State v Er [1998] PNGLR 26 (31 July 1998)

[1998] PNGLR 26

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

MARIA ER

MOUNT HAGEN: INJIA J
8, 31 July 1998

Facts

The accused pleaded guilty to a charge of murder under s 300 (1)(a) of the Criminal Code Act Ch. 262. The deceased was developing a romance with the accused’s husband and when the accused approached the husband, he beat her up. Several days later when the accused met the deceased, she asked her for compensation for the harm her husband caused her. The deceased then refused and spat on the accused. This caused the deceased to be angry and consequently stabbed the deceased to death.

Held

1. Killing arising out a domestic setting borders between the manslaughter category and murder category with sentences ranging from 6 – 8 years. State v Lucy Moro & Dabre Baruire (1995 Unreported) N1382; State v Margaret John (No .2) [1996] PNGLR 298; State v Jack Mek (1997 Unreported) N1575 referred to.
   
2. "In the present case, the accused pleaded guilty to the crime of murder. After taking into account all the mitigating factors I have referred to, the circumstance of the present killing warrants sentence in the range of 7 – 10 years. The seriousness of this killing is further supported by her lack of remorse for the killing of another defenceless young woman, without her day in court, for whatever wrong she did, whose whole life no amount of compensation paid can restore": per Injia, J.
   
3. Sentenced to eight years imprisonment in light labour.
   

Papua New Guinea cases cited

Antap Yala v The State Unreported Supreme Court judgment (1996).

Rex Lialu v The State [1990] PNGLR 487.

State v Bepi Molo Komaip N1557 (1997).

State v Jack Mek N1575 (1997).

State v Laura (No.2) [1988-89] PNGLR 98.

State v Lucy Moro & Dabre Bamire (1995) N1382.

State v Margaret John (No .2) [1996] PNGLR 298.

Counsel

P Kumo, for the State.
B Aipe, for the accused.

13 July 1998

INJIA J. The accused pleaded guilty to murdering Miss Rosa Kopun on 19/04/98 at Kiam Village, Aviamp, contrary to s 300(1)(a) of the Criminal Code Act (Ch. No. 262). The offence carries a maximum of life imprisonment.

The accused is the only lawful wife of her husband from whom she has carried 4 children, the youngest of whom is with her at the CIS. She killed the deceased by stabbing her once on the right side of her neck from which injury she died the same day some hours later. At the time she stabbed the deceased, the accused wanted to give her "some pain" because the deceased was seeing the accused’s husband. The accused saw her husband and the deceased together on Thursday. After this, her husband beat her up. On Sunday, she met the deceased at a village basketball game and asked for compensation from the deceased for the harm done to her by her husband. The deceased refused and spat on the accused. This made the accused angry and she stabbed the deceased.

My reading of the court depositions, in particular the record of interview shows that the attack leading to the killing was pre-mediated. She armed herself with a kitchen knife and set out from her home to find the deceased and attack her. And I take the accused’s statement that she wanted to give her some pain as meaning her expression of clear intention to do grievous bodily harm.

In the accused’s favour, I take into account that she had a stable family, that she was of prior good character, that she was subjected to much emotional stress and pressure in her married life by the conduct of her husband and the deceased, that the deceased re-acted to the accused’s demands in a provocative manner; that she has not been in trouble with the law before, that she co-operated with the police in readily admitting the offence and has now pleaded guilty before me. Also she and her relatives have paid substantial compensation of K16,000 plus 16 pigs valued at K6,000 and one cow.

In past cases, which have come before me, this kind of killing in a domestic setting has bordered between the manslaughter category and murder category. Manslaughter cases have attracted punishment in the range of 6 - 8 years; see The State v Lucy Moro & Dabre Bamire (1995) N1382, State v Margret John (No.2) N1342: Also see State v Bepi Molo Komaip N1557 (1997) by Akuram, J. Murder cases before me in a domestic context have attracted sentence in the range of 6 - 8 years. See State v Jack Mek N1575 (1997). In recent years, the Supreme Court has dealt with many prisoner-in-person appeals in cases involving killings in a domestic cases setting. In murder cases, the Supreme Court has confirmed sentences in murder cases in the range of 8 - 15 years and 3 - 10 years in manslaughter cases. An example of a case in the borderline between manslaughter and murder killing is Antap Yala v The State, Unreported Supreme Court judgment of Amet CJ, Salika & Injia JJ dated 31 May, 1996. In that case, the accused killed his wife by chopping off her head with an axe following differences in their married life. He pleaded guilty to manslaughter and was sentenced to 10 years by the trial judge. On appeal, the Supreme Court in dismissing the appeal and confirming the sentence of the trial judge said at p. 2 - 3:

"The maximum punishment for the offence of manslaughter is life imprisonment. Whilst sentences for manslaughter will normally be lower than sentences for murder and wilful murder, there are those cases, which will justify the imposition of heavy punishment and even the maximum punishment. This present killing is a serious kind of killing, which called for heavy punishment but of course mitigated by the presence of mitigating factors. These include the fact that he was a married man with children from the deceased and his first wife, a man of prior good character, was first offender, surrendered to police and co-operated with police, pleaded guilty, that the deceased’s conduct to some extent provoked him in a non legal sense and that he killed his own wife. As to compensation, no compensation had yet been paid at the time of sentence so it could not have been relied on a mitigating factor.

We consider that the trial judge carefully considered these mitigating factors as against the seriousness of the killing as manifested by the manner of the killing and imposed a sentence, which was warranted by the circumstances. We find no error in the exercise of his sentencing discretion. We also think the sentence is not manifestly excessive."

Although Antap Yala’s case perhaps marks the top range of sentences for manslaughter killings in a domestic context or any other type of manslaughter killing, for that matter, it is indicative of the general increase in sentences for manslaughter cases since the often relied upon cases of Rex Lialu v The State [1990] PNGLR 487 and State v Laura (No.2) [1988-89] PNGLR 98. Also, in recent years, it is not uncommon to see the National Court impose and the Supreme Court confirm sentences in the range of 6 - 8 years for manslaughter cases in a domestic setting, involving direct application of force using offensive weapons such as axe or knife, with or without other mitigating factors. It indicates the need to punish and deter killings of this kind, which have become prevalent over the years.

In the present case the accused pleaded guilty to the crime of murder. After taking into account all the mitigating factors I have referred to, the circumstances of the present killing warrants a sentence in the range of 7-10 years. The seriousness of this killing is further supported by her lack of remorse for the killing of another defenceless young woman, without her day in Court, for whatever wrong she did, whose life no amount of compensation paid can restore.

I sentence her to 8 years imprisonment in light labour less the period of almost 3 months she has spent in custody. She will serve the remaining balance of 7 years and 9 months.

Lawyer for the State: Public Prosecutor.
Lawyer for the accused: Public Solicitor.