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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
CR NO. 1418 OF 2024
THE STATE
V
MIRIAM SEK
MINJ: CROWLEY J
16, 17 JULY 2025
CRIMINAL LAW – sentence – particular offence -wilful murder - s 299(1) of the Criminal Code - guilty plea – no prior criminal history - sentencing guidelines – consideration of – 25 years imposed less time spent in pre-sentence
Cases cited
Saperus Yalibakut v The State (2006) SC890
State v Onda (2011) N4988
State v Lavina Jacob (2024) N11042
The State v Javopa [2024] PGNC 49; N5579
Manu Kovi v The State (2005) SC789
Counsel
Ms Tanja Kalg, for the State
Mr Fabian Timbi, for the offender
SENTENCE
1. CROWLEY J: This is the decision on sentence for Miriam SEK who pleaded guilty to one count of Wilful Murder and has been convicted of that offence under s 299(1) of the Criminal Code. On 17 December 2023 around 11am she took her 1 year 3-month-old son named Chris Basi Johnson down to the Jimi River. It is alleged that at that time the offender was armed with an axe. Upon reaching the riverbank, she took her deceased child intro the nearby bushes. She then used the axe to chop the deceased child twice on his back close to his neck area. The deceased child died instantly, the accused then covered the child’s body with a string bag and left. The child’s body was discovered that same day by the villages
ANTECEDENTS
2. The offender has No Previous Criminal History.
ALLOCUTUS
3. After I had administered the Allocutus Ms Sek responded I know I have committed a heinous crime”. She repeated that she understood what a serious offence it was. She apologised to the Judge, she apologised to the Lord, she apologised to her husband family and relatives. She apologies to her own family and she said sorry to the judge and all the court staff present.
OTHER MATTERS OF FACT
4. As the offender has pleaded guilty he will normally be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State (2006) SC890).
PERSONAL PARTICULARS
➢ Mirriam Sek hails from Kuplang Village, in Kudjip, Jiwaka Province. She is married and had a child who is the victim. She was 21 years old at the time of offence. Her highest form of education is Grade 8 at Powi Primary School in Kudjip Local Level Government, in Jiwaka Province.
SUBMISSIONS BY DEFENCE COUNSEL
5. The Defence handed up written submissions which were marked as Exhibit 3. Mr Timbi began with the range for this offence being 20-40 years.
6. Mr Timbi identified the personal circumstances of the accused in para [15] to [18] of his written submissions. Those paragraphs read:
“15. This offence occurred in a very remote part of Jimi District beside the Jimi river in Jiwaka Province. The location is
isolated, with limited access to essential services, support systems or immediate intervention that could have prevented the escalations
of the prisoner’s deteriorating emotional and psychological state. The prisoner committed this offence under severe emotional
distress. She had endured continuously mistreatment from her husband overtime.
16. Furthermore she was under pressure and fear from her mother in law expressed intention to take the child to Autonomous Region
of Bougainville (AROB) effectively removing the child from her care permanently. These treats and abusive experience built up to
an emotional break point.
17. Following the commission of the offence, the prisoner attempted to take her own life. This indicates the depth of her mental anguish
and despair at that time. Whilst the suicide attempt was unsuccessful, it strongly demonstrates that she was not acting out of cruelty,
but rather in a deeply disturbed emotional condition. She regrets what she has done and lives with emotional burden of having taken
the life of her own child.
18. The defence does not in any way down play the seriousness of the offence. However we submit that the unique and tragic circumstance
of this case, the prisoner’s emotional and psychological state, the remoteness of the location, her remorse, and her attempt
suicide, all warrant the court’s careful consideration for a merciful sentence.”
7. Mr Timbi urged the court to take into account:
➢ first time offender
➢ early plea of guilty
➢ early admissions in the ROI
➢ Cooperated with police
➢ Prior Good Character
➢ Defacto provocation- her mother in law said that she would take her child. Or that she would send Ms Sek away and keep the child.
➢ She showed genuine remorse in his allocutus
8. Mr Timbi conceded the aggravating factors of
➢ Loss of a life
➢ The prevalence of this kind of offence in society; and
➢ the use of an offences weapon (an axe) in the attack.
9. Mr Timbe provided two case authorities which were outlined at para 10 of his written submissions
a) State v Onda (2011) N4988
In this case the offender pleaded guilty to four counts of wilfuly murdering her four children aged 8, 7, 5, and 2 ½ years. This incident occurred in Mt Hagen Western Highlands Province. The offender was sentenced to four life years to be served concurrently.
b) State v Lavina Jacob (2024)N11042
The offender pleaded guilty to three counts of wilful murder of her own children Kilon Pais, Jenila Pais, and Felin Pais. She was
sentenced to three life year to be served concurrently by Justice Toliken in Mt Hagen National Court
10. Ultimately the Defence submitted that the offender accused should be sentence to 20 years imprisonment with the pretrial custody
of 1 year 6 months and 29 days declared (pursuant of s 3(2) of the Criminal Justice (Sentencing) Act 1986).
SUBMISSIONS BY THE STATE
11. Ms Kagl began by identifying that the maximum sentence was life in prison.
12. She identified two cases she said were relevant. The first was The State v Javopa (2024) PGNC 49 N5579 where the accused pleaded guilty of 2 counts of Wilful Murder of his son and his wife. He attacked the boy with a bush knife killing him before cutting his wife neck killing her. It was identified as the worse case of Wilful Murder and the Offender received 2 life sentences.
13. The next case Ms Kagl identified was The State v Jacob (also relied on by the defence. She said that case involved a woman who murdered her three children. She had been subject to mistreatment by her husband for 12 years. She took her three children down to the river and drowned them. She received two life sentences.
14. Ms Kalg submitted the aggravating factors:
➢ The victim was a young, innocent and vulnerable child.
➢ The offender used an axe
➢ It was a brutal killing where she inflicted two wounds
➢ prevalence of this kind of offence in society; and
15. Ms T Kalg conceded mitigating factors identifying by the defence
➢ a Guilty plea
➢ First time offender
But they were rendered insignificant because this was an example of the worst kind of case.
16. I challenged her saying that in the cases she cited there were multiple victims which must differentiate it from a single victim however, Ms Kagl maintained her submission that the case before the court represented the worst example of a wilful murder offence.
DECISION MAKING PROCESS
17. To determine the appropriate penalty I will adopt the following decision making process:
STEP 1: WHAT IS THE MAXIMUM PENALTY?
Life Imprisonment
STEP 2: WHAT IS A PROPER STARTING POINT?
Based on the case submitted above.
STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED FOR EQUIVALENT OFFENCES?
18. The only area of contest between the parties has been the head sentence. The Prosecution has said this is an example of the worst case and therefore should attract the maximum. The Defence has said it is not the worst case and cited some authorities in paragraph [7] of their written submissions. As such whether this is an example of the worst case is what the Court will grapple with.
19. The killing of a baby is abhorrent to society because babies are defenceless, innocent and their murder denies another human
being of a chance at life. That makes a wilful murder of a child a possible candidate for the worst type of offence.
Further mothers killing their children is against the natural order. It is the opposite a mothers nurturing instincts. Therefore,
if such action were due to a malicious or evil intention then such a killing would also be a candidate for the worst case.
20. But when the natural order is subverted, the Court must look for explanations. In this case, why a 21-year-old first time mother with no prior evidence of violent behaviour, would murder her child. Unfortunately, there are no psychological reports before me. However, as has been identified in the Defence submissions there was a level of emotional distress in the days and weeks leading up to the murder. The Defence submitted and the prosecution did not challenge that Ms SEK had been subject to physical abuse by her husband. Further that she had been threated with the removal of her child. Giving Ms SEK the benefit of the doubt and looking at the facts in the best way possible for her, Ms Sek’s response to that those threats and the abuse was irrational not malicious or evil. And while this in no way excused her behaviour, it does demonstrate that this is not an example of the worst kind of wilful murder.
How then do I establish a head sentence?
21. I have noted the cases above which are helpful to a point. But in paragraph [12] of his written submissions the defence Counsel also identified the case of Manu Kovi v The State (2005) SC789. This, though older, is very useful because it reviewed earlier cases and provided tariffs. On Page 9 of that judgement it sets out considerations for wilful murder sentences.
22. Some “useful characterisations” which, the Court in that case considered would warrant a life sentence are given at page ten. They are:
1. A wilful murder done in the course of committing a crime of violence such as theft, robbery, break and enter or rape;
23. Clearly none of those facts arise on this sentence. Later in the decision a schedule headed “Sentencing Tariffs for Murder Offences” identifies “Life Imprisonment” for Wilful Murder as Category 3. For Category 3 there should be “Special Aggravating factors” and /or the “Mitigating factors reduced in weight or rendered insignificant by gravity of offence.”
24. Certainly in this case the relevance of the mitigating factors to the exercise of discretion are of less weight due to the seriousness of the crime and other sentencing principles such as denunciation and retribution.
25. However, the mitigating factors are still relevant particularly in providing a context for the actions of the accused that were otherwise out of character.
26. There are not “special” aggravating factors present here. The killing, though with an axe was not prolonged. The victim died instantly and therefore did not suffer. Though the killing of a baby is horrendous and abhorrent, on its own that is not enough to amount to a “special” aggravating factor.
27. In Manu Kovi some characteristics of a wilful murder that would attract a sentence of 20 to 30 years for wilful murder are given. They are:
1. No motive for killing25.
2. Multiple wounds resulting in instant death26.
3. Vicious attack on innocent person resulting in fatal wounds inflicted on vulnerable parts of the body27.
4. Deliberate shooting with gun following argument28.
28. Though not all of those are relevant, this attack was on an innocent person and involved multiple (2) wounds resulting in instant
death.
29. As such, it seems to me, based on Manu Kovi I find that the appropriate range is 20 to 30 years. I note that the earlier case cited by both the Defence and Prosecution are
more serious because they involve more than one victim. Therefore they are distinguishable.
STEP 4: WHAT IS THE HEAD SENTENCE?
30. I turn now to the Head sentence. In deciding the head sentence it is necessary to set out the mitigating and aggravating factors in this case?
Mitigating Factors:
➢ first time offender
➢ Age, she was 21 at the time of her offence
➢ early plea of guilty
➢ early admissions in the ROI
➢ Cooperated with police
➢ Prior Good Character
➢ Defacto provocation- the emotional distress she was under due to her abusive relationship and her mother in law said that she would take her child. Or that she would send Ms Sek away and keep the child.
➢ She showed genuine remorse in his allocutus
The aggravating factors of:
➢ Loss of a life of an innocent young child in a brutal way;
➢ The inflicting of two blows (though death was instantaneous);
➢ the use of an offences weapon (an axe) in the attack
➢ The prevalence of this kind of offence in society; and
31. The offence is so serious that though the mitigating factors are relevant the sentencing principle of denunciation of the offenders conduct, retribution for such a heinous crime and the need to general and specific deterrence looms large in the Courts consideration in this matter.
32. As such and for the reasons given above, I fix a head sentence of 25 years
STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?
33. Yes, the offender has been in custody for 1 year 6 months and 30 days.
STEP 6: SHOULD ALL OR PART OF THE SENTENCE BE SUSPENDED?
34. No part of the sentence should be suspended
SENTENCE
35. Mirriam SEK, having been convicted of one count of wilful murder under s 299(1) of the Criminal Code, is sentenced as follows:
| 25 years | |
| Pre-sentence period to be deducted | 1 year 6 months and 30 days |
| Resultant length of sentence to be served | 23 years 5 months and 335 days |
| Amount of sentence suspended | nil |
| Time to be served in custody | 23 years 5 months and 335 days |
________________________________________________________________
Lawyer for the State: Public Prosecutor
Lawyer for the offender: Public Solicitor
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