State v Nola [2024] PGNC 13; N10662 (20 February 2024)

N10662

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1313 OF 2022

THE STATE

V

FAMUTY NOLA

Waigani: Miviri J
2024 : 07^th & 20^th February

CRIMINAL LAW – PRACTICE AND PROCEDURE – Murder S300 (1)(a) CCA – Plea – Multiple Stab Wounds Face & Neck Severing Major Blood Vessel – Deliberate Stabbing – Suspicion Befriending Another – Broad Daylight – Undeterred Determined – Intention to Cause GBH – Death As A Result – First Offender – Payment of Substantial Compensation – Prevalent Offence – Section 35 Constitution Serious Breach – PSR & MAR – No Extenuating Circumstances – Protection of Life & Sanctity – 20 years IHL.

Facts
Prisoner saw defacto partner talking to another male, followed her. Asked her did not get a satisfactory answer. Stabbed her repeatedly with the knife he had to the neck and facial area. He intended to cause grievous bodily harm from which she died.

Held
Plea
Repeated Stabbing
Intent to cause grievous bodily Harm.
Sanctity of Life
Prevalent offence
PSR MAR considered
Non-custodial term disproportionate
20 years IHL minus time on remand.

Cases Cited:
Simbe v The State [1994] PNGLR 38
Keru; Public Prosecutor v Aia Moroi, Public Prosecutor v [1985] PNGLR 78
Aihi v The State (No 3) [1982] PNGLR 92
Kwapena v The State [1978] PNGLR 316
Allan Peter Utieng -v- The State: SCR No 15 of 2000 (Unnumbered & Unreported Judgment of 23rd November 2000)
State v Hagei [2005] PGNC 60; N2913
The State v Lopai [1988-89] PNGLR 48
Kumbamong v State [2008] PGSC 51; SC1017
Isaiah v State [2022] PGSC 68; SC2264
Kalabus v The State [1988-89] PNGLR 193
Kama v The State [2004] PGSC 32; SC740
The State v Kovi [2005] PGSC 34; SC789
The State v Malala [2018] PGNC 310; N7414
The State v Nimagi [2004] PGSC 31; SC741
Tardrew, Public Prosecutor [1986] PNGLR 91
Golu v The State [1979] PNGLR 653

Counsel:
A. Kaipu & S. Patatie, for the State
T. Yapao, for the Defendant

SENTENCE

20^th February 2024

1. MIVIRI J: This is the sentence upon Famuty Nola of Kevi, Lufa, Eastern Highlands Province for the crime of murder. He repeatedly stabbed Susan Toi Ilona after seeing her with another male person. He had intended to cause Grievous bodily harm, but death ensued.
2. Famuty Nola was in a defacto relationship with Susan Toi Ilona. And both lived as a couple at a house rented at 9 mile outside Port Moresby. He assaulted her over a domestic matter which prompted her family to take her in at Badili where she lived. He was asked to settle her bride price before She could come back to him. On the 07^th May 2021 he saw her with a male person who he saw again with the deceased on 17^th June 2021. On that day he followed her intending to ask her about that man. In that moment he took out a kitchen knife and stabbed her on her right cheek and the left cheek. She raised her hand to defend herself, but he also stabbed her there. From which she fell face down to the ground. And whilst she was on the ground, he stabbed her on her back and then took out the knife. And ran towards 2-mile hill. He threw the knife went to Gerehu where he surrendered to Police there.
   
3. He was detained and charged with the offence. He had intended to cause grievous bodily harm to her, and she died as a result. The charges were laid pursuant to section 300 (1) (a) of the Code for the crime of murder the maximum of life imprisonment prescribed. Which is in the following terms:
   
   • (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;

(b) if death was caused by means of an act–

(i) done in the prosecution of an unlawful purpose; and

(ii) of such a nature as to be likely to endanger human life;

(c) if the offender intended to do grievous bodily harm to some person for the purpose of facilitating–

(i) the commission of a crime other than a crime specified by a law (including this Code) to be a crime for which a person may only be arrested by virtue of a warrant; or

(ii) the flight of an offender who has committed or attempted to commit an offence referred to in Subparagraph (i);

(d) if death was caused by administering any stupefying or overpowering thing for a purpose specified in Paragraph (c);

(e) if death was caused by wilfully stopping the breath of a person for a purpose specified in Paragraph (c).

Penalty: Subject to Section 19, imprisonment for life.

(2) In a case to which Subsection (1) (a) applies, it is immaterial that the offender did not intend to hurt the particular person who was killed.

(3) In a case to which Subsection (1) (b) applies, it is immaterial that the offender did not intend to hurt any person.

(4) In a case to which Subsection (1) (c), (d) or (e) applies, it is immaterial that the offender–

(a) did not intend to cause death; or

(b) did not know that death was likely to result.”

4. At its best this is taking the law into one’s own hands to correct a suspicion, not flagrante Delicato. And it is perpetrated out in broad daylight on a public street, well within view of persons publicans who are immediately in that vicinity. This is not a case of a dog pursuing a pig and killing it for food. This is wanton killing of another fellow human being mercilessly over suspicion of talking with another male person. The prisoner is a violent person because his assault upon her earlier had concluded the immediate relatives to have the deceased live with them at Badili. And She would be there until he had paid bride price. That is customary and he paid no heed but took her life the second time he saw her on this occasion. She was not armed and threatening against him. The description given by witness at the scene is that he came from the back and grabbed her by the head turning it and stabbing her repeatedly to the face unheeded that he was being watched. The witness could not stop him as he looked very threatening against the witness. There is no regard that there are witnesses and persons who were on looking the homicide as it unfolds.
   
5. The scale of his violence can be independently meted out by the Autopsy report of autopsy conducted on the 12^th July 2021 on the body of the deceased Toi Ilona carried out by Pathology Registrar Doctor Anthony Amof at the Port Moresby General Hospital. His summary on page 6 is as follows: “At Autopsy the external examination showed multiple stab wounds to the body. There were stab wounds on the left side of the face, left cheek and the back of the neck. Stab wounds were also noted on the right hand and the second digit of the right hand. The body was pale. The rest of the external examination showed no other significant findings. In my opinion she died from severed right carotid artery as a result of stab wounds to the back of the neck.” The significant pathology summary are: “1. Severed right carotid artery. 2.Incised trachea. 3. Incised oesophagus. 4.Incised right thyroid. 5. Incised cervical vertebra (C7) anteriorly. 6.Multiple stab wounds to the body.” And he concluded that the cause of death was Severed right Carotid artery by the stab wound to the back of the neck.
   
6. This is in defiance that is not tolerated by the Constitution when lives as here are taken at the convenience and discretion of the assailant. His unlawful discretion must be stamped out by strong deterrent and punitive sentences. Of course, in his favour is the fact of taking the first step to acknowledge by the guilty plea to the Indictment on Murder. His sentence will reflect that fact as human tendency to hide from the truth is left on the shores of injustice and unlawfulness. There must be observance of the rule of law. Society is held in place orderly and law abiding because of the rule of law. Without it there would be chaos and anarchy. It is now almost the 50th anniversary of our Independence, and this crime is ever prevalent defying the Constitution.
   
7. To exterminate the life of a fellow human being in this way is gruesome. It is a demonstration of real hate and revulsion to behave in this manner. Life is lived once. And the deceased was only 20 years old. She had a long life ahead that was brutally terminated by the Prisoner. Who gave no mercy. He is an educated person highest attained of grade 12 at Lufa Secondary School. He was employed as a static guard with Black Swan Security Firm. It ought to have dawned on him that reasoning out a problem was the way man resolve disputes, not acting with vigour and viciousness as he did. He may have intended to give her pain or hurt her. But a knife used in this manner not once but repeatedly to the face neck and the back drew out a life. He took her life cold heartedly on suspicion of talking with another man. Talking is not the same as having sexual intercourse with that other man to prompt the reaction as he did here.
   
8. It must be bolded that life is sacred. No man has a right to summarily determine the life of another in the way he did. Section 35 right to life under the Constitution is written on stone and cannot be denounced as it pleases the prisoner, or any other for the same. There are serious consequences that flow enshrined in by the People in the Constitution, reinforced by the criminal code Act. There is not even an iota of de facto provocation and the like by the evidence here as in Simbe v The State [1994] PNGLR 38. The sentence must be proportionate and not disproportionate: Keru; Public Prosecutor v Aia Moroi, Public Prosecutor v [1985] PNGLR 78. Here the sentences were increased to 15 years and life imprisonment respectively considering all the factors set out above on an appeal by the Public Prosecutor.
   
9. This is sentence on the 20^th February 2024 not 1985. Time has evolved but murder has not changed nor subsided. It is as prevalent as ever. The prisoner has defied violently and established a warranty that the maximum penalty upon him for the crime is life imprisonment. That would be drawn the worst case of murder warranting: Aihi v The State (No 3) [1982] PNGLR 92. This is not the worst case of murder. Yes, there are repeated stabbings with the knife which are to one of the most venerable parts of the human body, the face, and the neck and back. The deceased stood no chance of escaping the attack. But the reason for the attack was suspicion on the conduct of the deceased in talking with another male person. In that sense it was a crime of passion. He explains in his own words in the record of interview with police in these terms; “Q 17; Is it true that you killed Susan Ilona? Ans: Yes. Q 18; Why did you kill Susan Ilona? Ans: I was angry because she was talking with another man, and I wanted to hurt her instead I killed her. Q19; Susan died already so what are you going to say about her death? Ans: I am sorry I thought she wouldn’t die. Out of frustration I thought I would only hurt her instead she died, and I am sorry for her death.”
   
10. This admission shows that the prisoner accepts responsibility for his actions against the deceased. Their relationship was for two years. And it is clear that he was intent as he did, but death resulted. So, the element of intent to do grievous bodily harm is there without question detailed out by the twenty-two (22) gruesome photographs and the medical report. The plea of guilty is not new. It has been there from day one and has been maintained in Court. It is an honest plea of guilty for the actions he has undertaken against the deceased. That will be accommodated in the sentence that is passed upon him. The facts do not par out with Simbe (supra) where the attack came up about because the deceased had it appeared tried to entice the wife of the appellant. The Court dismissed the appeal confirming the 14 years sentence. There is no evidence that this is the case against the deceased and the male person she was with. This is a persistent determined attack without any justification either in law, or by the facts: Kwapena v The State [1978] PNGLR 316. This is not a case of being caught in Flagrante Delicato with the male person that he followed.
    
11. I take due account of his expression of sorrow and regret in his allocutus and his personal circumstances. But those must be at the forefront when one is setting out as here to execute a violent crime. It will not subside nor smother the rule of law and the intent of the Legislature under section 300 (1) (a) of the Criminal Code Act: Allan Peter Utieng -v- The State: SCR No 15 of 2000 (Unnumbered & Unreported Judgment of 23rd November 2000). I take due account that he is an educated man, grade 12 at Lufa Secondary School, aged 23 years old, originally from Kevi village in Lufa District Eastern Highlands Province. A first offender his presentence and means assessment report state that substantial compensation of K 19, 000.00 was paid for the death of the deceased. It is not clear what proportion was paid out by himself. Compensation is to the amount of K 5000 per the Criminal Compensation Act section 5 (3). Here is an amount that has exceeded that. It will not bring back the life of the deceased. But is to amend the relationship. And it is taken on by persons other than the prisoner. They are not responsible for the death of the deceased. Criminal sentencing draw against the author of the crime, not any others. It should not be the case that the haves pay their way out of the sanction of the law. Life has been taken and the sentence prescribed is there to ensure the sanctity of life. We only live once. In my view there are no extenuating circumstances as set out in State v Hagei [2005] PGNC 60; N2913 (21 September 2005) that sway, otherwise than a deterrent custodial term to reflect. The discretion to impose a custodial term as opposed to a non-custodial term stems from all set out above.
    
12. Because murder is the next most serious homicide offence after wilful Murder set out by the legislature, the will of the people through parliament. Together with Manslaughter the maximum penalty is the same of life year’s imprisonment. But in law there is an intention to cause grievous bodily harm which is a breach of the law from which murder unfolds. In manslaughter there is unlawful killing or an assault that leads to the death: State v Lopai [1988-89] PNGLR 48. There is no intention to cause grievous bodily harm. It is therefore less serious. In each case it is my view that the sentences must correlate distinct by the fact’s circumstances. And tariff and range is one of the matters to be considered to the ultimate sentence: Kumbamong v State [2008] PGSC 51; SC1017 (29 September 2008).
    
13. This would tally in with the Supreme Court dismissing an appeal against the sentence in Isaiah v State [2022] PGSC 68; SC2264 (29 July 2022) where 25 years imprisonment was imposed by the trial Judge for the multiple stabbing of a pregnant woman by her husband, for a suspicion of adultery. The 25 years imposed at first instance was confirmed, and the appeal was dismissed. He had argued that he was a first offender and had pleaded guilty expressing remorse, so there was error in the sentencing discretion exercised. The court held it did not constitute an error. Here the deceased was helpless unarmed and accompanied by another. She was where she was because of the assault upon her earlier by the prisoner. Committing a breach of the law corresponding with an echoing breach of the law has seen life imprisonment imposed in Kalabus v The State [1988-89] PNGLR 193. But that is more serious as the present because the prisoner had a prior conviction for attempted rape which he had served came out and committed this offence. He had raped and killed a 9-year-old girl. The sentence of life imprisonment for murder was confirmed on appeal.
    
14. What is fundamental to all human beings regardless is the right to life by the Constitution. That is not a mockery at the whim of an individual as is the prisoner. This is clearly demonstrated by Kama v The State [2004] PGSC 32; SC740 (1 April 2004), where in the course of an armed robbery the appellant discharged the gun, he had killed the deceased a passenger in the PMV on the Sepik highway. Twenty-five (25) years imprisonment was imposed by the trial Judge confirmed by the Supreme Court dismissing the appeal. Remarking that here was a case of a sentence that could have been more than the 25 years that was imposed, it could have been life imprisonment. In other words, the life of a human being is not at the mercy of an individual to terminate as he pleases. The prisoner does not have the mandate to terminate the deceased on a public frequented street in broad day light. All human beings must be accorded dignity and respect for what they are. And that is underlying section 35 the Right to Life guaranteed by the highest law of the land.
    
15. And murder is the next serious homicide offence to wilful murder. The penalty must reflect that. The sentence is for murder not manslaughter: Kovi v The State [2005] PGSC 34; SC789 (31 May 2005). Given the present set of facts and circumstance it would be category three which is 20 to 30 years imprisonment, and not what has been submitted by counsel. There is viciousness in the attack, a weapon is used, here kitchen knife, a strong intent to do grievous bodily harm. Because He repeatedly stabs the knife at her face and body. Whether she lived or not on that day was his picking. It reflects his determination to exceed the authority of the law in the commission of a crime. These warrant that the sentence imposed must reiterate observance of the Rule of the law as supreme. When there is determined persistent defiance of the law without heed to common sense and rationality, the sentence must reflect accordingly.
    
16. Because life is lived only once and is sanctified. Senseless cold-blooded killing must stop. She was only 20 years old. She had a long life ahead that was taken brutally on that day. Section 35 Right to Life must be accorded its place in the Constitution a basic right. This sentence will reflect that the intentional taking of life, or as here intent to cause grievous bodily harm, from which death occurs, State v Malala [2018] PGNC 310; N7414 (16 August 2018). They mercilessly cut all of the deceased limbs over he’s hitting their canoe. In the course of an armed robbery death resulted 50 years was imposed in Nimagi v The State [2004] PGSC 31; SC741 (1 April 2004) confirmed on appeal. These are murder at the top range comparably.
17. In so dismissing, “The Supreme Court, in appropriate cases, must now review those precedents with the view of setting new principles on sentencing to fit violent crimes, and with the greatest respect to the Courts which decided those cases then, the circumstances have changed dramatically that violent crimes nowadays know no boundary, and in homicide cases, offenders armed with dangerous weapons do not stop to think whether they should or should not kill another person. In relation to Ure Hane (supra), the Parliament has already legislated the different types of homicide by classifying them into manslaughter, murder, and wilful murder. In our view, it serves no purpose when Courts start to classify these killings by degree and classes and say one is more serious than the other. When we do this, we forget the values of lives that have been prematurely terminated. The notion of sanctity of life and constitutional protection of lives therefore become meaningless and mere judicial rhetoric.” Nimagi (supra).
18. I consider these applicable in all fours to this case. He is a first offender aged 23 years old at the time of the offence. The presentence and Means Assessment Reports ordered by the Court have been thoroughly considered but do not evidence any extenuating circumstances, State v Hagei (supra) to draw a sentence other than a custodial term. Because in my view under section 19 (6) of the Criminal code three broad categories can be summarized upon which suspension can be considered in sentence, (1) where suspension will promote personal deterrence or reformation or rehabilitation of the offender; (2) where suspension will promote the repayment or restitution of the stolen money; (3) where imprisonment will cause excessive degree of suffering to the particular offender; for example because of his bad health: Tardrew, Public Prosecutor [1986] PNGLR 91. In all respects in the case of the prisoner now with the Presentence Report the Means Assessment Report, I am not convinced that there is material to sway other than the custodial term due for murder in the light of all set out above. It is my view given all above that the sentence must fit the crime: Golu v The State [1979] PNGLR 653. Deliberate calculated defiance draws the balance more than the guilty plea and the fact that the prisoner is a first time offender. Section 35 must be given its proper place as a Constitutional Right.
19. And given all set out above where violence is extreme out of proportion to the situation and circumstances posed, the sentence must reflect what the legislature has called for upon the prisoner. And here considering all, I determine that to be 20 years IHL for murder. And I so impose that upon the prisoner forthwith.
    
20. The sentence is 20 years IHL. Time in custody will be deducted forthwith. He will spend the balance in jail IHL.
    

Ordered Accordingly.
__________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor : Lawyer for the Defendant