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State v Posara [2012] PGNC 267; N4596 (7 February 2012)

N4596

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 1054 OF 2011

THE STATE

V

MELBA POSARA

Arawa: Maliku AJ
2012: 02nd, 03rd and 7th February

CRIMINAL LAW - Conspire to kill another person – Section 307- Criminal Code Act.

CRIMINAL LAW - Appropriate sentence - Guilty plea - Conspire to kill - offensive weapon used – Injuries sustained by victim - Accused first offender

Cases cited:

Goli Golu v The State [1979] PNGLR 653
Avia Aihi v The State (No3) [1982] PNGLR 92 at page 96
Aika Karavea and Lelehua Karavea v The State [1983] No. 452
Rex Laliu v The State [1990] PNGLR 487

Counsel

Mr Kuvi, for the State
Mr Misil Yawip, for the Accused

SENTENCE

7th February, 2012

1. MALIKU AJ: The accused pleaded guilty and was convicted for that between the 01st of April and the 30th of April at Mamaguta village, Siwai District, Bougainville Region did conspire with Max Kariha to kill one Benjamin Posara thereby contravening Section 302 of the Criminal Code Act.
   

Brief fact

2. The accused was married to the victim Benjamin Posara. Sometimes before April of 2011 the accused had entered into extra marital relationship with Max Kariha the younger brother of the victim Benjamin Posara.
   
3. In April of 2011Max Kariha approached the accused and suggested a plan to kill Benjamin Posara which the accused agreed to.
   
4. On the 08th of April of 2011 while the victim was asleep Max Kariha slashed his face twice with a knife and thought that the victim had died. The State alleges that the accused conspired with Max Kariha to kill Benjamin Posara.
   

The issues:

1. - Does this matter fall in the worst category of cases?
   
2. - What is the appropriate sentence to be imposed on the accused?
   

Allocutus:

5. In his address on his allocutus to the Court the accused said:
   
   1. I say sorry to the Almighty God the father.
      
   2. I say sorry to the Court for what I have done.
      
   3. It is my first time to appear in Court for having committed this offence.
      
   4. I have a seven year old disable child. If I am sentenced to jail no one will look after my seven year old disable child.
      
   5. Having said these I ask the Court to have mercy on me.
      

The Mitigating factors

6. Mr Yawip for the accused submitted the following as mitigating factors:
   
   1. The accused had pleaded guilty to the crime which saved the court's time and other resources to conduct a trial.
      
   2. The accused is 34 years old.
      
   3. She was married to the victim at the time the crime was committed and had three children from the victim. The youngest is disabled.
      
   4. She completed grade 6 at Manoitu Community School.
      
   5. She is a member of the United Church.
      
   6. He had no prior convictions.
      
   7. She has been in custody since arrested and charged with offense.
      
7. Beside the mitigating factors, Mr Yawip for the accused submitted that the accused did not conspire but merely gave her permission to Max Kariha to kill Benjamin Posara.
   

Aggravating factors

8. Mr Kivu for the State submitted the following as aggravating factors for the Court to consider in sentencing the accused.
   
   1. This is a case where the accused had an extra marital relationship with another person and while in that relationship agreed to kill another person who was her husband.
      
   2. Nobody has the right to neither take away the life of another person nor even conspire to take away the life of another person.
      
   3. The action of the accused can be seen as being selfish without having regard to the life of another person who was her husband.
      
   4. An offensive weapon namely a knife was used to carry out the plan to kill the victim.
      
   5. Although the evidence does not show how the accused had assisted in carrying out the plan she had given her permission for the plan to be effected.
      

Guideline on sentencing

9. The guide line on sentencing is well settled in our jurisdiction in the case of Rex Lialu v The State [1990] PNGLR and is:
   

"Sentence in any given case will depend on its own peculiar facts.... the Court ought to have regard to all aggravated effects of all relevant considerations on matters which aggravate or mitigate the serious nature of the offence and then to decide an appropriate penalty".

I am bound to follow this guideline.

10. I agree with both counsel that maximum prescribed penalties are reserved for the worst category of cases. This was settled in the case of Goli Golu-v- The State [1979] PNGLR at page 653 and re stated in the case of Avia Aihi-v-The State (No3 [1982] PNGLR 92 at page 96.
    

Does this matter fall in the worst category of cases?

11. Although this matter does not fall in the worst type or worst category of cases, it is a serious matter because there was a conspiracy between two persons to take away another person's life.
    
12. It is for the fact that death did not take place it made this matter fall short of a worst category of cases.
    
13. Conspiring to kill another person is a crime and is a serious one. It carries a maximum penalty of 14 years however I am subject to Section 19 of the Criminal Code Act.
    
14. At the time of the commission of the offence the accused was the wife of the victim. She conspired with another person to kill her own husband. She was unfaithful and indeed betrayed her husband.
    
15. Although counsel for the accused submitted the evidence does not show how she assisted in the conspiracy she nevertheless gave permission to kill her husband. It can be inferred from the evidence that there were some discussions between her and Max Kariha on how, when and where the conspired plan was to be carried out.
    
16. She adopted the manner in which Max Kariha was to carry out the conspired plan by giving her permission to kill her husband. Alternately I conclude that the accused was not so interested as to how, when and where Max Kariha was to carry out the conspired plan but rather to the end result which was the death of her husband.
    

The appropriate sentence

17. The counsel for the accused submitted that the appropriate sentence for this matter is imprisonment of a period of three (3) to five (5) years while Mr Kivu for the State submitted a period of seven (7) imprisonments as starting range.
    
18. Mr Kuvi relied on the case of Aika Karavea and Lelehua Karavea v The State [1983] No. 452. In this matter the sister of the two prisoners gave birth to a child and during the process of giving birth she died.
    
19. The two prisoners suspected the deceased of her death by sorcery. They conspired to kill the deceased and agreed to whoever finds the deceased first was to kill him. The prisoner Aika Karavea was the first to meet the deceased and brutally chopped the deceased with an axe.
    
20. The deceased died from the brutal attack. The prisoner Aika Karavea was sentenced to twelve years for murder while the prisoner Lelehua Karavea pleaded guilty to conspiracy and was sentenced to seven (7) years imprisonment.
    
21. I am however of the view that sentences on conspiracy to kill has increased since the above case was decided in 1983 although I am not able to access to a more recent case.
    

Address to the accused

22. You pleaded guilty to one count of conspiracy to kill one Benjamin Posara between the 01st of April and the 30th of April in 2011.
    
23. I heard what you told me in your allocutus.
    
24. I also heard what your counsel told the Court to consider in your favour.
    
25. I also heard what the State said against you. This is what the State said:
    

This is a case where you had an extra marital relationship with another person namely Max Kariha and while in that relationship you agreed to kill another person namely Benjamin Posara who was your husband. Nobody including you and Max Kariha have the right to neither take away the life of another person or even to conspire to take away the life of another person. The action you took can be seen as being selfish because you did not have regard of the life of another person who was your husband but agreed with Max Kariha to kill your husband. An offensive weapon namely a knife was used to carry out the plan to kill Benjamin Posara who was/is your husband.

Conclusion

26. In the present case the maximum for conspiracy to kill is 14 years imprisonment. My view in taking into account the interest of the State and also the interest of the accused, the proper sentence is eight (8) years imprisonment. The accused shall serve the balance after the pre trial period in custody is deducted.
    

______________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused