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State v Lom [2012] PGNC 63; N4725 (22 June 2012)

N4725

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 12 OF 2012

THE STATE

-V-

MUPA LOM

Wabag: Gauli AJ.
2012: 12, 15, 22 June

CRIMINAL LAW – Sentence – Murder, section 300 (1)(a) of the Criminal Code Act – Pleaded guilty – Killed his wife by chopping her with a bush knife in their coffee garden – Found his wife having affairs with another man – First offender – Cooperated with police

Facts:

The man and his wife went to their coffee garden and were picking red coffee cherries. In the process of picking and processing the coffee beans in the coffee garden, they separated from each other. The husband went searching for his wife. He found her having affairs with another man. The husband, armed with a bush knife, chopped her with his bush knife on her head, arm and leg. Both her left arm and right ankle were completely severed off and her skull was split open exposing her skull and brain tissues. She died instantly.

Cases Cited:

1. The State v. Manga Kinjip [1976] PNGLR 86.
2. Goli Golu v. The State [1971] PNGLR 653.
3. Manu Kovi v. The State (2005) SC789.
4. Lawrence Simbe v. The State [1994] PNGLR 38.
5. The State v. Michael Kilau (2006) N3707.
6. The State v. David Yakuye Daniel (No.2) (2005) N28909.
   

Counsel:

Mr. M. Ruari, for the State
Mr. Kak, for the Accused

SENTENCE

22 June, 2012

1. GAULI AJ: The prisoner Mupa Lom pleaded guilty and convicted on a charge of murder of his wife Misi Sakarao, in June 2011, pursuant to section 300 (1)(a) of the Criminal Code Act.
   

Law

2. Section 300 of the Criminal Code Act prescribes the offence and the penalty of murder:
   

Section 300

(1) Subject to the succeeding provisions of this Code, a person who kills another person, under any of the following circumstances is guilty of murder: -

• (a) If the offender intended to do grievous bodily harm to the person killed or to some other person; or
• (b) ......
  

Penalty: Subject to Subsection 19, imprisonment for life".

Brief Facts

3. On the 01st of June 2011 at Yaipa village, Wapenamande in Enga Province, Papua New Guinea, the prisoner and his wife Misi Sakarao went to his father in-law's coffee garden to pick red coffee cherries. In the process of picking the coffee cherries, they separated from each other. Sometime later the prisoner went looking for her and found her having affairs with another man. While armed with a bush knife, he chased the man but the man got away from the prisoner. The prisoner returned to his wife and he chopped her with the bush knife, first on her right leg completely amputating it from the ankle. Then he swung the bush knife the second time and he cut her on her left arm completely amputating the arm on the elbow. And he swung the bush knife again and he cut her on her head twice, fracturing her skull and exposing the brain tissues. She died instantly. At the time the prisoner intended to cause her grievous bodily harm.
   

Acceptance of the Plea of Guilty:

4. In his plea the prisoner said: "I actually did it". The prisoner made his plea in plain and in no mistakable terms. It is a well established law that a judge should only accept the plea of guilty if it is made in plain, unmistakable and unambiguous terms: The State v. Manga Kinjip [1976] PNGLR 86, referred. Having considered the brief facts and his plea, I was satisfied that it is safe to accept the plea of guilty. And I convicted the prisoner on the charge of murder.
   

Antecedent Report

5. The prisoner has no prior convictions. He is a first time offender.
   

Allocutus

6. Before sentencing, the prisoner was given the opportunity to address the Court. And he said:
   

"The deceased is my wife. I never bashed her or had argument with her before. That time we both went to pick coffee cherries, her elder sister was with us. Her elder sister and her mother were on the other side. I and my wife were on the other side. I went to collect the coffee cherries we already picked while my wife went to pick new coffee cherries. After I washed the coffee cherries, I went to check my wife but she was not there. I thought she went to look for smoke or something else. Then I heard a sudden noise on the other side. When I looked in that direction I saw a man. I thought he was a thief. When I went closer, I saw they were having sexual intercourse. When the man saw me, he ran away. I felt so mad. I asked my wife why she did that and I killed her. I would not have killed her if she did not have sexual intercourse with that man. That is the whole reason. I paid bride price for her. I surrendered myself to the police. I have committed the offence already. This is my first time to be in court. And I ask the court for mercy. That is all".

Pre Sentence Report

7. The Probation Officer Mr. Andrew Rai was unable to prepare the Pre- Sentence Report of the prisoner due to the geographical location of the prisoner's village in Kompiam at Lower Lai as there is no road access due to the bridge been broken and the probation officer does not have a vehicle to travel to Kompiam.
   

Mitigating Factors

8. The prisoner is 30 years old and he comes from Yoalimanda village, Kompiam District, Enga Province. He belongs to the Baptist Catholic Church. He is married with three wives and he had three children prior to the incident. He is a villager and had no formal employment. He was only educated up to grade 5. He pleaded guilty to the charged. He has no prior conviction prior to this incident. His plea of guilty saved much time and costs to the Court, the State and himself. He has shown remorse.
   

Aggravating Factors

9. He used an offensive weapon namely a bush knife. He cut his wife Misi Sakarao four times. Her two limbs, namely her left arm around the elbow and her right foot around the ankle were severed off completely. He cut her twice on the head that fractured the skull and exposed the brain tissues.
   

Issue

10. The only issue for the Court to determine is:
    

What is the appropriate sentence to impose.

11. The principle of law in sentencing is well established by the Supreme Court in Goli Golu v. The State [1971] PNGLR 653, that "maximum prescribed penalty should be reserved for the worst type of offence under consideration". This principle was later adopted and modified by the same Court in Manu Kovi v. The State (2005) SC789. Each case of course is different from the other and each case must be decided on its own set of circumstances, merits and or facts: Lawrence Simbe v. The State [1994] PNGLR 38; and The State v. Michael Kilau (2006) N3707, applied.
    
12. A person convicted of murder must expect custodial sentence, which is unavoidable. The crime of murder where human life is lost is a serious offence and the penalty of life imprisonment speaks for itself. The maximum penalty for murder under s. 300 of the Criminal Code is life year imprisonment. But it is subject to s. 19 (1) of the Criminal Code, which gives the Court the discretion to impose a lesser term of imprisonment than the maximum. In determining what is the appropriate sentence to be given to the prisoner, the Court is to consider:
    
    • (1) Whether this is one of the worst types of murder case to impose a maximum penalty of life imprisonment.
      
    • (2) What is the appropriate head sentence in the circumstance of the case.
      
    • (3) Should a sentence equal to, lesser than or greater than the starting point be imposed.
      
    • (1) Whether this is one of the worst type of murder case to impose a maximum penalty of life imprisonment?
      
13. The defence council referred the Court to the two Supreme Court cases which set out the sentencing guidelines for murder cases, Simon Kama v. The State (2004) SC 740 and Manu Kovi v. The State (2005) SC 789. The sentence guidelines in Simon Kama v. The State ( supra) are:
    
    • (a) On guilty plea with no aggravation factors: Sentence of 12 – 16 years.
      
    • (b) On guilty plea with aggravating factors, no firearms used and the commission of another serious crime: Sentence of 17 – 30 years.
      
    • (c) On guilty plea with aggravating factors, used fire arm, commission of or attempting to commit another serious offence: Sentence of 31 years to life.
      
    • (d) On not guilty plea, no aggravating factors: Sentence 17 – 21 years.
      
    • (e) Not guilty plea, aggravating factors, no firearms, in the course of committing or attempting to commit another offence: Sentence of 22 – 40 years.
      
    • (f) Not guilty plea, aggravating factors, use firearms or other dangerous weapons, in the course of committing or attempting to commit another offence: Sentence of 41 years to life.
      
14. The sentence guidelines in Manu Kovi v. The State (above) are:
    

Category 1: Plea – ordinary cases – mitigating factors – no aggravating factors – No weapons used – little or no pre-planning – minimum force used – absence of strong intention to do grievous bodily harm: Sentence of 12 – 15 years.

Category 2: Trial or plea – mitigating factors with aggravating factors – No strong intent to do grievous bodily harm – weapon used – some pre-planning – some element of viciousness: Sentence 16 – 20 years.

Category 3: Trial or plea – special aggravating factors – mitigating factors reduced in weight or rendered insignificant by gravity of offence – Pre-planning – vicious attack – strong desire to do grievous bodily harm – dangerous or offensive weapons used, eg. gun, axe – other offences of violence committed: Sentence 20 – 30 years.

Category 4: Worst case – trial or plea – special aggravating factors – no extenuation 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: Sentence Life.

15. Defence council submitted that the present case does not fall within the ambits of a worst type of case to warrant maximum life imprisonment sentence. He submitted that the present case falls between the Category 1 & 2 of Manu Kovi case. The reason being that although the prisoner used a weapon, there was no pre-planning and no intention to do grievous bodily harm to the deceased. There was provocation on the part of the wife (deceased) having affairs with another man.
    
16. The State submitted that the present case falls within the 3rd Category of Manu Kovi's case. There are aggravating factors present, serious nature of attack on vital parts of the body, multiple injuries severing limbs, used offensive weapon and the attack was vicious. This case falls in the worst type of murder case.
    
17. In considering the circumstance of the case now before me, the Category 1 of Manu Kovi case does not apply here for the simple reason that there was a weapon used. When the prisoner found his wife in the act of having sexual intercourse with another man, he chased the man. But when he could not catch up with him, the prisoner returned to his wife (deceased) and he cut her four times with his bush knife. He completely severed off the right foot and the left arm of the deceased and he chopped her head twice fracturing the skull that exposed the brain tissues. It wasn't just one blow. All the blows were directed at the vital parts of the body. Any blow to any vital part of the body, including the head, is more than likely to result in death. There can be no doubt in my mind that for one to incur such magnitude of injuries requires the use of a greater force. The human beings arms, legs and the head comprises of strong bones. The bones cannot be that easily chipped off or fractured with the use of lesser force except with the use of an excessive force. The fact that victim's two limbs were completely severed off and the skull fractured, has established that the prisoner did use excessive force.
    
18. The prisoner in swinging the bush knife four times using excessive force and causing serious multiple injuries, shows without any doubt that the prisoner had a strong desire and intention to do grievous bodily harm to the deceased. The intention to do anything is only in the mind of the person who wants to do what he desires to do. However, the intention can be inferred from the person's action and or behaviour. From the circumstances of the case before me, I find that the prisoner had the intention to cause grievous bodily harm to the deceased. Having said that I find that the present case falls within Category 3 of the Manu Kovi or in category (b) of Simon Kama v. The State (above).
    
    • (2) What is the appropriate head sentence in the circumstances of the case?
      
19. Defence counsel submitted that this case falls between the 1st and 2nd Category of Manu Kovi, and the head sentence should be between 12 – 30 years. And he submitted that a sentence of 18 years be imposed on the prisoner.
    
20. The State submitted that the case falls within Category 3 of Manu Kovi with the sentence ranging from 20 – 30 years imprisonment. The attack was vicious and intentional.
    
21. I found that this case falls within the Category 3 of Manu Kovi. I do agree with the State the attack was vicious. Though the defence submitted that the prisoner did not have the intention, when one considers the manner or the way the prisoner executed the killing, it can be inferred from his act, the force applied and the multiple serious injuries he inflicted, sufficiently established that the prisoner had the intention. I do take into account of the prisoner's mitigating and aggravating factors. He pleaded guilty on the first available opportunity. His guilty plea no doubt has saved time and costs to both the Court, the State and the defence as well. He is the first time offender. He has expressed remorse of his wrong. There was no pre-planning nor was there stalking of the deceased by the prisoner as in the case of The State v. Kore Ase (2001) N2220. In that case the prisoner was sentenced to 15 years for killing the deceased after hunting him down upon hearing that the deceased killed his first cousin. He inflicted severe injuries on the deceased's body where some parts of the body were completely severed. That was in retaliation to life taken for life situation.
    
22. In the present case the cause of the death of the deceased is very much different to the case in Kore Ase (above) though there are some similarities in terms of the injuries inflicted. The sentence imposed in Kore Ase, in my view may be too lenient. Having found that the present case falls within Category 3 of Manu Kovi, or within category (b) of Simon Kama (above), the appropriate head sentence would be 20 years.
    
23. Murder is a prevalent offence here in Enga Province. Although the Courts have being imposing stringent sentences in the recent past, that does not seem to have any deterrent effect on the people. It would appear that to some people, human life has no value when one is faced with minor problems which can be easily resolved in the appropriate established forums, such as the courts, rather than resorting to eliminate the life of another. Bush knives are specifically meant to cut bushes. They are not made to kill or harm fellow human beings. Having considered the circumstances of this case, the appropriate head sentence in this case would be 20 years imprisonment.
    
    • (3) Should a sentence equal to or lesser than or greater than the starting point be imposed?
      
24. It is a well established law that each case is determined on its own merits and facts in sentencing. Where the aggravating factors overrides the mitigating factors, the sentence imposed will be higher than the head sentence. Likewise where the mitigating factors exceeds the aggravating factors, the sentence will be lower than the head sentence: The State v. David Yakuye Daniel (No.2) (2005) N28909, applied.
    
25. However there is no mathematical formula in which a sentence can be measured to determine how much one can move upward or downward from the head sentence. It depends on the good judgement of a judge after consideration of the gravity of the offence and also the personal circumstances of the offender to arrive at a just and fair sentence to be imposed. Having considered the nature and the circumstances of this offence, it is one of the worst type of murder case. I also consider that this offence could not have been committed but for the provocation on the part of the deceased. Taking into account of other mitigating factors in favour of the prisoner, I will reduce the head sentence and I impose a sentence of 18 years imprisonment.
    
26. I deduct the pre-trial custody period of one (1) year 16 days from the total sentence of 18 years. Should part of the sentence be suspended. There are no special circumstances of the prisoner, other than having three wives and three children, provided for the Court to consider any partial suspension of the sentence. In my view this is not an appropriate case to consider suspension of the sentence either wholly or in part.
    

SENTENCE

27. Mupa Lom having been convicted of the crime of murder under section 300 (1)(a) of the Criminal Code, is sentenced as follows:
    

Sentenced Accordingly.

____________________________________________________
Public Prosecutor - For the State.
Paraka Lawyers - For the Accused.