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State v Ulakua [2002] PGNC 98; N2240 (23 May 2002)

N2240

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 51 of 2001

THE STATE

-V-

JOSEPH ULAKUA

WEWAK: KANDAKASI, J.
2002: 20th and 23rd May

CRIMINAL LAW & PRACTICE – Sentencing – Murder – Husband killing wife for running way from him – Killing in circumstances close to wilful murder - Fatal cuts to both of the deceased legs severing bone and veins - Death due to loss of blood - Guilty plea – No prior conviction – Sentence of 20 years imprisonment imposed – Criminal Code ss 300 and 19.

Cases cited:

Kesino Apo v The State [1988] PNGLR 182.
The State v. Tau Ted Lahui & Ors [1992] PNGLR 325.
Ure Hane v. The State [1984] PNGLR 105.
Goli Golu vs. The State [1979] PNGLR 653.
The State v. Ngetto Rex Rongo (20/12/00) N2035.
The State v. Laura (No. 2) [1988-89] PNGLR 98.
Simbe v. The State [1994] PNGLR 38.

Counsel

Mr. M. Ruarri for the State
Mr. D. Kari for the Accused

DECISION ON SENTENCE

23rd May, 2002

KANDAKASI J: You pleaded guilty to killing your wife, Patricia Joseph ("deceased") on 18th October 2001, at Malba village, Maprik, East Sepik Province contrary to s. 300 of the Criminal Code. After reading the depositions, I was satisfied that the evidence supported your guilty plea. I therefore, accepted your guilty plea and convicted you of that offence.

Address on sentence

In your address before sentence, you stated that you did not intend to kill the deceased. You only went to Malba village to take your wife but the man whom she was staying with, fought with you and you got a bush knife and threw it at the deceased. Your lawyer then informed the Court of your personal and family backgrounds and argued for a determinate term of years and not the prescribed maximum sentence of life imprisonment. He drew my attention to the case of Kesino Apo v The State [1988] PNGLR 182 and The State v. Tau Ted Lahui & Ors [1992] PNGLR 325. Having regard to the sentence in those cases, he argued that you be given a sentence between 12 and 14 years.

The State on the other hand argued for a sentence in the range of 20 to 30 years. In support of that argument the State points out that you committed a very serious offence which carries a maximum of life imprisonment for its penalty. There is no contest between yourself and the State that your case does not fall in the worse type of murder case, warranting an imposition of the maximum penalty of life imprisonment. That is in line with a large number of authorities such as the Supreme Court judgements in Ure Hane v. The State [1984] PNGLR, 105 and Goli Golu vs. The State [1979] PNGLR 653.

But whether the maximum prescribed sentence or something less than that should be given in anyone case is dependent on the particular facts of a case. So what are the facts in this case?

The Evidence and Facts

The facts emerge from the deposition, which were admitted into evidence with your consent. They are quite straightforward. According to a statement from, Census Ambabie, who is a village court magistrate in you village, your problems with the deceased started not long after you two were married. Your once good character changed to one of continuous wife beating. On one occasion Mr. Ambabie mediated between the two of you. At that mediation, it became clear that you had bashed up your wife out of a suspicion that she was having affairs with two men in your own village but there was no evidence to confirm the suspicions. You were therefore warned against such conduct.

Sometime later, the same problem re-surfaced. This time the cause was the deceased supposedly having extra marital affairs with some other village men. The deceased appears to have admitted to having such an affair but it is not clear whom she admitted to and it is doubtful. That did not result in a proper resolution because both your own relatives and that of the deceased were at odds with each other and were trying to fight each other. Eventually this ended up in the deceased leaving you with the children and she returned to her parents and stayed in Malba. She stayed there for a long time so Mr. Ambabie decided to go to Malba purposely to take the deceased back to you. He was therefor at Malba on the 18th of October 2001 to locate the deceased. He located the deceased and spoke to her of his mission and she agreed to return to your village and of course you.

Meanwhile you went to Malba on and was also there on 18th October 2001. That was after staying with a Leo Waiwal for two weeks. You stayed with that man purposely to go and take the deceased and your child home. You went to the house where the deceased was between 8: 00 and 9:00 a.m. Statements from witnesses describe your appearance at that time as very fierce. The deceased and your child were outside that house while the woman whose family the deceased was living with, was inside cooking some food. You called out from the road to you wife saying "Yu kam hia long marit ah? Kam daun na mipela igo long Maprik" translated "You came here to get married ah? Come down and we go to Maprik". You also used some insulting words "Yu pamuk meri", translated "You prostitute woman". Upon hearing you, the deceased ran back into the house and locked the door from inside. You ran after her and broke open the door and went inside the house.

You then pulled a bush knife hanging from your side and tried to cut the other women who was inside earlier. But she screamed and called out the deceased name aloud and that stopped you from cutting her. You then had a struggle with the deceased inside the house and the deceased ran out of the house with you pursuing her. A Kuluanji Mauligan who was on the veranda grabbed hold of you and you struggled with him until he was tired and he let you go. You then went after the deceased and cut her very badly from the backside on her legs and ran way leaving her to bleed to death and she died.

The medical post mortem report describe the injuries you inflicted upon the decease as a massive laceration to the back of right knee joint severing both the tibia and fibula and muscles forming the joint as well as the blood vessels. That part of the leg was held in place only by a skin tag. The right ankle joint was severely cut with the fibula bone separated from the joint. Her left foot was also cut midway with the calf muscles severed. The cause of her death was attributed to massive external bleeding.

The evidence in the deposition do not support your claim of people from Malba, with whom the deceased was staying, assaulted you which made you angry and you cut the deceased. Likewise, your claim of the deceased staying with a man in Malba is not supported by any evidence in the depositions. Instead on the evidence as outlined above, I find that you were obviously not happy with the deceased running away. It is also clear that you marriage to the deceased was not working well. Initially, you accused her of having affairs with some men in your own village and continued to bash her up for some time. Your village court magistrate conducted one mediation between you and the deceased at, which you could not establish that the deceased was in fact having affairs with two men in your village. You were therefore warned against such accusations. There is some reference in your village court magistrate’s statement that the deceased on a subsequent occasion admitted to authorities without specifying who in particular to, of her extra marital affairs. I do not accept that suggestion, as there is no properly admissible and credible evidence of such admissions. Your problem with her did not get resolved and she ran away from you.

On the day of the attack on the deceased, you appeared fierce and called out to the deceased using words that were in my view, not indicative of someone trying all his best to get his wife back to his village. Instead the words were that of an angry man and were capable of preventing the deceased from even thinking of returning with you to your village. The level of your anger was such that, you did not respect the house and or property of an other person when the deceased ran into the house of the people she was staying with and locked it from the inside. You broke the door down and proceeded to attack the deceased there. You had a bush knife with you, which you used to attack the deceased. You almost cut the lady of the house but her screaming saved her. The deceased ran out of the house and you pursued after her. A man in the house stopped you on your way out and you struggled with him until he got tired of you. Thereafter you used your bush knife to cut the deceased so badly. From the medical evidence I infer that you cut her with such forced that you inflicted very serious injuries to both her legs. Those injuries directly led to her death the same day. After having done that, you escaped back to your village without showing any concern or pity for the deceased. In these circumstances, I find that you purposely went to where the deceased was to kill her for running away from you. I therefore, find what you did very serious. I am thus, of the view that you could have been indicted for wilful murder but the State has decided to charge you with murder.

Considerations before sentencing

In order to arrive at a decision that best reflects the circumstances and the way in which you committed the offence I take the facts as out lined above into account. In so doing I note that this is yet one more of wife beating cases, I have dealt with in this circuit. Based on my experiences in this circuit alone, I note that this is a major problem in this Province. As such something drastic must be done to stop it. It must be stopped because this is a crime against mothers and crimes against the foundations of families and foundations of tomorrow’s peoples and leaders of the country. The more these kinds of offences are allowed to continue the more violence children will be allowed to come to deal with and live by and grow into. These types of offences must be stopped because, the Constitution says so and so do the bible and the criminal code and past judgements of both this and the Supreme Court.

The fact that you were charged only for murder and not wilful murder has already reduced the possible sentence of death to life imprisonment. Any further reduction of that must be for a very good reason and reasons which out weigh the gravity of the offence and possible effects of the offence on the children, your immediate community and the country as a whole, which I have briefly mentioned already.

The only factors operating in your favour in my view, apart from your personal backgrounds are your guilty plea and you having no prior convictions. I take these factors into account in your favour subject to what I am just about to say.

First in relation to a guilty plea, I am of the view that, such a plea does not change the gravity of an offence. It is only a factor that has been allowed to operate in favour of accuseds persons to show an appreciation for such a person saving the State and the Courts time and money that would have been otherwise spent on running a trial. It also saves the witnesses the trouble of coming into court and giving evidence and reliving bad memories. In my view this becomes only useful in offences such as rape and other sexual offences, which effectively relieves the victims of such offences from re-living their bad memories. But in cases like murder, manslaughter and willful murder the victims no longer exist to relive their memories or where the victims survive it, may not be a big deal for them to come forward and give evidence. In the upshot therefore, in my view, guilty pleas should have a very minimal reduction in sentence in such cases.

As for the lack of any prior conviction, formerly a person may have no record of conviction. That does not necessarily in every case means an offender as been good all his live and has not been in trouble with the law before. For all manner of reasons, an offender may not have any prior convictions even though he or she as been in trouble with the law before. This is why in some cases character references serve useful purposes for the purposes of sentencing. I am therefore of the view that, if there is evidence of the offender being involved in an offence similar to the one he or she is presently convicted of, that should be taken into account rather than brushing it aside. After all, granted that a person charged of a criminal offence is presumed innocent until proven guilty the community does have a view of a person in the community, and they expect the Court to appropriately deal with him when caught.

Sentencing Trends

Having made these observations and comments let me now take a look at the kind of sentences that have been imposed in the past before arriving at a sentence for you. I reviewed the sentencing guidelines and or trends in the case of The State v. Ngetto Rex Rongo (20/12/00) N2035. That started with the National Court judgement in The State v. Laura (No. 2) [1988-89] PNGLR 98, which suggested guidelines for sentencing for murder cases in terms of:

(a) on a plea of guilty where there are no special aggravating factors, a sentence of six years;

(b) a sentence of less than six years may be imposed only where there are special mitigating factors such as youthfulness or very advanced age of the accused;

(c) on a plea of not guilty, a range of sentences from eight to twelve years or more in a case where aggravating factors are evidenced.

In that case, the Defendant pleaded not guilty to a charge of murder under s.300 (1)(a) and was found guilty after a trial. He received a sentence of eight years where there were neither special factors in aggravation nor special factors in mitigation.

The Supreme Court in Simbe v. The State [1994] PNGLR 38, adopted the guidelines set by the Laura No. 2 case and applied them in the context of an appeal against sentence of 14 years following a plea of guilty to a charge of murder.

I then had a look at other cases on point and said these:

"One thing that is apparent through these cases is the principle that, the guidelines are only guidelines. Each case as to be determined on its own facts. In the Simbe case the Supreme Court said at p.39:

‘The records show that terms of years imposed in 1991 and 1992 for murder range from four years of imprisonment to life imprisonment. This indicates quite clearly that each case has been determined on its own facts and thus, there maybe a very wide variation in the circumstances that lead to a person killing in s.300 situation.’

The Court than quoted with approval a passage on point from the Laura No. 2 case at page 99 and said on its part at page 40 of the judgment:

‘That is the principle. Each case of murder must be decided on a case by case basis, but always remembering that the sentence laid down by s.300 is life imprisonment and the terms of years is by virtue of s.19.’"

I noted in that case that most of the cases on murder attracted varying years of sentence from 4 years to life imprisonment and decided to impose a term of 6 years imprisonment. That was a case in which the prisoner killed his wife out of a straightforward domestic argument by a piece of would.

Since the above case there has been an increase in sentence for murder. More recently, my brother Justice Jalina imposed a 20 years sentence on a guilty plea to the murder of a person who was believed to be a sorcerer. His accomplished who participated in the planning to kill and being present at the scene was given a sentence of 18 years. This was only in April 2002.

This approach is reflective of the fact that there is so much killing every for all manner of reasons. Some killings are taking place in the course of armed robberies, others over drunken brawls and some others in the marriage circles. Those in the later category are becoming prevalent and its very frightening for the society, especially when one stops to ponder over what kind of society our country is going to become when our very young children of today grow into men and women of tomorrow. There can not be much argument that violence produces violence, while peace produces peace. As I said before, the more we allow husbands who kill their wives and vice versa to go free or escape with a lenient sentence the men and women of tomorrow and children of today will grow into violent people. It there behoves the Courts to impose the maximum sentences prescribed for murder, which is life imprisonment. Indeed, in my view, Parliament made no mistake in prescribing life imprisonment for someone who takes away any other persons life without any lawful excuse or one that is not permitted by law. The onus is therefore in my view, on a prisoner to show why he should not be given the prescribed sentence and make a case for it. Yes of course, some might argue that this suggestion goes contrary to the presumption of innocence. The response simply to that is, take a good look at the wording in the relevant provision of he Constitution and you find that that presumption is only in relation to guilt. Once guilt is established or admitted the presumption no longer exists.

In your case, the only reason for you to argue against an imposition of life imprisonment is your guilty plea and you having no prior conviction. However for reasons already given this alone in my view do not warrant any substantial reduction in the sentence. Instead you are entitled to a small reduction to reflect you guilty plead and the fact that you do not have a formal prior conviction. I consider a sentence in the vicinity of 20 and 30 years appropriate. I therefore impose a term of 20 years in hard labour less the 7 months and 4 days you have already spent in custody awaiting your trail.

In arriving at that sentence I note that it was not necessary for you to kill the deceased. Going by the facts as I have earlier noted, it seems your marriage was not working properly. This was caused initially by your accusing the deceased of having affairs with some men in your village. If indeed that was the case, you could have easily divorced her and let her go her way and you go your way as she was no longer in love with you. You could have easily found another wife. There is no evidence that shows why you could not do that. Further you went into a village and house that was not yours and attacked the deceased despite being stopped. You trespassed onto other people’s property and committed a serious offence there. There ought to be respect for other people’s houses and properties and the intervention of others in the interest of peace and peaceful solutions to problems. You also attacked the deceased when she was with one of your child. I am sure the child will have terrible memories of what you did unless he gets appropriate counselling which is non existent in most parts of our country. Your child therefore faces the risk of turning into a violent person as he or she grows up. This sentence is thus imposed to serve both as a personal and general deterrence.

In the end I order that you be imprisoned for a term of 20 years in hard labour, less the 7 months and 4 days you have already spent in custody awaiting your trial. A warrant of commitment will issue in those terms.
______________________________________________________________________
Lawyers for the State: The Public Prosecutor
Lawyers for the Accused: The Public Solicitor