State v Paklandi [2022] PGNC 159; N9542 (25 March 2022)

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CRIMINAL LAW – Practise and Procedure – murder - plea of guilty – domestic violence by deceased husband continuously – sentence – suspension of sentence on conditions – compensation of K5,000.00 to be paid failing which sentence to be fully served.

Counsel:

Mr. George Korei, for the State
Mr. Nasson Katosingkalara, for the Accused
25^th March, 2022

1. REI AJ: The accused was charged with the offence of murder on which an indictment was presented against her on the 14^th of March 2022.

2. The State charge that on the day of 9^th November 2019, the accused had an argument with her husband about his involvement in a land dispute settlement case.

3. In the process the deceased assaulted the accused who fell to the ground and the deceased tried to ascertain whether the accused was alright. During that time the accused got a knife and slashed the deceased around his neck.

4. The evidence on the depositions is that the body of the deceased was running around the Maprik Town until the body came to rest.

5. The accused was arraigned on 14^th March 2022 in which the charge of murder as laid under Section 300(1) of the Criminal Code was read to her as well as the brief facts of the case.

6. The accused entered a plea of guilty, it was confirmed by Mr. N. Katosingkalara as consistent with his instructions. A provisional guilty plea was entered.

7. A perusal of the depositions with reference to Q.24 & 25 of the Record of Interview confirms that there is admission of the offence by the accused.

8. The accused was found guilty of the offence of murder under Section 300(1) of the Criminal Code.

9. The accused is found guilty of the charge of murder pursuant to Section 300(1) of the Criminal Code.

11. The prisoner said sorry to the relatives of the deceased. She however, said that because she has a large family of five children, Court be lenient in imposing sentence and that a non-custodial sentence be imposed. She said this happened because of continued violence caused by the deceased to herself in the family home.

12. The PSR report filed in Court says that there have been family problems in which the prisoner was continuously abused and violence by the deceased as a result of which she received injuries to her body over time.

13. The report says that multiple wounds were inflicted on the body of the deceased resulting in death.

14. The case of Manu Kovi -v- The State (supra) deals with sentencing tariffs in murder cases.

15. It sets out the Category of Sentences(s) to be imposed which are as follows:

CATEGORY 1	- 15 – 20 years
Plea - Ordinary cases - Mitigating factors with no aggravating factors.	- No weapons used - Little or no pre-meditation or pre- planning - Minimum force used. - Absence of strong intent to kill.
CATEGORY 2	- 20 – 30 years
Trial or Plea - Mitigating factors with aggravating factors	- Pre-planned. Vicious attack. - Weapon used - Strong desire to kill
CATEGORY 3	- Life Imprisonment -
Trial or plea - Special Aggravating factors - Mitigating factors reduced in weight or rendered insignificant by gravity of offence.	- Brutal killing. Killing in cold blood - Killing of innocent, defenceless or harmless person. - Dangerous or offensive weapons used. - Killing accompanied by other serious offence. Victim young or old. - Pre-planned and pre-meditated. - Strong desire to kill.
CATEGORY 4	- DEATH -
WORST CASE – Trial or Plea - Special aggravating factors. - No extenuating circumstances. - No mitigating factors or mitigating factors rendered completely insignificant by gravity of offence.

16. Both Mr. G. Korei for the State and Mr. Katosingkalara submitted that this case falls within Category 2 of the case of Manu Kovi -v- The State (supra) which attracts a sentence of 20 to 30 years in gaol.

17. They also submitted that Section 19 of the Criminal Code gives a wide discretion to the Court as to the imposition of sentence.

18. The maximum penalty is reserved for the most serious offence: Goli Golu -v- The State [1979] PNGLR 653.

19. The sentence in each case must be determined according to its own facts and circumstances: Lawrence Simbe -v- The State [1994] PNGLR 38.

20. The judge in a trial should have wide discretion to impose such sentence or penalty he considers appropriate as the circumstance of the case warrants: Kumbamong -v- The State [2008] PGSC 51; SC1017 at paragraph 71.

21. In the exercise of his discretion a trial judge is at liberty to impose a sentence that may be considered too low, quantum leap or too crushing if the circumstances of the offence and factors for and against warrant that kind of sentence: Kumbamong -v- The State [2008] PGSC 51; SC1017.

22. The State -v- Tanggwo [2021] PGNC 339; N9183; Kangwia J, Bulolo (21^st September 2021): Prisoner pleaded guilty to stabbing her husband 3 times on the chest causing his death due to deceased’s infidelity and defiance of authority. Gender-based violence in domestic setting. Use of weapon, intended GBH and vicious attack. Compensation paid. Sentence to 16 years, less PSCT.

23. The State -v- Roy [2015] PNGNC 46; N5968 (19 March 2015); Popondetta: Toliken J, Prisoner pleaded guilty to stabbing husband on left chest with a knife causing his death after husband hit her with a stick on the back and legs. Court noted use of weapon, attack was not vicious, and prisoner victim of deceased’s abuse. Sentenced to 14 years, less time spent in custody awaiting his trial.

24. The State -v- Winara (No. 2) [2008] PGNC 67; N3352 (24 April 2008): Lae; Kirriwom J, Prisoner found guilty after trial. Deceased and the prisoner argued over their child which led to wife slapping the deceased and the deceased was about to assault her but she stabbed deceased on his left chest which led to his death. Death in domestic argument and offence is prevalent. Sentenced to 17 years IHL less time spent in custody awaiting trial.

25. This case happened in the domestic setting, the background of which, as agreed to by Counsels in submissions is that, for many years the deceased husband abused, traumatised and had the prisoner live in fear for her life in the house they lived in together. In the case of The State -v- Graham Floyd Peter [2022] PGNC 32; N9478 (10 March 2022) his Honour Narokobi J. aptly describes a house as a castle of rest with peace, love, joy, longsuffering and belongingness but in this case it was the opposite.

26. Surely these domestic violence must have taken place in the presence of children and in public view.

27. The PSR says that the prisoner has been thinking how she could have escaped this domestic abuse and violence but could not.

28. It can therefore be reasonably concluded that the wife swung the knife only to do grievous bodily harm to avenge for the mistreatment meted out to her by her deceased husband over a life time of marriage. She admitted in the Record of Interview that it was not her intention to cause death to her husband.

29. But the unexpected and the unfortunate had happened. The husband died as the result of the wounds inflicted on him by the prisoner.

(i) the prisoner pleaded guilty to the charge of murder thus saving time and costs for the State;

(iii) she has a big family of five (5) children whose father she murdered but who will meet difficult if she is to be sent to goal for a time;

(v) tried to pay compensation but has refused as the deceased family demand K400,000.00;

31. This case involves domestic violence in which the wife prisoner murdered the husband. The PSR report says that domestic violence caused by the deceased to the prisoner had been going on in the household for a long time which contributed immensely to this.

32. The husband inflicted blows to the wife first which were not life threatening and the wife retaliated by cutting his neck while the husband was trying to see if the prisoner was alright.

33. The prisoner knew that the person whom she wounded was her husband; the bread winner for the family and, although the wounds inflicted on her were not life threatening, she inflicted wounds resulting in the death of the deceased.

34. This case shares the same facts as the cases in which grievous bodily harm were intended to cause grievous bodily harm but resulted in the death of victims.

36. In his submission, Mr. Korei did not give any estimate as to sentence but did agree with the defence Counsel that the sentence be lenient although he did submit sentence in this case falls within category 2 of the Manu Kovi case which is a sentence of 14 to 20 years.

37. I have read the case of Thress Kumbamong -v- The State [2008] PGSC; SC 1017 (29^th September 2002) which was presided by Salika, Kandakasi and Yagi JJ. It is a land mark case involving death arising in domestic settling.

38. That case deals with issues affecting family life where the misconduct of the husband resulted in his murder by his wife.

39. Evidence before the National Court of Justice was such that the de facto defence of provocation was present where the wife hit the husband with a bush knife after the husband cut her which resulted in the wife murdering the husband with the same instrument the husband used.

40. The Supreme Court of Justice then quashed the sentence of 9 years and replaced with the sentence of 6 years 11 months after deducting time she spent in goal. After conviction then placed the prisoner on suspended sentence for the balance of the term of 6 years 11 months.

41. The facts of this case are quite similar to the above case in which the deceased husband attacked the prisoner first and the prisoner retaliated by cutting the husband with a knife several times.

43. On sentencing the prisoner, I took into consideration the views of the Supreme Court of Justice in the above case with respect to suspend sentence said and I quote:

“The provisions under Part 1 Division 5 of the Code provide for complete immunity from criminal responsibility where one acts or abstains from acting in a number of specified situations or circumstances. In so far as they are relevant, this includes amongst others, a person acting independently of an exercise of his or her will or the act or omission constituting the act or omission is accidental, which is provided for by s. 24 or one acting under compulsion or provocation or in self defence under circumstances of sudden or extraordinary emergency depriving the power of self-control, which is provided for in s 26.”

“Mann CJ., in R v. Yigwai[5] said in the context of s. 24 that the section:”

""applies to unwilled acts in the sense that the physical actions involved were not due to the conscious mental activity of the person performing them; ...[the person] would need to be hypnotised or in some way deprived of conscious volition to come within s 24"".

“Barwick CJ in Timbu-Kolian v. The Queen[6] elaborates in the context of the offender striking and killing a child instead of the child's mother whom the offender had intended to hit. There, His Honour observed that:”

""The exercise of the will to which this section refers is not identical with the presence of intention, nor is it the equivalent of voluntaries or the presence of volition. Of course, an intended act, in the sense that the actor intended by his action to achieve the full operation of that action as it proved to be in fact, must necessarily, in my opinion, be a willed act within the section. On the other hand, that the applicant by an act of volition wielded the stick (with the intention of hitting his wife), does not mean that the striking of the child was his willed act ... the exercise of will involves the making of a choice to do that which the physical activity of the applicant in fact does: e.g. in this to land the blow on the head of the child. The relevant act in this case was the striking of the child on the head; it was not an exercise of the will of the applicant, was not his willed act: and from a point of view of criminal responsibility was not his act at all.""

“As for accident, we could say, going by the persuasive authorities like that of Vallance v. The Queen,[7] ""that an event occurs by accident if it was not intended, not foreseen, and unlikely and is one that is not reasonably foreseen as a consequence of a parson’s conduct.""[8] Decisions of the pre-independence Courts in our jurisdiction like the decision in Timbu-Kolian v. The Queen[9] provides the foundation locally for these view or definition of what amounts to an ""accident"" within the meaning of s 24.”

“The defence of one acting under compulsion or provocation or in self defence under circumstances of sudden or extraordinary emergency depriving the power of self-control, which is provided for in s 26, is similar to the defence of an unwilled act. The difference however is in the circumstances in which these defence may arise. The defence under s. 24 applies to purely accidental and unwilled acts or omissions, while the defence under s. 26 applies in cases where the offender is forced to act by the application of force or threat of force or harm against his or her own life or another person by another and the offender has no choice but to react in the way he or she acted or omitted to act. Similarly, the defence of provocation or self defence in circumstances of sudden or extraordinary emergency depriving the power of self-control is set in motion by what another does causing a deprivation of self-control and causing the offender to act in the way he or she acted or omitted to act.”

“The defence of self defence is further provided for in s. 269 for unprovoked assault and s. 270 for provoked assault. The defence under s. 269 is available where the offender is unlawfully assaulted which poses a threat of death or grievous bodily harm by another without any provocation from the offender, retaliates and the offender uses such force as is reasonably necessary to meet the threat levelled against him or without any intention to kill or cause any bodily harm.[10]”

“For the defence under s.270, it is similar but in order for the defence to succeed, the victim must have first unlawfully assaulted the person claiming the defence independent of any provocation from the victim and the victim has applied such force or violence to cause the person claiming the defence to have a reasonable apprehension of death or grievous bodily harm and caused to believe on reasonable grounds that, it is necessary for his or another’s preservation from death or grievous bodily harm to use force in his or the other person’s defence. However, this defence cannot be available, where the person claiming the defence first began the assault with intent to kill or do grievous bodily harm or attempted to kill or to do grievous bodily harm to some person before the necessity of preserving him or the other person arose or, the person using the force declined further conflict and quitted it, or retreated from it as far as is possible.[11]”

“Up to this point in time, our human society has accepted and applied these principles. In so doing, we have proceeded on the basis that, unless an offender can bring his case under any of these well defined defence, the offender is conscious and knows he or she is deliberately committing an offence and commits the offence. This has in effect arbitrarily put a time limit on when a person acts consciously and when a person does not so act. That has been based on prevailing knowledge in the science of human behaviour, namely psychology or psychiatry. By doing that, society has in fact ignored a well known fact in human behaviour. Human beings hold onto their grudges or anger toward another for good cause or not and they continue to hold onto and harbour them for even longer periods beyond the initial incident giving rise to the grudge or anger until they are vented out in one form or another.”

“In proceeding in the way we have just described, society has failed to acknowledge its greatest limitation that no one has been able to really get into the study of and the understanding of human consciousness. By this, we mean that, no one has been able to scientifically pin point at what point in time anger and rage and that which causes a person to react violently in response to one’s pain, suffering or loss or a threat to one’s survival comes to an end and consciousness takes over and prevents a person from so reacting. Fortunately the workings of some learned people like Dr. Hawkins as set out in his book, ""Power vs Force"", makes it clear that, all human behaviour is driven by one’s ego which has everything to do with the thought and not the consciousness or the actual essence or the being of a person. This applies across all humanity except for a very few enlightened people, like Mahatma Ghandi and Jesus Christ who did not retaliate violently in situations they could have so acted. Given that, the necessary inference is that, all of humanity is unconsciously acting, evidenced by the abundance of so much trouble in the world today with large scale armed military and other war fares at the worst and highest to verbal abuse and exchanges at the lowest that are so ever present from the highest human levels such as the president of the United States of America to the man on the streets of Mt. Hagen in Papua New Guinea.”

“Other best know thinkers and writers like Eckhart Tolle in his work the ""Power of Now"" and ""The New Earth"" effectively render support to Dr. Hawkins work and make the point that, all humans who are so attached and identified with their thoughts of who they are and hence their egos, are inclined to act in defence of their perceived self, their children, relatives and friends, their property and their lives and their means of survival. Most people call this pure animal instinct, which can be best illustrated in the way a female dog with puppies attacks anyone trying to or in fact taking one of her puppies even though, the person taking the puppy may be its master or owner who meant no harm to the puppy. The female dog does so without stopping to think and plan out her actions and then execute them. Instead, she immediately reacts the moment she feels or senses her puppies are under threat.”

44. Section 19(1)(b) and Section (d)(i) of the Criminal Code are in the following terms:

“(1) In the construction of this Code, it is to be taken that, except when it is otherwise expressly provided –

(b) a person liable to imprisonment may be sentenced to pay a fine not exceeding K2,000.00 in addition to, or instead of, imprisonment; and

“(d) a person convicted on indictment of an offence not punishable with death may –

(ii) be ordered to be imprisoned until the recognizance, with sureties if so directed, is entered into; and”

“In our view, this provision vests in the courts a very wide discretion to determine punishment for offenders in all cases that go before them. In the exercise of that discretion, the Court could impose any sentence or penalty. That might range from a sparing of punishment to a nominal term of years to life imprisonment and the ultimate punishment of death, depending on the severity of the offence and the seriousness of the aggravating factors.”

“We note that, main line criminal sentencing the world over is usually incarceration for a term of years based on the assumption that, that is what the community expects or requires for its safety. There are not many cases of offenders being cautioned and discharged or spared from punishment. Yet as Barwick CJ said in the Australian case of Palling v. Corfield: [13]”

“Ordinarily the court with the duty of imposing punishment has a discretion as to the extent of the punishment to be imposed, and sometimes a discretion whether any punishment at all should be imposed. It is both unusual and in general, in my opinion, undesirable that the court should not have a discretion in the imposition of sentences...”

“However, in the few cases in which offenders have been spared imprisonment and given alternatives to imprisonment have indeed resulted in positive changes to the offender, with the offender doing more good than harm. They have proven more good and use to society and a huge saving on the countries limited financial and other resources. A good example of that is the decision of the National Court in The State -v- Micky John Lausi. [14]”

47. Section 300(1) of the Criminal Code provides for life imprisonment. But given the peculiar facts of this case, Section 19(1)(b) & (d)(ii) of the Criminal Code is applicable which gives a wide discretion to the Court to determine this issue. The decision on punishment in this case should be made along the same terms as the Kumbamong case.

48. I note the family of the deceased has demanded compensation in the sum of K400,000.00 as reported in the PSR. I cannot make an order for this.

49. There is no basis upon which this amount is being claimed. Further the Crimes Compensation Act limits compensation to K5,000.00.

51. In exercise of my discretion under Section 19(1) (b) & (d) (i) of the Criminal Code, the whole of sentence of 8 years is suspended upon the conditions provided herein.

___________________________________________________________________
Public Prosecutor: Lawyer for The State
Public Solicitor: Lawyer for the Defendant

National Court of Papua New Guinea

State v Paklandi [2022] PGNC 159; N9542 (25 March 2022)