State v Kaiwi (No. 5) [2023] PGNC 458; N10614 (8 December 2023)

N10614

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 758 OF 2021

THE STATE

V

BHOSIP KAIWI
(No 5)

Waigani: Berrigan, J
2023: 10^th November and 8^th December

CRIMINAL LAW – Sentence - S. 300(1)(a), Criminal Code – Conviction following trial – Murder of wife - Strong intention to cause grievous bodily harm – Strong intention to cause pain and suffering – Assault over a period of five days - Complete disregard for life – Committed in the victim’s home, in which children present, by husband in gross abuse of trust – Murder of the worst kind – Maximum of life imprisonment imposed.

Cases Cited:
State v Bhosip Kaiwi (2023) N10431
Manu Kovi v The State (2005) SC789
State v Mareva (2012) N4805
State v Yawing, CR 636 of 2018, unreported
State v Daniel (2005) N2890
State v Kuvir (2015) N6035
Tanabo v The State (2016) SC1543
State v Amjoni (2021) N9184
Allan Peter Utieng v The State (2000) SCR 15 of 2000
The State v Roger Bai Nimbitua and others, unreported
State v Hondome (2022) N9581
The State v Billy Aki (2017)
Simbe v The State [1994] PNGLR 38
The State v Ase (2001) N2220
State v Niruk (2012) N4821
The State v Abitena (2018) N7290
State v Pake (2007) N5051
State v Levin (2007) N4973
The State v Wakore (2007) N3222
Goli Golu v The State [1979] PNGLR 653
Lawrence Simbe v The State [1994] PNGLR 38
Acting Public Prosecutor v Aumane & Ors [1980] PNGLR 510
Rex Lialu v The State [1990] PNGLR 487
State v Namaliu [2020] PGNC 234 N8506
The State v Steven Kenny (1991) N1881
The State v Lavin (2004) N2607
Tanabo v The State (2016) SC1543
State v Namaliu (2020) N8506
Regina v Peter Ivoro [1971-72] PNGLR 374
Ume v The State (2006) SC836
State v Tony Kande, Henry Naio and Wilson Muka (2021) N9252
Allan Peter Utieng v The State (2000) SCR No 15 of 2000
The Public Prosecutor v Vangu’u Ame [1983] PNGLR 424
John Elipa Kalabus v The State [1988] PNGLR 193
The State v Tardrew [1986] PNGLR 91

References Cited
Sections 19, 300(1)(a), 576(3) of the Criminal Code (Ch. 262)

Counsel
Ms M. Tamate and Mr G. Goina, for the State
Mr E. Ellison, for the Offender

DECISION ON SENTENCE

8^th December 2023

1. BERRIGAN J: On 23 June 2020 Jenelyn Kennedy died following five days of abuse at the hands of her husband, Bhosip Kaiwi. She was nineteen years of age.
   
2. The offender was convicted following trial of her murder contrary to s. 300(1)(a) of the Criminal Code (Ch. 262) (the Criminal Code) the maximum penalty for which is life imprisonment.
   

Preliminary Matter

3. The offender was convicted on 15 June 2023 by Acting Justice Wawun-Kuvi: State v Bhosip Kaiwi (2023) N10431. Wawun-Kuvi AJ’s term expired in July 2023 after hearing submissions but prior to imposing sentence. The matter subsequently came before me. Upon application by the parties I decided that I would deal with the matter pursuant to s 576(3), Criminal Code as the presiding judge was incapable of proceeding. It was further decided in consultation with the parties that as a matter of fairness to the offender and in the interests of justice I would administer allocutus again and hear submissions from both parties which I did. I have drawn the following facts from the decision on verdict, and had regard to the exhibits at trial, including the autopsy report.
   

Facts

4. Bhosip Kaiwi, 24 years of age, and Jenelyn Kennedy, 19, were married, with two young children, a three year old boy and a one year old girl. They lived in Korobosea, Port Moresby in the National Capital District with Rachael Ipang, Jenelyn’s childhood friend, who helped her with the children, and Isaac Ropa, who worked with the offender, together with his cousin, Umun Kupl, and one or two other cousins. Other young men frequented the house and often slept over.
   
5. There were tensions in the relationship. The offender had a relationship with another woman. The offender suspected Jenelyn of having a relationship with another man, Shaun Nickolas.
   
6. There was a history of violence by the offender against Jenelyn, at least in 2020. He assaulted her on several occasions prior to the offence. He threw a Red Label bottle which cut her head in March 2020 following which she fled the house with Rachael and the children. She and Rachael stayed for a few days with Jenelyn’s grandmother at Murray Barracks until the offender pleaded with her to come home and vowed not to assault her again. Jenelyn fled the house with Rachael and the children again in April 2020 after the offender fractured Jenelyn’s forearm. It required surgical intervention. Again they stayed at Murray Barracks for a few days before returning to the house at Korobosea.
   
7. Between 6 and 7 pm on 18 June 2020 the offender, Jenelyn and Isaac, returned home. The offender and Jenelyn stayed in the vehicle. The offender elbowed Jenelyn in the eye twice and punched her face, causing her nose to bleed. He then took Jenelyn into the house. He came back out to the verandah in an agitated state and called for his pliers and tools from Isaac who retrieved the tool bag from the sports car and gave it to the offender. The offender asked Rachael for the blue masking tape. She fetched it and he told her to take the children and stay outside. The offender went back into the house and locked the door. He was alone inside the house with Jenelyn until about 8 pm when he unlocked the door and allowed the others inside. Jenelyn did not come out of the room that night. The offender came out, took his food and returned to the room.
   
8. On 19 June 2020 he and Jenelyn stayed in the room until about 11 am. When they came out Jenelyn had two black eyes and her legs were swollen. The offender told Rachael to clean their bedroom where she found a bush knife, a chain, a screwdriver, pliers, a kitchen knife, and a belt on the couch. There was blood on the items. She put them in the cupboard. She took their blood-stained clothing from the floor and burnt it at the offender’s instruction. Everyone remained outside until 2 or 3 pm when the offender and Jenelyn went inside. The offender prepared dinner for the young men who were at the house working on the boat. Jenelyn sat alone in the living room. She and Rachael did not speak. The offender did not allow them to sit together or speak to one another after Rachael helped Jenelyn escape. Jenelyn drank some soup but she did not eat anything. After dinner the offender took Jenelyn back to their room. He was carrying pliers and a screwdriver. He assaulted Jenelyn for about an hour during which Rachael heard various noises, a loud bang and Jenelyn yelling and screaming. They stayed in the room until the following day.
   
9. On 20 June 2020 Jenelyn came out of the room. She wanted to carry her baby. She carried the child with one hand as her other hand appeared broken. Her face was swollen and she had black eyes. The offender was close by and she and Rachael did not speak.
   
10. On 21 June 2020, around 10 or 11 am, the offender told Rachael to get a golf club. He held the baby while she went in search of the golf club. She was unable to locate one. He instructed her to find a long stick. She found a mop stick and handed it to him. He handed Jenelyn the stick and told her to support herself. Jenelyn was having trouble supporting herself. Her leg had been injured. The injury was new. She did not have the injury on 20 June.
    
11. The offender told Rachael to clean the room where she found water on the floor. She saw pliers, a screwdriver and the blue masking tape. Other than the things she had seen previously, she saw new chains and locks. The chain was tied to a rope. It was like a dog chain. There was blood on the items. She cleaned up and put the items in a cupboard. At around 4 pm the offender took Jenelyn by the hand into the house. He told everyone else to stay outside including a number of young men who were working on a boat. He started assaulting Jenelyn again. There was banging and Jenelyn was screaming. It continued for about an hour. The men played the music loudly to drown out the noise. Afterwards the offender brought Jenelyn out of the house. She held her head low. They all stayed outside and then went to bed.
    
12. On 22 June 2020 the offender and Jenelyn went out in the vehicle before returning with Elizabeth Endose, a nurse who was a friend of the offender’s. She put Jenelyn on a drip. She told her that she needed to drink more water. Afterwards the offender, Jenelyn and Elizabeth sat outside until the offender told some of the boys to take Elizabeth to the bus stop.
    
13. Between 6 pm and 7 pm the offender started assaulting Jenelyn again. They were alone in their room. Jenelyn was screaming. Jenelyn was making sounds that frightened Rachael. The men turned up the music again to drown out the sounds of her screaming. The offender came out to speak to Rachael three times during the night. He asked her how many times she and Jenelyn had met up with Shaun. She told him that it had been three times. He went back into the room. He came out again and asked how they met. She told him. He went back into the room and he continued to assault Jenelyn for some time. He came out and told Rachael to boil water and he then took Jenelyn by the hand to the bathroom to wash. Rachael left the house the following morning.
    
14. Sometime during the afternoon of 23 June 2020 Jenelyn Kennedy was taken to the Port Moresby General Hospital. She was already dead. Her death was determined to have occurred at about 2pm that day. The cause of her death was determined to be blunt force trauma to her head and internal organs. Her body was covered in lacerations, abrasions and bruises.
    

Allocutus

15. On allocutus the offender said:
    

“Firstly, I would like to say sorry to God Almighty for what has happened and also I would like to say sorry to this Honourable court for wasting so much time and resources on my case.

And to the Karava and Kennedy Family and friends of late Jenelyn Kennedy, I am truly sorry from the bottom of my heart and I hope one day you will find it in your hearts to forgive me. I have been living with regrets every single day for the past few years. And also, I would like to say sorry to my own family for putting them through this. I’ve never been arrested or charged before for any other offences and this was my first time.

Lastly, I would like to ask this court for mercy and leniency so that when I am released back into the society I can go and help my sick mother who is now almost 60 years old to look after my two children and also be an advocate for domestic violence and help any of those domestic survivors in whatever way I can.”.

Submissions on Sentence

16. In considering my decision I have had regard to Manu Kovi v The State (2005) SC789 in which the Supreme Court suggested the following scale of sentences for murder.

CATEGORY	MURDER
CATEGORY 1	-12 – 15 years
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.
CATEGORY 2	-16 – 20 years
Trial or Plea. -Mitigating factors with aggravating factors.	-No strong intent to do GBH. -Weapons used. -Some pre-planning -Some element of viciousness.
CATEGORY 3	- 20 – 30 years-
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.
CATEGORY 4	- LIFE IMPRISONMENT-
WORST CASE – Trial or Plea -Special aggravating factors. -No extenuating circumstances. -No mitigating factors or mitigating factors rendered completely insignificant by gravity of offence.	-Pre-meditated attack. -Brutal killing, in cold blood. -Killing of innocent, harmless person. -Killing in the course of committing another serious offence. -Complete disregard for human life.

State Submissions

17. The State submits in mitigation that the prisoner is a first time offender. Whilst he expressed remorse it is not genuine. In aggravation the offence arose in the domestic setting, the assaults occurred over a period of five days, caused bruising all over the deceased’s body, involved the use of blunt instruments like fists and belt buckles, and involved excessive force, showing a strong desire to cause grievous bodily harm and a total disregard for human life. It left two young children without their mother. The offence is prevalent. The offence falls in the fourth category of Manu Kovi and is of the worst kind of murder warranting the maximum of life imprisonment having regard to the five days over which the deceased was tortured.
    
18. It referred to the following comparable cases:
    
    1. State v Mareva (2012) N4805, Gaui AJ, in which the offender pleaded guilty to beating his wife over three days with a car jack causing several deep knife-like wounds on both legs and bruising all over her body, including her cheeks, chin, eyes, lips, left ear, neck, left shoulder, chest wall, buttock, both arms, legs and back. He was sentenced to 24 years’ imprisonment. Gaui AJ said that in his view a series of assaults with an iron rod over a period of days was much worse than chopping a person with a bush knife in a single or repeated attack resulting in death instantly. Where the victim is beaten over a period of days the deceased would have experienced pain and agony before eventually dying;
    2. State v Yawing, CR 636 of 2018, unreported, in which the offender was found guilty of the murder of his wife following trial after an argument over the food she prepared. He was sentenced to 22 years’ imprisonment;
    100. State v Daniel (2005) N2890, Cannings J. The prisoner suspected his wife of having an affair with another man. He tried to sort out the problem by peaceful means but on the night before the incident they had an argument and she left the house. The following morning he followed her to the beach. He waited for her while she went to the toilet and then approached her when she came out. He was carrying a knife. There was an altercation and he stabbed her eight times, five of the wounds being intentional and forceful. He was convicted following trial and sentenced to 25 years of imprisonment;
    4. State v Kuvir (2015) N6035, Kangwia J. The prisoner returned to his house at Salimun village, Namatanai between 2am and 3 am. As soon as his wife opened the door the prisoner started assaulting her all over her body. He kicked her while she was sitting down and then took a 1 meter stick and hit her at the neck and head area. She died immediately. The assaults were committed in front of their children. He was convicted following trial and sentenced to 30 years of imprisonment;
    5. Tanabo v The State (2016) SC 1543, The offender pleaded guilty to a vicious attack in which he killed his wife with three strikes of a bush knife to her head during an argument while they walking on the road on the way to the village. There was no pre-planning. The Supreme Court substituted a sentence of life imprisonment with one of 20 years noting that it reflected an increase in the penalties which had been imposed in similar cases in the past;
    6. State v Amjoni (2021) N9184, Kangwia J. The offender was found guilty of killing his wife in their house in the village and carrying her body to a creek nearby. The mutilated body was found the next day. According to the medical report the body had multiple wounds including on the scalp, eyebrow, forehead, lower lip, below the chin and genital area and a severed tongue and severed nipple. Kangwia J found that the victim was tortured to death over a period of time and that the killing was of the worst kind of murder warranting life imprisonment but imposed 40 years of imprisonment in the absence of submissions from the State to that effect.
       
19. Defence counsel appearing adopted the written submissions relied upon by former defence counsel with some variation.
    
20. He submitted in aggravation that the deceased was assaulted with a belt for five days, the injuries were left untreated and resulted in the deceased’s life being lost.
    
21. In mitigation the offender was a first time offender and is not likely to re-offend. He did not deny assaulting the deceased, the issue at trial was causation. He did not evade arrest but surrendered to police the following day. He has apologised to the deceased’s family and is remorseful. He has indicated a willingness to pay compensation. Whilst the deceased’s family has refused the offer he asked the Court to take his attempts into consideration as a genuine expression of his sorrow: Allan Peter Utieng v The State (2000) SCR 15 of 2000.
    
22. In special mitigation the offender has been of good behaviour whilst in custody for the past three years. He has contributed to organised prison activities and shown extraordinary effort by contributing to having the body of a prisoner who died in custody sent back to his home. He is of prior good character and is a hard-working young man who started his own business and employs many unfortunate Papua New Guineans who are now able to provide for their families.
    
23. In extenuation the wounds on the deceased were superficial and not life threatening. The deceased was on medication before she died and other substances contributed to her death. The death resulted from her injuries not being properly treated. The couple lived harmoniously from 2015 to 2020 and there was no violence prior to that stage. There was de facto provocation. The deceased had an unexplained relationship with another man which forced the prisoner to assault her. The offender was depressed at the time and taking Xanax.
    
24. Counsel appearing submitted that the offence fell within category 2 and 3 of Manu Kovi for murder attracting a penalty of 20 to 30 years. It was not a worst case.
    
25. He asked the Court to consider suspension in the circumstances referring to The State v Roger Bai Nimbitua and others, unreported, in which Mogish J relied on character references to suspend five years of a 16 year sentence for impersonation, deprivation of liberty, rape and armed robbery and State v Hondome (2022) N9581 in which Ganaii AJ relied on the character references from Correctional Services to suspend more than 6 years of a 16 year sentence imposed for the murder of the offender’s second wife. He urged the Court not to impose a sentence that is a quantum leap in all the circumstances.
    
26. Defence counsel referred to the following cases in support of his submissions:
    
    1. The State v Billy Aki (2017), Manuhu J, in which the offender was convicted of manslaughter after trial. He was sentenced to 12 years for viscously attacking his wife with a 4x4 timber on her head on Christmas Eve while the deceased was selling beer on the grand stand at Kone Tigers oval in NCD. The offender lifted the deceased after hitting her onto the back of his open back Toyota Land Cruiser and took her home at Erima Settlement and denied her medication for three days resulting in her death when she was taken to the hospital where her condition got worse;
    2. Simbe v The State [1994] PNGLR 38. The appellant believed the deceased was trying to entice the appellant's wife into having some sexual liaison. The wife had told the appellant about these advances. On the day in question, the appellant followed the deceased to a garden area where the wife was working and, upon seeing what he believed were signals to the wife trying to attract her attention and entice her, he approached the deceased, chased him with a bush knife, and inflicted a substantial cut to the chest which, in effect, sectioned most of the ribs and caused his immediate death. The offender pleaded guilty and was sentenced to 14 years’ imprisonment for murder. The appellant appealed against his sentence on the basis that the trial Judge failed to give sufficient consideration to the deceased's "de facto provocation" of attempting to entice the defendant's wife, and also that the sentence was far outside the range of sentences imposed for murder under s 300 of the Criminal Code. The appeal was dismissed;
    100. The State v Ase (2001), N2220, Jalina J, in which the offender pleaded guilty to murder. Someone told the prisoner that his first cousin had been killed by the deceased. He took his bush knife, went looking for the deceased and chopped him to death upon finding him. He was sentenced to 15 years’ imprisonment;
    4. State v Niruk (2012) N4821 Lenalia J, the two offenders were found guilty of murder. A young school boy had died and all surrounding villages gathered to bury the deceased. People walked over to the grave yard to lay their wreaths on the young deceased's grave. The two accused together with another person started to argue with the victim who they suspected of poisoning the body before they attacked him with the back of a bush knife and a spade suspect. They were each sentenced to 12 years’;
    5. The State v Abitena (2018) N7290, Numapo AJ. Three offenders pleaded guilty to murder. The prisoners and their accomplices were at Omatoro, Waria LLG, Garaina, Morobe Province. The deceased Petoro Paul and two others had also camped at the said place and were asleep in a small bush hut. The prisoners and others crept up, surrounded them and set upon the deceased, chopping him the bush knives and an axe they had in their possession in payback for an earlier death. The deceased sustained serious injuries to his body and died as a result. They were sentenced to 20, 15 and 12 years, respectively for their respective roles;
    6. State v Pake (2007) N5051, Cannings J. The prisoner pleaded guilty to one count of murder. The offender approached a group of friends who were sitting down telling stories in a village setting. He suddenly attacked one of his friends with a bush knife, inflicting a fatal wound to his neck. He was sentenced to 20 years of imprisonment;
    7. State v Levin (2007) N4973, Cannings J. The offender was convicted after trial of murdering his 18-year-old daughter. The offender got angry with his daughter when they were at the family home on Kulu Island. He assaulted her badly. She pleaded with him to stop but he continued the assault, breaking her jaw and skull, causing an intracranial haemorrhage (bleeding into the brain), which led to her death. She died a few hours after the assault. The offender tried to pass off his daughter's death as suicide. He spread a story that after he smacked her she became upset and took a drug overdose. That story was not believed by one of the deceased's cousin-brothers who became suspicious on seeing the extent of the injuries on her body at the haus krai. Her body was exhumed a few days after burial, a police investigation was started and the post-mortem report, admitted into evidence at the trial, showed that Eileen had died due to bleeding into the brain caused by being bashed by a blunt instrument. There was no strong intention to cause grievous bodily harm and de facto provocation was present as the victim had gone missing and he had become angry as he did not know where she was. Cannings J said that he would have imposed a sentence of at least 18 years but for the offender’s age. He sentenced him to 12 years;
    8. The State v Wakore (2007) N3222, Cannings J. There was a dispute between clans in a village after a man was alleged to have committed adultery with another man’s wife. Two clans had a confrontation and in the course of it the offender shot dead the victim. He pleaded guilty and was sentenced to 12 years, four of which was suspended.
       

General Principles

27. The maximum penalty for murder under s. 300(1)(a), Criminal Code is life imprisonment. I remind myself that the maximum penalty is reserved for the most serious instances of the offence: Goli Golu v The State [1979] PNGLR 653. Section 19 of the Criminal Code provides the Court with broad discretion on sentence. Consideration must be given to protection of the community, punishment, rehabilitation and deterrence: Acting Public Prosecutor v Aumane & Ors [1980] PNGLR 510. Guidelines and comparative cases are important considerations but every sentence must be determined according to its own facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38. In a case of homicide, careful regard must be had to the circumstances of death and the way death was caused: Rex Lialu v The State [1990] PNGLR 487.
    

Gravity of the Offence

28. This was a crime of extreme violence and appalling cruelty.
    
29. There are a number of features that make it especially grave.
    
30. The nature, extent and severity of the injuries inflicted on the victim establish a very strong intention on the part of the offender to cause grievous bodily harm.
    
31. What sets this case apart from other cases, however, is the repeated infliction of particularly vicious injuries, including through the use of objects like belts and chains and other improvised weapons, clearly calculated to cause immense pain and suffering in what can only properly be described as torture.
    
32. The injuries the offender inflicted are chilling.
    
33. Jenelyn suffered multiple blows to her head. There were lacerations to the front (2.5 cm x 2 cm) and back (3.5 cm x 2.6 cm) of her scalp and widespread bruising at the front, side and rear of her head. Both eyes were blackened and swollen. A large bruise (measuring 11 x 3 cm) descended the length of her face to her chin. Internally there was extensive swelling of the brain.
    
34. Her body was struck with such force that both the left and right lobes of her liver were bruised. Both the left and right kidneys were bruised and there was other renal bleeding.
    
35. Her body was covered in bruises or bruising, much of which was diffuse. So many were the blows that in many cases it is not possible to say where one bruise ended and another one began.
    
36. The bruising extended from her right shoulder (11 cm x 3 cm) down her right arm (15 cm x 11 cm) to her right elbow (12 cm x 6 cm), her upper right forearm (14 cm x 6 cm and 6 cm x 5 cm) with significant bruising down her lower right forearm to the back of her right hand (21 cm x 15 cm). She suffered extensive bruising from the right hip down the side and front of her right thigh to her knee (46 cm x 22 cm), the inner of which was also bruised (11 cm x 8 cm). The entire back of her right thigh was heavily bruised. Bruising (measuring 29 cm x 19 cm) extended down the length of her lower right leg. The front of her right lower leg had been stabbed (2.5 cm x 1cm).
    
37. There was bruising on her left shoulder (14 x 10 cm) and diffuse bruising on her left hand and forearm (16 cm x 12 cm). The front of her left thigh was bruised (14 cm x 3 cm) and from the pattern of the abrasive marks present within the bruise (3 cm x 2 cm and 2.5 x 2 cm) it appears that something like a chain had been tied forcefully around her thigh. There was bruising on the front of her left knee (22 cm x 10 cm) and more extending down the front of her left leg (4 cm x 3 cm and 3 cm x 3 cm).
    
38. Both her feet were entirely covered in bruises.
    
39. In addition to the bruising, her body was scarred with several large imprint abrasions or marks caused by being struck, or in the offender’s words “whipped”, or in perhaps some cases tied, with different objects like belts or chains at different times with such force that they left distinctive marks in the shape of the object on her skin.
    
40. Such marks were found on the inside of her upper right arm (two ovoid marks measuring 5 cm x 2 cm, 2.5 cm apart); her upper right breast (two ovoid marks measuring 5 cm x 2 cm, 2. 5 cm apart); and her upper left breast (6cm x 3 cm). Three were found on her abdomen: one exceptionally large (38 cm x 7 cm) running across the abdomen; another on the right side (4 cm x 1.5 cm) and yet a further (measuring 7 cm x 5 cm) on the left. There were distinct marks on the back of her upper left thigh (12 cm x 2 cm) and just above the back of her left knee (7 cm x 5 cm). There were yet more large, deep imprints on her left buttock (measuring 7cm x 3 cm x 6 cm x 3 cm). And further marks were found on her lower left shoulder blade (5 cm x 3.5 cm), her right shoulder blade (13 cm x 7 cm), the middle of the right side of her back (7 cm x 5 cm) and the lower left of her back (4cm x 2 cm).
    
41. In short, very little of her body was spared. Jenelyn died from blunt force trauma to the head and internal organs. She sustained lacerations, abrasions or bruises to the face, head, shoulders, chest, abdomen, upper back, lower back, buttocks, upper limbs, lower limbs, hands and feet.
    
42. It is all the more shocking that these injuries were inflicted over an extended period of five days, upwards of an hour at a time. The violence was prolonged and merciless, the pain and suffering protracted.
    
43. The violence was committed against a defenceless and increasingly vulnerable person. The situation the offender created in the house, that others enabled, meant that she was for all intents and purposes completely alone.
    
44. It is difficult to imagine not only the physical pain but also the emotional and psychological suffering that Jenelyn must have endured during those last five days of her life. She could barely support herself. She did not eat. She could not even properly hold her children. Each night she suffered a new round of violence. Her last days must have been spent in unimaginable pain, tremendous suffering and utter hopelessness.
    
45. There is no doubt that the offender was aware of and intended this pain and suffering.
    
46. There is also no doubt that the offender knew that Jenelyn required medical attention. The fact that he continued over five days, culminating in the multiple head injuries which the pathologist found were inflicted in the last 24 hours of her life, when he knew she was unwell, and just hours after he had arranged for her to receive some limited medical attention, establishes his complete disregard for her life.
    
47. On any objective view this was an abhorrent crime.
    
48. It is especially abhorrent, however, that the victim was attacked in her own home, in which her children were present, sometimes in the very next room, and by her husband with whom she was entitled to feel safe and secure. The offence was committed in the context of a domestic or family relationship and involved a gross abuse of trust: State v Namaliu [2020] PGNC 234 N8506 at [25].
    
49. The impact of the offence has been devastating for her family. Jenelyn was a very young woman, barely nineteen years of age, with two very young children and what should have been her whole life ahead of her. She grew up with her grandparents and mother, the latter of whom passed away some time ago. Her grandparents, aunts, uncles and other members of her large extended family speak of their great loss. The health of her grandparents has been affected. Her aunt continuously suffers nightmares. They are all unable to comprehend the circumstances of Jenelyn’s death.
    
50. The impact of Jenelyn’s murder on her children will be particularly profound. It is not possible to estimate now the ongoing grief and trauma her death will cause them. Not only will they grow up without ever really knowing their mother and without the love and support only she could give but with the terrible knowledge that she suffered such a violent and cruel death at the hands of their father.
    
51. Gender-based violence is a profoundly serious and increasingly urgent issue facing the nation. See Special Parliamentary Committee on Gender-Based Violence [1].
    
52. Domestic violence and the killing of women by their current or former husbands or partners has long been recognised as prevalent. The National and Supreme Courts have repeatedly denounced these offences: see The State v Steven Kenny (1991) N1881, The State v Lavin (2004) N2607 and many others. As the Supreme Court said in Tanabo v The State (2016) SC1543 at [35]:
    

“[T]he offence of murder in the context of a domestic setting is an offence that is all too prevalent in our society. In addition to that, the use of offensive weapons like bush knives in domestic killings between husbands and wives is all too common in our communities. This Court is also mindful of the increasing rate of incidents of domestic violence and in particular the violence perpetrated against women and girls in our society which result in death. This in our view calls for much sterner punishment to deter like-minded offenders.”

53. These crimes are crimes against the whole community with wide-reaching effects for all women and girls.
    
54. Women are an integral part of society. They have the same rights and privileges as men under the Constitution. They are entitled to be treated with respect and dignity. They are entitled to fully participate in, and benefit from, the development of the country. This will only be possible when women live free from the fear of violence or death at the hands of their current or former husbands or partners: State v Namaliu (2020) N8506 at [71].
    
55. General deterrence when sentencing for these offences is of particular importance. It is essential that the sentence imposed recognises the gravity of the offence, adequately punishes the offender, unequivocally denounces such crimes in accordance with community expectations, and effectively deters others from committing similar offences in the future.
    
56. The issue to be determined in this case, however, is whether the offending is of the worst kind.
    
57. There are no extenuating circumstances in this case, that is “no particular circumstance in which the offence was committed that has the effect of reducing or diminishing the gravity of” it, or would diminish the culpability of the offender: see Regina v Peter Ivoro [1971-72] PNGLR 374; Ume v The State (2006) SC836.
    
58. The injuries were not superficial. The possibility that underlying health conditions or substances contributed to the deceased’s death was excluded at trial.
    
59. For obvious reasons the offender’s culpability is not diminished by the fact that the deceased might have survived had she received proper medical treatment. It was the offender who assaulted Jenelyn, repeatedly, for five days and the offender who prevented Jenelyn from receiving proper medical care, for five days, the offender who arranged for her to receive some limited treatment in the house, clearly to avoid both the intervention and his own detection that would have resulted had he taken her to hospital, and it was the offender who continued to assault her even after he had arranged for her to receive that treatment.
    
60. I reject the submission that the gravity of the offence is diminished by de facto provocation or the fact that the deceased had a relationship of some sort with another man.
    
61. It is not clear what the nature of the relationship was. She had a right as an individual to associate with others, to form friendships and ultimately to make her own way in the world if that is what she chose.
    
62. The offender suspected her of having an affair. There was nothing sudden or impulsive about the offender’s conduct and nothing would justify or explain the gravity of the offending in this case.
    
63. This was an offence motivated by jealousy and a profound lack of respect. The offender was coldly determined to punish Jenelyn for the relationship she created outside his control.
    

Mitigation

64. Against this there is little in mitigation.
    
65. The offender is 28 years of age. He is from Minj-South Waghi, Jiwaka Province. There is nothing to suggest that his childhood was particularly difficult or traumatic.
    
66. He is the second born of two children. His parents separated in 2012 and his father has since remarried. He resents his father for leaving his mother and whilst they do not have a good relationship, his father has visited him in prison. His mother is from Madi Village, Kavieng, New Ireland Province. She is sixty years of age, unemployed and currently caring for the offender’s two children in Port Moresby.
    
67. The offender attended Holy Rosary Primary School and then Port Moresby Grammar School. He completed Grade 11 and part of Grade 12 at Paradise High School.
    
68. He is a self-made businessman at a young age. He left school towards the end of 2016 and through hard work and ingenuity saved enough money to start a boat-building and repair business which grew to employ 30 young men.
    
69. A number of people spoke highly of the offender, including Jeremy Krammer, a colleague, Simon Kairu, the Internal Security Manager at Port Moresby General Hospital and a prominent member of the church and community at Tatana Village, and Captain Eltau Pera of the PNG Defence Force who has known the offender since he was a child. All were shocked by the offending which they describe as out of character. Each knew him to be a hard-working role model, loved by the many youth that he employed, some of whom he sponsored to further their education and some of whom he rescued from a life of crime. It appears he has done much for the church and community at Tatana. He would readily give money to anyone he met who was in need. All of them knew the offender to be a loving and generous husband and father who showered his wife and family with gifts and overseas vacations to places like Australia, Indonesia, Thailand and the Philippines. They acknowledged the seriousness of the offence but asked for leniency and some suspension of the sentence.
    
70. The offender’s mother said that her son is a good and generous person who took care of his wife and family. It appears that she was close to Jenelyn in the early days of the relationship. She knew the couple to be happy when she lived with them but does not know what happened when they moved to Korobosea. She acknowledged the very serious nature of the offence but asked the Court for some leniency so that the offender could take care of his children.
    
71. In mitigation this is the offender’s first offence.
    
72. The offender is of prior good character or reputation generally. I accept that he is a successful businessman, well-loved by those he employed, and has a reputation for being generous to his community and family. It is of little weight, however, given the gravity of the offending in this case. Moreover, there was a history of violence by the offender against Jenelyn. Whilst I make it clear that the offender is not being sentenced for those uncharged assaults and nor are they matters in aggravation they are nevertheless relevant when considering the weight to be given to his prior good character. That is particularly so given that the killing occurred in the domestic context and given the insidious nature of domestic violence which often occurs behind closed doors and by those, overwhelmingly men, who might otherwise be regarded as God-fearing, hardworking members of the community, or kind and generous providers, husbands and fathers. It is also relevant that it was his relationship with some of the young men at the house that at least in part enabled him to carry on for five days without relief.
    
73. It does not appear to me from the decision on verdict that the offender surrendered himself to police. Even assuming that he did it does not constitute cooperation warranting mitigation. Cooperation with authorities, like an early guilty plea, will only be a significant factor in mitigation when it constitutes genuine contrition and remorse, or reflects a willingness to assist authorities in their investigations and facilitate the course of justice. The nature and extent of the cooperation and its value to authorities are relevant factors in this regard: Namaliu, supra at [52] to [53]. The offender was not obliged to and did not cooperate with authorities in any way warranting mitigation on sentence.
    
74. There is no merit in the submission that there was mitigation in the conduct of the trial. It appears from the decision on verdict that the issues at trial were not confined to causation. The fact, nature and extent of assault was very much in dispute. There is no aggravation in that nor is the fact that he pleaded not guilty at trial. But he is not entitled to any reduction on sentence that he might have received if he had pleaded guilty.
    
75. There is an absence of true remorse. The offender has apologised to Jenelyn’s family and I accept that he has offered to pay compensation to them with assistance from his grandfather. The family has rejected the offer which, of course, they are entitled to do. Whilst an offer of compensation in accordance with Melanesian custom may be indicative of genuine remorse, it is neither the offer nor the acceptance of it which is determinative here.
    
76. The offender has had three years to reflect on his conduct and there is nothing that suggests to me that he is truly remorseful, that he feels any shame, any revulsion or that he even takes any responsibility for his conduct, the pain and suffering that it caused, or its terrible consequences. On the contrary, it is clear from his statements to Probation Services that he continues even now to blame the victim for what he did because of her relationship with another man. He continues to minimise the violence involved and denies assaulting her at all on 22 June 2020. He maintains that death was caused by a lack of medical attention. He fails completely to appreciate or acknowledge his wrongdoing. The suggestion that he is in any position to advocate on behalf of survivors of domestic violence is conceited and absurd.
    
77. There are no matters of special mitigation.
    
78. The offender cannot be regarded as particularly youthful. He is not unsophisticated. He enjoyed a level of success and lifestyle that many would envy.
    
79. There is no medical or other evidence to support the assertion that the offender was suffering from depression at the time of the offence nor that he was receiving medical treatment for it either then or now, nor that it would have any bearing on his conduct at the time nor the sentence to be imposed. It appears that he is generally of good health.
    
80. There has been no unreasonable delay: State v Tony Kande, Henry Naio and Wilson Muka (2021) N9252 at [58].
    
81. There is nothing exceptional about the offender’s prospects for or progress towards rehabilitation. Whilst not from senior officers, I accept the statements from Sergeant John James, Shift Supervisor, and Corporal Wakum Konim, Mess Supervisor, both of Bomana Correctional Facility, that the offender has shown some leadership whilst in custody and has contributed with two other detainees towards the costs of repatriating a deceased prisoner to his home province as well as to other events within the prison. I accept that he has immersed himself in various rehabilitation programs. It is commendable but I do not regard it as of significant weight either of itself given the gravity of the offending nor in the particular circumstances of the offender.
    
82. The offender has always been a leader, cooperative, charismatic and generous in many respects but as discussed above, he is yet to begin any meaningful rehabilitation for Jenelyn’s murder.
    
83. Whilst I appreciate that the sentence imposed will cause great hardship to the offender’s family, it is well established that except in very extreme circumstances, it is not ordinarily a relevant consideration on sentence: Allan Peter Utieng v The State (2000) SCR No 15 of 2000; The Public Prosecutor v Vangu’u Ame [1983] PNGLR 424.
    

Sentence

84. The offender held his wife captive for five days during which he subjected her to unimaginable cruelty. The nature, extent and severity of the injuries inflicted demonstrate his very strong desire to commit grievous bodily harm together with an equally strong desire to inflict pain and suffering in what can only be described as torture. The offences were committed against a defenceless and increasingly vulnerable person. The offending was made only the more abhorrent by the fact that it was committed in the victim’s home, in which her children were present, by her husband, in a gross abuse of trust.
    
85. This case falls in the fourth category of Manu Kovi. It was callous in its cold-blooded brutality, which was pre-meditated and persistent, against an innocent and defenceless person, in complete disregard for her life, and the trust and security he owed her.
    
86. I have taken into account the offender’s age and personal circumstances, his lack of previous conviction, and the other matters raised in mitigation but they are rendered insignificant by the gravity of the offence: John Elipa Kalabus v The State [1988] PNGLR 193; approved Ume, supra. See also Manu Kovi, supra applied.
    
87. It was a murder of the worst kind, that is an instance of the offence that was so grave that it warrants the maximum penalty.
    
88. Accordingly, I sentence the offender to life imprisonment.
    
89. In my view this is the only sentence that recognises the gravity of the offending, will ensure that the offender is adequately punished, the Court appropriately denounces such offences, and that the offender and others are deterred from similar offences in the future.
    
90. Having regard to the nature and gravity of the offence this is not a case warranting suspension and none of the considerations are established for the reasons outlined above: The State v Tardrew [1986] PNGLR 91 applied.
    

Order

91. The offender is sentenced to life imprisonment for the murder of Jenelyn Kennedy.
    

Sentence accordingly.

_______________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Offender

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[1] 19 April 2022, Executive Summary.