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State v Tom [2024] PGNC 285; N10953 (24 July 2024)

N10953

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 943 OF 2024

THE STATE

V

PRICILLA TOM

Minj: Miviri J
2024 : 11^th & 24^th July

CRIMINAL LAW – PRACTICE AND PROCEDURE – Murder S300 (1)(a) CCA – Plea – Co Wife Attacked with Bush Knife – Cut to Left Side of Ear & Head – Internal Bleeding Death – Crime of Passion – First Offender – PSR Ordered – Violence in the Home – Serious Prevalent Offence – Intention to Cause GBH – Death as A Result – Strong Deterrent & Punitive Sentence – 12 years IHL less remand.

Facts
Accused and deceased were both married to the same and common husband. Agitated over the behaviour of the common husband in taking deceased out accused cut her on the ear and the skull. She intended to cause grievous bodily harm from which she died.

Held
Plea
Protection of Life.
Offence Prevalent.
First time offender
Compensation paid.
Sanctity of Life.
12 years IHL less remand.

Cases Cited:
Golu v The State [1979] PNGLR 653
Marangi v The State [2002] PGSC 15; SC702 (8 November 2002)
State v Er [1998] PGNC 78; N1749 (31 July 1998)
Kumbamong v State [2008] PGSC 51; SC1017 (29 September 2008)
Yalibakut v State [2006] PGSC 27; SC890 (27 April 2006)
Allan Peter Utieng v The State: SCR No 15 of 2000 (Unnumbered & Unreported Judgment of 23^rd November 2000).
Mikoro v State [2015] PGSC 12; SC1424 (1 May 2015)
Kovi v The State [2005] PGSC 34; SC789 (31 May 2005)
Lialu v The State [1990] PNGLR 487 (30 November 1990)
State v Hagei [2005] PGNC 60; N2913 (21 September 2005)
Simbe v The State [1994] PNGLR 38
Kumbamong v State [2008] PGSC 51; SC1017 (29 September 2008)

Counsel:
F, Popeu, for the State
D. Pepson, for the Defendant

SENTENCE

24^th July 2024

1. MIVIRI J: This is the sentence of Pricilla Tom of Kamares, Ambum, Enga Province who has pleaded guilty to murder under section 300 (1) (a) of the Criminal Code.
   
2. The indictment was pursuant to section 300 (1) (a) of the Criminal Code Act. Which was in the following terms:
   
   • (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;

(b) if death was caused by means of an act–

(i) done in the prosecution of an unlawful purpose; and

(ii) of such a nature as to be likely to endanger human life;

(c) if the offender intended to do grievous bodily harm to some person for the purpose of facilitating–

(i) the commission of a crime other than a crime specified by a law (including this Code) to be a crime for which a person may only be arrested by virtue of a warrant; or

(ii) the flight of an offender who has committed or attempted to commit an offence referred to in Subparagraph (i);

(d) if death was caused by administering any stupefying or overpowering thing for a purpose specified in Paragraph (c);

(e) if death was caused by wilfully stopping the breath of a person for a purpose specified in Paragraph (c).

Penalty: Subject to Section 19, imprisonment for life.

(2) In a case to which Subsection (1) (a) applies, it is immaterial that the offender did not intend to hurt the particular person who was killed.

(3) In a case to which Subsection (1) (b) applies, it is immaterial that the offender did not intend to hurt any person.

(4) In a case to which Subsection (1) (c), (d) or (e) applies, it is immaterial that the offender–

(a) did not intend to cause death; or

(b) did not know that death was likely to result.

3. The relevant facts on arraignment were that on the 26^th December 2023, Angela Peraki the deceased was selling betel nut at her market table at Simkor village, Kindeng Coffee Plantation. Both accused and deceased are married to the same husband. There was some fume between the two and deceased was walking back to her house when the accused came from the back and attacked her with a bush knife cutting her on the right ear, causing her to fall to the ground bleeding. Despite assistance to Kimil Hospital she was pronounced dead on arrival. The medical report showed that she had sustained a deep 8cm cut to the right frontal side of her head extending to her right temporal area and that the frontal and temporal skull were fractured with the wound extending into her cranium involving the brain tissue. She had intended to cause grievous bodily harm to the deceased who succumbed to the injuries.
   
4. This is yet another offence of homicide, murder committed within the home. It is not Manslaughter and therefore sentence in that offence are peculiar to it classified by the legislature. The sentence here will not fall so low as to be on the same level as that offence. This is conviction after guilty plea to the indictment of murder. It is not a light matter to be brushed aside to the discretion of the prisoner in her favour. She must overcome the fact that She had strong intention to cause grievous bodily harm which resulted in death. In simple there is intent to cause life threatening injuries. She demonstrated no amount of fear or restraint even in the sight of those who were immediately outside. That in my view is serious culpability for the offence of murder that should see out a sentence befitting her hands in the demise of her co wife: Golu v The State [1979] PNGLR 653.
   
5. She is the co-wife tied in that relationship to the same man. No relationship of love is ever founded in this way cordially sustaining forever. There is bound to be jealousy and rage as emanated here. And it has been shown over time: Marangi v The State [2002] PGSC 15; SC702 (8 November 2002) is an example of that fact where nine (9) years imprisonment was imposed for the manslaughter of a co wife or girl friend of the common man. State v Er [1998] PGNC 78; N1749 (31 July 1998), eight (8) years imprisonment was imposed for murder upon the wife killing the young woman the husband was with ignoring her and four children. She reacted as she did as is the case here, kill the deceased who she intended to give her pain only. It is what happened in Kumbamong v State [2008] PGSC 51; SC1017 (29 September 2008) 9 years was imposed for pleading guilty to the killing of the wife or girlfriend of the husband who had fathered six (6) children with her. She appealed to the Supreme Court against that sentence of 9 years for Manslaughter pursuant to section 302 of the Code. The Supreme Court varied the sentence stating that she had defences of provocation and self defence in law that she had not pursued in the trial. It varied the sentence stating that it was appropriate custodial to the time she had spent, and the balance remaining was suspended on a non-custodial basis.
   
6. She is not entirely to be blamed that the deceased has died. She states that she was married to the common husband before the deceased. And was fumed because he had ignored her welfare together with the child of that union. Opting to take the deceased elsewhere to the detriment of the Prisoner with the child. She reacted in that manner. She is entitled to leniency on the facts that she has pleaded guilty to: Yalibakut v State [2006] PGSC 27; SC890 (27 April 2006). She has expressed remorse in her allocutus and details that, “deceased is not my husband’s real wife. My husband goes around with this kind of women. He went around with her for a month. My child was sick. She said we went to sleep in Banz. I took a short bush knife My child was sick. I swung the knife at her. I learnt that she had died so I surrendered. They took my little girl. I am sorry that I took her life. I am sorry for breaking the law and to the Court. I have child if I could have mercy.”
   
7. Personal circumstances must not be used to avoid what is due by the facts and circumstances in law to the offender: Allan Peter Utieng v The State: SCR No 15 of 2000 (Unnumbered & Unreported Judgment of 23^rd November 2000). Which has been approved as good law in Mikoro v State [2015] PGSC 12; SC1424 (1 May 2015). Ones personal circumstances must be the deterrent to criminal conduct. But this is a situation that is different because the fault is not entirely of the prisoner. The Christian principles are very clear, one man one wife. Here it is clear defiance of the Christian principles that is in our lives because of the adoption by our Constitution. She cannot be entirely made to succumb that she has taken the life of another. It was also upon the husband the deceased to have seen that out and the inevitable as here.
   
8. The Supreme Court has made the classes and categories in Kovi v The State [2005] PGSC 34; SC789 (31 May 2005) to settle this matter. In my view the facts and the circumstances of this case draw out that this case falls by its facts and circumstances into category two of 16 to 20 years imprisonment. A weapon bush knife is used with viciousness. She leaves her child to be free to commit the offence. I am of the view that there are special mitigating factors which outweigh the aggravation here. And given the discussion set out above it is murder and not manslaughter: Lialu v The State [1990] PNGLR 487. This is not a simple fall after a punch and head injuries emanating leading to death. This is murder committed with emotional basis facts set out above. The rule of law is carved in stone not sand. But real and special extenuating circumstances are apparent to avoid the full impact of the law: State v Hagei [2005] PGNC 60; N2913 (21 September 2005). Sentence here will be at the lower end of murder cases.
   
9. The medical injuries depict injuries to the head that have been set out in the facts on arraignment. She died of an internal head injury as a result of that blow with the bush knife. Tarriff and range are relevant, but the facts and circumstances peculiar will show the proportionate term due: Marangi (Supra). She is a first offender with prior good record. And whatever sentence is proportionate is determined by its own facts and circumstances: Simbe v The State [1994] PNGLR 38. I determine that the aggregate is that Pricilla Tom of Kamares Village, Ambum District, Enga Province is hereby sentenced to 12 years imprisonment in hard labour.
   
10. In the exercise of my discretion pursuant to section 19 (6) of the Criminal Code given all I set out above, I suspend 4 years of that time on GBB for the same period. She will spend 8 years IHL in jail forthwith.
    

Ordered Accordingly.
________________________________________________________________
Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Defendant