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State v Yapa [2023] PGNC 479; N10615 (26 October 2023)

N10615

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 758 OF 2023

THE STATE

V

EVELYN YAPA

Lae: Kangwia J.

2023: 9^th, 23^rd & 26^th October

CRIMINAL LAW – Sentence - murder - wife killing de-facto wife – husbands conduct - sentences for ordinary murder cases – sentences for murder in marital problems – first time offender – de-facto provocation present- custodial sentence with deductions and suspensions.

Cases Cited.
Simon Kama v the State (2004) SC741
Manu Kovi v the State (2005) SC789
State v Mavis Uraro (2012) N5164
State v Timothy (2021) N9961
State v Kelly (2009) N3624
State v Jako (2010) N4110
Goli Golu v the State [1979] PNGLR 653
Hure Hane v the State [1984] PNGLR 105
Kesino Apo v the State [1988] PNGLR 1880
The State v Eddy Kava Laura (No 2) [1988-89] PNGLR 98
Anna Max Marangi v the State (2002) SC703

Counsel:
P. Matana, for the State
V. Ngibe, for the Defence

26^th October 2023

1. KANGWIA J: Evelyn Yapa appears as a prisoner for sentencing. This Court convicted her on her guilty plea to one count of murder under s 300 of the Criminal Code.

2. The facts to which the prisoner pleaded guilty to are these. The Prisoner is the first wife.

3. When her husband took the deceased as his wife marital problems surfaced. The husband paid more attention to the deceased than the prisoner and her children. This led the prisoner to follow the husband who happened to be with the deceased. Upon meeting the deceased, a fight erupted from which the prisoner took a knife and stabbed the deceased several times. The deceased died as a result.

4. The prisoner is believed to be 30 years old and married with 03 children. She has no prior conviction.

5. On her allocutus the prisoner said; “What I had to say I told the Probation service. I apologise to everyone including the deceased and her family and my own family. I ask for leniency”.

6. The pre-sentence report (PSR) shows that the mother and a brother of the deceased when interviewed preferred a custodial sentence. The only person interviewed on the part of the prisoner was the husband. He preferred a non-custodial sentence with conditions. He pledged K5000 as compensation to the deceased family. The report while acknowledging the seriousness of the offence submitted that the prisoner was a suitable candidate for probation if a non-custodial sentence was imposed.

7. On the prisoner’s behalf Mr. Ngibe submits that a sentence of 8 to 10 years is appropriate. She was a first-time offender who pleaded guilty early. The attack was not pre-meditated as the weapon used belonged to the deceased. There was also de-facto provocation present. After comparing the sentences for homicides suggested in Simon Kama v the State (2004) SC741 from those suggested in Manu Kovi v the State (2005) SC789 further submits that the facts of the present case were similar in nature to the cases of State v Mavis Uraro (2012) N5164 and State v Timothy (2021) N9961 where the prisoners were sentenced to 10 and 12 years respectively on their guilty pleas. In similar circumstances the prisoners in those cases followed and attacked the deceased with a knife which resulted in death.

8. On behalf of the State Ms. Matana submits that a sentence of 12 years is appropriate to reflect the sanctity of life in line with the sentence imposed in the State v Kelly (2009) N3624 and State v Jako (2010) N4110.

9. The offence was aggravated using an offensive weapon causing multiple stab wounds to vulnerable parts of the body. The offender took the law into her own hands when other avenues were available to sort out her marriage problems.
10. Apart from the above submissions the Court has been further assisted by Counsel’s eloquent address on the law and principles governing sentences for murder to arrive at an appropriate sentence.

11. Murder is the second most serious homicide. The penalty prescribed for the offence of under s 300 of the Criminal Code Act states.

300. Murder.

(1) Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder: -

(a) if the offender intended to do grievous bodily harm to the person killed or to some other person; or

(b) ...

Penalty: Subject to s 19 imprisonment for life.
12. The sanctity of life is reflected in the maximum prescribed penalty of life imprisonment because murder involves the loss of a life. It is also a principle of law that the maximum is reserved for the worst category of each offence. (See Goli Golu v the State (1979) PNGLR 653; Hure Hane v the State [1984] PNGLR 105).

13. Even then there is no precise formula in sentencing to be followed as sentencing generally is an exercise of discretion pursuant to s 19 of the Criminal Code.

14. The Courts have also set relevant considerations in sentencing for all homicide and murder has its share of guidelines.

15. It the case of Kesino Apo v the State [1988] PNGLR 182 the Supreme Court held that for homicides imprisonment should be the starting point owing to the sanctity of life, a consideration which parliament intended.

16. In the case of The State v Eddy Kava Laura (No 2) (1988-89) PNGLR 98 the Court in a murder case said; “Each case of murder must be decided on a case by case basis but always remembering that the sentence laid down by s 300 is life imprisonment and the term of years is by virtue of s 19”
17. On the use of knives, as was in the present case the Supreme Court in the case of Anna Max Marangi v the State (2002) SC 703 said:

“...a lot of lives are being lost in this country from the use of a knife than with any other weapon. Therefore, a strong and punitive sentence is required”.

18. In sentencing the Supreme Court in Manu Kovi v the State (2005) SC789 suggested guidelines for all homicides.

19. For Murder the Court there suggested the following guidelines.

MURDER

Category 1 - In an uncontested case, in an ordinary case with ordinary mitigating factors and no aggravating factors, a starting point of 12 years up to 15 years. A sentence below 12 years should be rarely imposed except in exceptional cases where there are special mitigating factors.

Category 2 - In a contested or uncontested case - mitigating factors with some aggravating factors – pre-planning - weapons used - No strong intent to do grievous bodily harm – some element of viciousness - 16-20 years.

Category 3 - In a contested or uncontested case - aggravating factors - pre-planning - vicious attack – strong desire to do grievous bodily harm - weapons used - mitigating factors reduced in weight or rendered insignificant by gravity of violence committed - 20-30 years.

Category 4 - In contested or uncontested cases, the maximum penalty of life imprisonment should be reserved for the worst case of its kind such as the unexplained pre-planned vicious and brutal killing of an innocent and unarmed person using dangerous or lethal weapons (or) substances; summary execution.”

20. Under the Manu Kovi guidelines the present case falls into the second category which suggests a sentence of 16 to 20 years. A knife was used, and the multiple injuries reflect a strong intention to do grievous bodily harm.
21. Even though the Court is not bound by the strictures of guidelines, the suggestions in the Manu Kovi guideline are still good law as they assist in preventing Courts from imposing manifestly excessive or inordinately low sentences.

22. The Criminal Code Act recognises homicides under various categories according to the seriousness of each category. Because of the seriousness attached with each category of homicides sentences imposed by the Courts would be subject to the seriousness of the offence a person is charged with. If a person were to be charged with manslaughter its sentence would naturally be lower than those charged with murder.

23. However, that prescription does not seem to be the real case. Sentences generally for all homicides in this country are varied. Low sentences are being imposed for very serious offences or vice versa. Certain class of offences are treated favourably than the ordinary types of offences. Murder enjoys no exception.

24. The murder in the present case can be distinguished from what would be deemed an ordinary murder case. This is a case in which murder was committed in a marriage relationship that went sour. A wife stabbed to death the de-facto wife.

25. The sentencing guidelines suggested in Manu Kovi v the State (2005) SC789 and Simon Kama v the State (2004) SC740 make no suggestion for sentencing in homicides committed during marital problems. These types of offence are merely subsumed in the suggestions as ordinary cases. Courts are departing from the suggestions when it comes to sentencing in offences like the present case.

26. What would be deemed ordinary murder cases in my view are these.

27. In the case of the State v Jacob Aku Matai [2011] N 4256 the prisoner who pleaded guilty to murder for cutting his in-law with a bush knife was sentenced to 22 years imprisonment with deductions. De-facto provocation was present. The case fell into category 03 of Manu Kovi.

28. In the State v Alois Lagu [2011] N4354 on a guilty plea to murder the offender was sentenced to 20 years imprisonment for stabbing a fellow villager with a pocketknife at a gathering.

29. In The State v Jackson (2006) N3237 the offender who pleaded guilty to murder for cutting the deceased on the neck area two times on suspicion of sorcery was sentenced to 24 years.

30. In the State v Kanjip Manjing (No 2) (2021) N9181 this Court after convicting the prisoner for bludgeoning to death the deceased with a digging iron was sentenced to 28 years.
31. The circumstance of the present case is similar in nature to murder cases of State v Timothy (2021) N9961 and State v Marvis Uraro (2012) N5164 that were cited by Mr. Ngibe in submissions.

32. In the Timothy case the prisoner had a grudge with the deceased over her husband. Upon hearing that her husband had gone with the deceased she followed them and stabbed the deceased several times. On a guilty plea to murder the prisoner was sentenced to 10 years with deductions and suspensions with probation orders.

33. In the Uraro case the prisoner stabbed the deceased who was suspected of having an affair with her husband. On a guilty plea to murder the Court sentenced the prisoner to 12 years with deductions and suspensions.

34. Like sentences were imposed for those charged with manslaughter from similar circumstances in the State v Kelly (2009) N3624, State v Jako (2010) N4110, and State v Anna Muta (CR 794 of 2020 which Ms Matana referred to.

35. In the Kelly case the prisoner followed the co-wife and stabbed her for keeping their husband away from her and the children. On a guilty plea to manslaughter the Court sentenced the prisoner to 12 years imprisonment with deductions.

36. In the Jako case the prisoner who was accommodated in the same house with the co-wife with a history of quarrelling, stabbed the deceased three times after an argument. On a guilty plea to manslaughter the prisoner was sentenced to 12 years imprisonment.

37. In the Muta case the prisoner stabbed the deceased who had been having an affair with her husband. On a guilty plea to manslaughter the Court sentenced the prisoner to 13 years with deductions for time spent in custody.

38. As can be gleaned from the cited cases, sentences imposed vary from ordinary murder cases as opposed to murder committed in the midst of marital discord. The sentences for murder or manslaughter arising out of marital problems have received lower sentences than their counterparts in ordinary murder cases. The most appealing view for that trend of sentencing, can be attributed to the proposition that a deceased person would be deemed to have contributed to his or her own demise by associating with a married person in the first place. Despite that there can be no justification for the loss of a life. The sanctity of life must supersede all other considerations.

39. The present case involved the wife first in time taking the life of the woman that followed. A knife an offensive weapon was used to cause the loss of a life. The use of knives or objects to inflict injury on others is a modus operandi in this country. Human life is precious, and everyone is entitled to keep it. Once it is lost it does not return.

40. The extent and number of wounds displayed in the photographs tendered into evidence by consent reflect a strong desire to do grievous bodily harm.

41. There is also an element of pre-planning involved where the prisoner went in search of the deceased and her husband.

42. She failed to exercise restraint or seek advice when she was faced with a problem. Lae City has all the avenues for settling problems which are within reach.

43. As to her children the Courts are stern with issues of family welfare. Family welfare issues are consequences of falling out of line with the law.

In the State v Taulaola Pakai (2020) N4215 the Court said:

“An offender should consider his family obligations and commitments first before he or she goes out and commits an offence. A plea for leniency to avoid the suffering of one’s family should have little to no weight when an appropriate sentence is being considered.” (See also State v Lucas Yovura (2003) N2366).

44. The children factor does not operate in favour of the prisoner.
45. Against all that, the Prisoner is a first-time offender who pleaded guilty early saving time and related costs. She has expressed genuine remorse. The PSR is favourable to her.

46. De-facto provocation is apparent. The prisoner experienced hardship and inconvenience when the deceased intervened into her marital life at the expense of her husband. Whatever benefits accruing to her and her three children from her husband who was the sole breadwinner became shared. The husband is deemed to have ignited it. He must be apportioned blame for what happened through his lustful conduct. Unfortunately, though, the prisoner must suffer the consequences herself. This must operate in her favour in mitigation of sentence.

47. Fortunately for the husband, there is no statutory provision to sanction him on his wayward ways and lustful conduct apart from adultery proceedings. It is a recurring occurrence in this country owing mainly to husband’s infidelity.

48. Be that as it may, a sentence involving marital discord cannot be precisely measured against the wayward conduct of the spouse. That could also be the reason for the varying sentences for offences committed in the midst of marital discord.

49. In view of what has been said it would amount to grave injustice to pass judgement for murder in line with the sentences imposed for ordinary murder cases as identified earlier. The sentences imposed in similar circumstances to the present case are more appropriate and the prisoner shall be sentenced accordingly.

50. Bearing in mind that another life was unnecessarily lost, the prisoner shall be sentenced to 12 years imprisonment. The period in Pre-sentence custody shall be deducted.

51. From the balance the prisoner shall serve six (6) years from today. Upon completion of the six (6) years the prisoner shall be placed on probation for the balance of the sentence under terms and conditions imposed by the probation services.
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Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Defence