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State v Kamap [2000] PGNC 21; N1971 (14 June 2000)

N1971

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 51/2000

THE STATE

-v-

WA’AMB WAITU KAMAP

Wabag: JALINA, J.
2000: 12 and 14 June

CRIMINAL LAW – murder – sentence – Plea of guilty – killing of husband’s pregnant lover - wanton disregard for another human life carried by deceased – sentence of twelve years necessary as deterent – Criminal Code s. 300.

CRIMINAL LAW – killing of unborn child through death of mother – wanton disregard a life of another human being – 8 years appropriate sentence – Criminal Code s. 312.

Cases cited:

Simbe –v- The State [1994] PNGLR 38.
Kungiang Tuaoc –v- The State an unreported Supreme Court Decision in SCR 113 of 1998 and dated 23 February 2000.
Lina Kiap Pawa –v- The State an unreported Supreme Court Decision in SCR 41 of 1999 and dated 29 March 2000.

Counsel:
Mr. P. Kumo for the State
Mr. P. N’dranoh for the Prisoner

SENTENCE

14 June 2000

JALINA J.: This prisoner has pleaded guilty to the murder of one Waimi Kipakap at Akom Market, Wabag on 2nd August 1999. She has also pleaded guilty to unlawfully preventing an unborn child from being born alive by reason of the death of the child’s mother the subject of the first count. The facts show that between 7:30 and 8 pm the prisoner met the deceased who was her husband’s lover at Akom Market, Wabag as the deceased was returning home with another woman after attending a bride price ceremony nearby. The prisoner walked to the deceased in the dark and without warning stabbed the deceased in the right side of her neck with a kitchen knife resulting in the deceased collapsing to the ground and dying instantly. As the deceased was almost due for delivery of her child, the body was rushed to the Wabag Hospital to enable doctors to save its life but according to the medical report the doctor could not save the child as it had died due to lack of oxygen to the foetus.

The maximum penalty for murder is life imprisonment pursuant to s. 300 of the Criminal Code while the maximum penalty for preventing an unborn child from being born alive is also life imprisonment pursuant to s. 312 of the Code subject to the sentencing discretion of the Court under s. 19 of the Code.

Sentences for murder have ranged from 7 to 15 years and these sentences have been confirmed by the Supreme Court. For instance in Simbe –v- The State [1994] PNGLR 38 the Supreme Court confirmed my sentence of 15 years upon the appellant who killed the deceased who was having an affair with the appellant’s wife by cutting the deceased with a bushknife. In Kungiang Tuaoc –v- The State an unreported Supreme Court Decision in SCR 113 of 1998 and dated 23 February 2000, the Supreme Court confirmed the sentence of 10 years imposed upon the appellant who was aged 35 and who killed her husband’s lover by stabbing her 3 times with a kitchen knife without warning. In Lina Kiap Pawa –v- The State an unreported Supreme Court Decision in SCR 41 of 1999 and dated 29 March 2000 the Supreme Court upheld the sentence of 7 years imposed on the appellant who killed her husband’s first wife by stabbing her 3 times in the head with a kitchen knife. On page 2 the Supreme Court said:

"The sentence the appellant received was a lenient sentence compared with the prevailing range of sentences for this type of killing regardless of whatever the customary compensation paid for the death may be."

In her statement on the allocatus she said that her husband was a young man and after his side paid bride price she lived with him and she depended on him as if he was her father. She had five children from him. The deceased was married but left her husband and came and spoilt her (the prisoner’s) marriage.

That may be so but it is no reason to take somebody’s life in the way the prisoner has done. The prisoner also said in her allocatus that at that time the deceased bit her and also stabbed her in both legs. So she was defending herself.

As there is no evidence from eye witness Ketobi Enel of any fighting between the prisoner and the deceased immediately prior to the stabbing of the deceased I reject it. I consider such statement to be one of recent invention.

The prisoner’s lawyer Mr. N’dranoh has sought a non-custodial sentence on the basis that she did what she did because she was angered by the deceased going around with her husband. With respect, I am unable to accept this submission. I do not think that it is a legally justifiable reason to take someone’s life. Mr. N’dranoh also sought a lenient sentence on the basis of her guilty plea, her lack of prior conviction, her co-operation with police and provocation in the non-legal sense. I have considered or taken into account in determining sentence the factors which was put to me by defence counsel which I have just alluded to; I have also taken into account in her favour her family background. I am however concerned by the prevalence of killing by wives of their husband’s lover. Whilst I do not condone the unfaithfulness of the husband, I do not think it is proper for a woman to attack someone using a dangerous weapon just like that in wanton disregard for human life. The law such as the Adultery and Enticement Act is available to settle marital disputes. The Village Courts Act is also available for such purposes. When the other woman is pregnant then there is another life involved though unborn and as such it calls for greater restraint. One does not behave in wanton disregard for the life of the unborn human being and attack its mother.

Bearing in mind what the Supreme Court said in Lina Kiap Pawa’s case. (supra) that the 7 years sentence for murder was too lenient and that in the circumstances of the present case the prisoner had no mercy on the deceased in her pregnant condition and also had no regard for the potential risk to the life of the baby the deceased was carrying, I consider a sentence in the vicinity of 12 years imprisonment to be appropriate. Payment of compensation would have influenced me to reduce it to about 10 years but none has been paid.

The maximum penalty being life imprisonment for each offence under s. 300 and 312 respectively of the Code, the wanton disregard for another human life though unborn, brings this murder into the worst category of murders. So the appropriate sentence in my opinion after balancing the aggravating factors with the mitigating factors is 12 years imprisonment in light labour on the first count which I so impose. The sentence I consider appropriates for the second count so as to sound a warning to others that 8 years should be imposed which I do.

In view of the death of the child being in close proximately as to time and circumstance to the death of the mother, I order that the sentence for the second count be served concurrently with that of the first count.

I deduct from the sentence on the first count, the 9 months she has spent in custody which leaves 11 years and 3 months.

So the actual sentence she has to serve is 11 years and 3 months in light labour.
___________________________________________________
Lawyer for the State : Public Prosecutor
Lawyer for the Prisoner : Public Solicitor