SC2867

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCREV NO 62 OF 2024

JONATHON BENJAMIN
Applicant 

v

 THE STATE
 Respondent 

LAE: MANUHU J, WAWUN-KUVI J, CHRISTENSEN J
25, 26 MARCH 2026

REVIEW – CRIMINAL LAW – Sentence review – murder – domestic violence – killing of spouse – use of saw and beating with fists – weight on mitigating factors – extenuating circumstances – facts not contested – manifest excess – inappropriateness of victim-blaming submission – lenient sentence 

The applicant was sentenced to 25 years imprisonment for an offence of murder in which he killed his wife using a saw and then by beating her.  On review, the applicant contended that there were extenuating circumstances that surround, and mitigate, the offending.  The applicant further contended that there was less weight given to the mitigating factors than the aggravating factors, and that the sentence was manifestly excessive.  

Held

1.	It is well recognised that a sentencing judge has a wide discretion in how mitigating, and aggravating, factors are weighed in the exercise of the sentencing discretion.

2.	The absence of pre-planning is not a mitigating factor.  It is an absence of an aggravating factor.  Where pre-planning is not established, it is a neutral factor on sentence.  

3.	There is a particular viciousness and moral culpability in inflicting harm on a spouse with bare hands as it evidences a willingness to inflict physical harm without any degree of separation or detachment.  

4.	There was no error by the sentencing judge in not placing weight on circumstances not pressed or relied upon in substance, and no error by the sentencing judge in acting on the uncontested brief facts.  

5.	A submission that an offender did not wholly contribute to a victim’s demise because the deceased should have stayed home as a married woman has no place in modern Papua New Guinea.  

6.	The sentence imposed was not manifestly excessive, and if anything was lenient.  

Cases cited

Ake, Public Prosecutor v [1978] PNGLR 469 
Bellie v The State [2022] PGSC 130, SC2325
Isaiah v The State [2022] PGSC 68, SC2264
Manu Kovi v The State [2005] PGSC 34, SC789
Norris v The State [1979] PNGLR 605
State v Henry (No 4) [2019] PGNC 136, N7864
State v Kanjip (No 2) [2021] PGNC 368, N9181 
State v Koki [2007] PGNC 264, N5049
State v Mareva [2012] PGNC 222, N4805
State v Tup [2006] PGNC 190, N4489
State v Ulakua [2002] PGNC 98, N2240
Tanabo v The State [2016] PGSC 61, SC1543 
The State v Jonathon Benjamin, CR 1947 of 2023, 05.06.24, unreported
Ume v The State [2006] PGSC 9 at [40]

Counsel

E Misikali for the applicant 
J Wusik for the respondent 

1.    BY THE COURT: By way of application for review filed 24 October 2024 the applicant seeks a review of his sentence for murder.   Leave to review was granted on 7 March 2025.  

2.On 05 June 2024, the applicant was sentenced to a term of 25 years imprisonment for an offence of murder contrary to s 300(1)(a) of the Criminal Code that was committed on 26 February 2023.  The applicant pleaded guilty to the charge on 30 April 2024.  It is an offence that carries a maximum penalty of life imprisonment.  

3.The law applicable to be applied by this court in determining the review of sentence is well settled.  That is, the applicant must demonstrate that the sentencing judge committed an error which has the effect of vitiating the sentencing discretion: Norris v The State [1979] PNGLR 605.  

Grounds of the review 

4.The applicant sets out, in a revised application for review filed 4 March 2026, the following grounds:

(a)	The sentencing judge erred in fact and in law by placing little to no weight on the mitigating factors available in the applicant’s case. 

(b)	All the circumstances of the offence were not taken into account, especially the applicants story:

(i)	The applicant’s wife had gone out the whole night without his knowledge, upon her return in the morning, the applicant slapped her, she wanted to jump however got trapped.  She fell on her neck and died.  

(c)	The sentence of 25 years is excessive in the circumstances of the offence. 

5.It is sought that the review be allowed, and that the sentence be set aside and substituted with a lower sentence.  

The sentence proceeding

6.The sentence hearing occurred on 30 April 2024 and 16 May 2024.  

7.The brief facts provided that the deceased was the wife of the applicant.  On 26 February 2023 between 12am and 2am the applicant and his wife were at Markham Bridge, Morobe Province.  The applicant was “under the influence” and he came into their house.  He was shouting at the deceased and trying to assault her.  The deceased was afraid, so she ran into the room of the house where other family members usually sleep.  

8.The applicant ran after her with a saw on his hand and held the deceased.  He started assaulting her and then swung the saw on her cutting her.  The applicant did not stop, continuing to stop the deceased in the room to the living room and then on to the verandah of the house. 

9.The deceased, trying to escape, then jumped off the verandah and landed on the ground.  The applicant followed her and jumped from the verandah.  He landed on the deceased and punched her while she was on the ground.  He continued punching the deceased until she died “on the spot”.  

10.The applicant saw that the deceased was not moving anymore and he ran and woke her cousin sister.  The cousin sister saw that the deceased had died.  The applicant tried to escape but the boys in the community managed to grab him.  The matter was reported to police, and the applicant was apprehended, interviewed, arrested, and charged. 

11. At the sentence hearing, the applicant entered a plea of guilty on the basis of these brief facts.  This was confirmed to be consistent with instructions.  The depositions were tendered and it was observed that the plea entered was consistent with the record of interview, and the conviction was formally entered.  

12.The antecedent report, with no previous convictions, was tendered.  

13.In the allocutus, the applicant expressed that he was sorry, and he asked for mercy as he was a first time offender with two children to support.  

14.A pre-sentence report was then ordered and subsequently formed part of the sentencing material.  

15.On the applicant’s behalf, it was submitted that the mitigating factors are that the offender was a first time offender, that the attack was not premeditated and that there was an early plea of guilty.  It was submitted that the case was not within the category of worst case and that it fell within category one and category two of Manu Kovi v The State [2005] PGSC 34, SC789.   

16.Three authorities said to be comparative were relied upon: State v Koki [2007] PGNC 264, N5049; Tanabo v The State [2016] PGSC 61, SC1543; State v Ulakua [2002] PGNC 98, N2240.  Sentences from 20 years to 28 years imprisonment were imposed.  It was acknowledged that were not “really similar” to the subject offending, although that they all involved a domestic setting where the husband killed the wife.  It was submitted that a sentence between 18 to 25 years imprisonment was the appropriate sentence for the applicant.  

17.The State submitted that the aggravating factors involved the use of a dangerous weapon, and that the deceased was cut multiple times on vulnerable parts to her body, being her scalp, back, and face. These injuries were confirmed in the autopsy report which described cuts and fractures to bones. The State submitted that there was a strong intention to cause grievous bodily harm and that there was a killing of a defenceless or harmless person who was the applicant’s wife.  The State emphasised that it was a viscous attack that involved loss of life in circumstances of a prevalent offence.  

18.,As to authorities said to be comparative, the State relied on: Bellie v The State [2022] PGSC 130, SC2325; State v Tup [2006] PGNC 190, N4489; State v Mareva [2012] PGNC 222, N4805; State v Henry (No 4) [2019] PGNC 136, N7864; and State v Kanjip (No 2) [2021] PGNC 368, N9181.  Those involved offending in a domestic setting in which sentences between 20 to 28 years imprisonment were imposed.  
19.The State relied on a number of authorities that speak to the seriousness of harm caused to a domestic spouse and the degradation to human dignity and respect by such offending.  The State did acknowledge that the maximum penalty was not warranted and submitted that a sentence in the range of 20 to 30 years imprisonment be imposed.  It was submitted that the case fell within the upper end of category two and in category three in accordance with Manu Kovi v The State.

20.On 5 June 2024, the sentencing judge delivered his reasons and sentence: The State v Jonathon Benjamin, CR 1947 of 2023, 05.06.24, unreported decision.  His Honour had regard to the brief facts, summarising that the facts involved the applicant repeatedly assaulting his wife with his fists and a saw until she died, while he was under the influence of alcohol.  The antecedents of the applicant were acknowledged, including that he was a first offender, and was believed to be 37 years of age and married with two children.  He had no previous convictions. 

21.The remorse expressed by the applicant in the allocutus was acknowledged, as was the finding in the pre-sentence report that the applicant was not a threat to anyone.  

22.The sentencing judge considered the submissions of counsel as to the appropriate sentence, and their submissions as to the applicable categories per Manu Kovi v The State and the appropriate sentence per comparative authorities.  His Honour was found that the circumstances of the offending were such that it fell within the third category of Manu Kovi v The State, being that there was a strong desire to do grievous bodily harm, there were repeated assaults with the fist, and a saw as a weapon.  

23.With respect to the submissions made on behalf of the applicant, it was recognised that it was submitted “the offender pleaded guilty early as a first time offender” and “[i]t was not a premediated attack”.  

24.A sentence of 25 years imprisonment, with the time in custody deducted, was imposed.  

Ground (a) – Little to no weight on the mitigating factors

25.It is well recognised that a sentencing judge has a wide discretion in how mitigating, and aggravating, factors are weighed in the exercise of the sentencing discretion: Norris v The State.  This Court will not interfere in that discretion in the absence of it being established that a factor was not taken into account at all, that a relevant mitigating factor was weighed on a wrong principle, or that the weight given to a relevant mitigating factor was so manifestly unreasonable that it demonstrably was given little or no practical effect in the sentence imposed.  

26.The role of the sentencing judge in sentencing for an offence of homicide involves a difficult balancing exercise.  As the Supreme Court in Ume v The State [2006] PGSC 9 at [40] observed:

The sentencing principles in homicide cases are settled. In the exercise of its sentencing discretion, the Court must take into account all relevant aggravating circumstances, all relevant extenuating circumstances and all relevant mitigating factors. The Court must then balance these factors and determine a punishment which fits the particular crime.

27.It was submitted on behalf of the applicant that the sentencing judge’s error with respect to the balancing exercise undertaken is revealed by the following portion of the decision:

The circumstances of the present case makes it fall into the third category for murder under the Manu Kovi guidelines.  There was a strong desire to do grievous bodily harm.  There were repeated assaults with his fist and the use of a saw as a weapon.  The consequence of his unrestrained acts is the loss of life of his wife.  There can never by anything more serious than death.  Therefore, his guilty plea as a 
first-time offender fades into insignificance.  

28.The applicant submitted that this demonstrates that, erroneously, considerable weight was placed on the aggravating factors and insufficient weight was placed on the mitigating factors.  

29.This submission misconceives the sentencing decision, and the exercise of the discretion of a sentencing judge.  In accordance with sentencing practice and law, the sentencing judge was required to balance the mitigating factors amongst the aggravating factors and other sentencing principles, with this exactly what the sentencing judge did.  

30.As to particular mitigating factors relied upon by the applicant, we observe that the sentencing judge had regard and recognised the mitigating factors of the guilty plea and the applicant being a first time offender.  As observed above, his Honour, within his discretion, found that these ‘faded into insignificance’.  That this is not erroneous is well demonstrated by what was said by the Supreme Court in Isaiah v The State [2022] PGSC 68, SC2264, which succinctly observed the long-standing law as to the balancing exercise in sentencing in homicide offences.  The Supreme Court said at [20]:

In murder offences, as with all serious crimes of violence, the gravity of the offence determined in the light of relevant aggravating factors in some cases may far outweigh the extenuating circumstances and mitigating factors and render them insignificant.

31.As to a further submission of the applicant that a mitigating factor of the offence not being pre-planned was erroneously not taken into account, this submission is also misconceived.  The absence of pre-planning is not a mitigating factor.  It is an absence of an aggravating factor.  It amounts to no more than a neutral factor in the sentencing exercise.  

32.We further observe that it is reprehensible to inflict harm on another person with a weapon or implement, and as such this is typically an aggravating factor in offending.  But there is something particularly viscous and morally culpable in inflicting harm on a spouse with bare hands, as the applicant also did here.  It evidences a willingness to inflict physical harm without any degree of separation or detachment.  To inflict such harm on his wife, to the point that his beatings ultimately killed her, and after having already assaulted her with a saw, reflects a level of ferocity and maliciousness that leaves little role for mitigating factors in the balancing involved in the sentencing exercise.  

33.No error is identifiable from this aspect of the sentencing exercise.  This ground must be dismissed.  

Ground (b) – Consideration and/ or weight on circumstances of offending

34.The applicant’s contentions under this ground misconceives the factual circumstances of the offending as relied upon at the sentence hearing.  These were set out in the brief facts.  The applicant was afforded an opportunity for these to be explained to him and expressed his understanding of the facts alleged.  The applicant pleaded guilty following this. 

35.In accordance with the undisputed facts on sentence, it is therefore erroneous to describe that the extenuating circumstances of the offending were not appropriately considered.  

36.We acknowledge that the information referred to on sentence included the presentence report in which the version relied upon by the applicant under this ground was set out.  The submissions on behalf of the applicant at sentence referred to this report as being the “personal particulars” which they adopted.  The sentencing decision reflects that the sentencing judge had considered the report.  

37.However, at sentence, the applicant’s counsel made no further submissions as to the apparent version of the applicant in this report, nor was his version in the record of interview raised with the sentencing judge.  This version differed to that in the presentence report, with the record of interview providing that the applicant was “angry” and “beat her up” and that “I picked up a saw and threw it at her...she jumped from the house...when she jumped, her head landed first on the ground”.  

38.To the extent that these circumstances are now relied on, submitted to establish defacto provocation, these were not matters raised at sentence.  It was not submitted that there was a denial or dispute as to the facts, and no review as to conviction is sought.  In Ake, Public Prosecutor v [1978] PNGLR 469 the Supreme Court held that: 

When no challenge is made to any of the facts alleged in the State case on a plea of guilty, the doctrine that the version of the facts most favourable to the accused should be acted upon, does not apply.

39.There was no error by the sentencing judge in not placing weight on circumstances not pressed or relied upon in substance, and no error by the sentencing judge in acting on the uncontested brief facts.  

40.Nonetheless, with respect to this ground, it is necessary to also consider a further submission made by counsel for the applicant as to a contended extenuating circumstance that the applicant’s wife had returned home late and the role this ought to have had in the sentencing exercise.  The submission made in the written submissions, and maintained at the oral hearing, was: 

These are essentially facts that needed to be taken into account because the applicant did not wholly contribute to the deceased’s demise.  If the deceased had stayed home as a married woman, no incident would have occurred because the applicant would not have suspected anything, or his instructions would have been complied with.  Her coming home late provoked him to assault her.
  
41.This submission must be rejected and should not have been made.  The notions underlying this submission have no basis in modern Papua New Guinea. 

42.To explain why, and for completeness, we observe that even if the purported extenuating circumstances the applicant seeks to be relied upon were raised for contest and determination at sentence and were established in favour of the applicant, they would not have been informative in a mitigatory way on sentence.  This is because, firstly, the factual scenario contended by the applicant was inconsistent with murder and would not have resulted in a conviction.  No review against the conviction is sought.  Secondly, even if the deceased had gone out the whole night without the applicant’s knowledge, this did not entitle him to assault her, and certainly did not entitle him to assault her to the point that she died.  The alleged circumstance of his wife’s conduct were not capable of being mitigatory.  The applicant’s wife was not his property.  Any disrespect to himself or his marriage that he was aggrieved by ought not to have been responded to with violence. 

43.What occurred here was a brutal, persistent, and vicious attack by a husband upon his wife.  Such violence is not tolerated in our community.  It is violence that destroys not only the life of the victim but destroys the life of the family left behind, especially children.  Such offending is appropriately met with stern sentences of imprisonment that reflect deterrence from such behaviour.  Persons who are minded to engagement in violence against a family member must understand that their offending will be met with a lengthy period in the custodial environment.  

44.No error is established with respect to this ground.  

Ground (c) – Manifestly excessive sentence

45.The applicant made no submissions specifically directed at this ground of review, beyond submitting that the contentions in the other grounds resulted in a manifest excess.  Further, and curiously, counsel on behalf of the applicant submitted that it was accepted that the sentence of 25 years imprisonment that was imposed was within range, but it was maintained that the review be upheld.  Noting the absence of submissions directed at this ground, and the concession as to the sentence imposed, it is unnecessary to consider the ground in detail.  

46.For completeness though we observe that the authorities relied upon at sentence, including on behalf of the applicant, confirm that the sentence imposed was well within range, if not lenient.  In State v Koki, the offender was sentenced for beating his wife to death with no weapons.  He was a first time offender, he pleaded guilty, and he surrendered to police.  There were aspects to this offending that were less serious than the current offending (being no weapons involved and a surrender), and he was sentenced to 28 years imprisonment. 

47.Further as to the offending here, and in addition to the observations made as to the circumstances of the offending, it warrants noting other aggravating features.  The offending involved not only the applicant himself physically assaulting the deceased until she died, but it also involved the applicant commencing the attack by assaulting the deceased with an implement, being a saw.  The assault was protracted and occurred in and outside of the family home.  This was a place where the deceased was entitled to feel safe and protected, with the violation inflicted on her by a person she was entitled to feel safe and protected by.  The applicant violated the trust of the deceased, of her family, and of God, in bringing his wife’s life to an end in the manner in which he did.  This was abhorrent offending which warranted nothing less than a significant term of imprisonment. 

48.In a similar sentiment, as his Honour observed in the sentencing exercise, “the present case is a sad case of an innocent wife losing the most previous gift every human being possesses at the very hands of the very person who accepted her to be at his side in good times and bad times....rage blinded the sanctity of life”.  His Honour further, entirely accurately, observed that:

... the offence is also prevalent in this country.  Killing in marital relationship[s] is high and does not seem to subside despite high sentences being imposed by the courts.  Children are left motherless.  Spouses are left without wanting support. Relations becomes sour.  The purpose of having a family becomes meaningless.  

49.The sentencing judge appropriately found that a deterrent sentence was warranted.  

50.The sentence imposed was not manifestly excessive. As already observed, if anything, it was lenient.  This ground of review fails.  

Conclusion

51.No specific or manifest error is established.  The review must be dismissed.  

Orders

52.For those reasons, the following orders are made:

(1)	The review is dismissed. 

(2)	The sentence of 25 years for the offence of murder contrary to s 300(1)(a) of the Criminal Code is confirmed.  
________________________________________________________________
Lawyer for the applicant: Public Solicitor
Lawyer for the respondent: Acting Public Prosecutor