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State v Nope [1979] PGNC 9; N195 (20 June 1979)

Unreported National Court Decisions

N195

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
THE STATE
V
PANIKUIAKA NOPE

Goroka

Wilson J
20 June 1979

CRIMINAL LAW - sentencing - wilful murder in the context of attempted suicide - child killing - reasons for wide sentencing discretion for wilful murder considered - severity of punishment to be related to level of blameworthiness or moral guilt - degree of culpability as a factor in sentencing - punishment to be no more than fits the circumstances of rime rime and the offender - deterrent sentence not called for when no deterrent effect is likely - diminished responsibility as a mitigating factor.

Cited

Secretary for law v. Ulao Amantasi andi and Others (1975) P.N.G.L.R. 134 applied.

REMARKS ON SENTENCE

WILSON J: Pinakuiaka Nope has been convicted of the crime of ‘wilful murder’. At the outset it must be made clear that this case is a most tragic and unusual one. The cwas committed by this this accused in a somewhat technical sense only.

The accused is a unsophisticated uneduuneducated woman, about 36 years old, omes from the Marawaka sub-province of the Eastern Highlandhlands Province, a remote area where suicide and attempted suicide are pret, especially by woman.&#16. Sunduct is a part of the cthe custom of the locality and is frequently resorted to as an emotional response to a dramatic situation. The accused’s village is 30 miles from the nearest administration station and mission. Contact with either Government influence or the influence of the church has been minimal.

The evidence before me dses that the accused and hend her husband over the years had had many violent quarrels. On at least occasions thes the accused had been seriously injured by her husband. She carries to this day lree large and conspicuous scars which indicate where on hdy she was severely cut with sharp weapons. I saw thew these scars o ther thigh, her shoulder and her neck. I was not surd to learn onat on more thae than one occasion she nearly died of her injuries suffered at the hands of her husband. It is hardmagint aloscribecribe,ribe, the relationship of cruelty and violence that must have existed betw between this husband and wife.

Onnight of 27th February, 1979 another quarrel developed, and the accused’s husband madd made a violent attack upon her. He at her with an axe, and, and she was frightened that she would be hurt again. He threw the axeh became eame embedded in tor of her house. Thereafter, whilst e depthdepths of depression, whilst feeling frustfrustrated and rejected, and in an atmosphf hopelessness, the accused decided to do away with herselfrself and her approximately 18 months’ old child. She set fire to tnai househouse, closed her eyes, and then waited for death. Bot and the child were bure burnt; but before they were both irated the accused’s husband, who had heard the child’s cries, burst in, after bter breaking down the door with a tomahawkrescue them both. The; The accuiraculously wsly was saved from death; she eventually recovered from her burns. The child sadly of his burs burns within a few hours.

The accused was charged with the ‘wilful murder’ of her child; she pleguilty to the charge; and she has, as I have stated, been convicted of the crime.

Th

The accused has been in custody for three months awaiting trial. as no prior convictions.&#ns. S-operated with the policeolice, and at all times was honest and frank. She has been jolted fromster state of emotional crisis and is now very sorry for what happened.

To regard su (the taking of one’s217;s own life) as a form of homicide is an intellectually neat classification; to regard this accused’s conduct, which was an attempt to take her’s and her son’s life (unsuccessful as far as she was concerned but successful as far as her son was concerned), as ‘wilful murder’ is also an intellectually neat classification, and is, I consider, legally sound: BUT as a matter of legislative policy and practical law enfont the kthe killing of this child, in circumstances where the mother’s suicide, through clearly intended, quite fortuitously was prevented, raises very dint social and ethical considerations from the more usual kial killing of a person by another. &#I use the words “me20;mere usual killing” with some hesitation, because who can define what is usual in homicide and where is the end to the unusualapua New Guinea?

No one questions either the repreheprehensibility of unjustified homicide or that the law ought to set itself strongly against it. The nderance of responsiblnsible opinion at the present day, however, as evidenced both by the practice of prosecuting authorities in many jurisdictions where human rights and freedoms are valued and by pronouncements of the major churches is that, although suicide and attempted suicide (and, by parity of reasoning, attempted suicide in conjunction with child killing, as here) may be regarded by some as sins, even grave ones, there is no case for treating these supreme manifestations of human misery as offences against the criminal law and, in any event, no need to prosecute as criminals those who attempt unsuccessfully to do away with themselves. Nevertheless, this ed̵’s conduct is against the criminal law of Papua New Guinea and she has been prosecuted. It is classias ‘wilf;wilful murder’, the very serious crimeespect of which moves are care currently being taken to restore the death penalty in this country as the maximum penalty.

Beca am sworn to uphold the lawe law, and because I must attempt to do justice according to law, remembering, as I do, that justice not administered according to law is not justice at all, I cannot treat this undoubtedly special case of ‘wilful murder’ as something other than an offence. I must discharge my seing cing responsibility. Howevehasten to state, and, and do so as strongly as I am able to in the circumstances, that this case must surely be one of the least serious ‘wilful murd217; (in terms of thef the moral blameworthiness) ever dealt wilt with in Papua New Guinea. It mustly be less serious ious than most cases of ‘infanticide’ which generally result in a penalty involving a few months’ imprisonment. The lature have had in minn mind that in Papua New Guinea especispecially there are serious cases of ‘wilful murder’ at one ex which deserve the maximum penalty of life imprisonment and other cases at the opposite exte extreme where little or no punishment may be called for when it (in 1976) amended s.309 of the Criminal Code Act to remove the mandatory penalty of life imprisonment for ‘wilful murder’ and substituted a wide discretionary penalty with life imprisonment being the maximum and no minimum. The wide discretion whhe Cthe Court has is a strong indication that the legislature intended that the severity of the punishment should be related to the level of blameworthiness.

A difficulty I have had to face up to in this case arises from the fact (and there is no room for dispute about this) that, but for the conduct of the accused’s husband in knocking down the door of the blazing house and carrying his wife and child outside, the accused would most certainly have achieved her objective, namely her own, as well as her child’s, death. he succeeded, she would nold not, of course, be before this Court for punishment. Furthermore, e had not hadt had her child with her, she would not, as a matter of current practice in Paew Guinea at this time, be , be before this Court for punishment, because the Prosecutor in this case tells me that in the exercise of the State Prosecutor’s independent discretion such a person, in the absence of special circumstances, would not be charged on indictment before this Court with the offence of ‘attempted suicide’, an offence which, it is to be observed, is punishable by a maximum of one year’s imprisonment.

Where is the difference in principle between the case of the woman who succeeds in committing suicide, the case of the woman who, having attempted to commit suicide, is unsuccessful because she is prevented by outside intervention from achieving her aim, and the case of the woman (as here) who having attempted to commit suicide and taking with her her infant child is unsuccessful for the same reason, but the child dies? How either in princor in f in fact can it be said that there is any difference in terms of culpability, criminality, criminal responsibility or morameworthiness?

I see nothing sinister in the fact that the accused decided to take hake her child with her to an intended death. By custom the child was clry close to her, and it was natural to her that where she went so she would take him. To herle way of thinking, ing, not to have taken him with her would have been to desert the child. Asappened, the child tralytraly went to his death alone, and in a sense she is being punished by the knowledge that her her actions were a substantial cause of teath.

By the processes of reasoning just outlined I ed I am led to the firm conclusion that this woman’s level of moral guilt was, at the time she set fire to the kunai house and prepared, with her infant child, to die, minimal. On that accoud knowing thag that she has spent three months in custody waiting trial (a punishment in itself) and knowing that in other ways he is being punished, I propose to punish her no more. I dischay sentencing resp resp responsibility in a manner understood by those working within the legal system, viz.by sentencing her to be imprisoned till the Rising of the Court. This means in ical that shat she will hall have to serve no more time in prison than the time already spent.

In further explanation of the ion I have reached in this case, I should say that I regard this woman as more a victim tham than a criminal. Her conduct, thouagic in t in the result, was in reality the impulsive manifestation of emotional and customary pressures as distinct from delibecriminality. As a sentencing juy duty iuty is to see that punishment is no more than than fits the circumstances of the crime and the offender. Those circumst in this cass case are exceptional.

In August last year when presiding over the circuit sittings of the National Court at Daru in the Western Province, I had something to say about certain difficulties which arise from time to time in the sentencing process and I emphasised the artificiality of that process in certain situations. I also spokehe need for Coor Courts to try to keep in balance the often competing purposes of punishment. Ir to The State v. A Fe A Feama and 2 others N195.html#_edn161" title="">[clxi[clxi]¹ - a case involcannim. #160; In that case I explained how, in a case case like that, there was a need for the notions general deterrenceto a lesser extent retribution to be emphasised, even though the offenders’ cu7; culpability or level of moral blameworthiness was diminished. I was reng to general dete deterrence in the sense of a sentence which would provide, in the long term and in the historical context, a measure of public protection.

In the present special case I see no place for the notion of retribution in the sentencing process nor do I see a need to impose a sentence designed to provide a measure of public protection; persons contemplating suicide are unlikely to be deterred by the knowledge that another, who attempted unsuccessfully to commit suicide, has been punished, assuming (which it would not be safe to do) that such persons are likely to become aware of this Court’s sentencing practice. The n of rehabilitationation can only be given effect to in the present case by this Court, in the absence of probation facilities, doing what it can to offer such social welfare support andstance as may be available able in this Province. To that end Iest the commucommunity development officer, who is in Court, to help this woman with such social welfare support and assistance. There is no other principle of sentencing that should be ed in this instance to supp support or justify the imposition of further punishment.

There are several purposes of punishment here are, as I have been explaining, several principles to s to be observed in sentencing. Whatould emphasise is that that the degree of moral guilt of an offender being considered for punishment is very important; it ought not to be treated as irrelevant0; It is the almost complete, if not total, absence of mora moral guilt of this unfortunate woman that leads me to refrain from ordering that she undergo any more punishment than she has already received.

The criminal law recognises that insanity is completely exculpatory. It alsognises that provocaovocation which deprives a person of the power of self-control and leads him to act aggressively in the heat of passion is either exculpatory or mitigatory, depending on the result of the response and the intention of the person provoked. In a similar fashion I should regard this woman’s diminished responsibility as at least mitigatory.

I have explained these things at some length lest it be thought that there is something unsatisfactory abouonviction for a crime normanormally associated in men’s minds with a high degree of moral guilt being recorded against a woman whose conduct involved little or no moral fault or that there is something incongruous about a woman receiving very little punishment for a crime normally considered to be a very serious one. Unsatisfactory and incongruous it may be to the layman, but to me, as one charged with the duty of administering the criminal law, it is in accordance with reason and commonsense. have n into error, there iere is a right in either the pris prisoner or the State Prosecutor to appeal against my decision.

Myntion was drawn earlier this afternoon to a decision of the pre-Independence Full Court of t of the Supreme Court in Secretary for Law v. Ulao Amantasi and Others N195.html#_edn162" title="">[clxii]². I find nothing in the judgment of Prentice S.P.J. (as he then was) or in the judgment of Raine, J. (as he then was) which constrains me to depart from the course that I had previously thought was the proper one, viz. to inflict no more punishment upon this woman. I note in passing thanticentice S.P.J. gave appropriate emphasis to the “degree of culpability” (as he put it ) as a factor in the sentencing process.

I further add that it appears, from what I have been told by those at the Bar table, that no claims for compensation are likely to be made against this woman or her line nor is there any real likelihood of pay-back or further trouble developing. I have no reason to se thae that an inability or refusal on the part of the people at Marawaka to understand what the Court sees as its duty will increase that likelihood. In an at to minimize that that posity, I rely upon the communommunity development officer, the police, and administration personnel to make the necessary explanations ch people as may be affected. I that the accusedcuseded’s husband is in Court - some explanation will be made by me to him after my sentencing responsibility has been discharged. Mri informed me that he thhe thought the accused’s husband appeared satisfied with the time the accused had already spent in custody and appeared desirous of his wife returning home.