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State v Amjoni [2021] PGNC 340; N9184 (22 September 2021)

N9184

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1290 OF 2021

THE STATE

V

ISMAEL AMJONI

Lae: Kangwia J.

2021: 17, 21 & 22 September

CRIMINAL LAW – Murder – Unprovoked torture killing of wife by husband – Brutal and cold-blooded killing of harmless innocent victim – disregard for sanctity of life – Prevalence of offence – Sentenced to 40 years.

Cases cited:
Manu Kovi v the State (2005) SC 789;
State v Luther Francis (2016) N6267;
State v Mareva (2012) N4805.

Counsel
P. Matana, for the State
G. Peu, for the Defendant

22^nd September, 2021

1. KANGWIA J: Ismael Amjoni was convicted after a trial for murdering his wife pursuant to s300 of the Criminal Code Act. (CCA). He is appearing as a prisoner for sentencing.
2. The State alleged that the prisoner killed his wife in their house and carried it to a creek nearby where he left it. The mutilated body was found the next day beside a creek. According to the medical report the body had multiple wounds on the scalp, eyebrow, severed tongue, severed nipple, forehead, lower lip, below the chin and genital area.
3. The prisoner is 46 years old and was married to the now deceased and has two children. He is a villager. On allocutus he again elected to remain mute. He had elected to remain mute earlier at the close of the case for the State.
4. On the prisoner’s behalf Ms Peu after discussing the law and principles in sentencing through her written submission submitted that, the present case fell into the 2^nd and 3^rd category of the guidelines in Manu Kovi v the State (2005) SC 789.
   
5. The prisoner was a first-time offender and co-operated with police. Without explaining how, Ms Peu submitted that the killing is self-inflicting.
   
6. Several cases were referred to, but the relevant ones seem to be these. In the State v Luther Francis (2016) N6267 the prisoner who was convicted of murder after a trial for strangling and stabbing his wife was sentenced to 30 years.
   
7. In the case of the State v Mareva (2012) N4805 on a guilty plea to murder for continuously beating his wife for three days with a car jack was sentenced to 24 years.
   
8. For the State Ms Matana sought a sentence of 25 to 35 years. The injuries sustained by the deceased were vicious and gruesome. The medical report described it as death by mutilation. The killing can be described as barbaric and with no regard for human life. The deceased was injured from the head to her genital area. The loss of life called for an immediate custodial sentence.
   
9. After referring to several cases it was submitted that those cases were not comparable with the circumstances of the present case.
10. On a perusal of the cases cited by counsel, I agree that this case is far worse than those cases and an approach different from the cited cases is appropriate.
    
11. The crime of murder under s300 CCA prescribes the maximum penalty as life imprisonment. The imposition of the maximum penalty is subject to the discretion available under s 19 CCA and the practice of law that the maximum is reserved for the worst type of each offence.
    
12. Discretion aside what is the worst type of murder? This question has not been addressed by counsels, but it is worth a mention in passing as “worst category” is a regular synonym used during decisions in sentencing.
    
13. In the renowned case of Manu Kovi v the State (2005) SC 789 the Supreme court determined the worst category attracting life imprisonment for murder as:

1- Premeditated killing
2- Brutal killing in cold blood
3- killing of innocent, harmless person
4- killing in the course of committing another serious offence
5- Complete disregard for human life

14. I have numbered them in this decision for my convenience only. In my view from the description of the types of killings under category four for murder, two options exist to arrive at a conclusion that a case fell into the worst category.
    
15. First is where all the 5 descriptions are present, the murder case in question automatically falls into the worst category attracting the maximum prescribed penalty. Discretion plays a minimal role.
    
16. Second is where a combination of any of the five descriptions are present the exercise of discretion would determine whether the maximum prescribed penalty is warranted.
    
17. The prisoner in the present case should have been charged for wilful murder. From the evidence before the Court there was a strong intention to cause death. He was charged with the lesser offence of murder.
    
18. Be that as it may, this case is not one where the killing occurred in the course of committing another serious offence. It is a premeditated killing where the victim was tortured to death. It is reflected in the multiple injuries on the body.
    
19. The injuries were also varied, with stabbings, cutting and severing of body parts. The deceased must have suffered excruciating pain before her death. There was complete disregard for the sanctity of life.
    
20. Most of the determinations under the fourth category of murder in the Manu Kovi guidelines are satisfied under the circumstances of this case. There is an element of premeditation present.
    
21. From the multiple injuries found on the body, the only reasonable conclusion is that the prisoner took time to cause the injuries which were scattered all over the body. The multiple injuries could not have been caused if he was in a hurry. The killing was inside his house and not somewhere where he would have been disturbed. The knife used was left behind in the house. In the decision on verdict the Court determined that if another person had intended to kill the deceased, it would have been swift.
    
22. The killing was brutal and cold blooded. Brutality is amplified in the medical report of multiple wounds on various parts of the body.
    
23. The killing was on an innocent harmless person. There is no evidence that the deceased did something untoward to be blameworthy for torture. It is safe to assume that the deceased was also unarmed at the time she met her fate.
    
24. Having considered that most of the determinations under category four of the Manu Kovi guidelines are present, what then is the relevant sentence that should be imposed.
    
25. In my view this case falls into the worst category of murder. Most of the relevant determinations under category four of Manu Kovi are satisfied. It demands the maximum prescribed penalty. The only mitigating factor is that the prisoner is a first-time offender. That falls into insignificance given the very serious nature of the offence he committed.
    
26. I would not hesitate to impose the maximum prescribed penalty. However, it was not sought by the State. Lack of request for the maximum penalty dissuades me from imposing life imprisonment. Even though it is a fetter of discretion by the absence of a request, a sentence in lieu of it is appropriate. The prisoner is sentenced to 40 years imprisonment. The sentence is premised on the fact that he is now aged 40 years.
    
27. The time in pretrial custody shall be deducted and the balance shall be served at CIS Buimo.

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Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Defence