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State v Joe [2005] PGNC 127; N2832 (10 May 2005)

N2832

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1332 OF 2004

THE STATE

v

RELVIE JOE

Kavieng: Batari J

2005: 9, 10 May

CRIMINAL LAW - Sentence - Murder - Accused stabbed deceased with knife - Killing of relative – De facto provocation - Plea - Mitigating factors – Need to consider all compelling interests for and against the accused – Sentencing discretion – Application of.

CRIMINAL LAW – Sentence – Murder – Accused as mother of children – Welfare of children – Whether applicable as mitigating factor

CRIMINAL LAW – Sentence – Murder – Purpose of sentence - Personal and deterrence sentence called for -12 years appropriate.

Cases Cited:
Lawrence Simbe v The State [1994] PNGLR 38
The State v Laura (2) [1988-89] PNGLR 98
Marangi v The State (Unreported Supreme Court Judgment - 2002) No. SC702
Kesino Apo v. The State [1988] PNGLR 182.

Counsel:
K. Umpake, for the State
A. Turi, for the Accused

SENTENCE

10 May, 2005

BATARI J: You pleaded guilty yesterday following your arraignment on a charge of murder. After hearing from you and your lawyer on the important question of sentence I reserved to today to consider the punishment the court should be imposed on the type of murder you committed. You were alleged to have killed one, Janet Anisa Palun in contravention of s. 300 (1) (a) of the Criminal Code. The maximum penalty prescribed under that provision for murder is life imprisonment. You will now be sentenced.

The facts showed that on 6th July, 2004 at Omo village on the outskirts of Kavieng town, you initially attacked the deceased by assaulting her at Kuluton beach and then followed her to another part of the beach called Pono where you again attacked her. On this second occasion, you assaulted her with your hands before stabbing her once from the back on her left shoulder with a kitchen knife. The massive bleeding that resulted from a penetrating knife wound to the heart led to the death of the deceased.

That is the brief summary of what is a very serious crime of unlawful killing. You have been convicted of murder which is one type of unlawful killings that involved an intention to cause grievous bodily harm to another person. When you armed yourself with the knife, you no doubt knew the tragic consequences that would likely flow from its conversion into a weapon against your intended victim. The knife penetrated into the heart and a penetrating wound into the heart is always a fatal injury to a vital part of the body that invariably leads to instant death as it did in this case.

The nature of the attack showed aggression on your part. You pursued the deceased after an initial assault and on the second occasion you showed more aggression with use of a weapon. You were also undeterred by the presence of others, particularly, members of her own family at the scene. Having assaulted the deceased the first time, you could have simply retreated and she would be alive today. However, it is plain you were not satisfied and seemed determined on vengeance. As a result, she is now dead at her tender age of 18 years. She died violently at your hands at the prime of her youth. You had no regard for her right to live. By your callous and cowardly act, her young life was suddenly snapped from her and that is a very serious matter.

You are aged 30 years and married with four children ages from 3 years to 15 years. Your husband was employed and provided the financial support while you minded the children and attended to other family household tasks. That family support by you will no longer be there for your husband and the children because you will be treated the in same manner as those who have been convicted and sentenced for unlawful killings. If they, in particular, the children suffer from lack of motherly love, guide and support, you can only blame yourself for their suffering because of your idiocy.

For the purpose of sentencing, children’s welfare may be a relevant factor. However, there is no evidence before me to support your lawyer’s contention on that issue and the extent to which the children might experience difficulties if their mother were incarcerated. The children still have their father and I think it is fair to say that in Papua New Guinea, occasions where a child is left without support, be it from the same family, extended families, village clan or tribe, would be rare, if not, unheard of. I am not convinced the welfare of the children is a significant mitigating factor on its own in this case.

You have pleaded guilty and expressed remorse. Ms. Turi has also made very useful submissions on your behalf.

I have considered all that both you and your lawyer have put to the court. I accept that your plea of guilty supports to some extent, your expression of remorse which in a way added to genuine contrition on your part and this is your first conviction. Your plea and your past good background have sufficient weight in mitigation which I will take into account on sentence.

You have also pleaded de facto provocation on the version of facts which I accept as being uncontested by the State and is within the ambit of reasonable probability. Prior to the attack, you had a quarrelled with the victim over a story being spread about you living off prostitution means and attempts by her own relatives to convince to disassociate herself from you and leave your home before she too became a prostitute under your influence. You were upset about those rumours and had initially confronted the deceased about it. After assaulting her, you decided that she should return to her own family but she must first come with you to the house so that your family would arrange a proper send off for her. She however, defied your request and proceeded instead to another part of the beach where she met up with those allegedly responsible for spreading the false stories about you. Her reaction was viewed by you as an affront as well as a confirmation of your suspicion that she too was the author of those allegations about you. It was then you accosted her the second time.

At the time of the attack, the deceased had used the stick she was armed with to fight back at you before you stabbed her.

It is undeniably a very unpleasant thing to be called a prostitute and worse still to accuse her of prostitution. Such allegation, if false, can be malicious and most devastating to the individual because it cuts deep into the innermost personal character of the innocent; leading invariably to hostility that at times ended in tragic consequences as demonstrated by this case.

There is no evidence you were a prostitute and your resentment followed by your violent conduct towards the victim who was herself armed with a stick is understandable. Those who were responsible for spreading the false rumours about you must also bear some moral responsibility for your crime because it was them that drove you to react the way you did.

I accept that in all the circumstances, you acted in response to some provocation which in law, do not amount to a defence. Those circumstances only explain and do not excuse your crime.

The deceased was related to you as a cousin and was staying with your family at the time of the incident. Bringing about the death of a relative in a violent way is a fact you will live it. She was close to you and was part of your family at the time she died at your hands. It is also a fact that the loss of a close relative is a self-inflicted personal loss of someone who could be helper to you in life: Kesino Apo v. The State [1988] PNGLR 182. I also take that factor into account on your sentence.

Punishment for murder is life imprisonment but that is not mandatory because of the discretion in the Court sanctioned by s. 19 of the Criminal Code in appropriate cases to impose a term of years. That discretion enables the Court to impose a sentence that as much as possible, strikes the balance between the various competing and compelling interests, that is to say; the serious nature of the crime itself and the circumstances under which it was committed with or without aggravation, the interests of the public and the interests of the offender’s own community on the one hand, and on the other, the personal interests of the offender. The Court must weigh up all prevailing factors that are both apparent and latent on the face of the records before a conclusion is reached on what might be the appropriate sentence in a particular case.

The exercise of sentencing discretion must also be guided by settled principles amongst which are trite case law that, each case must be sentenced on it own set of facts. See, Lawrence Simbe v The State [1994] PNGLR 38 in which the Supreme Court approved the principle enunciated in the National Court case of The State v Laura (2) [1988-89] PNGLR 98. Simbe’s case affirmed the proposition that, murder should not be sentenced on the tariff principle but that each case must be decided upon its own facts. That case sets out the proper approach in murder sentencing and I am bound to follow it.

Having considered and taken into account all those matters for and against you, I conclude that a custodial term is appropriate. I also have had regard to recent sentencing tendency of this court in similar type killings and note that a term within the range of 8 to 15 years is imposed.

Two important aspects of sentencing that the punishment I impose must serve is; first, it should bring home to you at personal level, the gravity of your conduct and that you must pay the penalty for your crime and second, it should serve as a warning to others who might be like-minded that unjustified killings will be punished by the law.

You are sentenced to 12 years imprisonment. Your pre-sentence custodial period of 11 months is deducted from the head sentence leaving the balance of 11 years, one month imprisonment to serve in hard labour.
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Lawyer for the State: Public Prosecutor
Lawyer for the Accused: Public Solicitor