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State v Balo [1998] PGNC 10; N1685 (11 February 1998)

Unreported National Court Decisions

N1685

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR NO. 1468 OF 1997
THE STATE
-V-
NANCY BALO

Waigani

Batari AJ
11 February 1998

CRIMINAL LAW - Sentence - Murder - Prisoner stabbed husband who had prevented her getting to the second woman - Domestic killing - Background to killing, relevant considerations - Duty of Counsel in mitigation submissions.

CRIMINAL LAW - Sentence - Murder - Killings out of marital discord - Not worst of category of killings - One stab wound - 7 years imprisonment.

Cases Cited

Ure Hane v The State [1984] PNGLR, 105.

Counsel

P. Kaluwin, for the State

D. Kari, for the Accused

SENTENCE

11 February 1998

BATARI AJ: Nancy Balo, you have been convicted of the murder of one Joe Are on 6 August, 1997 at Morata in the National Capital District. Under s.302 of the Criminal Code, you are liable to be imprisoned for life.

The brief facts upon which I will sentence you are these.

On the early morning of 6 August, 1997 you went to the house where the deceased was staying, intending to confront the woman he was staying with. The deceased was your husband. You ascended the ladder to the house but he stood in the way, apparently to prevent your access to the woman who was then inside the house. In the ensuing struggle, you stabbed the deceased and he died. Death was attributed to blood loss due to stab wound which pierced the left ventricle or cavity of the lung. That was the brief summation of what was a serious criminal conduct.

A young life had tragically ended while trying to prevent your confrontation and possibly, assault of another person. You had approached your husband and his other woman armed with a knife. This indicated your inclination towards violence. When you swung the knife at the deceased, you no doubt knew the serious consequences that would flow from such deliberate act. You knew the knife would inflict serious bodily harm and had resorted to its use. You stabbed him once but that by no means lessened your criminal intent. However, I will bear in mind in your favour that this was not a sustained attack.

You had gone to Morata to accost the woman your husband was sleeping with. That appeared to be the only explanation for your presence at Morata. I do not have any other information on substantial and peripheral matters which may explain your conduct. I say this because the National Courts and Supreme Courts have treated domestic related killings or killings arising out of marital discord as special class of homicide for the purpose of sentence. In the Supreme Court case of Ure Hane v The State [1984] PNGLR, 105 killing of a spouse was considered to fall outside the worst category of wilful murder cases. Such consideration in my view, is equally applicable in murder cases for the same reasons alluded to by Bredmeyer, J at page 110:-

“But whatever the most serious categories of murder are, I am convinced that the present case, where the appellant murdered his de facto wife, lies outside those categories. This kind of murder which arose out of marital discord is very common in Papua New Guinea. It may be the most common kind of murder that we try and punish. A husband may kill a wife because she committed adultery, or left him, neglected him, or insulted him, or shamed him. Less commonly, a wife may kill a husband for one of the same reasons, or, the husband may kill the wife’s lover; or a senior wife through jealousy may kill a junior wife. The love between a man and a woman which at its highest makes marriage a noble institution when it turns sour leads to anger, jealousy, shame and often assaults and sometimes murder.”.

I have made these observations so that Counsel will bear in mind the significance of advancing his client’s case on proper footings where the prospect of life imprisonment or the death penalty was present. As in domestic related killings, the Court ought to be appraised of the background, the extenuating circumstances; the strain, emotions, anger, jealousy and shame which may have precipitated the offence. Counsel would only be discharging his duty to his client and to the Court by re-living these matters in the advocacy of his client’s case on a trial.

In this case, the anger and jealousy which had driven the prisoner to confront her husband’s other woman or wife can only be inferred. She stabbed her husband who had put up a fight in defence of the woman he was staying with. In a way, he had initially provoked the assault. I think she felt humiliated, shamed and desparate when she stabbed the deceased. I have considered whether this killing fall into the worst category. In my conclusion, this was not the worst of similar killings.

I bear in mind also your age which I have determined from my observation to be around 19 years because some confusion had arisen on this aspect. You had no prior convictions. Some compensation have been paid from what the relatives of the deceased have demanded. I also bear in mind your remorse expressed in court over your conduct and the death of your husband.

I do not accept your plea for a good behaviour bond as this was a murder conviction without exceptional circumstances that might merit whole or part suspension of sentence. The justice of this case in my conclusion will be served by a term of imprisonment.

I sentence you to seven (7) years imprisonment with hard labour. This sentence is reduced by six (6) months you have served in custody.

Lawyer for the State: Public Prosecutor

Lawyer for the Accused: A/Public Solicitor