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State v Andreas [2017] PGNC 306; N6981 (25 May 2017)

N6981

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR NO. 1290 OF 2016


THE STATE


V


DANIEL ANDREAS


Wabag: Auka AJ
2017: 23rd, 24th & 25th May


CRIMINAL LAW – Sentence – Murder – Prisoner murdered his young wife – Use of Dangerous Weapon namely bush knife – Caused Multiple Injuries on Neck Region – Deceased died instantly – Pleaded guilty – Mitigation and Aggravating factors considered – Custodial Sentence appropriate – 22 years imprisonment – Less time spent in pre-trial custody – Further Deduction of 2 years for early plea of guilty – To serve 17 years 5 months S. 300 (1) (a) & S.19


Case Cited:
Goli Golu v. The State [1979] PNGLR 653
Joseph Enn v. The State (2004) SC 738
Lawrence Simbe v. The State [1994] PNGLR 38
Manu Kovi v. The State (2005) SC789
Michael Miomi v. The State (2005) Unreported Judgment SCRA No. 33 OF 2004.
The State v. Joseph Ulakua (2002) N2240
The State v. Steven Kenny (1991) N1881


Counsel:


Ms. Rebecca Koralyo, for the State
Mr .Jeffery Kolowe, for the Accused


DECISION ON SENTENCE


25th May, 2017
1. AUKA AJ: An Indictment was presented by the State against the accused on 23rd May, 2017. The State charged the accused with one count of Murder pursuant to section 300 (1) (a) of the Criminal Code. That followed a plea bargain between the parties from the more serious offence of wilful murder under S.299 of the Criminal Code. The accused pleaded guilty to the charge.


2. The provision under Section 300 (1) (a) reads;

“S.300 Murder

(1) Subject to the succeeding provision of this code, a person who kills another person under any of the following circumstances is guilty of Murder;

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


3. The brief facts of the case were that on Tuessay, 20th October 2015, the accused Daniel Andreas went to Yangil Village Court, in relation to his marriage to the deceased, Ms Parakis Ikio. From there the accused went to Polyampos Village where his deceased wife’s family live. The deceased was in her father’s house. Upon his arrival he told the deceased to come home with him which she refused. He then took a bush knife and slashed the deceased neck region more than once. The deceased collapsed and died instantly and he ran away. He was later surrendered by his clansmen and arrested. State alleged that by his actions he intended to do grievous bodily harm to the victim but she died as a result of the injuries.


4. A Medical Report by Dr Raymond Saulep dated 22nd October, 2015 confirmed that the victim’s body was received at Emmanuel Lutheran Rural Hospital on 20th October and was viewed on 21st October, 2015 during the Post Mortem. On physical examination the doctor examined multiple deep wounds to her neck region as follows;


  1. Right side of neck: deep wound extending from the lateral aspect of neck through to posterior aspect of the head measuring 25 cm long x 7 cm wide x 5 cm deep. The cervical spine was fractured at that level;
  2. Left side of the neck: deep wound extending from just above lateral aspect of left brow, running obliquely through the left neck, involving top third of ear and base of the skull at that point, and extending right through the back of head. It measured 22 cm long x 2 cm wide x 5 cm deep;
  1. There was second wound on the left side skull. This was on the maxilla region. It measured 8 cm long x 2 cm wide x 1 cm deep;
  1. There were three puncture wounds on the Mediolateral aspect of her left forearm. Each measuring approximately 1 cm long x 0.5 cm deep;
  2. There was a puncture wound at posterior aspect of her right shoulder measuring 1 cm long x 0.5 cm wide;
  3. There was a puncture wound also midway to her left posterior aspect (back);

The wound edges or margins were straight. This would indicate wound infliction with a sharp blade.


The above findings were conclusive that the deceased died from extensive wounds sustained to her neck region. It is highly possible that she died secondary to hemorrhagic shock.


5. On his statement on Allocatus, the Accused gave a lengthy statement and said:


“I have paid for that woman and she is my wife, she is my only wife and we both got married when we were single. I paid her with 16 pigs and K5, 000. 00 cash as bride price. I paid the bride price in 2013 and she stayed with me only for a month and she went back to her village and she stayed home with her parents. I thought she was going to come back to me but all of the year 2013 she didn’t settle back in the village but she seems to be going around attending to social gatherings. When I went to her house, I was told of the story and I asked her to come with me but she refused so I went back to my village. When I returned for the second time I took a pig to her village in order for her to come with me. When I went to her village she was not there in the house. I left the pig there and I told them if she comes, she can come to my village. She did not come to my village so for second time I brought another pig to her village which was after a month. That time we went together to my village and she spent only a week with me in my village and went back again. My parents have their own needs at home. Whatever I had we paid the bride price already. And on the third time I brought another pig and as usual she spent few days with me and went back again. The marriage we have is something for life time. She did wrong thing so I did wrong to her. I killed her so I say sorry to the court. Because of her parents made her stay back in their own village so I did that. All my sisters are married and my parents are elderly people and so I say sorry to the court and ask the court to have mercy on me. I am asking the court if it can place me on good behaviour bond so that I serve my term outside. This is my first time to do a trouble and I will never do such a thing again. In the eyes of everyone in the court room and in the eyes of God I say that I did the wrong thing and I ask the court again to have mercy on me. I say sorry to my In-laws and to the deceased. I also say sorry to my old parents. Again in the eyes of God and the Court, I promise that I will never commit a wrong again, that’s all”.


6. In relation to accused’s personal particulars, Counsel for the Accused Mr Kolowe submitted the following;


  1. That the accused is 35 years old and married to the deceased in 2013 and have no children;
  2. That he is the 5th born in the family of 5 children. He is the only male and the others are sisters who are all married and have moved on in life with their husbands;
  3. That he was the only one looking after the parents prior to the incident;
  4. That he has no formal education;
  5. That he is a member of the Catholic Church.

7. Mr Kolowe in his submission on sentence submitted that the court should consider the following factors:


  1. That accused pleaded guilty and saved court’s time and resources;
  2. He has willingly admitted the offence at the earliest opportunity;
  3. He has expressed genuine remorse to the court and to the parents and his own relatives;
  4. He has no prior conviction;
  5. He is a first time offender;
  6. He readily admitted to the police during record of interview;
  7. That there was no Pre Planned attack and;
  8. There was no intention to kill the deceased.


8. Mr Kolowe submitted that the maximum penalty for this crime is life Imprisonment. He submitted that the maximum penalty is reserved for the worst type of murder case. He submitted that the court has discretion to impose lower sentences with or without other forms of punishment enumerated under S.19 of the Code. He referred the court to the often cited case of Manu Kovi v. The State (2005) SC789 and submitted that the case falls under category one (1) and submitted that the sentence the court should consider is within the range of 10 to 15 years and reduced by 1 year 5 months for pre trial custodial term and serves the balance of the term.


9. Ms Koralyo of counsel for the State submitted and urged the court to consider the following aggravating factors against the accused:

  1. That a dangerous weapon namely a bush knife was used;
  2. That there were multiple wounds;
  3. That the accused had a strong desire to do grievous bodily harm in that he inflicted some form of harm to the deceased;
  4. That he was not justified to kill the deceased;
  5. That he did not surrender himself but he ran away. It was his clansmen that surrendered him to Police;
  6. That he had not shown genuine remorse and he still believed that his actions was justified by his behaviour;
  7. That the “victim impact statement” which Ms Koralyo handed up in court showed that only 1 pig and K800. 00 was received by the victim’s relatives as “Belkol” money;
  8. That a young life had been lost;
  9. The offence is a prevalent offence.

10. Ms Koralyo referred the court to the often cited case of Manu Kovi v. The State (2005) SC 789 and submitted that the case falls under category 3 as there was strong desire to do grievous bodily harm, a dangerous weapon was used, multiple wounds inflicted causing very serious injuries and caused instant death. Ms Koralyo submitted that this case is close to one of the worst type of murder case. Therefore she submitted that the appropriate sentence would be between 20 to 25 years. She said that the accused by his actions had complete disregard of human life.


11. As stated the maximum penalty for the offence of murder under section 300 (1) (a) is subject to section 19, life Imprisonment.
However it is a sentencing principle that maximum penalty is reserved for the worst type of cases Goli Golu v. The State [1979] PNGLR 653.


12. It is an established principle on sentence that each case should be considered on their own facts and circumstances; Lawrence Simbe v. The State [1994] PNGLR 38.


13. Sentencing guidelines for murder cases are set out in the case of Manu Kovi v. The State (supra). As for the present case, Ms Koralyo correctly stated that this case falls under category 3 of Manu Kovi case (supra). The category three (3) in Manu Kovi’s attracts sentencing range between 20 to 30 years. The nature of injuries sustained by the deceased strongly suggest that there was an intention on the part of the prisoner to cause grievous bodily harm.


14. I must say that what the prisoner did by viciously and pre-maturely terminating the life of a young woman is cruel, barbaric and must be condemned in strongest terms. He went into a village and premises that was not his and attacked the deceased. He trespassed onto other people’s property and committed a very serious offence.


This kind of barbaric act of killing is common in this part of the highlands region. Men folk in this region of the country must understand that assaulting woman, inflicting bodily injuries on woman or causing grievous bodily harm or even killing woman is not at all the right way of solving problems.


In the case of The State v. Steven Keny (1991) N1881, His Honour Kirriwom J made it very clear when he said:


“Resorting to physical violence to resolve ones anger is not the right behaviour of decent and respectable men. Men who expect respect and support from their women must earn that respect by their conduct deserving of praise and dignity. The prisoner simply lost his self control and as a consequence an innocent life is lost”.


15. This case is a classic example of a man with his own gratification without any regard for the deceased’s God given life but decided and attacked her, taking her life in the process. That in my view is a total reckless indifference to human life.


16. This accused displayed careless and cruel attitude and I can only comprehend the deceased experience as she was dying as unimaginable. Therefore I can conclude that his plea for mercy and leniency are overshadowed by his exhibition of heartless cruelty.


17. This case is one of the many hundreds of cases that come through this courts where the courts have held that sentence that is imposed must be one fitting the crime and must also deter other would be offenders.


18. I consider that the accused was a frustrated man as shown in his lengthy statement on allocatus but in my view he could have easily divorced her and let her go her way and he go his way as she was not showing her love to him. He could have easily found another wife. However he choose not to do that instead he did what he did by terminating the God given life of a young woman. He is a middle aged man. His parents are old and alive. He is a member of Catholic Church. He is a person of prior good character and has no prior conviction. He has pleaded guilty at his earliest opportunity and has expressed remorse in Court. I also considered all that he said in his Allocatus. In determining the appropriate sentence, I take these factors and matters into account in his favour.


19. Against the factors in his favour, I take into account the following aggravating factors:


  1. That a dangerous weapon namely a bush – knife was used;
  2. That multiple bush-knife wounds were inflicted on the deceased body;
  3. That the accused had a strong desire to do grievous bodily harm;
  4. That a young life had been lost;
  5. It was a senseless killing and
  6. That the offence of Murder is a prevalent offence.

20. There are three (3) cases that I refer to in assisting me in considering the appropriate sentence. The cases are:


  1. Joseph Enn v The State (2004) SC 738. In this case the appellant used a bush knife and completely severed the deceased neck. He pleaded guilty to the charge of Murder and the National Court in Kundiawa sentenced him to 20 years imprisonment. He appealed against the sentence of 20 years imposed on him. In dismissing the appeal the Supreme Court said that the appellant should have been indicted with the offence of Wilful Murder.
  2. In The State v. Joseph Ulakua (2002) 2240, the accused used a bush-knife and cut his wife’s both legs severing the bone and veins and caused excessive bleeding resulting to her death. The National Court sentenced the accused to 20 years upon his plea of guilty to the charge of Murder.
  3. In Michael Miomi v. The State (2005) Unreported Judgement SCRA 33 of 2004, the appellant stabbed his wife with a bush-knife. She died as a result. He pleaded guilty and was sentenced to 15 years. He appealed on the basis of Severity of Sentence saying that the sentence was excessive. The Appeal was dismissed and sentence was confirmed.
  4. In the State v Miriki Arato (2012) N4767, the accused out of frustration used a bush knife and cut his wife on her neck and head. The wife ran away but accused followed her and continued to cut her. The victim was taken to the hospital and she died 11 days after. The National Court sentenced the Accused to 16 years upon his plea of guilty to the charge of Murder.

21. Weighing the factors for and against the accused, I note the aggravating factors outweigh those in mitigation. Given the sacredness of human life, the vicious thoughtless attack on the victim by use of a bush-knife on vulnerable part of victim’s body which caused death. I accept that the case falls under the third category of Manu Kovi’s case guidelines.


22. Based on the above considerations, I consider that the appropriate sentence is 22 years imprisonment. Accordingly I impose 22 years imprisonment in hard labour. I deduct the pre-custodial term of 1 year 5 months. That will leave the balance of 20 years 7 months to be served. I further deduct 2 years for prisoner’s early plea of guilty. That will now leave the prisoner to serve 17 years 5 months at Baisu Corrective Institute (CIS). A Warrant shall be issued in those terms.


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

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