State v Anton [2010] PGNC 131; N4117 (24 August 2010)

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CRIMINAL LAW – sentencing – murder, Criminal Code, Section 300(1)(a) – sentence after guilty plea – offender killed a woman whom she suspected of having affair with offender's husband – sentence of 14 years.

The offender stabbed a woman whom she suspected of having an affair with the offender's husband three times, with a kitchen knife, resulting in almost instant death. The offender pleaded guilty to murder.

Manu Kovi v The State (2005) SC789
Saperus Yalibakut v The State (2006) SC890
Simon Kama v The State (2004) SC740
The State v Margaret Aike CR No 1267/2008, 22.07.10
The State v Regina Jako CR No 137/2008, 22.04.10

1. CANNINGS J: This is the decision on sentence for Agnes Baru Anton, an 18-year-old woman, who has pleaded guilty to murder and has been convicted of that offence under Section 300(1)(a) of the Criminal Code. The victim is Magreth Baroga Joseph, a woman the offender suspected was having an affair with the offender's husband.

2. The offence was committed at 3 o'clock in the morning of Monday 17 August 2009 at a dance place at the offender's village, Karisokra, in the upper Bundi area of Madang Province. The offender went to the dance place and saw the deceased standing with the offender's husband. She used a kitchen knife to stab the deceased three times: on the neck, head and ribs. The deceased died soon afterwards as a result of being stabbed. The offender did not intend to kill the deceased but did intend to cause her grievous bodily harm.

My father deserted us and went to live in Rabaul seven years ago, leaving my mother alone to raise me and other members of the family. I assisted my mother but life has been hard for us. I married my husband only after he threatened to stab me if I did not marry him. I had earlier refused when he asked me to be his wife but was scared and relented and went to live with him. When he realised I was pregnant he looked for another woman and started going around with the deceased. I was told about it by other people and on the afternoon before the incident we had a small argument and then he went to the dance.

I went to sleep and at 3.00 am on Monday was woken by drunkards throwing bottles on the roof of the house. He had not come home so I got up. I heard the music coming from the dance place so I decided to go there to check on him. I picked up a knife from the table, for my protection, as there were drunkards and drug-bodies roaming around. I walked to the dance party and saw my husband and that woman [the deceased] standing and talking in a dark area of bush away from the main dance area. I felt bad when I saw them together as he had forced me to marry him and made me pregnant and now he was with this woman. I thought of how my father had left us and it seemed like the same sort of thing was going to happen again. I completely forgot that I was carrying a knife and approached that woman and hit her, not realising that I still held the knife. The boys rushed in and told me to let go of the knife and that was when I remembered that I was carrying it.

I am sorry that she died. I did not mean to kill her. I am very sorry from deep in my heart. I apologise to her family and my family and my husband's family. I apologise to God and to the Court. This is my first time to appear before the Court. I ask for mercy.

5. As the offender has pleaded guilty she will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State (2006) SC890).

6. I will take into account that she cooperated with the police and made early admissions and that her husband to a large extent created the problem by befriending the deceased. I accept that she had had a difficult upbringing and I accept what she said about being forced to marry her husband.

7. However, I do not accept her explanation of how the incident happened and how it was almost by accident that she stabbed the deceased as she had forgotten that she was holding a knife. Because she pleaded guilty she is entitled to the benefit of reasonable doubt about what she says by way of explanation in her allocutus. The story about not realising that she was holding a knife is not reasonable or believable. She stabbed the deceased three times, inflicting fatal wounds. She has by pleading guilty admitted to intending to do the deceased grievous bodily harm. So she cannot be given the benefit of the doubt on that part of her story.

8. Agnes Baru Anton is 18 years old. She has lived all her life at Karisokra. The pre-sentence report supports what she says about the family being deserted by her father. Agnes has had no formal education or employment. She was dependent on her husband for financial support and during 2009 he had a regular, wage-earning job at the Kurumbukari mine site. She was well regarded in the community prior to this incident.

9. After the incident she was badly assaulted by the deceased's relatives and this caused her to lose the baby that she was carrying. Four of her family's houses were burned down and other property destroyed. The offender's family made a bel kol payment of K1,370.00 cash and seven pigs to the deceased's family. The report recommends that Agnes is suitable for probation.

10. Mr Thomas submitted that the circumstances of this case – some aggravating factors as well as mitigating factors – bring it within category 2 of the Supreme Court murder sentencing guidelines from Manu Kovi v The State (2005) SC789. The starting point is 16-20 years but because of the strength of the mitigating factors, the actual sentence should be around 14 years imprisonment.

11. Mr Kupmain did not agree that this was a category 2 case. He submitted that because of the viciousness of the attack, as shown by the three separate stab wounds, it was a very serious case falling within category 3, the result being that the sentence should be in the lower end of the range of 20 to 30 years imprisonment.

12. To determine the appropriate penalty I will adopt the following decision making process:

13. Section 300 of the Criminal Code provides that the maximum penalty for murder is life imprisonment. However the court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code.

14. The Supreme Court has in recent times laid down sentencing guidelines for murder in two cases: Simon Kama v The State (2004) SC740 and Manu Kovi v The State (2005) SC789. As Manu Kovi's case is the more recent decision, I will follow it. Its starting point ranges are summarised in the table below.

SENTENCING GUIDELINES FOR MURDER
FROM SUPREME COURT'S DECISION IN MANU KOVI'S CASE

No	Description	Details	Tariff
1	Plea – ordinary cases – mitigating factors – no aggravating factors.	No weapons used – little or no pre-planning – minimum force used – absence of strong intent to do grievous bodily harm.	12-15 years
2	Trial or plea – mitigating factors with aggravating factors.	No strong intent to do grievous bodily harm – weapons used – some pre-planning – some element of viciousness.	16-20 years
3	Trial or plea – special aggravating factors – mitigating factors reduced in weight or rendered insignificant by gravity of offence.	Pre-planned – vicious attack – strong desire to do grievous bodily harm – dangerous or offensive weapons used, eg gun, axe – other offences of violence committed.	20-30 years
4	Worst case – trial or plea – special aggravating factors – no extenuating circumstances – no mitigating factors, or mitigating factors rendered completely insignificant by gravity of offences.	Premeditated attack – brutal killing, in cold blood – killing of innocent, harmless person – killing in the course of committing another serious offence – complete disregard for human life.	Life imprisonment

15. I accept Mr Thomas's submission – having regard to the fact that the offender has pleaded guilty – that this is a category 2 case. There was no strong intent to do grievous bodily harm, but an offensive weapon was used and there was some element of viciousness. Therefore the starting point range is 16 to 20 years.

STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED RECENTLY FOR EQUIVALENT OFFENCES?

16. I have recently dealt with two cases in Madang very similar to this one and they provide the most useful precedents.

17. In The State v Regina Jako CR No 137/2008, 22.04.10 the offender pleaded guilty to the manslaughter of her husband's second wife. She and the victim were living in the same residence and had a history of quarrelling. They argued and the offender stabbed the victim three times with a kitchen knife and the victim died shortly afterwards. The sentence imposed was 12 years imprisonment.

18. In The State v Margaret Aike CR No 1267/2008, 22.07.10 the offender pleaded guilty to the murder of her husband's second wife. The offender fought with the deceased, and this fight was a continuation of an earlier one on the same day. During the course of the second fight the offender stabbed the deceased once with a kitchen knife on the right side of her abdomen. The deceased collapsed and died instantly. The sentence imposed was 14 years imprisonment.

19. To determine the head sentence I will focus on the starting point range of 16 to 20 years and assess the mitigating and aggravating factors. The more mitigating factors there are, the more likely the head sentence will be below the starting point range. The more aggravating factors present, the more likely the head sentence will be above the starting point range. It is not, however, only the number of mitigating and aggravating factors that determines the head sentence. The strength or weight to be attached to each of those factors is more important.

22. There are more and stronger mitigating factors than aggravating factors, so the sentence will be below the 16-20 years range. Comparing this case with Regina Jako (12 years for manslaughter) and Margaret Aike (14 years for murder), I uphold the defence counsel's submissions and fix a sentence of 14 years imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

23. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment the pre-sentence period in custody from the date of the offender's conviction to the date of sentence, which is one year, one week.

24. There is talk about payment of compensation in the pre-sentence report but insufficient evidence of tangible progress. The favourable matters in the pre-sentence report have already been taken into account for the purposes of fixing the head sentence. I do not find a strong case for suspension. Therefore no part of the sentence will be suspended.

25. Agnes Baru Anton, having been convicted of the crime of murder under Section 300(1) of the Criminal Code, is sentenced as follows:

Length of sentence imposed	14 years
Pre-sentence period to be deducted	1 year, 1 week
Resultant length of sentence to be served	12 years, 11 months, 3 weeks
Amount of sentence suspended	Nil
Time to be served in custody	12 years, 11 months, 3 weeks
Place of custody	Beon Correctional Institution

__________________________
Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyers for the offender

National Court of Papua New Guinea

State v Anton [2010] PGNC 131; N4117 (24 August 2010)