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State v Steven [2017] PGNC 56; N6678 (22 March 2017)

N6678

PAPUA NEW GUINEA
[IN THE NATIONAL COURT JUSTICE]

CR. NO. 875 OF 2012

STATE

V

MARLIN STEVEN

Prisoner

Mendi: Ipang, J
2017: 10^th, 17^th & 22^nd March

CRIMINAL LAW – Sentence – Criminal Code Act – Section 300 (1) (A) Murder – Plea of Guilty – Prisoner and victim are co-wives to their common husband – Relationship between co-wives was sour due to on-going dispute between them – Prisoner stabbed the deceased victim on her mouth and left ribs – Deceased died from injuries sustained from the stabbed wounds.

Case cited:
Anna Max Marangi-v-State (2002) SC702
Goli Golu-v-State [1979] PNGLR 635
Hure Hane-v-State [1984] PNGLR
State-v-Kawin [2001] PGNC 42; N2167
State-v-Alice Mei Tombos CR. No. 1186 of 2013
State-v-Pombex Oxy CR. No. 278 of 2014 (2014)
Thress Kumbamong SCRA 29 of 2007
Counsel:

J.D. Waine, for the State
C. Koek, for the Prisoner

DECISION ON SENTENCE

22^nd March, 2017

1. IPANG J: This is the decision on sentence for the prisoner Marlin Steven of Tubiri village, Mendi, Southern Highlands Province who was found guilty of murdering one Margaret Kuta on the 10^th of March, 2012 contrary to Section 300 (1) (a) of the Criminal Code Act.

2. The prisoner and the deceased are co-wives to the common husband Kuta Kos of Una village, Lower Mendi. Prior to the 10^th of March, 2012, there has been an on-going dispute between the two (2) co-wives. They had sour relationship. On the 10^th March, 2012 in the morning, the prisoner and the deceased had a confrontation at Una market over the allegation by the deceased against the prisoner that she had destroyed her food garden that morning. By standers who were there stopped and separated the two from an eminent fight. A little later, the prisoner approached the deceased to shake hands and make peace. This led to a fight and in the course of the fight the prisoner pulled out a kitchen knife she has concealed and stabbed the deceased on her mouth. She then stabbed her the second time on her left side of her ribs. The deceased died from the injuries she sustained from the stabbed wounds.

3. The prisoner was charged from the offence of murder under Section 300(1) (a) of the Criminal Code Act which reads:

“300 Murder

(1) A person who kills another person under any of the following circumstances is guilty of murder –

(a) If the offender to do grievous bodily harm to the person killed or to kill some other person.

Penalty: Life imprisonment.”

4. It is the sentencing practice that the maximum penalty is usually reserved only for the worst types of cases. See State-v-Kawin [2001] PGNC 42; N2167; Goli Golu-v-The State [1979] PNGLR 635. Even if a case falls under the category of worst types of cases, imposition of maximum penalty is not automatic as it is the question of facts involved. The case of Hure Hane-v- State [1984] PNGLR gave description of situations or circumstances upon which life imprisonment can be imposed. Circumstances like a murder committed in the course of committing a crime of violence such as theft, robbery, break & enter or rape.

5. The question I need to address is; whether this case fall under worst types of cases for murder and would warrant a maximum penalty? Or does the case does not fall under worst category thus subject to Section 19 of the Criminal Code Act would warrant a lesser sentence.

6. The prisoner’s antecedent report revealed no prior convictions. In allocutus the prisoner said sorry to God, to the Court and to the deceased Margaret Kuta and her children & relatives. She asks for Court’s mercy.

7. The Pre Sentence Report (PSR) revealed that the prisoner and her relatives. The amount of K30, 000.00 in cash and 22 pigs valued at K70, 500.00 were given. Total amount of K100, 500.00 as compensation were paid. However, the PSR does not recommend the prisoner as a suitable candidate for probation supervision. The reason being that though considered as a low risk, her unpredictable behavior towards co-wives and other is a bit of a concern.

8. The prisoner is 40 years old from Tubiri village, Mendi, Southern Highlands Province. She comes from a big polygamous family where her father has married ten (10) wives. From her mother, she is the first (1^st) born of the two (2) children. Both her parents are alive but of old ages. Prisoner has not received formal education. She depends on subsistence garden to sustain her and her family. The prisoner is married. The prisoner and the deceased are co-wives to their common husband. It was revealed that the deceased left and married another man. While the deceased was absent, the prisoner took care of (deceased’s children and household items. The deceased had problems with her second husband and return. When the deceased return problem between her and the prisoner started which resulted in her death. She is a member of the Lutheran Church. She has been remanded in custody for two (2) years and four (4) months.

9. Prisoner has not committed any offence(s) in her life. She is the first time offender. She expressed remorse. She surrendered herself to the police the next day after committing this offence. She acted alone. Compensation was paid to the deceased’s relatives and the relatives accepted. In aggravation there was use of offensive weapon, a kitchen knife. A life was loss and can never be replaced. The offence of murder is serious and prevalent.

10. Ms. Koek for the prisoner submitted that the prisoner is a first time offender with previous clean record and was a good law abiding citizen prior to her arrest and detention. The prisoner has pleaded guilty saves State’s time and resources for putting up a trial. Considering all these factors and circumstances, Counsel submitted Court uses its discretion and apply Section 19 of the Code and impose a lesser sentence. State Counsel submitted that the case would fall under the top range of manslaughter cases and bottom range of murder case. Applying the sentencing guidelines in Manu Kovi case, it will fall under Category 2 thus attract sentence range between 13-16 years imprisonment.

Case Precedents

11. In Anna Max Marangi-v-State (2002) SC 702, the Supreme Court prescribed the sentencing range of willful Murder, Murder and Manslaughter and that case has also emphasized that in a contested or uncontested case of murder with mitigating factors and with aggravating factors, a sentence in the range of 13 to 16 years is appropriate. This case therefore will fall into the category (3) which relates to cases which fall on the top of range. Those cases involved application of direct force in a calculated manner, on the body using a weapon such as a knife, bush knife or axe thereby inflicting serious bodily injuries such as piercing vital organs or severing vital parts of the body. Death caused by single or multiple knife stab wounds on the head, face, neck and chest or the abdomen.

12. In State-v-Alice Mei Tombos CR No. 1186 of 2013, the offender pleaded guilty to the charge of Murder. She used a kitchen knife to murder the co-wife, the third wife of the common husband. The Court sentenced the offender to 17 years imprisonment. Five (5) years was deducted on account of the mitigating factors. Time spent in custody of two (2) years 19 days was deducted and the rest of the sentence was to be served in custody.

13. In State-v-Pombex Oxy CR. No. 278 of 2014 (2014), the accused was 23 years old at the time of the offence. She travelled from Mt. Hagen in the Western Highlands Province into Mendi Southern Highlands after hearing stories of the deceased having affair with her husband. The offender met the deceased who was alleged to have affair with the offender’s husband at the Mendi Bus Stop and stabbed her three (3) times in the chest which resulted in her death. The court considered all mitigating factors such as her guilty plea, killing in a domestic setting; she was a first time offender and her genuine expression of remorse. The court sentenced her to 14 years imprisonment. Three (3) years time in custody was deducted and the rest to be served in custody.

14. In Thress Kumbamong SCRA No. 29 of 2007 the Supreme Court emphasis that the sentencing guideline in the Manu Kove case is unnecessary and an illegal curtailment or fettering and a restriction of the distinction vested in a trial judge. In that case the court was of the view that no trial judge should feel compelled or bound to follow these Manu Kove case prescriptions. Instead they should exercise the wide discretion vested in them in the way they see fit as long as they take into account all the relevant factors and the particular circumstances in which the offence under consideration was committed and the sentence they eventually arrive at, sufficiently reflects the factors taken into account and the circumstances in which the offence under consideration was committed.

15. State Counsel submitted that for a head sentence of 16 years. However, since compensation was paid and guilty plea was entered, the Counsel proposed a head sentence of 13 years imprisonment.
    
16. The offence of murder is prevalent. In this part of the country disputes between co-wives leading to confrontations, fights, grievous bodily harm and murder are very common. Kitchen knives which are supposed to be in the kitchens are now used as murder weapons. While the co-wives are fighting and killing each other, their common husband is more relax and at peace. Obviously, common husband must play a key role in addressing differences between his co-wives.
    
17. Prisoner has acted within spare of the moment without considering the gravity of the consequences that will result from her actions. By the time, she realized, it was too late, a life has been lost and cannot be replaced.
    
18. I take in to account all the factors in the prisoner’s favour and against her. I consider the relevant case precedents and I consider the appropriate head sentence for the prisoner is 13 years imprisonment. I minus two (2) years, 4 months for time spent in custody. This will leave balance of ten (10) years, 8 months. I further deduct one (1) year, 8 months taking into account the plea of guilty and compensation that was paid. The balance of the sentence to be served is; nine (9) years imprisonment.

_____________________________________________________________

Public Prosecutor : Lawyer for the State

Public Solicitor : Lawyer for the Prisoner