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State v Tom [2016] PGNC 166; N6355 (15 July 2016)

N6355

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1423 OF 2015

BETWEEN

STATE

V

SENIS TOM

Mendi: Ipang, J

2016: 12, 14 & 15 July

CRIMINAL LAW –Criminal Code Act – Section 300 (1) (a) – Murder – husband killing his wife in a domestic setting – Plea of Guilty

CRIMINAL LAW – Sentence – Offence of Murder – killing in domestic setting – prevalent and very common – sentences with deterrent effect is most appropriate – a person’s right to life must be respected.

Cases cited

State-v-Daniel (No.2) (2005) PGNC 58, N2890

State-v-Douglas Mareva (2012) PGNC 222, N4805
State-v-Miriki Arato (2012) N4764

Counsel:

S. Luben, for the State

C. Koek, for the Offender

DECISION ON SENTENCE

15^th July, 2016

1. IPANG, J: On the 12^th July, 2016 on arraignment on one (1) count of murder pursuant to section 300 (1) (a) of the Criminal Code Act, chapter 262, you pleaded guilty to committing this offence. I enter provisional plea of guilty. After the District Court Committal depositions were tendered, I perused the File and confirmed your plea of guilty.

2. The brief facts for the purpose of your sentence are as follows; you’re the husband to the deceased Wendy Nelson. You reside with your wife and your two (2) years old child at Paga Hill, Mendi Town, Southern Highlands Province. On the 24^th day of May, 2015 at around midday, your wife (deceased) was preparing food to cook. You went to buy cooking oil and you brought it back to your wife. You then spoke to your wife about you all going to your village. Your wife refused. You and your wife agued over this issue for a while. Your wife then took off to the home of your relatives and came back with three (3) women. The women stayed with your wife for a while and then left. You went and sat on a stool near the kitchen. You and your wife then argued again. Your wife went to the side of the kitchen and sat there. You picked an axe from the kitchen and followed her. When you approached the side of the kitchen you lifted the axe. At the same time your wife put her head out from the side of the kitchen. The axe landed on her head. You then fled from the scene of crime. Your wife’s mother and a neighbour were alerted by children who were playing nearby. Both found the deceased lying on the ground with bleeding from her head. The axe was found near her body and her body was covered with blood.

The Offence (Charge) & Penalty

3. The Offender is charged pursuant to section 300 (1) (a) of the Criminal Code Act, chapter 262. This provision reads;

“300. Murder

(1) Subject to the succeeding provisions of this Code, a person who kills another 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;

Penalty: Subject to Section 19, imprisonment for life.”

Antecedent Report

4. The antecedent report tenders by State Prosecutor recorded no prior convictions against the Offender as such the Offender is a first time Offender.

Allocutus

5. The Offender said he is sorry to God for what he did. He said sorry to Court and the State and to the Complainants. He said sorry to his brother for looking for pigs and food stuffs for the compensation. He said sorry for his deceased wife. He said he has a child and don’t know her future. He asks Court to have mercy on him.

6. Offenders Personal Particulars

1. He is 27 years old from Was village, Mendi, Southern Highlands Province.

2. He comes from a polygamous family where his father is married to four (4) wives.

3. He is a villager never been formally educated.

4. He is a father to a two (2) years old child.

5. The offence was committed in a domestic setting.

6. Compensation was paid. Total worth of pigs and cash money of K200, 000.00

7. He is the first time Offender

8. Spent one (1) year, one (1) month in custody.

7. Mitigating Factors

1. first time Offender

2. expressed genuine remorse

3. committed family man

4. co-operated with the police and made early submissions

5. he acted alone

6. there was one blow

7. offence took place in a domestic setting

8. paid compensation

8. Aggravating Factors

1. offence committed is serous and prevalent

2. loss of life

3. dangerous weapon was used (an axe)

4. struck deceased on her head (one blow)

9. Submission by Defence

Ms. Koek for the Offender submitted that the Court should consider the prisoner is a first time Offender, expressed remorse as compensation has been paid. Court to exercise its discretion under section 19 and sentenced the prisoner to 12 years minus the time spent in custody. Prisoner to serve the balance of the sentence.

10. Submission by State

Ms. Luben for the State submitted that although this instant case does not fall under the worst type of case, it requires a deterrent sentence. State recommends for a 20 years sentence taking into account Category 2 in Manu Kovi’s case.

Case Precedents

11. In State-v-Miriki Arato (2012) N4764, the offender murdered his wife. There were multiple injuries. Deceased died after being admitted to Goroka Base General Hospital. The attack on the deceased was vicious. Offender was sentenced to 16 years imprisonment. Pre-trial remand period was deducted and offender to serve 12 years, 07 months, 03 weeks and 01 day imprisonment.

12. In State-v-Douglas Mareva (2012) PG NC 222 N4805 prisoner is the husband of the deceased. Killing arose in a domestic setting. It was a cold blooded killing in which the deceased was continuously beaten for 3 days. Offender was sentenced to 24 years imprisonment.

13. In State-v-Daniel No. 2 (2005) PGNC 58; N2890, Prisoner was convicted after trial for murder of his wife. He was sentenced to 25 years imprisonment.

Court’s Analysis

14. The killing took place in a domestic setting. Such an offence is very common and prevalent. Though it was just one blow, it was a fatal blow on the most vital part of the deceased body, her head with a dangerous weapon an axe.

15. The offence committed and the nature of it does not fall under the worst type of case. Therefore, the maximum penalty of life imprisonment will not be imposed however subject to section 19, a lesser term of years will be considered.

16. I take into account the antecedent report, what the Offender said in allocutus, the mitigating and aggravating factors, I consider the circumstances leading up towards the deceased death and I consider the appropriate starting head sentence would be 14 years. I deduct one (1) year, one (1) week for the Pre-Sentence Period in custody. This will leave the balance of 13 years, 11 months, 03 weeks. Taking into account the Prisoner’s plea of guilty and compensation paid, I further deduct 2 years. This will leave the Offender to serve 11 years, 11 months 03 weeks imprisonment.

Sentenced accordingly

_______________________________________________________________
Public Prosecutor : Lawyer for the State
Public Solicitor : Lawyer for the Offender