State v Timothy [2021] PGNC 677; N9961 (30 September 2021)

N9961

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1035 OF 2019

THE STATE

V

LUCY TIMOTHY

Kokopo: Suelip AJ
2021: 16^th August, 7^th, 9^th, 14^th, 24^th & 30^th September

CRIMINAL LAW – sentence – plea – murder s. 300(1)(a) Criminal Code – husband having extra marital affair – stabbed woman causing death – some compensation paid – customary practices considered – mitigating and aggravating factors considered – genuine remorse – sentence of 10 years – 2 years to serve in prison – balance on probation on conditions
.

Cases Cited

Goli Golu v The State [1979] PNGLR 653
Manu Kovi v. The State [2005] SC789
State v. Mavis Uraro [2012] N5164
State v. Drikore Yuana Peter [2000] PNGLR 307
State v. Mupa Lom [2012] N4725

Counsel

T Kametan, for the State
S Pitep, for the Prisoner

SENTENCE

30^th September, 2021

1. SUELIP AJ: On 16 August 2021, the prisoner of Umba village, Menyama, Morobe Province pleaded guilty to one count of murder, thereby contravening section 300(1)(a) of the Criminal Code. She was then convicted accordingly.

2. This is my decision on sentence.

3. The facts upon which she pleaded guilty to are these. Between 7 am and 8 am, on Friday, 29 March, 2019, the prisoner was at Reit Ward, Sinivit LLG, Pomio District, East New Britain Province. Earlier on, she used to have a grudge with the deceased, one Lemma Leto, a female aged 24 years old, regarding her husband. On the said time and date, her husband left the house early to go to Warongoi. The prisoner later heard that her husband had met the deceased and they were heading together to Warongoi. With a suspicious mind, she followed after and attacked the deceased Lemma Leto in the middle of the road. She got a short knife from the deceased and stabbed her twice, once on the side of body (left rib cage) and once on her upper left back. The deceased tried to escape but could not as she fell on the ground and died. The State charges the prisoner for one count of murder under section 300 (1)(a) of the Criminal Code in that she intended to cause grievous bodily harm to another person but unlawfully killed her.

4. Section 300(1)(a) of the Criminal Code Act provides the following: -

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; or

Penalty: Subject to Section 19, imprisonment for life.

5. The maximum penalty for the offence is imprisonment for life, subject to Section 19 of the Criminal Code. However, it is trite law that the maximum penalty is reserved for the worse type case as held in the case of Goli Golu v The State [1979] PNGLR 653.

6. For the purpose of sentencing, the prisoner’s personal particulars are these. She is 29 years old and comes from Umba village of Menyama, Morobe Province. She is married to Simon Aiyaka and they have three children, all under 10 years old. They are both unemployed and rely on subsistence farming for survival. The prisoner comes from a family of four (4) where she is the youngest. She has since lost contact with her siblings. She has never been to school, and so she is illiterate. She attends the Revival Church of Papua New Guinea.

7. During allocutus, she said she is sorry for what she did. She said she did not mean to kill the deceased. She said the deceased wanted to stab her so she got her knife and stabbed her instead. She apologized to the Court, to God and the family of the deceased. She also apologized to her family and to all who were in Court. She said what she did was wrong. She said she has 3 children aged 7, 5 and 2 years. She begged for the Court’s mercy and asked that she be placed on probation. She also promised to be good and go to church. She said she does not any cocoa or coconut block and she is living on other people’s land.

8. Against her, the aggravating factors that are present in her case are these. A weapon was used, and the attack was vicious which caused the deceased to sustain severe wounds and injury to her left lung. Further, there was some pre-planning, and the offence is prevalent in society, especially the use of lethal weapons to inflict injuries on another and cause death.

9. In her favor, the mitigating factors include her guilty plea which has saved the Court’s time and resources. She is also a first-time offender as she does not have any prior convictions. The factor that stands out for her is that there was de facto provocation where your husband was having a relationship with the deceased. Other mitigating factors are the payment of some compensation and the prisoner’s genuine remorse.

10. I am guided by the principles outlined in Manu Kovi v. The State [2005] SC789 where the circumstance of this case falls within the second category with a sentencing range of 16 – 20 years. I am not bound by these sentences.

11. Counsel for the prisoner referred to several comparable cases. The most relevant one which is similar to the prisoner’s is the case of State v. Mavis Uraro [2012] N5164 where the accused was charged with murder pursuant to section 300(1)(a) of the Criminal Code. In that case, the husband of the accused was having an affair with the deceased. The accused then went looking for the deceased and stabbed her with a kitchen. She died from loss of blood and the accused was sentenced to 12 years less time spent in custody. The Court suspended 5 years, 8 months, and 2 days from her sentence, and she only served 5 years in prison. Suspension of sentence was on the condition that the accused will enter into her own recognizance and be of good behavior for the whole of her suspended sentence.

12. The prisoner’s counsel argued that the appropriate starting point for her is 16 years, and her head sentence should be 12 years or less in consideration of the mitigating factors.

13. In response, the State referred to several cases, but the relevant ones are the cases of State v. Drikore Yuana Peter [2000] PNGLR 307 and State v. Mupa Lom [2012] N4725. In the first case, the prisoner pleaded guilty to the murder of a woman whom her husband had taken in as his second wife. She stabbed the woman twice with a kitchen knife in her sleep. The deceased died due to blood loss. The prisoner was sentenced to 12 years imprisonment in hard labor. In the other case, the accused pleaded guilty to murdering his wife after he found out that his wife was having an affair with another man, and he killed her by chopping her with a bush knife. He was sentenced to 18 years imprisonment in hard labour.

14. The State argued that considering the seriousness of the offence of murder and the aggravating factors, the appropriate starting point for the prisoner is a sentence between 6 – 20 years which is within category 2 of the Manu Kovi sentencing guidelines. Further, this is a serious case where a life has been lost and so it calls for a personal and general deterrence and an appropriate sentence should be 16 years.

15. In the updated presentence report, it shows that both the prisoner’s parents are still alive. Her husband admitted that he intended to marry the deceased after her father offered the deceased to him, but he did not expect the prisoner to assault her and cause her death. He has paid K8,590.00 as compensation and he wants the prisoner to be placed on probation so he can help with the children. The Law & Order Committee member in her ward, one Kami Buka described the prisoner as a good and humble person who is friendly to everyone in the community. He also confirmed that K4,000 was paid as compensation whilst the balance of K4,590 was also paid as witnessed by one Justin Sale. Further, the father of the deceased confirmed receiving K7,000 as “bel sore” monies. However, he said despite the payment, the prisoner must also hand over her customary land in Menyama as this is according to their common custom. Mr Buka also said that if the prisoner pays compensation, he can be released from prison. He says he does not have any grudges against the prisoner and blames the prisoner’s husband for his daughter’s death. The report is favorable to the prisoner and recommends her a suitable candidate for probation.

16. In considering the appropriate sentence for the prisoner, let me start by saying that this is not a worse type case and so the maximum penalty will not apply to her. Instead, I will exercise my discretion under section 19 to impose a sentence I see fit. As submitted by both counsels, the starting point for her sentence is between 16 to 20 years in prison. A life was lost and so I take that as a serious aggravating factor against the prisoner. She must be penalized for the crime he has committed. However, I also consider the circumstances that led her to commit this crime. When she found out that her husband was having an extra marital affair with another woman, that made her upset. I note from the updated presentence report that she had reported this matter to their ward committee and then to Warongoi Police Station. She has also said in the report that she has land readily available to give as compensation. I take that to mean she has customary land in Menyama to give to the family of the deceased as compensation. She also said during allocutus that the deceased was the one who pulled out her knife at the prisoner and that is when she got her knife and stabbed her during the tussle. In the heat of the moment, she was enraged, and she assaulted her. There was therefore de facto provocation and the prisoner wanted to hurt her, not kill her. She has shown genuine remorse and the report recommends that she be placed on probation as she is not a danger to anyone in the community.

17. As it is, the mitigating factors outweighs the aggravating factors. In the circumstances, I am satisfied that it warrants a sentence of 10 years on a charge of murder. The prisoner has been in custody now for 2 years and 5 months. This period will be deducted from her head sentence. This leaves 7 years and 7 months.

18. The discretion to suspend sentence must be exercised according to proper principles. The presentence report is favorable to the prisoner and recommends that she is a suitable candidate for probation. She is also willing to pay compensation and give her customary land to the family of the deceased in a reconciliation ceremony. There is no evidence that the prisoner has the financial ability to pay compensation, but I am certain that she will work hard to earn money when she is released. I am also mindful that she has very young children who need her. Hence, she will be incarcerated for a term of 2 years in light labor and thereafter, she will be placed on probation for the balance of her sentence of 5 years and 7 months on the following conditions: -

(i) she shall enter into her own recognizance and promise to keep the peace and be of good behaviour until the end of her full sentence.

(ii) she shall not commit similar or another offence.

(iii) she shall pay K5,000 cash at a reconciliation ceremony to be witnessed by her community within 12 months of her release.

(iv) she shall attend her local church every Sundays.

(v) if she fails to comply with any of these conditions, she will be rearrested and she will serve the balance of her sentence in prison.

Orders

19. The Orders of the Court are: -

(i) She is sentenced to 10 years imprisonment.

(ii) Her presentence term of 2 years and 5 months is deducted.

(iii) She will serve 2 years in prison in light labour.

(iv) She is placed on probation for the balance of 5 years and 7 months on conditions.

________________________________________________________________
Public Prosecutors Office : Lawyers for the State
Public Solicitors Office: Lawyers for the Prisoner