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State v Sylvester [2024] PGNC 454; N11380 (15 June 2024)

N11380

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1450 OF 2022

BETWEEN:

THE STATE

AND

RACHEAL SYLVESTER

BAISU: KUPMAIN. AJ
06^th, 10^th & 15^th June 2024

CRIMINAL LAW – Sentence – Domestic Violence –Wife stabbing Husband’s mistress – Provoked in a non-legal sense – Mitigating and aggravating factors considered – Mother of very small children – Partial Suspension appropriate-Criminal Code, Section 300 (1)(a) (Ch. 262).

Cases Cited:

Avia Aihi -v- The State (No.3) [1983] PNGLR 93)
Goli Golu -v- The State [1979] PNGLR 653
Manu Kovi -v- The State (2005) SC789
State -v- Hendere Roy [2015] PGNC 46, N5968
State -v- Rachael Waim, CR No. 90 of 2021 (2021)
State -v- Relvie Joe (2020) 127; N2832
State -v- Pauline Muturu (2012) PGNC 322; N5163
State -v- Evelyn Yapa (2023) PGNC 479; N10615
State –v- Lucy Timothy [2021] PGNC 677; N9961
State –v- Mavis Uraro [2012] PGNC 298; N5164

Counsel:
P. Tengdui, for the State
L. Toke, for the prisoner

SENTENCE

15 June 2024

1. KUPMAIN. AJ: This is my decision on sentence of the prisoner Rachel Sylvester who pleaded guilty to one count of murder under Section 300 (1) (a) of the Criminal Code Act.
   

Charge

2. On an Indictment dated 06^th of June 2024 and presented on the same date, State charged the accused with one count of murder. This charge was brought under Section 300 (1) (a) of the Criminal Code Act. Ch. 262. The charge on the Indictment was that the prisoner, Rachel Sylvester of Kama Village, Goroka, EH Province, on the 25^th day of August 2022 at Sakales, Wabag in Papua New Guinea murdered Serah Makapa. The maximum penalty for this charge under Section 300 (1) (a) of the Criminal Code Act Ch.262. is subject to Section 19, life imprisonment.
   

Issue

3. The main issue before this court is “what is the appropriate sentence to be imposed in this case?” In determining this issue, the courts have over the years developed some general principles to guide the courts to arrive at the appropriate sentence.
   

Principles On Sentence

4. The general principles relating to sentence is clear in our jurisdiction. Starting off with the court’s Section 19 sentencing discretion under the Criminal Code to impose penalty other than the maximum. This court is also aware that the maximum sentence is normally reserved for the worst category of cases. Goli Golu -v- The State [1979] PNGLR 653 and Avia Aihi -v- The State (No.3) [1982] PNGLR 92. It is also understood that each individual case must be decided on its own facts and circumstances. Lawrence Simbe -v- The State [1994] PNGLR 38. This court will adopt and apply these general principles of law on sentencing in this case before me.
   
5. The approach to sentencing which I adopt and apply in this case is the principle as stated in the case of Rex Lialu -v- The State [1990] PNGLR 487. That is that the court must have regard to the all the aggregate effect of all relevant considerations and then determine an appropriate penalty. The aggregate effect comes from several considerations such as the circumstances giving rise to the commission of the offence; the personal circumstance of the offender; and the mitigating and aggravating factors and whether there are any extenuating circumstances or special aggravating circumstances.
   

Facts

6. The facts were that on Thursday the 25^th of August 2022, between the hours 7.00pm and 9.00pm the accused Rachel Sylvester was at Sakales in Wabag. Earlier during the day, she had travelled from Goroka with her small son. This was after she received reports of her husband taking a second wife. When she arrived at Sakales, she went to the room at Family Guest House where the deceased, Serah Mekapa, was and forcefully entered the room and confronted her. A fight broke out between them and in the course of the fighting, the accused stabbed the deceased with a kitchen knife. She was rushed to the hospital but was pronounced dead on arrival. The accused was later arrested and charged with the offense.
   
7. The offender pleaded guilty and was subsequently convicted of the charge of murder on the indictment.
   

Antecedents

8. As per the antecedent report the prisoner has no prior conviction which means this is her first time to be before the court and this goes in her favour.
   

Personal Particulars

9. Prisoner is 35 years of age. She comes from Kama village, Goroka, Eastern Highlands Province. She is married with two children. Her first-born son is 9 years old while the second born is 3 years old. Whilst her husband has remarried, their first-born child is living with the prisoner’s mother and second child living with the husband’s family. The trouble caused by the husband had displaced the innocent children. They need proper parental care and support.
   
10. Her father died long time ago, and mother living. Prisoner is the second born in the family of two siblings. She is the only sibling remaining while the other died. She dropped out of Gr. 10 class at Asaroka Secondary School some time ago. At the time of the offence, she lived a subsistence farming life. She is a baptised member of the Revival Centres of PNG church.
    

Allocutus

11. In her statement on allocutus she thanked the court for presiding over her case and stated;
    

“Firstly I say sorry to our creator that I violated the 6^th commandment. I also say sorry within my heart sorry to court for violating the Constitution of this country. I’m sorry I have done the wrong thing. I say sorry to the deceased’s relatives. Because of me she lost her life and I say sorry to her. If my husband did not taken the woman to the place where we reside and if the policeman’s wife didn’t call me I wouldn’t have done this.

I’m sorry I’ve done wrong already. Compensation and belkol monies I have already paid them. My husband never gave me the paper to show that compensation and belkol monies were paid.
K6000 in cash
10 Coca Cola cartons
8 biscuit cartons
6 pigs

Compensation is K17000.

I have done the wrong thing and I’m concerned about the future of my kids. Now life is hard. Other people don’t look after others children. I’m worried about my children’s future. I ask mercy from this honourable court so I can continue to look after my kids.”

Submissions

12. Mr. Toke for and on behalf of the prisoner cited several mitigating factors for the court to consider and they are:
    
    1. Prisoner pleaded guilty at his earliest opportunity, and save court’s precious time;
    2. First time offender with no prior conviction;
    100. She surrendered to the police right away;
    4. Prisoner showed genuine remorse for the offence during allocutus;
    5. Prisoner admitted to the offence right from the beginning, and it made the job of police so easy; and
    6. No preplanning
    7. Customary compensation paid with K23, 000.00 cash, 10 live pigs, and 10 coke cartons and 8 biscuit carton.
    8. There was defacto provocation
       
13. Mr. Toke submitted that according to the Manu Kovi guidelines this case will fall within category 2 and submitted that there was the;
    1. Use of a dangerous weapon,
    2. no strong intention to do grievous bodily harm, and
    3. some element of viciousness are present.
    4. prisoner did not pre-plan to attack the deceased.
       
14. He submitted that this case is not a worst case and as such the maximum is not applicable.
    
15. In support of his submission, Mr. Toke referred the court to 7 comparable cases of murder to guide this court. The sentences in these case range from 13 to 14 years imprisonment. The cases referred to are:
    

State –v- Hendere Roy [2015] PGNC 46; N5968:

Here the deceased and prisoner were married couple. They had an argument over cooking arrangements. Prisoner refused to cook. Deceased hit her on her shoulder blades and legs with a stick. Prisoner grabbed a kitchen knife and stabbed the deceased on his left chest that pierced the heart. This led to heavy bleeding and the deceased died as a result. Sentenced to 14 years in prison. Time spent in pre-trial custody deducted. From the balance, only 6 years shall be served in prison, and the balance to be suspended with conditions.

State –v- Rachael Waim, CR No. 90 of 2021 (2021)

Here the prisoner and her husband had an argument over money. They also argued because the prisoner had searched for her husband the previous night and couldn’t find him. When the husband went close to the prisoner during the argument, prisoner raised a kitchen knife and stabbed him on his neck. The knife penetrated through the neck and the upper part of his lung thereby causing his death. Sentenced to 10 years imprisonment in hard labour. Time spent in pre-trial custody has been deducted.

State –v- Relvie Joe [2020] 127; N2832:

Here the prisoner attacked his partner at a beach front. He assaulted her at one location, and followed her to another location on the beach and further assaulted her with hands. Then he stabbed her once from the back on her left shoulder with a kitchen knife. The massive bleeding that resulted from a penetrating wound to the heart let to the death of the deceased. Sentenced to 12 years imprisonment less pre-trial custody period.

State –v- Pauline Muturu [2012] PGNC 322; N5163:

Here the offender pleaded guilty to murder. Prisoner saw the deceased standing in front of a canteen. He was drunk. Deceased called out to her. When she approached him, an argument erupted between them. In the course of the argument, deceased punched the prisoner and she fell down to the ground. Deceased walked away when prisoner lied on the ground. Prisoner woke up, ran after the deceased and stabbed him from behind with a kitchen knife. The knife penetrated the left chest and pierced the heart which resulted in death. Sentenced to 13 years less pre-trial custody period of 1 year, 1 month and 28 days. From the balance she shall serve only 6 years in prison. After 6 years, she shall be released and placed on Good Behaviour Bond for the balance of sentence.

State –v- Evelyn Yapa [2023] PGNC 479; N10615:

Here the prisoner pleaded guilty to Murder when charged for killing her co-wife. When her husband took the deceased as his wife, marital problem surfaced. The husband paid more attention to the deceased than the prisoner and his children. 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. She was sentenced to 12 years imprisonment. The period in pre-trial custody was deducted. From the balance, prisoner would serve only 6 years. Upon completion of the 6 years, she shall be placed on probation for the balance of the sentence with terms and conditions.

State –v- Lucy Timothy [2021] PGNC 677; N9961:

Here the prisoner and deceased used to have grudges against each other when the prisoner’s husband had extra marital affair with the deceased. On the day of incident, prisoner heard about her husband meeting the deceased and heading to a particular location. On the way, prisoner met them, and they fought. Prisoner got a short knife from the deceased and stabbed her twice from which deceased succumbed to her death. Sentenced to 10 years imprisonment. Out of that term, pre-trial custody period was deducted. Court further ordered prisoner to serve only two years in prison, and the balance suspended and placed the prisoner on probation.

State –v- Mavis Uraro [2012] PGNC 298; N5164:

Here, the prisoner’s husband and deceased had an adulterous relationship. On the day of incident, prisoner caught the deceased buying goods at the check-out counter in a supermarket. Prisoner approached her from the back and stabbed on her back with a kitchen knife. Deceased was rushed to the hospital but later died from heavy loss of blood. Sentence to 10 years imprisonment. From that term, pre-trial custody period of 1 year, 3 months and 28 days was deducted. A term of 5 years, 8 months and 2 days was suspended, and balance (5 years) to be served in prison.

16. Mr. Toke submitted that the case of State –v- Lucy Timothy [2021] PGNC 677; N9961 and State –v- Mavis Uraro [2012] PGNC 298; N5164 resemble the current case in respect of the circumstance under which the offence was committed.
    
17. Mr. Toke then submitted that the appropriate sentence in this case should be 10 years or below. The pre-trial custody period of 1 years and 9 months 10 days shall be deducted. From the balance, prisoner can be ordered to serve only 5 years. Upon completion of the 5 years, she shall be placed on probation for the balance of the sentence with terms and conditions.
    
18. Mr Tengdui for the state on the other hand submitted that this case fell within category 2 of the Manu Kovi guidelines and suggested 18 years as a starting point to be appropriate. He advanced the following as aggravating factors;
    
    1. An offensive weapon, a kitchen knife, was used to commit the offense.
    2. Some preplanning as the offender traveled from Goroka to confront the deceased.
    3. This type of offense where death arises from the quarrel over a man or woman is prevalent.
    4. A young life is lost.
       
19. Mr. Tengdui for the State agreed that this was not the worst case of murder and that it fell within category 2 of the Manu Kovi guidelines and suggested a term of years between 16 and 18 years to be appropriate.
    

Deliberations

20. The mitigating factors which I find present in this case is that:
    
    1. That it was an early guilty plea which saved the court and the state time and resources.
    2. Surrendered to police soon after the incident.
    3. Offender showed genuine remorse and apologized for the death of the deceased
    4. No prior convictions. It was her first time.
    5. There was some degree of provocation in a non-legal sense
    6. There was no planning involved.
    7. The prisoner is going through a hard time thinking about her children
    8. Customary compensation paid with K23, 000.00 cash, 10 live pigs, and 10 coke cartons and 8 biscuit carton.
    9. I also note that the offender is mother of young children who obviously are missing their mother too.
    10. I also find that the prisoner’s husband Mr. Sylvester Karu was the cause of all the events that unfolded which resulted in the death of the deceased and the children being separated from their mother.
        
21. The aggravating factors which I find present in this case is that;
    
    1. A young life of a grade 11 student was lost.
    2. An offensive and dangerous weapon was used namely a kitchen knife and other heavy object was used.
    3. I also find that there was strong desire to do grievous bodily harm. The prisoner stabbed the deceased with the knife. The medical report revealed that the deceased died of Brain injury due to skull fracture and also excessive bleeding from the stab wound which pierce the liver and the right lung.
    4. I also find that the deceased died of multiple causes and the Dr. was of the view that; “due to, possibly multiple attackers with heavy blows to the nose to the left eye and the head plus the stabbing to the right chest with a knife.
    5. Prisoner was in company with others. It was a vicious attack on the deceased. The others who were involved should also be arrested and charged.
       
22. I take these factors for and against the prisoner into consideration. I also accept that it is not a worst case of murder and so the maximum is not applicable but is a very serious assault on the deceased.
    
23. Having considered the mitigating and aggravating factors present in this case and also the circumstance surrounding the commission of the offence this case falls within category 2 of the Manu Kovi guidelines which attract sentences between 16 to 20 years on a charge of murder. I am also guided by the comparable cases referred to me by both counsels showing the sentencing trends in relation to murder cases on guilty plea and arising out domestic setting. This case is one clear example of such.
    
24. I have taken into consideration the personal particulars and the lack of prior conviction as per the antecedent report of the offender. I have also taken into account her statement on allocutus, her appeal for mercy of the court and also the mitigating factors which are in her favour. I have also taken into account the aggravating factors which are present in this case and the circumstances surrounding the commission of the offence. I have also considered the comparable cases which both counsels have referred the court to most importantly the cases of State –v- Lucy Timothy [2021] PGNC 677; N9961 and State –v- Mavis Uraro [2012] PGNC 298; N5164 and stated that in these two cases deceased died of single stab wound unlike the case before me where deceased died of multiple causes

and have arrived at my decision on sentence.

Sentence

25. The prisoner is sentenced to 12 years IHL less time in custody which is 1 years 9 months 10 days. The prisoner shall serve the balance of 10 years, 2 months, 20 days IHL.
    
26. In the exercise of my discretion I suspend 4 years 2 months 20 days on condition that the prisoner be placed on probation to keep peace and be of good behavior for 4 years. I order that the suspension takes effect after the completion of the 6 years IHL in custody in Bihute Correctional Facility.
    
27. Those are the orders of the court.
    

_______________________________________________________________
P Kaluwin, Public Prosecutor: Lawyer for the State
L B Mamu, Public Solicitor: Lawyer for the Prisoner