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State v Andrew [2021] PGNC 552; N9381 (23 December 2021)

N9381

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1280 OF 2019

THE STATE

V
ROSAWAN ANDREW

CR NO. 1282 OF 2019

THE STATE

V

JOSHUA PHILIP

Baisu: Toliken J
2021: 13^th May, 13^th August, 23^rd December

CRIMINAL LAW – Practice & Procedure - Sentence – Murder – Guilty plea – Multiple offenders – Killing in domestic setting – Abusive deceased husband assaults offending wife with crowbar – Co-prisoner (stepson) grapples with deceased in attempt to wrestle crowbar from deceased – Wife repeatedly stabs deceased on back with kitchen knife killing him – Criminal Code Ch. 262, s 300(1)(a).

PRACTICE & PROCEDURE - Sentence – Individual degree of culpability and participation considered – Offending wife more culpable – Stepson’s degree of participation in actual killing – Minimal.

PRACTICE & PROCEDURE – Sentence – Not worst case - Individual mitigating & aggravating factors considered – Physical, emotional, and psychological abuse of offending wife by deceased considered – Role of offender stepson in killing considered – Appropriate sentence – 15 years and 7 years less time in presentence custody – Suspension – Appropriate cases for – Partial suspensions with condition.

Cases Cited:

Goli Golu v The State [1979] PNGLR 653
Avia Aihi v The State (No. 3) [1982] PNGLR 92
Ure Hane v The State [1984] PNGLR 105
Kumbamong v The State (2008) SC1017
Ignatius Pomoloh v The State (2007) SC834
Manu Kovi v The State (2005) SC789
Yalibakut v The State (2006) SC890
The State v Pauline Kewa (2021) N9356
The State v Giblin Borewa (2018) N9246
The State v Roy (2015) N5968
The State -v- Mark (2010) N4182
The State -v- Topi (2010) N4667:

Counsel:

J Kesan, for the State

E Wurr and Pepson, for the Prisoner

SENTENCE

23^rd December, 2021

1. TOLIKEN J: INTRODUCTION: On 13^th May 2021, Rosawan Andrew (Rosawan) and her son Joshua Philip (Joshua) were indicted for the murder of one Buka Michael (deceased) on 25^th May 2019 at Lan Ruti Village, Dei Council, Western Highlands Province in contravention of Section 300(1)(a) of the Criminal Code. (The Code) They both pleaded guilty to the charge.
   

FACTS

2. The brief supporting facts are that Rosawan was married to the deceased Michael Buka. She was, however, previously married to co-prisoner Joshua’s father.
   
3. On the night of 25^th May 2019, the deceased had returned home sometime between 10.00 and 1.00p.m after watching television with other villagers and had an argument with Rosawan. Joshua was at his uncle’s house when he heard them arguing. He went over and saw the deceased and his mother fighting. He pulled a crowbar the deceased was holding and hit him on the head with it. As the deceased and Joshua were fighting, Rosawan produced a brown handled knife and stabbed the deceased several times on his body. The deceased subsequently died from the wounds he sustained.
   
4. The State invoked Section 7 of the Code.
   
5. The deceased’s post-mortem report revealed that he died of Hemopneumothorax from multiple chest wounds to the back – two (2) at level of 6^th intercostal space left posterior chest, one (1) at level of 11^th intercostal space left posterior chest and one (1) at level of 5^th intercostal right posterior chest.

THE OFFENCE

6. The offence of murder carries the maximum penalty of life imprisonment, subject to the Court’s discretion under Section 19 of the Code to impose a lesser sentence. The law is also clear that the maximum may only be imposed in the worst cases and that offenders will be sentenced according to the peculiar circumstances of their cases. In cases of multiple offenders, they will be sentenced according to their individual degree of participation. (Goli Golu v The State [1979] PNGLR 653; Avia Aihi v The State (No. 3) [1982] PNGLR 92; Ure Hane v The State [1984] PNGLR 105; Ignatius Pomoloh v The State (2007) SC834 followed)
   

ISSUE

7. My task now is to decide whether the prisoner’s case is a worst one, such that they ought to be served the maximum penalty. In other words what should be an appropriate sentence for them?
   

SENTENCING GUIDELINES

8. The unlawful taking of someone else’s life is a grave offence and therefore the law prescribes the death penalty for wilful murder and life imprisonment for murder and manslaughter. In The State v Giblin Borewa (2018) N9246, I said the following when sentencing a man for murder:
   
   16. The taking of someone else’s life is a grave offence that in times past almost always attracted a reciprocal penalty – life for life. The notion to avenge the death with death is universally held, the only difference being that in some cultures and societies, retribution follows a judicial inquiry, while in others the relatives of the victim take it upon themselves to mete out retributive justice regardless of whatever reasons the manslayers may have had, sometimes referred to as jus taliones or jungle justice.
       
17. Our criminal law reflects our Judeo-Christian heritage where the Mosaic Law decreed that one who takes another person’s life must also have his life taken – life for life. This reflected how the Author of life, Jehovah God, viewed the sanctity of life. Hence a wilful taker of life must be put death after due enquiry by judges or elders. For the one who accidentally took a life, the Law, however, was tempered with a merciful arrangement – the provision of cities of refuge where someone ... who accidentally caused the death of another could run to and seek refuge from the avenger of blood. This merciful provision stipulated that once the death had been adjudged accidental, the manslayer must remain in the city until the death of the incumbent high priest. If he happens to venture out of the city though, he runs the risk of being killed by the deceased’s relatives whose right to retribution still remained and only suspended by the safety accorded the manslayer within the walls of the city of refuge. (Deuteronomy 41- 43; Numbers 35; Joshua 20)
    
9. Over the years the Supreme Court had laid down sentencing tariffs and guidelines for homicide offences. The latest and prevailing guidelines are those in Manu Kovi v The State (2005) SC789. For the crime of murder, the Manu Kovi guidelines are as follows:
   

10. It is against these guidelines that I must now impose an appropriate sentence for the prisoners.
    

ANTECEDENTS

11. The prisoner Rosawan comes from Lan Ruti Village, Dei Council, Hagen District, Western Highlands Province. She is now 49 years old. She was 46 when she committed the offence in 2019. She is the wife of the deceased and the biological mother of the co-prisoner Joshua whose father she divorced after he contracted AIDS, among other reasons such as affairs with other women. She remarried the deceased who hailed from Kagua in the Southern Highlands province.
    
12. Rosawan left school at Grade 5 on her own accord, or due to her own laziness as she puts it in her presentence report (PSR). She had never been formally employed and had supported herself and her family entirely from subsistence farming. She has 3 children including Joshua from her previous marriage and 2 young ones with the deceased.
    
13. The prisoner Joshua is now 22 years old. He was 20 years old when he committed the offence. He is the son of co-prisoner from her first marriage. He has 2 younger biological siblings who are being cared for by their father’s sister Kini Philip at their village at Raiglamp, Central Hagen, Hagen District, Western Highlands Province. The prisoner and his siblings remained with their father after he divorced their mother Rosawan.
    
14. At the time of the offence Joshua said he was doing Grade 10 at Nunga High School in the Dei District of Western Highlands Province. Prior to the offence he was wholly supported by his mother Rosawan and his aunty Kini Philip. His father is still alive but is now very weak from effects of AIDS.
    
15. Both prisoners have no prior convictions and have been in pre-sentence detention for 2 years 6 months and 27 days since her apprehension on 26 May 2019.
    

ALLOCUTUS

16. Both prisoners apologised to the court and asked to be placed on probation.
    

SUBMISSIONS

17. Mr. Pepson submitted on behalf off the prisoners that this is not a worst case of murder even though he conceded that the attack on the deceased was vicious.
    
18. In respect of the prisoner Rosawan, counsel submitted that she was the subject of much abuse by the deceased - a known drug addict. She endured years of physical and psychological abuse at the hands of the deceased. The PSR, which was a balanced one, reveals that village elders intervened on three occasions and appealed to the deceased to stop abusing the prisoner, but their pleas went unheeded. They even gave money to the deceased to return to his home in Kagua in the Southern Highlands, but he did not leave. Rather he continued to abuse the prisoner and continued to demand money from her to prop up his drug addiction until things turned ugly on the night in question when the deceased assaulted the prisoner again – this time in the presence of her son who was visiting her and witnessed the abuse of his mother physically for the first time. All these have not been negatived by the State, hence should be applied in the prisoner’s favour. (Yalibakut v The State (2006) SC 890)
    
19. Counsel submitted therefore that the case falls under upper end of Category 1 and lower end of Category 2 of the Manu Kovi tariffs. And so coupled with good mitigating factors, counsel submitted therefore that an appropriate sentence ought to be less than 12 years less time in pretrial/sentence detention, and the Court may then consider partial suspension.
    
20. In respect of the prisoner Joshua, counsel submitted that he played a very minor role in the killing of the deceased. He was grappling with the deceased over a crowbar which the deceased was assaulting his mother with when his mother joined in and stabbed the deceased several times on the back killing him. All that he did was trying to defend his mother and wrestle the crowbar from the deceased. This prisoner’s culpability was therefore very low. And coupled with his mitigating factors which counsel said outweighed his aggravating factors he should get a sentence of less than five years. Suspension may also be considered.
    
21. Mr. Kesan for the State conceded that this was not a worse case but said that it fell under Category 2 of the Manu Kovi tariffs thus should attract a sentence between 16 – 20 years. While there was no pre-planning, the attack on the deceased was vicious. The Court may only partially suspend the sentence if it is mindful of exercising its discretion.
    

WHETHER WORST CASE

22. I agree with both counsel that this is not necessarily a worst case. However, Rosawan’s degree of culpability was much higher than that of his son Philip’s for the simple reason that it was her who directly killed the deceased. She used a dangerous weapon and displayed a strong desire to cause grievous bodily harm on the deceased. I agree partly with Mr. Pepson that her case would indeed fall under the upper end of the Manu Kovi tariffs, but it certainly would fall also within the mid-range of Category 2. Hence it should therefore attract a sentence between 15 – 17 years.
    
23. Joshua Philip’s culpability on the other hand was low and therefore his individual offending, considering his degree of participation, should fall within Category 1 of Manu Kovi thus attracting a sentence between 12 – 15 years.
    

MITIGATING FACTORS

24. In respect of Rosawan, I find the following factors in her favour:
    
    • She pleaded guilty to the charge.
    • She is a first-time offender.
    • She was of prior good character.
    • She co-operated with the police by making early admissions.
    • She voluntarily surrendered to the police even though there were no eyewitnesses to the killing – thus a special mitigating factor.
    • She expressed genuine remorse.
    • She did not pre-plan to kill or even attack the deceased. It was a spur of the moment thing.
    • She was a victim of years of physical abuse, torture, and violence by the deceased, which persisted despite efforts by village elders to prevent from continuing and hence acted out of frustration.
    • This was a one-off offence.
    • She was provoked in the non-legal sense.
    • Bel kol consisting of K3000 and 5 pigs was paid to the deceased’s relatives.
      

AGGRAVATING FACORS

25. Against her are the following:
    
    • She used a dangerous weapon to attack and kill the deceased.
    • She inflicted multiple wounds on the deceased.
    • She displayed a strong desire to cause grievous bodily harm.
    • She did not act alone but took advantage of her son’s involvement in the struggle with the deceased.
    • The offence is very prevalent.
      
26. As for Joshua Philip I find the following in his favour:
    
    • He also pleaded guilty.
    • Is a first-time offender.
    • Is a youthful offender.
    • Did not directly inflict the injuries on the deceased from which he died.
    • Came in to aid his mother who the deceased was assaulting with a crowbar.
    • He co-operated with the police by making early admissions.
    • He surrendered voluntarily to the police despite there being no eyewitnesses to the crime – a special mitigating factor.
    • There was also no preplanning on his part.
      

COMPARATIVE CASES

27. I pause here to consider a few cases with similar circumstances to this matter for consistency in sentencing.
    
28. The State v Roy (2015) N5968: The 25-year-old offender had an argument with her husband over cooking arrangements. She refused to cook and continuously nagged her husband until he got angry and assaulted her quite badly by hitting her repeatedly across her shoulders and legs with a stick. The offender picked up a kitchen knife which she was using to peel bananas with and stabbed her husband on the left chest piercing the heart. This led to heavy bleeding and the deceased died as a result.
    
29. Like the deceased in the current case, the deceased there was very abusive, and the offender suffered much physical, emotional and psychological abuse. I sentenced the offender there to 14 years imprisonment less time in custody prior to sentencing. I felt that the circumstances under which the offender there committed the offence warranted a suspended sentence. I therefore ordered that she serves 6 years of the resultant sentence, suspended the balance and placed her on probation.
    
30. The State -v- Mark (2010) N4182: The offender pleaded guilty to one count of murder. The deceased suspected the offender of having an extra-marital affair with her husband and confronted the offender at her house. An argument ensued. During the argument, the offender went into her house and came out with a kitchen knife. She approached the deceased from behind and stabbed her on the back, and as she turned around the offender stabbed her a few more times.
    
31. The offender was a first-time offender and was of prior good character. The killing was not premeditated and was done in the spur of the moment. The offender was genuinely remorseful and co-operated with the police and had offered to pay compensation. The court also considered that the offender was not the initial aggressor. She was at her house when confronted by the deceased. However, she used a dangerous weapon against the deceased. Hence the court assessed the circumstances of the case as fall under Category 2 of the Manu Kovi tariffs, calling for a sentence between 16 – 20 years. The court was of the view that an appropriate sentence ought to be 15 years, but instead imposed a sentence of 13 years on the basis that the offender was a woman.
    
32. The State -v- Topi (2010) N4667: The offender was convicted after trial for murder. She had suspected the deceased of having an affair with her husband, approached her while she was selling pork at a market and cut her on the head without warning. The deceased was 8 months pregnant. Among other aggravating factors such as the use of a dangerous weapon, the court considered the death of the unborn child as a special aggravating factor and sentenced the offender to 14 years less time in custody.
    
33. The State v Pauline Kewa (2021) N9356: The young offender had a marital problem with her de facto husband for neglecting her over his legal wife and had gone to man’s village for a mediation before village elders. She was accompanied by her relatives. When they arrived the prisoner saw the deceased (her husband’s wife) sitting among the people who had gathered there for the occasion. The prisoner confronted the deceased and a fight ensued.
    
34. During the fight the deceased produced a knife and tried to stab the prisoner, but people intervened and stopped them. In the process the knife fell off the deceased’s hand. A woman in the crowd picked up the knife and gave it to the prisoner, who used it to stab the deceased on her back. The deceased sustained a very deep penetrating wound to the left posterior chest. The deceased collapsed and fell unconscious. She was rushed to the hospital but died on the way.
    
35. On her guilty plea I sentenced the offender to 13 years imprisonment less time in pre-sentence custody. Her pre-sentence report was not supportive hence none of her resultant sentence was suspended.
    

APPROPRIATE SENTENCE - DELIBERATIONS

36. What then should be an appropriate sentence for each prisoner? To start off with they will be sentenced according to their individual degree of participation. And as we have seen Rosawan is more culpable because it was under her hand that the deceased lost his life. She therefore will get a higher sentence which as I have said should be between 15 – 17 years.
    
37. There is no question that her attack on the deceased was vicious. She inflicted no less than four penetrating wounds to the deceased body.
    
38. Against that, however, is the fact that she was a battered woman who had suffered persistent abuse and violence from a very abusive and violent partner. This was exacerbated by the fact that the deceased was a drug addict and obviously would have not been in the right state of mind most of the time. Further, attempts by the community to separate the deceased from the prisoner were resisted by the deceased and it was only a matter of time before something worse happened. And it so happened that the prisoner eventually snapped and took the law into here own hands when the opportunity presented itself when her son was present when she was again subjected to abuse and violence by the deceased.
    
39. She has unfortunately taken a life and for that she must be punished. However, this is exactly the kind of situation which the Supreme Court in Kumbamong v The State (2008) SC1017 had in mind when suggesting that a distinction ought to be drawn between “real criminals” who ought to be removed from society and those who should not be. It said:

"The courts need to re-examine and identify cases that require imprisonment for the protection of the society and the cases that do not warrant imprisonment but correction outside the prison system. This is not a new thing. The courts have been doing that for centuries but have failed to guarantee safer societies. What is new, however, is the question of what should be the primary focus of criminal sentencing and the suggested answer of correction and rehabilitation and not necessarily imprisonment in prisons. Adopting such an approach would enable the courts to address that which matters most, which is the emotional needs of an offender and the society as a whole for a safer society."

40. I do agree with the Supreme Court there, for indeed (and I probably can say with a certain degree of confidence), the great majority of women who kill their partners, co-wives or their partner’s lovers do so under extreme provocation, or extreme persistence and prolonged abuse, violence and even torture by their husbands or partners.
    
41. In my opinion the prisoner here came to the end of her tethers, so to speak, and vented what would have been years of bottled-up frustration, on the deceased on that fateful night. She is not a “real criminal” if we were to use the words of the Supreme Court in Kumbamong, who must be locked away from society for its protection for an extended period of time.
    
42. The circumstances of this case are similar to those in The State v Roy (supra). Both offenders suffered physically, emotionally, and psychologically at the hands of their violent and abusive husbands. They both reacted violently and unlawfully ended up killing their abusive husbands. However, Roy inflicted a single fatal wound on her husband, while Rosawan inflicted 4 penetrating wounds on her husband. On that basis, Rosawan should get a slightly higher sentence.
    

SENTENCE

43. Given the circumstances under which she committed the offence, and the abuse, violence, and torture she endured from the deceased, which I find to be extenuating factors and her significant mitigating factors, I should think that an appropriate sentence ought to be 15years imprisonment.
    
44. I therefore sentence the prisoner to 15 years imprisonment less the 2 years, 6 months, and 28 days she had been in pretrial/sentence detention.
    
45. This is a case for which the Court can exercise its discretion to suspend a part of the resultant sentence. Rosawan has a favourable pre-sentence report. Hence, I suspend 6 years from the resultant sentence on the condition that the prisoner shall enter probation for period of 5 years with no additional conditions apart from the mandatory conditions under the Probation Act. She will serve the balance of her sentence at Baisu Corrective Institution.
    
46. As for the co-prisoner Philip, his culpability is low. He had no part in his mother’s decision to attack the deceased and would not have even known that she was armed with a knife. His part in the offence was simply that he was trying to wrestle the crowbar away from the deceased which he was assaulting his mother with, which of course made it easier for his mother to attack the deceased.
    
47. There is some mention in the facts that he hit the deceased on the head with the crowbar but that is not supported by the post mortem report. Hence, this ought to be applied in his favour. In effect, but for that fact that he was wrestling with the deceased to disarm him and hence prevent him from further assaulting his mother, the prisoner’s role in the actual killing of the deceased was minimal. He has significant mitigating factors, and these should justify a significantly lower sentence for him.
    
48. I sentence him therefore to 7 years imprisonment less the time he spent in custody which is 2 years 6 months and 28 days. As suspension is also appropriate in the circumstances in his case, I shall suspend the whole of his resultant sentence on the condition that he shall enter probation for the period of suspended sentence with no additional conditions apart from the mandatory conditions under the Probation Act.
    

Ordered accordingly.
________________________________________________________________
P Kaluwin, Public Prosecutor: Lawyer for the State
L B Mamu, Public Solicitor: Lawyer for the Prisoner