State v Kirape [2022] PGNC 144; N9564 (30 March 2022)

N9564

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 824 OF 2021

BETWEEN
THE STATE

AND
DEBRAH KIRAPE

Baisu: Toliken, J
2021: 13^th August
2022: 14^th &30^th March

CRIMINAL LAW – Practice and Procedure – Sentence – Murder – Guilty plea – Killing in domestic setting – One stab wound to neck with kitchen knife – First-time offender – No strong intention to cause grievous bodily harm – Remorse – No de facto provocation – Deceased initial aggressor – Prisoner chose to fight – Prevalence of this type of killings – Appropriate sentence – 14 years less time in pre-sentence detention – Suspension inappropriate – Criminal Code Ch. 262, s 300 (1) (a).

Cases Cited

Avia Aihi v The State (No. 3) [1982] PNGLR 92
Goli Golu v The State [1979] PNGLR 653
Lawrence Simbe v The State [1994] PNGLR 38
Manu Kovi v The State (2005) SC 789
Ure Hane v The State [1984] PNGLR 105.
Ume & Ors v The State (2006) SC 836
Thress Kumbamong v The State (2008) SC1017
The State v Lossy Karapus (2009) N3540
The State v Carol Alfred (2009) N3602
The Public Prosecutor v Tumu Waria [1977] PNGLR 170
The State v Madiroto (1997) N1554
The State v Luna (2002) N2206)
The State -v- Mark (2010) N4182
The State -v- Topi (2010) N4667
The State v Pauline Kewa (2021) N9356
The State v Esther Peni Nema; CR No. 822 of 2021 (Unnumbered and unreported judgment, 25^th March 2021)

Counsel:

P Tengdui, for the State
D Pepson, for the prisoner

SENTENCE

30^th March, 2022

1. TOLIKEN J: INTRODUCTION: The prisoner Debra Kirape was indicted for the murder of one Nancy Salwin on 01 November 2020 at Konfarm, Mt Hagen, Western Highlands Province thus contravening Section 300(1)(a) of the Criminal Code. (The Code) She pleaded guilty to the charge.
   

Facts

2. On 01^st November 2020 the prisoner and the deceased were both at Konfarm, when, at around 9.00a.m, the deceased confronted the prisoner and accused her of having an extra-marital affair with her husband. The deceased hit the prisoner on the head with a stone, and in retaliation the prisoner picked up a kitchen knife that was lying around and stabbed the deceased on her neck once with it. She collapsed and was rushed to the hospital but was pronounced dead on arrival.
   
3. The deceased’s post-mortem report revealed that she died of respiratory arrest due to Hemopneumothorax caused by a stab wound to the neck. Counsel for the prisoner took no objection to the court having recourse to the post-mortem report and photographs of the deceased and the murder weapon which formed part of the committal depositions. Reproduced below are photographs of the deceased showing her wound and the murder weapon.
   

The Offence

4. The offence of murder carries the maximum penalty of life imprisonment, subject to the Court’s discretion under Section 19 of the Code to impose a lesser sentence. The prisoner may only be served the maximum penalty if her case is considered a worst instance of murder. Furthermore she will be sentenced largely according to the peculiar circumstances of her case. (Goli Golu v The State [1979] PNGLR 653; Avia Aihi v The State (No. 3) [1982] PNGLR 92; Ure Hane v The State [1984] PNGLR 105; Lawrence Simbe v The State [1994] PNGLR 38).
   

Issues

5. Is this a worst case, deserving of the maximum penalty? If not, what should be an appropriate sentence for the prisoner?
   

Sentencing Guidelines

6. The unlawful taking of someone else’s life is a grave offence and therefore the law prescribes the death penalty for wilful murder and life imprisonment for murder and manslaughter.
   
7. Over the years the Supreme Court had laid down sentencing tariffs and guidelines for homicide offences. The latest and prevailing guidelines are those in Manu Kovi v The State (2005) SC 789. For the crime of murder, the Manu Kovi guidelines are as follows –
   

Category	Circumstances	Sentence
1.	Plea. Ordinary cases. - Mitigating factors with no aggravating factors -No weapons used - Little or no pre-planning - Minimum force used -Absence of strong intent to do GBH.	– 15 years
2	Trial or Plea. Mitigating factors with aggravating factors - No strong intent to do GBH -Weapons used - Some pre-planning -Some element of viciousness	16 – 20 years
3	Trial or plea Special Aggravating factors - Mitigating factors reduced in weight or rendered insignificant by gravity of offence Pre-planned Vicious attack - Strong desire to do GBH - Dangerous or offensive weapons used e.g., gun or axe - Other offences of violence committed.	– 30 years
4	Trial or Plea Special aggravating factor – No extenuating circumstances – No mitigating factors or mitigating factors rendered completely insignificant by gravity of offence – pre-meditated attack – Brutal cold-blooded killing – killing in course of committing another offence – Complete disregard for life.	Life Imprisonment

8. It is against these guidelines that I must now decide an appropriate sentence for the prisoner. These are, however, guidelines only and do not fetter the Court’s discretion to impose an appropriate sentence according to the circumstances of each case pursuant to section 19 of the Code. (Thress Kumbamong v The State (2008) SC1017).
   

Antecedents

9. The prisoner is about 27 years old and hails from Maral Village, Imbongu District, Southern Highlands Province. She is a Lutheran and has 2 children. The youngest was 4 months old when she committed the offence. She has got separated from her husband when pregnant with her second child. She attended Kambubu High School, East New Britain but withdrew from studies before she could complete Grade 11. She was living with her parents at Maral Village and had come to Konfarm to bring her 4-month-old infant to a niece of hers to adopt. It was during that time she was living with her niece at Konfarm that she had the tragic confrontation with the deceased who happened to be the wife of her niece’s landlord. She has no prior convictions. The prisoner had been in custody for a period of 1 year 4 months and 24 days since her apprehension on 06^th November 2020.
   

Allocutus

10. The prisoner apologised for breaking both State and God’s law. She said she was sorry for taking the deceased’s life. She apologised to her children and family for the trouble she put them through because of her offence. She asked if she could be given a short sentence so that she can return to her children and look after them because their father had remarried. She did not have an affair with the deceased’s husband. Rather he raped her.
    

Submissions

11. Mr. Pepson submitted on behalf of the prisoner that the circumstances of the case fall under the lower end of Category 1 of the Manu Kovi tariffs thus should attract a sentence between 11 – 15 years. Counsel said that the prisoner was not in a long-term relationship with the deceased’s husband given the relatively very short period of one week within which she was forced to live with him. Further to that he raped her as well.
    
12. Counsel submitted that there are factors that should mitigate the prisoner’s offending. This includes the fact that she pleaded guilty very early, expressed genuine remorse, surrendered to the police voluntarily, co-operated with the police and made early admissions, no pre-planning, and no prior convictions.
    
13. Counsel also submitted that the following should be taken as extenuating factors –
    
    • She was new to the area and was raped by the deceased’s husband while she was living with her niece who was renting a house from him.
    • Having moved in only a week prior to the incident, she was unfamiliar with the area, and while she wanted to report to the police, she was concerned the effect this will have on her niece and her husband.
    • The deceased was informed that her husband raped the prisoner, and they were to arrange for mediation, however, she got angry for some reason and unexpectedly assaulted the prisoner with a stone and in retaliation, the prisoner stabbed her with the kitchen knife.
      
14. In those circumstances, counsel submitted that an appropriate sentence ought to be between 7 – 10 years. The time in pre-sentence detention should then be deducted and a suspension, whether wholly or in part, may then be considered.
    
15. No pre-sentence report was received for the prisoner.
    
16. The State conceded that this is not a worse case. Nonetheless a weapon was used to commit the offence, a young life was lost leaving three children without the support of a mother and the offence is prevalent. Counsel for the State, Mr. Tengdui acknowledged that the prisoner pleaded guilty early thus saving time and money had she forced a trial, she is a first-time offender, expressed remorse and was provoked in the non-legal sense. The State also accepts the prisoner’s statement that she was raped by the deceased’s husband which is an extenuating factor as held by this court in The State v Lossy Karapus (2009) N3540 and The State v Carol Alfred (2009) N3602.
    
17. Mr. Tengdui essentially agrees that women who kill a rival wife, or a lover of her husband or partner ought to given special consideration. This is not to condone their action, which are unlawful but to empathize with them for the enormous emotional and psychological pressure brought to bear on them by their husband’s or partner’s unfaithfulness.
    
18. In the circumstances of this case, counsel submitted that a sentence lower than the starting point for murder in the Manu Kovi tariffs. An appropriate sentence, he submitted would be 10 – 14 years.
    

Mitigating Factors & Extenuating circumstances

19. The following factors mitigate the prisoner’s offence –
    
    • She pleaded guilty very early to the offence.
    • She has no prior criminal convictions.
    • She co-operated with the police by surrendering herself voluntarily and making early admission in her record of interview.
    • She was of prior good character.
    • There was no pre-planning involved.
    • She did not instigate the confrontation with the deceased.
      
20. I reject suggestions by both counsel that the fact that the offender was raped by the deceased’s husband only a week after arriving from her village in the Southern Highlands, or that her desertion by her husband, constituted de facto provocation, hence, were extenuating circumstances. While the rape eventually led to the deceased’s violent reaction against the prisoner, the act or insult was not perpetrated by the deceased. It cannot therefore be considered an extenuating factor but rather as an ordinary mitigating factor only.
    

Aggravating Factors

21. The following aggravated the offence –
    • The prisoner used an offensive weapon to kill the deceased.
    • The offence is prevalent.
      

Considerations for an Appropriate Sentence

22. I agree with both counsel that this is not a worst instance of murder. It is, however, one of the numerous cases where wives in monogamous and polygamous marriages, de facto partners, and lovers of unfaithful, philandering men or girlfriends, injure, maim, and even kill themselves. The law reports are replete with these cases. And with the number of cases coming before the courts, it is not an understatement to say that these are occurring almost daily in some of our communities and societies, and if I may be bold enough to say, especially in societies where polygamy or more specifically, polygyny is practiced.
    
23. Where married men with deep pockets, affluence, and status, political or business influence and connections flout their riches to lure or force themselves on other women or girls who may not be well endowed financially, or are going a rough patch in their lives, the result is often tragic for one of the rival women.
24. This is exactly what happened in this case. The prisoner was in financial strife and no doubt would have been emotionally affected by her recent break up with her husband. Her husband had deserted her and her two children – one 2 years old and the other only 4 months old whom she had brought down to Konfarm to be adopted by her niece. The deceased’s husband no doubt capitalized on her disadvantaged position and raped her. I accept her explanation that she could not report this to the police because this would have jeopardized her niece’s situation who was a tenant of the man. These are not extenuating circumstances as I already say but normal and may even be special mitigating factors only.
    
25. The circumstances of this case are not entirely the same as those in Karapus (supra.) where the offender was charged with manslaughter and not murder. She was subjected to a long and sustained period of infidelity by her husband coupled with open support by his relatives of his adulterous liaison with the deceased. This was exacerbated by highly provocative verbal insults and indecent gestures by the deceased and an unwillingness to end the relationship despite two appearances in the Village Court. Despite this, his Honour Makail J refused to treat these as extenuating factors which effect would have been a significant reduction of the sentence. His Honour treated these as constituting strong de facto provocation only. The offender was sentenced to 10 years imprisonment.
    
26. I beg to differ from his Honour’s view because de facto provocation is normally always an extenuating circumstance. The Supreme Court in Ume & Ors v The State (2006) SC 836 held that extenuating circumstances are those particular circumstances under which the offence was committed, which have the effect of reducing or diminishing the gravity of the offence. These include de facto provocation, duress or coercion, medical condition such as psychopathic personality, a lack of sophistication or person’s traditional beliefs and practices. However, extenuating circumstances should not be over-emphasized because law breakers must still be punished for their offences. (The Public Prosecutor v Tumu Waria [1977] PNGLR 170)
    
27. The weight to be given to de facto provocation will of course depend on factors such as the victim being violent to the offender, the degree of provocation offered, the extent of loss of power of self-control and the time between the provocation and the offender’s reaction to the provocation which when short may reduce the objective gravity of the offence. (The State v Madiroto (1997) N1554; The State v Luna (2002) N2206)
    
28. With due respect, the type and level of de facto provocation offered by the deceased and other in Karapus, would have, in my opinion, constituted extenuating circumstances which would have resulted in a significant reduction of her sentence.
    
29. Karapus can, however, be easily distinguished from the instant case. Here the provocation was not sustained, and the incident of rape was not something that the deceased did to the offender, though the offender would have been emotionally affected or traumatized by the incident.
    
30. And so, when the objective gravity of the offender’s offending is considered against the Manu Kovi guidelines, I am of the view that it should sit at the bottom of Category 2 thus attracting a sentence or at least a starting point of 16 years.
    

Comparative Sentences

31. At this juncture it instructive to consider a few the sentences this court has imposed in case like the instant case.
    
32. 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.
    
33. 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.
    
34. 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.
    
35. The State v Pauline Kewa (2021) N9356: The offender was the de facto wife of the deceased’s customary law husband. She was doing Grade 9 when she had an affair with the deceased’s husband and eventually got impregnated by him when she was 17 years old. She left school and became his de facto wife but did move to his village, remaining instead with her parents. She was happy at first because she was living off the man’s salary. After some time, he, however, took his customary law wife back and this frustrated the offender. Things got worse and a mediation by the village elders was arranged. During mediation the prisoner confronted the deceased and a fight ensued. 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. I held that the case fell within Category 1 and 2 of Manu Kovi and that should attract a sentence of 15 years. Because of the offender’s mitigating factors I sentence her to 13 years instead less time in custody.
    
36. The State v Esther Peni Nema; CR No. 822 of 2021 (Unnumbered and unreported judgment, 25^th March 2021) which I have just passed sentence on, received a sentence of 14 years. She had an argument with her stepdaughter – the daughter of her co-wife – over a coffee garden plot. They exchanged insults at each other, calling themselves prostitutes. The deceased further insulted the offender by saying that her children were illegitimate. During their argument the deceased lunged at the offender with a mug. The offender retaliated and stabbed her with a broken which obviously had picked up during their argument.
    

Sentence

37. Given all the above I am of the view that the prisoner should get a similar sentence to Esther Pena Nema. Both were attacked with objects by their victims. There is no indication that they were in imminent danger of being killed let alone seriously injured. Both had the opportunity to walk away but did not. Instead, they both chose to confront their victims and fatally injured them with whatever your hands could find – Esther with a broken bottle and the prisoner here with a knife. The prisoner’s own culpability was therefore quite high.
    
38. The prisoner has some strong mitigating factors, and these should justify a sentence in the range I suggested. In saying that I do not lose sight of the role the deceased’s husband played in the whole saga which unfortunately led the prisoner into to taking another life.
    
39. Despite of that, the prisoner chose to take a stand and fight with the deceased. She chose to pick up the knife and stabbed her. And that produced a result that cost the victim her life and the prisoner lost her freedom. Unfortunately, they (deceased and prisoner) are not the only victims. Both have children who no doubt will suffer. Fortunately, the prisoner’s children will get to visit her in goal or get to be reunited with her after she is discharged. The same, unfortunately cannot be said about the deceased’s children. They have lost their mother forever.
    
40. I therefore sentence the prisoner to 14 years imprisonment less the period you have spent in custody before your conviction and eventual sentence today which is 1 year, 4 months and 24 days. The prisoner will serve the balance of her sentence at Buiebi Corrective Institution, Southern Highlands Province..
    
41. I am cognizant of what the Supreme Court said in Thress Kumbamong about treating women who kill others in domestic settings quite differently other types of killings. I agree entirely with those sentiments, but these senseless killings cannot be allowed to continue. Long enough deterrent sentences ought to be imposed to exact respect for the law and the sanctity of life out of offenders like the prisoner here. In any case the Court does not have the benefit of a Presentence Report, hence, I would exercise my discretion and will not suspend any part of the prisoner’s resultant sentence.
    

ORDERS

42. The orders of the Court are:
    
    1. The prisoner is sentenced to 14 years imprisonment with light labour.
       
    2. The period of 1 years, 4 months and 24 days spent in pre-sentence detention is deducted from the head sentence.
       
    3. None of the resultant sentence shall be suspended.
       
    4. The prisoner shall serve her sentence at Buiebi Corrective Institution, Southern Highlands Province.
       
    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