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State v Moro; State v Bamire [1995] PGNC 6; N1328 (10 February 1995)

Unreported National Court Decisions

N1328

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR 1500 OF 1994
THE STATE v LUCY MORO
THE STATE v DABRE BAMIRE

Kundiawa

Injia J
17 November 1994
24 November 1994
10 February 1995

CRIMINAL LAW - Compensation Order - observations on the appropriateness of Compensation Order in relation to serious offences such as homicide offences - Criminal Law Compensation Act 1991, S. 2 (2), 3 (1) (a) (b); 5 (3) (b); 6 (b); Schedule 1.

SENTENCE - manslaughter killing - two female prisoners applied force to their respective husbands’ testicles thereby causing severe pain and neurogenic shock resulting in death - unusual and dangerous form of killing - need to impose strong punitive and deterrent sentence - appropriate sentence - 6 years and 6 1/2 years imprisonment in hard labour respectively - Criminal Code Ch No 262, S. 302.

Cases Cited

State v Tobby Tani Unnumbered National Court Judgment of Injia AJ dated 13 September 1994

The State v Argaun Kakas & 3 Others Unreported National Court Judgment 1219 dated 28 March 1994

The State v Billy Kauwa Unreported National Court Judgment N1277 dated 24 October 1994

Counsel

F Kuvi for the State

B Aipe for the Prisoners

10 February 1995

INJIA J: These two cases involve separate prisoners and victims but because the circumstances of the two killings are similar, I will deal with them together. Both female prisoners pleaded guilty to unlawfully killing their respective husbands by applying force to their respective husbands’ testicles thereby causing severe pain and neurogenic shock resulting in the death of their respective husbands.

STATE V LUCY MORO

In the November 1994 sittings, the prisoner pleaded guilty to unlawfully killing her husband contrary to the Criminal Code Ch. No 262, S. 302. I adjourned the matter to these sittings to enable the Probation Officer at Kundiawa to furnish a Means Assessment Report on the matter of a compensation order pursuant to provisions of the Criminal Law Compensation Act 1991. The Report were that the relatives of the victim demanded compensation of K25,000.00 for the killing. The prisoner’s relatives responded favourably by making preliminary payments referred to as “bel kol” payment in the sum of K4,200.00 plus 12 pigs. The payment of further compensation was deferred pending the outcome of these proceedings.

I have re-considered my previous decision to request a Means Assessment Report and decided that because of the seriousness of the offence, a compensation order for future payment of compensation should not be made: see S. 2 (2), S. 3 (1) (a) and (b) of the Act. Hence there is no need for a Means Assessment Report. In arriving at this decision, I repeat my observations regarding the scope of the Act in the case of the State v Tobby Tani, Un-numbered National Court Judgment dated 13th September 1994, which I heard in Tari. I said compensation order may not be appropriate for serious offences such as homicide offences, where the prescribed maximum penalty for the offence is over six (6) months imprisonment and the sentence considered by the Court to be appropriate in a particular case is a term in excess of six months imprisonment. I made those observations in view of the statutory limit of K5,000.00 in compensation payment in default 6 months imprisonment which is prescribed by the Act: see S. 5 (3) (b), 6(b) and Schedule 1 of the Act.

This not the first time I have considered the appropriateness of a compensation order under the Act in homicide cases. In The State v Argaun Kakas & 3 others, Un-reported National Court Judgment No N1219 dated 28th March 1994, the prisoners received sentences ranging from 12 years - 15 years for wilful murder. They were willing to pay compensation of K5,000.00 each for which they could get their respective sentences reduced by 6 months only. This 6 months compared to the total head sentence in each case was meaningless and I doubt whether they paid it.

In another case, the prisoner was convicted of manslaughter. The relatives of the prisoner were willing to pay compensation to the value of some K100,000.00 which was demanded by the victim’s relatives. I agreed with the Probation Officer’s recommendation that because the amount of compensation involved far exceeded the statutory limit, a compensation order was inappropriate. I am referring to the case of The State v Bill Kauwa, Un-reported National Court Judgment No N1277 dated 24th October 1994.

In the instant case, there appears to be some compromise reached between the victim’s relatives and the prisoner’s relatives in relation to compensation. The victim’s relatives have already accepted the “bel kol” payment. No doubt they would be hoping that the balance of the payment will be made. It is just unfortunate that this Court cannot accommodate their compromise because of the monetary and default penalty limit prescribed by the Act. This Court does not make laws but applies laws made by Parliament. Howsoever unpleasant a law may be, this court has no option but to apply it. As for the proposed payment, I would urge and encourage the prisoner’s relatives to pay the remaining compensation irrespective of what this court does with the prisoner in terms of punishment. She will be punished for the crime she committed but her relatives and the victim’s relatives will have to make peace in the community by making compensation payment.

The relevant circumstances of the killing are as follows:

The prisoner is a young woman aged abut 20 - 25 years old. She is educated up to Grade 8 in 1987 at Mount Wilhem High School and was employed in 1988 as a typist. She was married to the deceased by local custom at the time of the incident. The deceased was an affluent member of the Kundiawa Community. At the time of his death he operated a trade store which is situated near the gate of the Kundiawa Court House. It was at this store that on the night of 2/8/94 at about 7pm an argument occurred between the prisoner and her husband. There were a lot of other people at the store too. The argument turned into a fight between them inside the store and later extended to the outside. It was in the course of this fight that the deceased hit her face with a snooker stick. At that time she was wearing a shoe. She responded by kicking him around the genital area. According to the prisoner, the kick was not targeted at his testicles. The kick in fact landed on his testicles. As a result, the deceased fell down in a state of shock and comma. They rushed him to the hospital but he died that same night. The medical post mortem report shows that there was bruising on both testicles. There was no other abnormality found on his body. The cause of death was “Neurogenic Shock” related to pain. The prisoner says she did not mean to kill her husband and she is sorry for this accidental event.

This kind of killing is unusual. There is insufficient medical evidence before me to explain the cause of death from the kind or degree of force applied to the testicles to cause death. As a matter of commonsense, the application of any force to the testicles of a man results in extreme pain and neurogenic shock. Depending on the degree of force applied, death is not an unlikely event. If there was any evidence that she targeted her kick at his testicles it would be a serious killing indeed. There is no evidence of this. At best, I can safely say that she targeted the deceased’s genital area and hit the deceased’s testicles by “accident”. But then, there is evidence to show that she applied alot of force with her legs to cause a bruising of both testicles.

For these reasons, I differ from Mr Aipe’s submission that this case falls into the lowest range of manslaughter killings which warrant a suspended sentence. This case is not on the same footing as enlarged spleen or thin skull cases where the victim has a latent abnormality in his body which is unknown to the assailant. Those kind of cases would attract sentences ranging from a suspended sentence to 5 years in uncontested cases. In the instant case, the prisoner knew or ought to have known that to kick a man around the genital area where the testicles are located is an extremely dangerous thing to do. I intend to impose a strong punitive and deterrent sentence to deter other woman from causing the death of men, their own husbands and others alike, in a similar manner.

In the prisoner’s favour, I take into account the following factors:

1. Her guilty plea.

2. Remorse in open Court.

3. Co-operated with police in their investigations.

4. Her previous good education, employment and marriage background.

5. No prior conviction.

6. Killed her own husband in a situation where there was some provocation on the victim’s part in hitting the deceased with a snooker stick in the course of a domestic dispute.

7. Compensation of K4,200.00 plus 12 pigs was already paid.

In all circumstances, the maximum penalty for this offence being one of life imprisonment, I consider a sentence of 6 years imprisonment in hard labour is appropriate and I impose the same. From this, I deduct the period of 8 months and 2 days she spent in custody already. She will serve the remaining 5 years 3 months and 29 days.

STATE V DABRE BAMIRE

In this matter, I also adjourned the matter to these sittings for a Means Assessment Report. My decision to request a Probation Report was prompted by the defence counsel’s actions in tendering a Statutory Declaration signed by 4 councillors from the victim’s area deposing to the fact that compensation was paid by the prisoner’s clan to the victim’s clan. However, details of payment made were not set out in the Statutory Declaration. The Probation Officer has now advised that he is also unable to provide the report for the same reasons as in the case of the State v Lucy Moro. For reasons I gave in State v Lucy Moro, I have re-considered the matter and consider that a compensation order should not be made and hence a Means Assessment Report is not required.

The circumstances of this killing are slightly different to those in Lucy Moro’s. The prisoner is a young woman aged about 26 years old. She comes from Koge in the Kamtai District. She lived in de facto relationship (still regarded by Chimbu custom as married couple) with the deceased. The deceased was also a young man aged about 26 years old. He was a healthy young man. The prisoner was the second “wife” of the deceased. They had been married for only six (6) months when the incident occurred. On 6/7/94 at about 6 - 6.30pm, they fought inside their house over a towel owned by the deceased which was used by the prisoner’s sister without the permission of the deceased. According to admissions made by the prisoner though her counsel in Court which I accept, the deceased hit her, forced her to the floor and stamped on her neck thereby causing her to grasp for air. In an attempt to remove his legs, she grabbed his penis and testicles and pulled them. The deceased called out to her twice to let go his testicles and she did. According to the statement of State witness Dawa Amu, which statement the prisoner does not deny in her statement in the Record of Interview (Answer to Question No. 55), he heard the deceased saying “you leave it, dog or pigs’ Daughter, you leave it”. That was all that the deceased said. There was silence. Shortly later, the deceased was found inside the house in state of shock and comma. One man tried mouth-to-mouth resuscitation but failed. They took him to the hospital where he was pronounced dead. According to the Medical Post Mortem Report, whilst all other parts of his body were found to be normal, the left testicle was smashed. The cause of death was “Neurogenic Shock”.

The application of force to the testicle in this case is direct and intended to cause the deceased severe shock and pain. So tortuous was the force applied that the left testicle smashed. I accept her story that she did this in order to free herself from the deceased’s grip on her neck but it is clear to me that she went too far. In any event, that is not the right part of the body to grab, twist and squeeze.

Once again this is an unusual type of killing and a dangerous one too. I accept that death was not the intended cause of the prisoner’s action. I also accept her story that the death was an “accidental event” arising out of her deliberate action. But I think what she did in grabbing and squeezing the testicles and smashing the left testicle is an extremely dangerous thing to do. It is to be distinguished from other types of manslaughter killings such as enlarged spleen cases or their skull cases. I repeat my observations in Lucy Moro’s case regarding this type of killing and the need for a strong punitive and deterrent sentence.

In the prisoner’s favour, I take into account the following factors:

1. Her guilty plea.

2. Remorse in open Court.

3. Co-operation with the police.

4. She is uneducated and a village girl by any standard.

5. Her previous good character and marriage background albeit for a limited period of 6 months only.

6. No prior convictions.

7. She killed her husband whilst trying to free herself from the husband’s grip on her neck in the course of domestic dispute or fight.

8. Some undisclosed amount of compensation was paid by her relatives to the victim’s relatives.

Taking into account all these factors, those in her favour and those against her, and in view of the maximum penalty of life imprisonment, I sentence her to 6 1/2 years imprisonment in hard labour. From this I deduct the period of 7 months 5 days she has spent in custody. She will serve the remaining period of 5 years 10 months and 25 days.

Lawyer for the State: Public Prosecutor

Lawyer for the Prisoners: Public Solicitor