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State v Pakova [2016] PGNC 80; N6286 (14 April 2016)

N6286

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR.NO.1489 OF 2015

THE STATE

V

TARCISIOUS PAKOVA

Palmalmal: Lenalia, J
2016: 6^th, 11^th, 12^th, &14^th April

CRIMINAL LAW – Charge – Murder – Plea of guilty – Sentence – Criminal Code s.300 (1) (2).

CRIMINAL LAW – Principles of sentencing in murder cases – Killing of his wife –Factors for consideration – Appropriate sentence – Term of years appropriate.

Cases cited.

Anna Max Marangi-v-The State (2002) SC702
Avia Aihi (N0.3)-v-The State [1982] PNGLR 92
Kepa Wanege-v-The State (2004) SC 742
Lawrence Simbe-v-The State [1994] PNGLR 38
Manu Kovi-v-The State (2005) SC 789
Simon Kama-v-The State (1.4.04) SC740
The State-v-Joseph Ulakua (22.5.02) N2240
Ure Hane-v-The State [1984] PNGLR 105

Legislation:
Criminal Code

Counsel:

Mr. L. Rangan, for State
Ms. J. M. Ainui, for Accused

14^th April, 2016

1. LENALIA, J: The prisoner Tarcisious Pakova of Pomio village, Pomio District, East New Britain Province, pleaded guilty to one count of murder under s.300 (1) (2) of the Criminal Code.

Summary of Facts:

2. Undisputed facts of this case are that, on Sunday 9^th August 2015, the prisoner, his wife Doris Tade and the prisoner’s sister in-law Sarah Longrea together with her son Kenneth left their home and wanted to go to Marunga Health Centre. The reason for going there was for the prisoner to get medication for pain relief because the prisoner had been earlier assaulted by the relatives of his wife.

3. After being treated for pains, they left the Health Centre to a nearby field where they sat down with others watching games. While watching games, a person by the name of Joachim came to the offender and offered him beer. They started to drink. After drinking the prisoner and his wife left. On their way an argument arose between the two of them where the offender told his wife that, her line had caused him problem by assaulting him because of her.

4. While walking back home, a plantation tractor stopped and picked them up. They were dropped off at JIN JIA LIN stores at Masarau village. His sister in-law and her son left them and the prisoner and his wife stayed at the junction. Still angered by what the wife’s relatives had done to him, the prisoner picked up three reef stones and commenced hitting the victim’s head three times. He got a fourth stone and again hit Doris on her head.

5. The deceased sustained serious injuries on her head and was bleeding heavily. She lost a lot of blood. She fell down on the ground unconscious. She was still unconscious when the prisoner carried her down to the beach and washed off the blood and carried her to Gumgum village. At about 10pm, the offender woke Sarah up and left Doris with her. Sarah alerted others and they all assisted the victim by taking her to Marunga Health Centre. The victim died at 7am the next day due to loss of blood.

Addresses on Sentence

6. In his address on sentence, the prisoner said, he is sorry for killing his wife. He said, it was an unfortunate situation aced with because, relatives of his wife had bashed him up and he showed his frustration to the victim. He said he is sorry and asked that, if he can be given a lenient penalty.

7. Ms. Ainui addressed the court on a number of extenuating factors. First on the prisoner’s antecedence, she said, the offender is:

➢ 27 years old now.
➢ He comes from Pomio village, Pomio District, E.N.B.P.
➢ His parents are both alive.
➢ He is the fourth born in the family of five siblings 3 boys and 2 girls,
➢ His second wife, is now deceased.

8. On what should be an appropriate sentence to be imposed, counsel submitted counsel referred to one or two murder cases where offenders have been sentenced to terms of imprisonment. Counsel asked for a lenient penalty due to the accused being a youth. On mitigations counsel asked the court to consider the following factors:

➢ The prisoner’s guilty plea
➢ The prisoner is a youthful offender,
➢ He was 27 years at the time he was arrested,
➢ No offensive weapons were used, but stones,
➢ The prisoner’s expression of remorse and call for leniency.

9. Mr. Rangan’s submission addresses the serious nature of the offence of murder. Counsel cited the case of Manu Kovi v The State (2005) SC678and the sentencing tariffs set for homicide case. Counsel submitted that the prisoner’s case should fall between categories 2 and 3 set in the above case.

10. Counsel argued that, this was the killing of an innocent person and the offender could have settled his problem with the relatives of the victim instead of taking the law into his hands. Counsel submitted that, a deterrent penalty should be given.

Pre-Sentence Report

11. I have read the pre-sentence report. The prisoner’s brother Felix Pakova expressed sorrow on the death of the offender’s wife because; the victim’s mother ought to be blamed for the death of the prisoner’s wife because she gave herbs to her daughter to abort the unborn child. Felix says he will assist his brother pay K2, 000.00 toward compensation payment. He said, bel kol money of K2, 300.00 and one param bis had been paid to the victim’s relatives for restoration of peace and harmony between relatives of the victim and those of the prisoner.

12. Felix Pokava undertakes to pay a further K2, 000.00 cash and other relatives have made undertakings to pay up to K10, 000.00 to the victim and her relatives

Application of Law

13. The offence of murder under s.300 (1) & (2) of the Criminal Code is punishable by life imprisonment. The offender pleaded guilty to a charge. I quote the above Section because it defines circumstances under which the crime of murder is committed. The offender’s case is defined in Subsection (1) (a) which says that even where the offender intended to just cause grievous bodily harm to his wife (deceased). The above Section states:

“(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) if death was caused by means of an act—

(i) done in the prosecution of an unlawful purpose; and

(ii) of such a nature as to be likely to endanger human life; or

(c) if the offender intended to do grievous bodily harm to some person for the purpose of facilitating—

(i) the commission of a crime other than a crime specified by a law (including this Code) to be a crime for which a person may only be arrested by virtue of a warrant; or

(ii) the flight of an offender who has committed or attempted to commit an offence referred to in Subparagraph (i); or

(d) if death was caused by administering any stupefying or overpowering thing for a purpose specified in Paragraph (c); or

(e) if death was caused by willfully stopping the breath of a person for a purpose specified in Paragraph (c).

Penalty: Subject to Section 19, imprisonment for life.

(2) In a case to which Subsection (1) (a) applies, it is immaterial that the offender did not intend to hurt the particular person who was killed.

(3) In a case to which Subsection (1) (b) applies, it is immaterial that the offender did not intend to hurt any person.

(4) In a case to which Subsection (1) (c), (d) or (e) applies, it is immaterial that the offender—

(a) did not intend to cause death; or

(b) did not know that death was likely to result.”

14. The maximum penalty prescribed on this Section shows how serious this crime is. What the court has done is after reading the facts of the case and considering addresses on sentence, has also decided what should be the appropriate penalty to be imposed on the prisoner. The court has taken time to do that. It is established law that the maximum penalty ought to be reserved for the worst type case: Avia Aihi (N0.3) v The State [1982] PNGLR 92 and Ure Hane-v-The State [1984] PNGLR 105.

15. In various Supreme Court cases on appeals considered guidelines on sentencing have been set, reviewed or even re-reviewed in the hope that sentences impose for murder cases must feet the seriousness of homicide crimes. In those various cases the highest Court of this nation has said that where an accused pleads guilty or is found guilty on charge of murder, the court ought to approach sentence with serious consideration of the maximum penalty fixed by legislature first. A prisoner then bares the onus of establishing why the maximum penalty should not be imposed: Anna Max Marangi-v-The State (2002) SC702, Manu Kovi-v-The State (2005) SC 789. (Anna Max Marangi v The State’s case was manslaughter referred to in Manu Kovi v The State I comparison with sentences for murder).

16. In Max Java-v-The State (20.12.02) SC 701, the appellant pleaded guilty to one count of murder and was sentenced to 20 years imprisonment. He appealed on the grounds of severity of sentence. The appeal was dismissed by the Supreme Court because the sentence was appropriate to the degree of violence taken by the appellant. In The State-v-Joseph Ulakua (22.5.02) N2240, the National Court sentenced him to 20 years imprisonment for the murder of his wife which is similar to the current case.

17. In Simon Kama-v-The State (1.4.04) SC740, the National Court sentenced the appellant to 25 years imprisonment following a murder committed in the course of committing an armed robbery. The victim in that case was shot and died. He appealed against sentence on the basis that the sentence was excessive. The Supreme Court dismissed the appeal because it found that there was no error on the part of the sentencing discretion of the primary court.

18. In Kepa Wanege-v-The State (2004) SC 742, the appellant was sentence to 20 years for the similar offence as the instant one. He pleaded guilty and was sentenced accordingly. His grounds of appeal were that the sentence was too excessive, that he had paid full compensation to the relatives of the deceased and that he had surrendered to the State authorities. His appeal was dismissed on the basis that the three grounds of appeal were unmeritorious.

19. What becomes obvious about the sentencing trends by the National Court and those cases dealt with on appeals in the Supreme Court is that homicide crimes are so seriousness, and offenders ought to be appropriately punished. This approach is a reflection the serious nature of homicide cases. Because there is so much unwanted killings in all communities in the country, sentences for the offence of willful murder, murder or manslaughter ought to be raised high in the hope to deter this practice.

20. The prisoner’s case could fall under category 2 or 3 suggested by the Supreme Court in the case of Manu Kovi-v-The State (2005) SC 789. That is because the court finds from the facts presented to the Court, that though the prisoner did not have any strong intention to cause grievous bodily harm to the victim. He however used three reef stones to hit the victim’s head. As though the three stones he used were not enough, he used a fourth stone to hit the deceased head.

21. Whatever determination on sentence is arrived at is entirely within the domain of the sentencing authority exercising proper restraints in imposing punishment that is not inordinately low or excessive and having proper regard to the relativity of the offence with the other degrees of that particular offence. His Honour Kandakasi J applied this sentencing principle in the case of, The State-v-Angavi (No.2) (2004) N2590 when his Honour said:

“In arriving at that sentence, I noted that the sentences in the past-decided cases are only guides. This is so because; usually the question of what is an appropriate sentence in any case is dependent on the particular circumstances or facts of each case. Hence, in the exercise of the discretion vested in him or her under s. 19 of the Criminal Code, a sentencing judge always has to take into account the prevalence of the offence and the interest of the society to have itself protected from offenders on the one hand and on the other hand, the need to rehabilitate offenders.”

22. Another elaborate statement of the principles of sentencing in murder cases was made by His Honour, Injia J (as he then was) in The State-v-Jonathan Sokai (2002) N2334 stated with clarity, the principle that is well settled on the proper exercise of discretionary power of sentencing on murder cases where his Honour said:

“The maximum punishment for the crime of murder is life imprisonment. By virtue of s.19 of the Criminal Code, the Court has discretion to impose a term of years in appropriate cases. The maximum punishment is reserved for the worst case of its kind. The question whether the circumstances of a particular case constitute the worst case of its kind is a question of fact. In considering the appropriate punishment in a particular case, the Court must have proper regard to the seriousness of the offence, the community interest intended to be protected by the offence, the purposes of sentencing to be emphasized, the personal circumstances of the offender and extenuating circumstances which mitigate punishment and the aggravating circumstances of the offence. Other related relevant factors include the effect of voluntary intoxication, prospect for rehabilitation of the offender and any likelihood that the offender will re-offend in the future and thereby pose a danger to the community: John Elipa Kalabus v. The State [1988] PNGLR 193. The Court must then balance all these relevant factors and impose a sentence which fits the crime.”

23. What particular sentence that should fit the crime has no precise meaning but it is an assessment of various circumstances when weight against mitigations and aggravations. On consideration of appropriate penalty, should and ought to be done taking into account the fact that, the prescribed penalty is life imprisonment.

24. The court noted the photos on the file No.1 and 2. The face of the victim was totally swollen all over the facial region. The injuries caused to her head, were so large and although the wound may have been treated, according to the medical report she had lost so much blood. The medical report done on the victim by Nursing Sister Linda Konna at Maruga Health Centre reported severe injuries being caused to the victim’s face and head. Sister Linda noted the following injuries:

- Head – several deep wounds and bleeding,
- Face – swollen,
- Eyes – both swollen, unable to open eye lids,
- Central Nervous system – unconscious,
- Heart beat – 58/min,
- Abdomen – soft/parable,
- Limbs – bruises & both upper limbs punctures writs,
- General body full of sand and dry blood,
- General condition – unconscious & looks anaemic,
- Trauma to head (brain injury).

25. The maximum penalty prescribed by s.300 (1) of the Criminal is not mandatory because under s.19 of the Code there is always the discretion in the Court to impose a term of years. However, the exercise of such discretionary powers of the Court under that provision must be based on the sentencing policy and principles applicable to sentencing options given to the Courts by legislation in any given case.

26. I consider the principle in the Supreme Court case of Lawrence Simbe v The State [1994] PNGLR 38, where the Court said that each case of must be decided on a case-by-case basis but always remember that s.300 of the Criminal Code prescribes life imprisonment.

27. The court considers the principle stated in the case of Kesino Apo v The State [1988] PNGLR 182 which this court referred to in State v Malari Toliu (No.3) (9.9.2014) Cr.No.417 of 2011 where the court said that the loss of a love one is a consideration on sentence. In that later case (State v Malari Toliu (No.3) (supra), the offender was charged with willful murder of his own wife. That was his second conviction for the willful murder of his first wife. The court found it was merciless killing of his late wife. Instead of imposition of the death penalty, this court considered that he lost a loved one; he was sentenced to life imprisonment.

28. On the current case, it is another case of brutal killing of the offender’s own wife. The person responsible for the loose of the victim’s life on the instant case was and is non-other than the husband of the deceased. The law expects married couples to settle disagreements amicably between themselves. It seems like you had grudges with the victim’s line. Why not settle with them before the Village Court or the Ward Members and Committees. You took the law into your own hands and instead of settling amicably, you used stones to hurt the victim which caused her death.

29. The current case was aggravated by a number of factors. First, the prisoner used three reef stones to inflict serious wounds on the head of the deceased. He used another stone and repeated hitting Doris until she fell unconscious and fell onto the ground losing a lot of blood.

30. The court has considered the prisoner’s guilty plea and his address on allocutus. I have also considered counsels’ submission on sentence and the terms of the pre-sentence report. The court considers the fact that, the death of the victim is a loss to the prisoner and the relatives of the deceased: Kesino Apo v The State (supra).

31. He is sentenced to a term of 15 years imprisonment. The court suspends 5 years from the head sentence on the following conditions:

1. He shall pay a further compensation of K2, 000.00 plus 2 kalkal shell money.
2. After serving the balance of 10 years, he shall be of good behavior for 2 years.
3. The custody period shall be deducted. He shall serve the balance.
   

32. Let the court say here that, if the parties want to pay more compensation, they by custom can do that because this court’s jurisdiction is limited by the Criminal Compensation Act. According to the Act, this court can only order up to K5, 000.00 compensation both in cash and kind. The court notes from the pre-sentence report that the parties particularly the prisoner’s relatives wish to pay more compensation. They are at liberty to do that.

_____________________________________________
The Public Prosecutor : Lawyer for the State
The Public Solicitor : Lawyer for the Accused