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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR.NO. 365 of 2010
THE STATE
AND
JACKLYN JOHN TUANIS
Wewak: Geita J
2012: 19, 23, 26 October
2013: 15 March
CRIMINAL LAW – Trial – Wilful murder, section 299 (1) of the Criminal Code – Decision on verdict – Used dangerous weapon – Bush knife
CRIMINAL LAW–Domestic related killing - Mitigating and aggravating circumstances- exceptional extenuation circumstances detected – first time offender-murder bordering on worst category – interest of child (infant) in forced incarceration on as a result also considered – Sentenced to 10 years – Pre trial custody of 3 years deducted – Balance wholly suspended with conditions
Cases Cited
Goli Golu v The State [1979] PNGLR 653
John Kalabus v The State [1988] PNGLR 193)
Kovi v The State [2005] PGSC 34; SC 789
Saperus Yalikabut v The State (2006) SC 890
Thress Kumbamong v The State (2008) SC 1017
References
Juvenile Justice Protocols for Magistrates, 2004 at pp 84 -92 (Article 20 (1) Convention on the Rights of the Child (CRC) in 1993.)
District Courts Act Ch No 40, Section 96
Counsel
Ms Nancy Lipai, for the State
Mr. Johnson Malambaul, for the Prisoner
DECISION ON SENTENCE
15 March, 2013
1. GEITA AJ: The prisoner Jacklyn John Tuanis has pleaded guilty to one count of wilful murder contrary to s.299 of the Criminal Code Act. This offence attracts a maximum penalty of life imprisonment however Section 19 (1) (a) (b) of the Criminal Code gives courts powers to impose a lesser sentence. The co-accused John Tuanis was also charged with the same offence but was discharged upon State presentation of his indictment which was soon followed by the filing of a nolle prosequi. This sentence is therefore restricted to prisoner Jacklyn John Tuanis.
The Facts
2. The relevant facts put to you during your arraignment and the agreed facts by the prosecution and your lawyer on the depositions for the plea of guilty with your consent are these. Having satisfied myself of your plea of guilty I accepted your plea and recorded it accordingly. On 26th December 2010 between the hours of 3pm and 6pm at Bonohitam village, West Yangoru district you called the deceased on your mobile phone and arranged for him to meet you at a secluded place called Waliligamu. You than arranged for three other men to come and wait in ambush for the victim, also by your phone and to carry out your plan to murder the victim.
2. At the appointed time the victim arrived and you both moved further away from Waliligut hamlet into a nearby garden because the victim was fearful that his wife would come looking for him. As you both were having sex in the garden the three men whom you had arranged pounced on you both, held the victim at gunpoint and marched him away naked towards Waliligamu hamlet. You than returned to your house via a bush track.
3. You said apart from Eddy Wagiwen the two men had their faces covered with black t-shirts and were armed with a gun and one other weapon which you said looked like an axe concealed in a black laplap. From there on you said you didn't know what happened to the victim but you were told by a small girl on Monday morning that the body of the victim had been found. The same afternoon you sought assistance from your father Yomu Jukun to cast out the spirit of the victim because he was your boyfriend.
4. When your husband called from Kimbe that evening he directed you to go and meet a man called Eddy Wagiwen at a bush track leading to Moliebe River. Eddy Wagiwen then threatened you with death if you disclose the names of two other accomplices and told you that he was on his way to Kimbe West New Britain that same evening.
5. Upon police investigation on the murder of the victim it was revealed that the co-accused John Tuanis, your husband was the mastermind behind the murder of the victim and you lured the victim to meet his fate.
Admissions
6. Three months into your committal proceedings before Wewak District Court on 22 April 2010 you changed your story and admitted that you were solely responsible for the death of the victim John Morris. You made your sworn statement when the Committal Court Magistrate asked whether you desired to give evidence, a requirement under section 96 of District Courts Act. That section reads and I quote:
"Section 96. ACCUSED TO BE ASKED WHETHER HE DESIRES TO GIVE EVIDENCE.
(1) Where a Court proceeds with the examination of a defendant in accordance with this Division, the Court or the Chairman of the Court shall read the charge to the accused and explain its nature in ordinary language and shall say to him these words, or words to the same effect–
"Having heard the evidence for the prosecution do you wish to be sworn and give evidence on your own behalf, or do you desire to say anything in answer to the charge? You are not obliged to be sworn and give evidence, nor are you required to say anything, unless you desire to do so; but whatever evidence you may give on oath, or anything you may say, will be taken down in writing, and may be given in evidence on your trial. You are clearly to understand that you have nothing to hope from any promise of favour, and nothing to fear from any threat, which may have been held out to you to induce you to make any admission or confession of your guilt; but whatever you now say may be given in evidence on your trial, notwithstanding any such promise or threat.
"Having heard the evidence for the prosecution do you wish to be sworn and give evidence on your own behalf, or do you desire to say anything in answer to the charge? You are not obliged to be sworn and give evidence, nor are you required to say anything, unless you desire to do so; but whatever evidence you may give on oath, or anything you may say, will be taken down in writing, and may be given in evidence on your trial. You are clearly to understand that you have nothing to hope from any promise of favour, and nothing to fear from any threat, which may have been held out to you to induce you to make any admission or confession of your guilt; but whatever you now say may be given in evidence on your trial, notwithstanding any such promise or threat."
(2) Anything that the defendant says in answer to a statement made in accordance with Subsection (1) shall be–
(a) taken down in writing in the English language and read to him; and
(b) signed by the Magistrates constituting the Court and by the defendant if he so desires; and
(c) kept with the depositions of the witnesses and transmitted with them to the Public Prosecutor.
(3) In an examination of a defendant in accordance with this Division neither the defendant nor his legal representative shall be permitted to subject any witness to cross-examination."
7. In your sworn statement made on 22 April 2010 you said that the story you gave to the police was not recorded properly and that you personally killed the deceased and you had a reason for doing that. I now quote the prisoners statement in full hereunder as I consider it important.
" The police forced me and assaulted me and made mention of the four (4) other suspects who were never involved, Eddy Wagiwam, John Tuanis, my husband in Kimbe, Mark Wena and Ronald Ulugama. John and Eddy were in Kimbe when incident happened; Ronald was attending church service at SS Church at the late president's village. They are innocent.
The problem I faced started one Thursday in August 2008 between 1.00am and 2.00am. The deceased was drunk and came home kicked opened the door of our house entered the bedroom fully naked, armed with a one (1) metre knife. He held my mouth, removed my trousers and had sexual intercourse with me.
I wanted to call out, he threatened me and shut me up or he will kill me. Later on, on 3 different occasions he came to me using threats on me."
I felt bad and told my family members of the incidents. When he heard that I had told my family members, he told me If I went to Kimbe and If my husband learnt about the incident and divorced me he will marry me.
The deceased one time came to see me again. But I got cross on him. People in the village saw what happened and contacted my husband in Kimbe by phone.
My husband sent word to me and I got my 2 Kids got on the ship and went to Kimbe in October 2009.
On arrival in Kimbe my husband questioned me and I admitted to what deceased had done to me.
He belted me up ordered me out and I returned to the village without our 4 children.
When I arrived in the village. The deceased never said anything to me. On Saturday 26th deceased rang to see me.
I told him to come with K500.00 he borrowed from me for his election.
The spot where the death occurred. He rang me and arranged to see me there. We both met there, I asked him for my credit. He said later. I told him he had caused the break down in my marriage and he should marry me. He refused.
I told him if he refused to marry me he should meet my husband's demand of K10, 000.00 one customary Kohl ring and one pig. He refused my husband's demand.
He wanted to have sexual intercourse with me instead and asked me. By then I was already angry. However, we both had sexual Intercourse. after he gave his back to me to wear his trousers and that's when I cut him with my bush knife on his neck. I chopped him all over with the bush knife.
That is all. "
The Law
8. Section 299 (1) of the Criminal Code creates the offence of wilful murder and it is in the following terms:
"299 Wilful Murder
(1) Subject to the succeeding provision of this Code....
A person who unlawfully kills another person, intending to cause his death or that of some other person, is guilty of wilful murder.
(2) A person who commits wilful murder shall be liable to be sentenced to death.
Post Mortem Report
9. Medical examinations conducted on the partially decomposed body of the deceased confirmed multiple wounds to his neck, hands and body. Two medical doctors reported that the cause of death was due to massive haemorrhage and cardiopulmonary collapse from loss of blood. They concluded that the injuries on his hands indicated that as he lifted his hands/arm in defence he exposed his neck which bore the brunt of attack. The wounds said to be consistent with those inflicted by a bush knife.
Allocutus
10. During the administration of the allocutus or when you were given the opportunity to speak on the question of penalty you said you did not mean to kill the victim. You said you asked him to repay all that he had taken from you and he refused. You also said he (victim) grabbed you and raped you and as a result you were angry and killed him. You said you were sorry to God, sorry to court and to the deceased's family. You finished by saying that you were sorry for your life and that you have a three (3) year old girl with you in prison and asked for leniency. Prisoner's lawyer confirmed that the prisoner had four children from her previous marriage and one from the current relationship.
Mitigation Circumstances
Aggravating Circumstances
Submissions on sentence
11. In his oral submission Defence Lawyer Mr. Malambaul referred me to the case of Manu Kovi v The State (2005) N 789 and advanced that this case falls with the category 2 range attracting a sentence range from between 12 years to 16 years. He conceded to the facts that although a weapon was used and the attack vicious, the murder was not pre planned. He advanced that the prisoner acted under extenuating circumstances at the time. Some of these include the breakdown of his marriage brought about by the deceased; his persistent sexual encounters with the prisoner against her will; the deceased's constant refusal to return the K500 he borrowed from her including his refusal to pay customary compensation to the prisoner's husband as restitution of his already failed marriage, some element of provocation present at the time. In support of his oral submissions Mr. Malambaul referred me to these cases and invited the court to consider a sentence proportionate and appropriate to the circumstances of this murder. (Thress Kumbamong v The State (2008) SC 1017; Saperus Yalikabut v The State SC 890)
12. State Prosecutor Ms Nancy Lipai submitted that the upper range of category 2 sentencing tariff in Manu Kovi case (supra) of 18 to 20 years to be considered in light of the seriousness and gravity of the murder. She advanced that a bush knife was used to inflict multiple injuries to the deceased's neck and body. The only plausible mitigation circumstances in favour of the prisoner according to Ms Lipai was her plea of guilt which is outweighed by aggravating circumstances. Furthermore she aggressively opposed defence submissions that the prisoner is to be considered for a suspended sentence. Ms Lipai argued that the case of Thress Kumbamong v The State (supra) be distinguished from this case. She submitted that the prisoner brought it upon herself by her extra marital affair which resulted in disagreements which led to the death of the deceased.
Remarks
13. This court is mindful of the fact that from the time of your pre trial custody to the day of sentence today, which I estimate to be almost 3 years as from 24 April 2013, you have raised your infant child whilst in gaol. Whilst it could be argued that it was your fault and that you brought it upon yourself and your infant into this most unfortunate situation, I hold a more humanitarian view. The child is innocent and his rights are as important if not equal to those of an adult. My view is that any prolonged forced incarceration brought about by your actions is an abuse of the rights of the child. I say this in light of Papua New Guinea becoming a part of the international community to protect the right of children by ratifying the Convention on the Rights of the Child (CRC) in 1993. I quote Article 20 of The Convention on the Rights of the Child (CRC) as follows:
"A child temporarily or permanently deprived of his or his family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State."
14. The judiciary as an institution of State is not exempted from this universal declaration in that it ratified the convention to ensure that children "shall be entitled to special protection and assistance provided by the State." (Emphasis mine). This courts attempt to honour this international convention, although insignificant in my view is a small step in the right direction to protect the rights of children here in Papua New Guinea.
Decision of the court
15. Since both counsel have relied on the sentencing tariffs in the case of Manu Kovi (supra) I should point out that another Supreme Court decision of Thress Kumbamong v The State (2008) SC 1017 has departed from the fixed sentencing tariffs pronounced therein. The 2008 Supreme Court was of the view that the proscribed minimum and maximum sentences restricted the discretionary sentencing powers of trial judges. I too hold the view that trial judges discretionary powers in sentencing should be jealously guarded and not curtailed, save for Parliamentary intervention.
16. The first issue is whether the offence committed by the prisoner is of the worst type and whether the court should impose the maximum prescribed sentence. To this end I remind myself that the maximum prescribed sentence are best left for the worst types of cases (Goli Golu v The State [1979] PNGLR 653 and John Kalabus 1988 PNGLR 193). I am more inclined to agree with the Defence submission that the prisoner acted under extreme extenuating circumstances. Her marriage was now on the verge of collapse at the time; her four children had been taken away from her by her husband, her demands for the return for her monies and customary reparation by the deceased to save her marriage had all fallen on deaf ears. Those coupled with the ongoing forced sexual relations with her, even up to the time of his death in my view are cause for real concern capable of driving a sane person to lose self control and clear headedness. Unfortunately the prisoner's feeling of hopelessness and loss of self control were evident in the type of wounds inflicted on the deceased.
17. The second issue is framed in this question and that is what an appropriate sentence in your case is? I have had the benefit of submissions from both lawyers on all relevant issues including the mitigation and aggravating circumstances for and against the prisoner. I need not restate them here again. Although the death was tragic, not warranted and possibly bordering on the shadows of being categorized as falling within the ambit of the "worst types" wilful murder cases. I hold the view that the extenuating circumstances under which it was committed to be so exceptional hence falling short of the "worst type" category.
18. In deciding the sentence I should impose on you and whether parts of your sentence should be suspended, I have had the benefit to reading through the case of Thress Kumbamong v The State (supra). I consider it appropriate and adopt the sentencing reasoning in this case. Thress Kumbamong was sentenced to 9 years by the National Court however upon appeal the Supreme Court suspended her sentence and placed her on good behaviour bond. This was a domestic related incident in which the prisoner stabbed to death another woman for having an affair with her husband.
19. After the benefit which I have had on the cases presented before me and the most helpful arguments for and against, I have come to the conclusion that the appropriate sentence to be imposed upon you is as follows:
Ordered accordingly.
_______________________________________________________
Public Prosecutor: Lawyers for the State
Paul Paraka Lawyers: Lawyers for the Prisoner
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