State v Kewa [2021] PGNC 518; N9356 (10 December 2021)

N9356

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 217 OF 2020

BETWEEN
THE STATE

AND
PAULINE KEWA

Mt Hagen: Toliken, J
2021: 10^th December

CRIMINAL LAW – Practice and Procedure – Sentence – Murder – Guilty plea – Killing in domestic setting – One stab wound to chest with kitchen knife – Co-wives – Lack of equal attention to wives – First-time offender – No strong intention to cause grievous bodily harm – Remorse – De facto provocation – Deceased initial aggressor – Prevalence of this type of killings and weapon of choice – Appropriate sentence – 13 years less time in pre-sentence detention – Suspension inappropriate – Criminal Code Ch. 262, s 300 (1) (a).

Cases Cited

Tanga -v- The State [1999] PNGLR 216
Avia Aihi -v- The State (No. 3) [1982] PNGLR 92
Goli Golu -v- The State [1979] PNGLR 652
Kumbamong -v- The State (2008) SC1017
Yalibakut -v- The State (2006) SC890
Manu Kovi -v- The State (2005) SC789
Marangi -v- The State (2002) SC702
The State -v- Eroane (2021) N9028
The State -v- Guina (2020) N8311
The State -v- Tinka (2013) N5439
The State -v- Uraro (2012) N5164
The State -v- Mark (2010) N4182
The State -v- Topi (2010) N4667

Counsel:

J Kesan, for the State
D Pepson, for the Prisoner

SENTENCE

10^th December, 2021

1. TOLIKEN J: The prisoner Pauline Kewa, pleaded guilty to murdering one Lovelyne Wesley on 26^th May 2019 at Komaka Village, Mul, Western Highlands Province. In so doing she contravened Section 300 (1) (a) of the Criminal Code Ch. 262 (the Code).
   

FACTS

2. The prisoner agreed to the following brief supporting facts and is going to be sentenced on them. The prisoner had a marital problem with her husband and on 26^th May 2019 had gone to Komaka Village to settle it. She was accompanied by her relatives.
   
3. When they arrived at Komaka at about 3:00p.m., the prisoner saw the deceased, Lovelyne Wesley (her husband’s first wife) sitting among the people who had gathered there for the occasion. The prisoner confronted the deceased and a fight ensued. During the fight the deceased pulled out a knife and tried to stab the prisoner, but people intervened and stopped them. In the process the knife fell off the deceased’s hand. A woman in the crowd picked up the knife and gave it to the prisoner, who used it to stab the deceased on her back. The deceased sustained a very deep penetrating wound to the left posterior chest. The deceased collapsed and fell unconscious. She was rushed to the hospital but died on the way.
   

FACTS

4. The offence of murder carries a maximum penalty of life imprisonment subject to the court’s discretion under Section 19 of the Code to impose a lesser sentence.
   
5. The maximum penalty is, however, usually reserved for the instances of offending. Each case must also be treated in its own peculiar facts and circumstances so that an offender gets a sentence that befits his crime. (Goli Golu -v- The State [1979] PNGLR 652; Avia Aihi v The State ((No 3) [1982] PNGLR 92).
   

ISSUES

6. Is this case therefore a worst case of murder such that it ought to attract the maximum penalty; or does it deserve a lesser sentence for a term of years? What then should be an appropriate sentence for the prisoner.
   

ANTECEDENTS

7. The prisoner comes from Kuntum Village, Mul District, Western Highlands Province. She was 18 years old when she committed this offence. She would now be about 20 years old. She is an only child but has an adoptive brother. Her parents are both still alive. She was doing Grade 9 when she fell pregnant and had to leave school. Her baby was 3 months old when she committed the offence but is now 2 years old. After she fell pregnant to the father of the child, the prisoner became his de facto wife. She has no prior conviction and had been in custody since her apprehension on 30^th May 2019 for a period of 2 years 6 months and 4 days.
   

ALLOCUTUS

8. The prisoner apologized to God, to the Court and to the deceased’s family and relatives. She pleaded for leniency and asked to be placed on probation.
   

SUBMISSIONS

Defence

9. Mr. Pepson submitted on behalf of the prisoner that an appropriate sentence for her ought to be in the upper end of Category 1 and the lower end of Category 2 of the Manu Kovi tariffs. (Manu Kovi -v- The State (2005) SC789) Counsel submitted that this is not a worst case because there are significant mitigating factors which outweighed the only aggravating factor – the use of a dangerous weapon.
   
10. Apart from the mitigating factors which I agree mostly with, Counsel also said that there was de facto provocation which he said was an extenuating factor. Furthermore, the prisoner and the deceased had gone for a court case where the deceased started an argument and attacked her with a knife. The prisoner got hold of the knife and stabbed the deceased in retaliation. Counsel said that both women suffered injuries. He relies on Yalibakut -v- The State (2006) SC890, which stands for the principle that where there is a disagreement in the facts between the State and the accused in a plea matter, the version most favourable to the prisoner ought to be adopted.
    
11. Mr. Pepson therefore submitted that an appropriate sentence ought to be similar to that which was imposed in Kumbamong -v- The State (2008) SC1017. Counsel asked for a sentence of 8 years, part of which may, at the court’s discretion, then be suspended.
    

Presentence Report

12. The prisoner’s pre-sentence report (PSR) is a detailed one, but the author pretty much left it to the court to impose the most appropriate sentence.
    
13. It is worth noting, however, that the prisoner, as alluded to above, left school early when she fell pregnant from her now de facto husband when she apparently was around 17 years old. She committed this offence when her child was 2 months old. Obviously, she was going through a rough patch as it were. She told the author of the PSR that she was happily living with her de facto husband Wesley Noki, - living off his wages but when he decided to leave her to return to his wife, the deceased, she became frustrated. At first, she accepted her situation having really no choice but to cling on to the relationship despite having to live with her parents while the deceased lived with their husband in his village. The prisoner has plans to return to school if her parents are willing to pay for her school fees again.
    
14. The prisoner’s people had contributed K5,000.00 cash and 8 pigs towards compensation paid to the deceased people by her de facto husband. However, the deceased father said that the amount paid by Wesley - K10,000.00 and 30 pigs – was not compensation but “bel kol”. He is still waiting for Wesley’s and the prisoner’s people to pay compensation.
    
15. An unfortunate fact that emerges from the PSR is that both the parents of the deceased and the prisoner have been left to care for their babies. The deceased’s father is bitter about all this and blames the prisoner for budging into his daughter’s marriage to Wesley. He therefore wants the prisoner to be given the maximum penalty.
    
16. Mr. Paulus Michael, who is related to both the deceased and the prisoner spoke well of the prisoner. He undertook to help rehabilitate her if she is given a non-custodial sentence as well as ensure that she continues with her education. He lays the blame squarely on Wesley Noki for the death of the deceased.
    
17. One final point to note is that the prisoner’s and Wesley Noki’s relationship appears to have not been formalized let alone recognized while the deceased was in fact Wesley’s customary wife.
    
    1. The State
       
18. Mr. Kesan submitted on behalf of the State that the prisoner’s sentence should be between 16 – 20 years placing it within Category 2 of the Manu Kovi Tariffs. And because the PSR does not recommend a suspension, no part of the prisoner’s sentence ought to be suspended though that period spent in pre-sentence detention may be deducted from the head sentence.
    
19. Counsel conceded that there are factors in favour of the prisoner including her guilty plea, lack of provocation from the deceased who tried to stab her and was the initial aggressor. This should, however, be considered against the fact that the prisoner used a dangerous weapon and the prevalence of killings within the domestic setting.
    

MITIGATING FACTORS

20. I accept the following factors as mitigating the prisoner’s offence -
    
    • (i) She pleaded guilty early to the charge.
    • (ii) She is a first-time offender.
    • (iii) She is a youthful offender.
    • (iv) She was provoked in the non-legal sense.
    • (v) She was of prior good character.
    • (vi) There was no pre-planning involved.
    • (vii) She acted alone.
    • (viii) She appears remorseful for her actions.
    • (ix) The deceased was the initial aggressor. She attacked the prisoner with the knife which she eventually used to stab the deceased.
      

AGGRAVATING FACTORS

21. Against her, however, are the following -
    
    • (a) The prisoner used a dangerous weapon.
    • (b) There was intention to cause grievous bodily harm.
    • (c) Killings in the domestic setting between co-wives are very prevalent.
      

WHETHER WORST CASE

22. So, is this a worst instance of murder? I agree with both counsel that it is not. Therefore, it should not attract the maximum penalty of life imprisonment. There was little or no pre-planning, no strong intentions to cause grievous bodily harm, but a dangerous weapon was used to commit the offence. The case would indeed fall in the upper end of Category 1 and the lower end of Category 2 of the Manu Kovi tariffs. It would therefore attract a sentence between 15 and 16-years imprisonment.
    
23. This is unfortunately one of the many cases involving co-wives or between women who are forced to attack themselves over some men. Killings and infliction of grievous bodily harm in this type of situations are now prevalent. It is therefore instructive for the purpose of consistency to consider sentences imposed by this court for this type of killing.
    

COMPARATIVE SENTENCES

24. The State -v- Mark (2010) N4182: The offender pleaded guilty to one count of murder. The deceased suspected the offender of having an extra-marital affair with her husband and confronted the offender at her house. An argument ensued. During the argument, the offender went into her house and came out with a kitchen knife. She approached the deceased from behind and stabbed her on the back, and as she turned around the offender stabbed her a few more times.
    
25. The offender was a first-time offender and was of prior good character. The killing was not premeditated and was done in the spur of the moment. The offender was genuinely remorseful and co-operated with the police and had offered to pay compensation. The court also considered that the offender was not the initial aggressor. She was at her house when confronted by the deceased. However, she used a dangerous weapon against the deceased. Hence the court assessed the circumstances of the case as fall under Category 2 of the Manu Kovi Tariffs, calling for a sentence between 16 – 20 years. The court was of the view that an appropriate sentence ought to be 15 years, but instead imposed a sentence of 13 years on the basis that the offender was a woman.
    
26. The State -v- Topi (2010) N4667: The offender was convicted after trial for murder. She had suspected the deceased of having an affair with her husband, approached her while she was selling pork at a market and cut her on the head without warning. The deceased was 8 months pregnant. Among other aggravating factors such as the use of a dangerous weapon, the court considered the death of the unborn child as a special aggravating factor and sentenced the offender to 14 years less time in custody.
    
27. The State -v- Guina (2020) N8311: The offender pleaded guilty to murdering her co-wife. Their common husband had taken her son without telling her and so she went looking for them. She went to the deceased’s house and found the husband and deceased in her bedroom together with her son and the deceased’s children. There was a struggle during which the offender stabbed the deceased in the left breast with a small kitchen knife, killing her. She was sentenced to 12 years less time in pre-trial custody.
    
28. The State -v- Tinka (2013) N5439: The offender and the deceased were co-wives to a common husband. Issues arose between them, and their husband and they had gathered in the village for a mediation with village elders. The offender was the first wife while the deceased was the second. The mediation was to discuss the neglect of the offender and her children by the husband. Disagreement arose between the offender and the deceased during the discussion and the offender stabbed the deceased in the chest area once with a knife. The knife fractured 2 ribs and punctured the lung. The deceased died instantly. The offender was sentenced to 10 years imprisonment.
    
29. The State -v- Uraro (2012) N5164: The deceased was having an extra-marital affair with the offender’s husband. They were to have had a mediation at the Police Station, but the deceased and the offender’s husband did not turn up. The offender left but later found the deceased at a supermarket check-out counter trying to pay for her shopping. The offender approached her from behind and stabbed her on the back with a kitchen knife. She was rushed to the hospital but later succumbed to her injuries. The offender was sentenced to 10 years imprisonment less time in custody. She was ordered to serve 8 months while the balance of 5 years and 8 months were suspended with conditions.
    
30. The State -v- Eroane (2021) N9028: The offender met the deceased and her boyfriend – the offender’s former husband – walking towards the reception area of a motel. The deceased’s boyfriend went into the reception while the deceased stood outside waiting. The offender approached her from behind, put her arm around her neck and held her tight. She then started stabbing the deceased with a kitchen knife. A security guard saw what was happening, picked up a piece of timber and hit the offender until she stopped stabbing the deceased. The deceased was rushed to the hospital but died soon after from penetrating wounds to the lungs and heavy bleeding from the multiple stab wounds she sustained. On a guilty plea the offender was sentenced to 15 years imprisonment less time in pre-sentence detention.
    

APPROPRIATE SENTENCE - DELIBERATIONS

31. The sentences in the above cases ranged from 10 years – 15 years. I do agree with counsel for the State that due to the prevalence of these types of killings, sentences must also steadily increase. While the Court is mindful of the enormous pressure and sometimes trauma that women in polygamous marriages or those whose partners get involved in extra-marital affairs go through, the killing of another person is a very serious offence which rightly deserves the maximum penalty – be it life for manslaughter and murder, and death for wilful murder.
    
32. This, as the Supreme Court said in Tanga -v- The State [1999] PNGLR 216 – an appeal against a 12-year sentence for manslaughter – “reflects the value the society places on human life and its total condemnation of one person unlawful taking of another’s life under any circumstances.”
    
33. The use of kitchen knives which have become the weapon of choice for killings in domestic settings has also attracted judicial comment. Some 21 years ago, the Supreme Court in Marangi -v- The State (2002) SC702 expressed concern that the use of kitchen knives in domestic killings had been increasing. It said –
    

“The use of readily available kitchen knife to settle one’s domestic grievance is prevalent in this country. It is becoming a silent lethal weapon far more dangerous than other potentially dangerous weapons like axes, bush-knives or even guns. The reason for this is that the knife is readily available, it can be easily concealed, and used on unsuspecting unarmed victims who are usually taken by surprise and used in a calculating and precise manner that the human body is easily penetrated, and vital organs are damaged or even severed. It seems to us that more lives are being lost in this country today from the use of the knife than with any other weapon. Therefore, strong punitive and deterrent sentences are required”.

34. These strong words still ring true, if not truer today than when they were penned 21 years ago, because this type of killings using this choice of weapon has increased to an alarming rate over the years. And the call by the Supreme Court for strong punitive and tolerated sentences is very much still, if not more so, relevant today.
    
35. The prisoner in the instant case was a young woman, who very consciously and deliberately chose to have an affair with a married man. She knew what she was getting into. She knew that she could get pregnant and prematurely sabotage her education and that’s exactly what happened to her. Whatever the man promised her did not place her in a favourable position as it turned out that the man soon shifted and focused his attention on his customary legal wife much to the disappointment of the prisoner who was forced to continue to live with her parents and burdening them unnecessarily.
    
36. I do not know what she expected. She remained but a de facto partner to the man and as things turned out eventually, she is now a prisoner while the man is roaming around freely, and for all we know, may have remarried now that his wife is dead.
    
37. The prisoner should not be under any illusion that she will spend a good part of her young life in prison. Her plans to further her education are good as gone. She has taken another young life. She has deprived the deceased’s child of a mother’s love and care, and her parents of a loving daughter.
    
38. And while one woman is dead and another has lost her liberty, the man in the middle of this continues to roam free, like hundreds if not thousands of men like him. Strong calls have been made by judges of this court and the Supreme Court for these men to be held accountable for the devastation their philandering and polygamous practices have brought upon scores of women victims and perpetrators, but until Parliament legislates against these men, women will continue to kill, injure, and maim themselves and continue to lose their liberty.
    
39. The prisoner has left behind a baby who was but 2 months old when she committed the offence. The child will grow up not knowing its mother or feel the warm bosom of its mother. The prisoner has no one else to blame but herself for that. For instead of concentrating on getting educated she chose to run with a married man and see where it has brought her.
    
40. Women, and more so young girls who choose romance and worse still those who have flings with married men ought to carefully weigh out the consequences of their actions. Getting in a potentially polygamous relationship is not going to be a walk in the park. Even if things appear to be rosy at the beginning, one must sooner or later get used to sharing the common husband’s attention with other women in the relationship. Unfortunately, polygamy is not for the weaklings, male or female and often pays a bitter wage.
    
41. I have considered the circumstances under which the offence was committed and the prisoner’s mitigating and aggravating factors. Because of the prevalence of this type of offence or this particular type of killings, a punitive and deterrent sentence is needed.
    
42. The facts of this case are quite similar to those in The State -v- Mark, The State -v- Topi and The State -v- Tinka (supra). The facts in Tinka’s case are especially similar to those in the current case. Both women had gone to mediation to sort out marital issues involving their common husbands and both women ended up killing the other woman in their “triangle of love” or relationship. Both inflicted one stab wound to their victim. Tinka got 10 years. Should the prisoner get a similar sentence?
    
43. I consider that the deceased in this case was the older of the two and of course would have been expected to have exercised more restraint. She, however, did not and instead pulled a knife and attacked the prisoners with it. The prisoner alluded to the fact that she was also hurt in the scuffle and that they both ended up in hospital. This was not disputed, let alone negatived, by the State hence it is taken in favour of the prisoner. (Yalibakut -v- The State (supra). The deceased was the initial aggressor before the knife was knocked off from her hands, picked up by someone in the crowd and given to the prisoner who then attacked the deceased with it.
    

SENTENCE

44. As I said, the circumstances of the case bring it within the top of Category 1 and the bottom of Category 2 of Manu Kovi and thus an appropriate sentence ought to be 15 years. However, due to the prisoner’s mitigating factors, which should qualify for some discount, I shall impose a sentence of 13 years.
    
45. I therefore sentence the prisoner to 13 years in light labour less the time spent in custody which is 2 years, 4 months, and 4 days.
    
46. Due to a non-supportive PSR, none of the resultant sentence shall be suspended. The prisoner will serve her sentence at Baisu Corrective Institution.
    

ORDERS

47. The orders of the Court are:
    
    1. The prisoner is sentenced to 13 years imprisonment with light labour.
       
    2. The period of 2 years, 4 months and 4 days spent in pre-sentence detention is deducted from the sentence.
       
    3. None of the resultant sentence shall be suspended.
       
    4. The prisoner shall serve her sentence at Baisu Corrective Institution.
       
    5. The prisoner has the right to appeal to the Supreme Court within 40 days if she is aggrieved by her sentence.
       

Ordered accordingly.

__________________________________________________________________
P Kaluwin, Public Prosecutor: Lawyers for the State
L B Mamu, Public Solicitor: Lawyer for the Prisoner