State v Tanggwo [2021] PGNC 339; N9183 (21 September 2021)

N9183

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1223 OF 2020

THE STATE

V

MICHELLE TANGGWO

Bulolo: Kangwia J.

2021: 7^th, 17^th & 21^st September

CRIMINAL LAW - Murder - killing of husband in domestic setting – domestic discord caused by husband - husband defiant of law and authorities-disregard for settlement of court orders - de-facto provocation present-prevalence of offence - multiple stabbings - sanctity of life - sentenced to 16 years.

Cases Cited:
Antap Yala v the State (2002) SC701
Goli Golu –v- The State [1979] PNGLR 653
Joseph Enn v the State [2004] SC 738
Kepa Wanenga v the State [2004] SC742
Lawrence Simbe –v- State [1994] PNGLR 88
Manu Kovi v the State (2005) SC789
State v Jacob Aku Matai [2011] N4256
State v Alois Lagu [2011] N4354
State v Maria Tuu (2008) N3706
State v Hendere Roy (2013) N5968
State v Angeline Winara (2008) N3352
State v Pauline Muturu (2012) N5163
State v Taulaola Pakai (2020) N4215
Ure Hane –v- the State [1984] PNGLR 105

Counsel
P. Matana, for the State
G. Peu, for the Accused

21^st September, 2021

1. KANGWIA J: Michelle Tanggwo appears as a prisoner for sentencing. She was convicted on her guilty plea to murder pursuant to s 302 of the Criminal Code.
2. In what would be described as a matter arising out of a domestic setting, the prisoner set upon her husband for infidelity and defiance of authority and stabbed him 03 times with a knife. According to the medical report three wounds of various sizes were found on the body. One 10 cm deep wound on the right shoulder, one 2x1cm stab wound on the head and 3x1cm slash wound on the left elbow. The death was attributed to a punctured lung from a penetrating wound.
3. On her allocutus the prisoner said:

“I say sorry God and the Court for what I did. I also say sorry to the deceased family, relatives and the kids who are parentless. I have no idea how they are faring. This is my first time, and it was out of frustration after numerous attempts to settle their marriage problem through authorities like the Village Court, LLG authority and police were not heeded by the deceased. Since my time in custody from December 2019 I have realised my problem. I ask for leniency with probation orders”.

4. The prisoner is 42 years old and was married with 6 children. She has no prior conviction.
5. For sentencing both counsels have through their written submission identified the present case as overlapping between the first and second category of the Manu Kovi v the State ( 2005) SC 789 sentencing guidelines. The suggestions slightly differ. Ms Peu suggested a sentence of 14 to 16 years while Ms Patana proposed a sentence of 14 to 18 years.
6. By the suggestions it is deemed that both counsels are of the view that the minimum sentence for this offence should be 14 years. For an increase from the 14-year minimum suggested, it will depend on the facts and circumstances of the offence.
7. On the prisoner’s behalf Ms Peu submitted that apart from the general mitigating factors an extenuating circumstance existed. Some element of de facto provocation was present, under circumstances where deceased failed to attend and settle outstanding payment for adultery and maintenance as ordered by the Courts and an alleged affair with the wife of the prisoner’s brother which was yet to be settled.
8. On behalf of the State, Ms Patana apart from the common aggravating factors, submitted that the offence was intentionally carried out, a high degree of trust was breached and there was no effort by the prisoner to mitigate the effect of the attack with assistance for medical attention.
9. Murder is a crime under s300 of the Criminal Code and carries a maximum prescribed penalty of life imprisonment.
10. The maximum prescribed penalty is subject to the discretion under s.19 of the Criminal Code and the principle of law that the maximum prescribed penalty is reserved for the worst category of each offence. (See Goli Golu v the State (1979) PNGLR 653; Ure Hane –v- The State [1984] PNGLR 105)
11. The present case does not fall into the worst category of murder and the maximum prescribed penalty shall not apply.
12. Sentencing generally is an exercise of discretion. It depends on the facts and circumstances of each case and in line with the prescribed penalties. There is no strict formula to be followed.
13. On sentencing for murder the Supreme Court in the case of Lawrence Simbe -v- State [1994] PNGLR 88 said:

“Each case of murder must be decided on a case-by-case basis, but always remembering that the sentence laid down by s.300 is life imprisonment and the term of years is by virtue of s.19.”

14. Sentences for murder are generally high. The Supreme Court has affirmed that position when it dismissed appeals against sentences of 20 years for murder as in the case of Antap Yala v the State (2002) SC 701; Joseph Enn v The State (2004) SC 738 and Kepa Wanenga v The State (2004) SC 742).
15. The guidelines and tariffs suggested in Manu Kovi are readily being applied. As stated earlier, how high, or low a sentence should be is determined from the facts and circumstances of each case and the exercise of discretion. To do that it is helpful with a starting point from which the sentencing discretion can apply to either go up or down.
16. In the case of the State v Jacob Aku Matai [2011] N4256 where the prisoner who pleaded guilty to murder for cutting his brother in-law with a bush knife several times was sentenced to 22 years imprisonment. In that case it was held that the starting point for murder was 20 to 30 years.
    
17. The present case relates to a death from multiple stabbings in a domestic setting where the wife killed her husband.
    
18. Sentences for deaths in similar situations are also high and varied owing to the peculiar facts and circumstances of each case. The following cases reflect the current sentencing trend for deaths from stabbings.
    
19. In the case of the State v Alois Lagu (2011) N4354 the offender who pleaded guilty to murder where the deceased was stabbed on the chest in an unplanned attack was sentenced to 20 years imprisonment.
    
20. In the State v Maria Tuu (2008) N3706 the offender who pleaded guilty to murder for stabbing which penetrated the kidney and liver was sentenced to 16 years.
    
21. Deaths where wives killed husbands by stabbing, used to receive special treatment with lenient sentences. The sentences for such offences have substantially increased in the present time. The following cases reflect the current position in sentencing where wives killed their husbands.
    
22. In the case of the State v Hendere Roy (2013) N5968 on a guilty plea to murder for stabbing her husband on the chest following an argument the prisoner was sentenced to 14 years with deductions and suspensions.

In the State v Angeline Winara (2008) N3352 the offender who pleaded guilty to murder for stabbing her husband in a domestic argument where the deceased sustained a deep penetrating wound causing the lung to collapse was sentenced to 17 years with deductions.

23. In the case of the State v Pauline Muturu (2012) N5163 where the offender followed her husband and stabbed him on the back was sentenced to 13 years. There was no pre-planning involved.
    
24. The litany of cases cited clearly amplifies the prevalence and the sentencing trend for murder where wives stab husbands causing death.
    
25. It is no surprise that stabbings are attached with knives. Knives are easily accessible unlike axes and guns. Knives are a readily available tool for domestic use mostly by the female population.
    
26. This type of offence in my view places it directly into the category of gender-based violence.
    
27. Advocates of gender-based violence through huge publicity seem to point an accusing finger in the direction of the male gender and accord a sympathetic view for the female gender owing to their different human traits, characteristics, and vulnerability. The present case speaks otherwise.
    
28. Offences arising out of domestic settings cover a wide range of family relationships. It includes husband and wife or vice versa. In the present case the wife killed her husband by stabbing him over alleged infidelity and failure to settle outstanding court Orders.
    
29. From the evidence and the prisoner’s remarks on allocutus, it is safe to infer that the domestic discord was caused by the prisoner’s late husband. He completely disregarded numerous attempts made for amicable settlement of his alleged wayward ways. The prisoner attended to family sexual violence, Church leaders, Village Court, District Court and the Public Solicitor’s office for assistance but the deceased ignored them. Court orders for adultery and maintenance were never settled.
    
30. On the day of the killing an arrangement was made for dispute settlement at the police station. The prisoner went and waited to no avail. The deceased knew they were to meet with police, yet he failed to turn up. Out of frustration the prisoner went searching and found him at the market. She released her frustrations and stabbed the deceased.
    
31. It is apparent from the various attendances at various authorities, the prisoner lived a very unhappy and tumultuous life with the deceased. It is also apparent that the deceased displayed an affront to existing authority and laws and defied Court Orders. Frustration was bound to build up which did, and the stabbing occurred. De facto provocation was present.
    
32. Domestic discord aside the question now is what is an appropriate sentence for the prisoner?
    
33. The Pre-Sentence Report (PSR) handed up in Court, based on information received, suggested that the prisoner was a suitable person for probation supervision. The facts and circumstances of this case does not make it a suitable one for probation. It is a very serious offence.
    
34. The crime involved the loss of a life. The sanctity of life was ignored. Despite how dreadful the deceased may have been, his life like everyone else is immeasurable by any other person other than the giver of life or by sanction of law.
    
35. Life is precious to one and all, and once it is lost it cannot return. The sanctity of life must be the paramount consideration in sentencing.
    
36. A knife in the way it was used, became a lethal weapon. Multiple injuries were inflicted on the body. Given the extent of injuries cited in the medical report it is obvious that considerable force was applied. There was a strong intention to cause grievous bodily harm.
    
37. In the prisoner’s favor she pleaded guilty early saving time and costs of running a trial. She is a first-time offender. She has expressed genuine remorse. It is more probable than not that, had the deceased heeded authority and attended to settlement of their marital differences the death could not have arisen. The blame for his death must partly rest on him. This operates as a special mitigating factor in her favor.
    
38. The (PSR) also shows that compensation to the value of K13, 000. 00 was paid to the deceased family. The PSR also stated that no confirmation could be received from the deceased family. In the report the prisoner’s father affirmed the payment after threats were issued by the deceased’s relatives to block the road leading to Bulolo. It is accepted that compensation was paid but not voluntarily. Under those circumstances it serves no useful purpose to pursue confirmation of the payment. Payment of compensation operates as a special mitigating factor as enunciated in the Manu Kovi guidelines.
    
39. As to her concern over her children, how awkward it may seem the law is settled. A person must consider the welfare of his or her family before resorting to commit a crime.
    
40. In the State v Taulaola Pakai (2020) N4215 the Court said:

“An offender should consider his family obligations and commitments first before he goes out and commits an offence. A plea for leniency to avoid the suffering of one’s family should have little to no weight when an appropriate sentence is being considered.” Issue of family welfare is not a mitigating factor.

41. From the current sentencing trend for similar offences, what used to attract special treatment with low sentences is no longer available for the prisoner. The mitigating and aggravating factors are even.
    
42. Both Counsels have suggested 14 years as the minimum sentence for this case. The suggestion of 14 years cannot be the head sentence for the reason that the maximum prescribed penalty is life and the current sentencing trend for murder as shown in the cited cases are on average higher than 14 years. Therefore, a custodial sentence relative to the current sentencing trend is appropriate.
    
43. This case falls into top end of the 2nd category in the Manu Kovi guidelines which suggested a sentence of 16- 20 years imprisonment. An offensive weapon was used. Grievous bodily harm was intended. Viciousness of the attack is consistent with the medical findings and conclusions from the number of stabbings inflicted. Therefore, a sentence of 20 years should be the starting point.
    
44. Owing to the presence of the special mitigating factor with the apportion of blame on the deceased, the payment of compensation and in the exercise of discretion, a sentence of 16 years imprisonment is appropriate. The prisoner is sentenced to 16 years imprisonment. The time spent in pre-trial custody shall be deducted and the prisoner shall serve the balance at CIS Buimo.

________________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Defence