Office has made favorable recommendations on your suitability for probation with a part custodial sentence. Mary Sawi, you are aged 35 with no previous convictions. You both have five children who are now out of school due to your incarceration and no one to take care of them. You say you are a sick woman and have no other means to pay compensation. You were only educated up to grade 1 and married to accused Jerry Sawi. As for you Jerry Sawi, you are aged 43 with no prior convictions and educated up to grade 8. You have some previous work experience. You stated in your pre-sentence report that you have paid K1000 and offered a child to the victim’s family as compensation, which is disputed by the victim’s people. Your statement remains unverified. The Probation Officer reports that although you are not a danger to the community you still remain a threat to the complainant’s family.

6 On behalf of the prisoners, Mr.Julius Javapro submitted that the prisoners have been in custody for 1 year 11 months, 2 weeks and 4 days. The Court was reminded that the prisoners have no prior convictions. Mr Javapro referred the Court to the following three cases and argued that a sentence of between 10-13 years be considered appropriate. Furthermore he submitted that prisoner Mary Sawi was suffering from TB and a serious oedema of her face and lower limbs and asked the Court to take this into account as special mitigating factor when sentencing her. Defence submitted that from the three cases referred to Court the present case could not be considered the worst and the maximum penalty not to be applied. The three cases include:

State v Anita Kelly [2009] N3624	Co-wife stabbed to death with a kitchen knife, domestic setting, and de facto provocation, pre planning and vicious. Sentence 12 years.
State v Lassy Karapus [2009] N3640	Manslaughter-domestic setting, multiple wounds, de facto provocation. Sentence 10 years
State v Bethlyn Kui [2014] N5655	Victim stabbed to death as a result of an unfaithful husband, Kitchen knife. Sentence 13 years, 6 years suspended, K2000 ordered as compensation

7. Mr. Javapro submitted that the accuseds’ sentence be based on their degree of participation.

8. State Prosecutor Mr. Augusta Bray submitted that Mary Sawi’s aggravating factors outweigh her mitigating factors. She used a bush knife and together with her son Christie cut the deceased multiple times on her legs and buttocks. As for Jerry Sawi, he was the father and head of the house and he encouraged his wife and son to assault the victim. Mr Bray submitted that since the death of the second wife no compensation was paid to the victim’s relatives. In view of the serious aggravating factors this case falls within Category 2 sentencing range in Manu Kovi. Therefore a sentence of between 13 – 16 years was recommended.

9. As to Mary Sawi’s medical condition, Mr. Bray submitted that since there is insufficient evidence before Court, the Court should not be drawn into considering this factor as a special mitigating factor. Mr Bray however submitted that, should Mary Sawi’s medical condition show signs of deterioration, she was at liberty to apply for relief via the Human Rights process.

10 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 murder 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: 16 years to 20 years.

11. From the three cases referred to me by your Lawyer the cases of State v Anita Kelly and State v Lassy Karapus are easily distinguished in that de facto provocation was present. In your case there was no de facto provocation and so a slightly higher sentence is appropriate. I consider the third case of State v Bethlyn Kui (supra) to be more appropriate in your case. Death resulted from the actions of an unfaithful husband. In this case death resulted as a result of Jerry Sawi’s polygamous relationship with two women.

12. Might I add here in passing that this is another one of those long lists of marital disharmony cases due to husbands entering into polygamous relationships? This is one such case in which one of two wives belonging to the accused Jerry Sawi was killed over ownership of a family sago patch. The first wife who has claimed supremacy over the husband’s property, including the sago patches killing the second wife, thus taking her out of the equation.

13. First time offenders, no prior convictions, some remorse, their properties destroyed, Mary Sawi’s medical condition.

15. Yours is a trial case and so I am not inclined to accord you both with the general leniency Court considers in cases where accused person plead guilty. 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.

16. 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 murder and will refrain from considering the maximum sentence of life imprisonment.

17. The prisoners have elected to go to trial and so I will not accord them the benefit of any discounts in their sentence. This 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. I take note of your concerns for the welfare of your children and your property which were destroyed. It is often said that those miseries were brought about by your actions and unfortunately your innocent children are now suffering. Similarly Courts have said time and time again that wrong doers must be punished for the wrongs that they have committed and not rely on other factors to escape due punishment in sentence.

18. Mary Sawi has committed the crime of killing. Jerry Sawi was present at the time of the killing and he aided and abetted in the killing of the victim. The question now is, “should they both receive the same type of sentence or should their sentence vary? In this case I am more inclined to think that they both must receive the same type of sentence, for without each playing his full part the crime would not have been completed. (Gimble v The State [1988-89] PNGLA 271). I agree with State submissions that in light of seriousness of the multiple wounds inflicted by two persons using offensive weapons, your case falls within Category 2 sentencing tariffs in the case of Manu Kovi: (Kovi v The State [2005] PGSC 34; SC789 (31 May 2005).
Sentence

19. Mary Sawi and Jerry Sawi taking into consideration what has been said by you and by your Lawyer; I sentence you to imprisonment with hard labour for 16 years. From that term will be deducted a period of 1 year and 11 months, 2 weeks and 4 days. I do not consider compensation or partial suspension of your sentence appropriate in this case.

Sentence accordingly.
________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoners

National Court of Papua New Guinea

State v Sawi [2019] PGNC 113; N7828 (19 March 2019)