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State v Mari [2008] PGNC 168; N3516 (16 October 2008)

N3516

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 515 OF 2008

THE STATE

V.

GEIN MARI

Kokopo: Paliau, AJ
2008: 13th & 16th October

CRIMINAL LAW – Sentence –Murder – Charge of – Guilty Plea – Criminal Code s. 300(1)(a).

Cases cited:
Manu Kovi v. The State (2005) SC789

Counsel:
Mr. Kesno & Mr. J. Wohuinangu, for the State
Mr. F. Kirriwom, for the Accused

16th October, 2008

1. PALIAU, AJ.: Upon an indictment presented by the State on 13th October 2008, the accused pleaded guilty to one count of murder. The offence took place at Rabagi No. 2 village, Gazelle in the East New Britain Province. The date of the commission of the crime was on the 10th February 2008. The victim was Maryanne Urapila Boro. The victim was the wife of the accused.
   
2. The accused and the victim on the date of the offence had an argument between themselves between the hours of 10 am and 11 am in the morning. The argument was in relation to one of their children who was sick which the victim did not bring to the clinic. In the process of the argument, the accused kicked the victim on both sides of her abdominal area and her chest. The assault caused her spleen to rupture and she died as a result of shock due to ruptured spleen. The assault on the victim started outside the family home. The victim ran into the family home followed by the accused and he continued to assault her even when she was vomiting and excreting.
   
3. The issue for determination by the court is what is the appropriate penalty to be imposed on the accused?
   
4. Section 300(1)(a) of the Criminal Code Act sates that subject to the succeeding provisions of this Code, a person who kills another person is guilty of murder, if the offender intended to do grievous bodily harm to the person killed. The penalty for the crime of murder is subject to Section 19 of the Criminal Code Act, imprisonment for life.
   
5. Section 19(1)(a) of the Criminal Code Act provides that in the construction of this Code, it is to be taken that, except when it is otherwise expressly provided – a person liable to imprisonment for life or for any other period, may be sentenced to imprisonment for any shorter term. As per Section 19, the Court has the discretion to impose sentence lesser than life imprisonment.
   
6. Mr. Kirriwom of Counsel referred the Court to the Supreme Court case of Manu Kovi v. The State (2005) SC 789 where in the Court formulated sentencing tariff for manslaughter, Murder and Wilful Murder offences and puts them in four (4) categories of seriousness and aggravation.
   
7. The sentencing tariffs in the murder cases are outlined as follows:
   

8. Mr. Kirriwom submitted that following Manu Kovi (supra), the present case fall under category 1. However, Manu Kovi case should only be used as a guide. Peculiar circumstances of each case must be taken into account together with mitigating factors. He urged the Court to also take into account Section 19 for an imposition of lesser penalty that category 1. He recommended a sentence of between 8 to 12 years as the most appropriate sentence.
   
9. The mitigating factors are that the accused pleaded guilty, he has no prior conviction and expressed remorse. The accused stated during allocutus that during their 16 years of marriage life, they had no arguments except this one. He has two children who have no mother to look after because he is in custody. She provoked him because she did not take their child who was sick to the clinic. He did not know she had an enlarged spleen. The accused through his counsel urged the Court to take into account the above provocation as a defector provocation and treated as mitigating factor as well.
   
10. Having taken into account all the above factors, I consider that the appropriate sentence is to be imposed on the prisoner is 9 years imprisonment. I will deduct 8 months 6 days for time spent in custody. I impose a term of 8 years, 4 months, 3 weeks and 1 day to be served in custody.
    

Sentence

11. GEIN MARI, having been convicted of the crime of Murder, you are sentenced as follows:

Length of Sentence imposed - 9 years

Pre-Sentence period deducted - 8 months 6 days

Resultant length of Sentence to be served - 8 years, 4 months, 3 weeks & 1 day

Amount of Sentence suspended - Nil

Time to be served in custody - 8 years, 4 months, 3 weeks & 1 day

Sentenced accordingly.

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused