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State v Lenda (No 2) [2024] PGNC 50; N10697 (12 March 2024)

N10697

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1480 OF 2021

THE STATE

V

JULIE LENDA
(No 2)

Waigani: Miviri J
2024 : 12^th March

CRIMINAL LAW – PRACTICE AND PROCEDURE – Murder S300 (1)(a) CCA – Trial – Husband Hit with Blunt Object – Blunt Force Injury to Left Side of Head – Internal Bleeding Death – Persistent Concerted Acts of Violence – Assaults of Deceased with Blunt Instruments Stick & Stone Full View Witness – Intoxicated By Voluntary Consumption of Alcohol – Violence In the Home – Other Injuries on Body – Intention to Cause GBH – Death as A Result – Prevalent Offence – 25 years IHL less remand.

Facts
Accused and deceased argued on the way home. Inside house loud scream, deceased weak hurt coming out slowly from house. Falls outside house Followed by Accused who set upon him armed with Stick used all over the body of deceased beating him. Stick removed by Bystanders; Accused rearmed with big Stone used indiscriminately hitting all over body of Deceased. Blunt Force injury dead on arrival. She intended to cause grievous bodily harm from which he died.

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

Cases Cited:
Golu v The State [1979] PNGLR 653
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).
State v Songai (No 2) [2023] PGNC 277; N10444 (18 August 2023).
State v Maran (No 2) [2023] PGNC 272; N10429 (8 August 2023).
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).
Marangi v The State [2002] PGSC 15; SC702 (8 November 2002).
Simbe v The State [1994] PNGLR 38
State v Powi [2023] PGNC 123; N10242 (9 May 2023).
State v Nulai [2017] PGNC 268; N6932 (6 October 2017).
Kumbamong v State [2008] PGSC 51; SC1017 (29 September 2008).

Counsel:

S. Suwae, for the State
T. Yapao, for the Defendant

SENTENCE

12^th March 2024

1. MIVIRI J: This is the sentence of Julie Lenda of Yaibos village, Wapenamanda, Enga Province who was convicted of murder under section 300 (1) (a) after trial.
   
2. The indictment was laid for Murder, 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 27^th February 2021, at Mango Mine Settlement, 9 mile, NCD, between 2.00am and 3.00am the Accused Julie Lenda was with her husband Simon Lenda. An argument erupted between them, and the Accused began to question the deceased about money. The deceased got up and left for home followed by the Accused. And the argument continued as they walked home. A few minutes later a few boys who were playing rugby touch outside along the road head a loud scream coming from inside the couple’s yard. Some of the boys noticed the deceased open the fence and walk out supporting himself against the fence and then fell to the ground.
   
4. Bystanders who were there ran to the side of the deceased but the Accused who was armed with a stick came and stated that, her husband was pretending and begun to hit him with the stick from his legs up to the rest of the body. They disarmed her of the stick, but she picked up a stone and continued to assault him with it all over her body. The deceased did not move. The bystanders insisting that he was badly injured, the Accused continued hitting him. She then realized and stopped. He was rushed to the Port Moresby General Hospital but was pronounced dead on arrival. Autopsy was conducted establishing the cause of death as massive intracranial haemorrhage due to blunt trauma to the left side of the head. It also confirmed that there were bruises and wounds on various other parts of the deceased body.
   
5. 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 trial of murder. The State has been put to trial and this Court has been made to endure to secure in law the conviction. 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. Which is evident by the haste and determination in continuing even after the deceased was showing clear signs that he was grievously hurt and could not sustain further within the house, so came out to seek refuge from that. But all to no avail because she followed him out determined as ever. She demonstrated no amount of fear or restraint even in the sight of those who were immediately outside drawn by the commotion that followed that loud scream within their home. Her persistence is evident in the way she rearmed when the stick was taken off her now with a large stone. She persisted to the demise of the deceased. He was of the stronger sex but was at her mercy, the weaker sex. He stood no chance of survival in the determination she demonstrated. That in my view is serious culpability for the offence of murder that should see out a sentence befitting her hands in his demise: Golu v The State [1979] PNGLR 653.
   
6. He is her de facto husband, and yet she showed no love of that relationship in the way she acted. No relationship of love is ever lived in this way and condoned by the courts in the sentence that is passed. She will return to her family after due service. He was 42 years old and had a long life ahead which has been terminated prematurely by the prisoner. She has given no account of that fact and denied strenuously and maintained even in the allocutus that she made into Court. She has told of her ways to amend in jail and submitted into the record of the Court that fact. It is a natural consequence of the crime against society sanctioned by the legislature. It will not alleviate the seriousness of section 35, the right of life. In my view it would have made more sense in a guilty plea: Yalibakut v State [2006] PGSC 27; SC890 (27 April 2006). This is determination in the face of evidence glaring of the guilt of the offender yet putting the State to task. Realizing the impact of the gravity of the offence now the plea to avoid the sanction of the rule of law. That is aggravating the offence than mitigating. This is not a case where remorse has been expressed without pity for oneself but the full impact of one’s own action. 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. It is clearly not the case here. And therefore, the penalty will not and is not mitigated given.
   
7. This is the culmination of the voluntary consumption of alcohol that has displaced reason with violence perpetrated against a husband. He was in no position to defend himself from the assaults that were inflicted upon him because of his drunken status. He had been drinking alcohol all day and late into the night with the prisoner wife. It was an argument over money allegedly that he had given money to his other wives and not the prisoner. It is clear the relationship was not firmed out in trust and hence this argument instigated by the prisoner who the deceased had no part to. Because he walked away to the house only to be followed by her to his demise within. She instigated and saw no reason to desist even for the fact he simply walked away from her. She is a determined person in what she set out to do. And achieved that determination with terminating his life. I draw no difference in her criminal behaviour from State v Songai (No 2) [2023] PGNC 277; N10444 (18 August 2023). Because where there is determination beyond reason to persist in serious criminal conduct where the life of another human being is drawn out in this manner, it is not a light matter against the prisoner. That view is evident in State v Maran (No 2) [2023] PGNC 272; N10429 (8 August 2023). And in my view is relevant here given the facts and circumstances depicted by the evidence led and held 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 three. I am of the view that there are no special mitigating factors that will be such that they outweigh the aggravation here. It was persisted and pursued with vigour by the prisoner. She saw no end until he was sufficiently silent from any resistance to her assaults. That is evident in the way she paid no heed to bystanders alerting her that he was seriously hurt. And she persisted even after being disarmed from stick promoting to a large stone. He suffered and offered no resistance to her continuance and persistence assaults. She made no haste to desist in full view of bystanders. In my view it is proper guidance to not ignore these facts as they are relevant to make this offence, what 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 determination and persistence. The rule of law is carved in stone not sand. And real special extenuating circumstances must be apparent to avoid the full impact of the law, State v Hagei [2005] PGNC 60; N2913 (21 September 2005). There is nothing of the nature observed in this case set out by the facts here.
   
9. It is relevant to set out Exhibit P4 the subject Postmortem Report dated the 03^rd March 2021. Notable it sets the time of death as 03 am on the 27^th February 2021 at 9 mile. In the case history, he states, “That on the 27^th February 2021 between 2am and 3am, the deceased as above was at 9-mile Settlement, and he had a fight with his wife when he got stabbed all over his body. Deceased sustained multiple injuries to his body and was rushed to the hospital when he was confirmed dead on arrival.”
10. “Observation: Body of an adult male 165cm x 40cm multiple mostly superficial wounds; small stab wounds and skin-deep clean-cut wounds no more than two centimetres. Notable shoulder wounds on both sides are present-there interrupted circular impression causing marked bruising involving one hemisphere as in the left shoulder in pic 4. On the Right there are two smaller circular marks, one is identical to the left and the other is more consistent with a human bite mark.
11. Head and scalp hair are less than 0.5mm, recently shaven. Left temporal area has a circular bruised area about 4cm in diameter. Left ear canal showed blood present.
12. Mouth: left lower lip had bruised and lacerated mucosa with blood stains within the mouth, clearly a betel nut chewing teeth staining was noted. Nasal Cavities were free. The de-scalped skull showed bruised or haematoma of the left temporalis major muscle, but no obvious fracture was detected see pic 6. The right peri auricular and lower temporal area showed some degree of bruising.
13. The skull was particularly hardened as comparably. There were significant intracranial haemorrhage as shown in pic 7 & 8 shows a large pool of blood and cloths in the intracranial space after removing the brain.
14. The brain tissue showed swelling and flattened gyri most prominent on the posterior portion of the right as in pic 7. Chest: An area of superficial impressions of three focal areas suggesting a weapon of beaded kind on the lateral and back aspect of the trunk. No major injuries were seen on the external examination. Abdomen: No swelling and no obvious trauma.”
15. Based on the information available and my autopsy findings, I confirm and certify that the death of the late Simon Lenda has resulted mostly from the blunt trauma to the head that subsequently caused massive intracranial haemorrhage and subsequent brain injuries. There were also other multiple injuries consistent with the use of various weapons to the head and body where the manner and distribution of these injuries in my opinion suggest an attack with prior intent and or calculated approach at least to first overpower the victim.”
    
16. Relevant for the purposes of sentencing is Exhibit P5 the medical certificate of Death of the deceased Simon Lenda issued of the 04^th March 2021 by Doctor S Kotapu. Of Relevance is the “Deceased or condition directly leading to death- (a) Massive Intracranial Haemorrhage; blunt trauma to head; multiple weapon injuries.” This is independent evidence confirming determined persistent attack leading to death. It is a serious fact that weighs against any sentence lower than 25 years in my view. The life of a human being is lived only once. That is why it is imprinted in section 35 right to life under the Constitution. It is reinforced by the criminal code in the various homicide offences. Murder is in between manslaughter and wilful murder. All depict the maximum sentence of life imprisonment each case. It is not wrong to give emphasis to the facts and circumstances to come out with the proportionate sentence termed from there. Tarriff and range are relevant, but the spoken dictate of the legislature is supreme given: Marangi v The State [2002] PGSC 15; SC702 (8 November 2002).
    
17. This is a first offender educated to grade 6 who was employed as a security guard with Corps Security, and then was a roadside market person earning almost a K500.00. Who deposes from the presentence report to be resident at 6-mile Wabag Block originally from Yaibos village in Enga Province who is 35 years old. With no health issues. She paid K 10, 000.00 with a pig which is appreciation and not compensation by the father of the deceased. No amount of money will resurrect the deceased from the grave. The prisoner must take responsibility for her criminal conduct. Part of which is to serve time in jail and service orderly set out by her character reference by Acting Chaplain Corporal Teine is proof of this fact. It is a consequence of her criminal conduct and does not sway the sentence. Because the gravity of the offence is not downgraded by that fact. It remains outweighed and will bear no weight sufficient to earn the sentence due the prisoner. And that is the same for the presentence report filed. In my view there is nothing within that sets apart this murder offence likened to category three (3) within Manu Kovi (supra). It will follow that fact by its facts circumstances because its offence is determined by its own facts and circumstances in the appropriateness of sentence, Simbe v The State [1994] PNGLR 38.
    
18. I found as a fact that she was alone with Simon Lenda in their house enclosed by the fence outside. That both had gone into it arguing over money which continued inside. There was no other person within except both. And Julie Lenda was not as intoxicated by Alcohol as was the deceased who had been drinking at Tubuseria and returned to 9 mile where he lived with her. He bought her beer, and she drank initially with the K 100 that he gave her. She was the stronger of the two given and did assault him with a blunt instrument within. Which she continued with the stick when she followed him out and was disarmed by bystanders in the sight of the witness. And she rearmed herself with the stone assaulting him all over his body from the leg up. No one assaulted him after which he sustained the injuries except her, Julie Lenda. The death occurred after her continuous assaults inflicted on him. These in my view are very serious and aggravating features of her criminal conduct. They are not likened to State v Powi [2023] PGNC 123; N10242 (9 May 2023). But the persistence to pursue the criminal conduct is common to both. And sentence must corelate and it is relevant because of the use of weapons unlikened to State v Nulai [2017] PGNC 268; N6932 (6 October 2017). There are no weapons used. A human being terminated using weapons and extreme force must meet the prescription of a proportionate sentence due by its facts and circumstances, no more no less.
    
19. This is killing that is not in the same sphere as in Kumbamong v State [2008] PGSC 51; SC1017 (29 September 2008) mitigating but the aggravation outweighs comparatively. This is an offence of murder by its own facts and circumstances in my view will meet 25 years imprisonment in hard labour. A human life is precious and sanctified. That is evident by the sentiments of the father of the deceased in the presentence report, “he lost his important man (deceased) in his family as he is an educated person who supposed to look after them and somehow, he lost his life... He was shocked to see his son’s (deceased) body laid out at the 3-mile hospital. He begs the Honourable Court decide on this matter.” The weight if viewed alongside the character references of the prisoner and his baptismal certificates in jail do not outweigh.
    
20. Believers tell the truth before HE, not persist as is the case here. Reality has dawned so the sentence will entail accordingly. Prevalence of the offence leaves that the Court must do its duty to serve all in the domain of the law. In the aggregate the fair just and proportionate sentence due the prisoner for the crime of murder committed upon Simon Lenda is 25 years imprisonment in Hard Labour. I deduct the time on remand of 3 years 10 days from that head sentence. The balance is 21 years 11 months 20 days IHL in prison. I make no order for transfer as that is a matter in the discretion of the Jail to consider on its own basis.
    

Ordered Accordingly.

__________________________________________________________________

Public Prosecutor: Lawyers for the State

Public Solicitor: Lawyers for the Defendant