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State v Dukipo [2015] PGNC 118; N6012 (18 June 2015)

N6012

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 276 OF 2013

THE STATE

V

BLASIUS DUKIPO

Mendi: Toliken, J
2015: 11th, 16th, 18th June.

CRIMINAL LAW – Sentence – Murder – Plea - Death in domestic setting – Deceased hits her head against tree when pushed by her husband the prisoner – Prisoner kicks deceased on once with his boot when deceased falls – Deceased died instantly – Criminal Code Ch. 262, s 300 (1) (a).

CRIMINAL LAW – Sentence – Not a worst instance of murder – Mitigating factors outweigh aggravating factors – Appropriate sentence – 11 years less time in pre-trial custody – Suspension – Appropriate case for partial suspension – 4 years suspended with conditions

Cases Cited:

Anna Max Marangi v The State (2002) SC 702
The State v Arato (2012) N4764 (26 July 2012)
Avia Aihi v The State (No.3)[1982] PNGLR 92
The State v Berthlyne Kui (2014) N5655 (6 June 2014)
Public Prosecutor v Don Hale (1998) SC 564
Goli Golu v The State [1979] PNGLR 653
The State v Lom (2012) N4725 (22 June 20120)
Manu Kovi v The State (2005) SC 789
The State v Topi (2010) N4667 (14 October 2010)

Counsel:

S Luben, for the State
C Koek, for the Prisoner

JUDGMENT ON SENTENCE

18th June, 2015

1. TOLIKEN J. Blasius Dukipo, on Thursday 11th of June 2015 you pleaded guilty to murdering your wife, the late Mary Makon on 11th of October 2012 at Mendi Town. You were charged under Section 300 (1)(a) of the Criminal Code Ch. 262 which provides:
   

300. Murder.

(1) Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder —

(a) if the offender intended to do grievous bodily harm to the person killed or to some other person; or

...

Penalty: Subject to Section 19, imprisonment for life.

2. You agreed to the following facts which were put to you on arraignment, and it is upon these facts that I am going to sentence you. The deceased was your twelfth wife and at the relevant time she was 9 months pregnant. On 11th October 2012 you were at the main bus stop in Mendi Town when the deceased approached you and asked you for money. You told her that you did not have any money and walked off towards the Old Compound. She followed you and started to throw stones at you. When you came near the Mendi Town Clinic she threw a stone that landed on your left arm. You reacted by grabbing her by her shirt and you dragged her towards the Assemblies of God Church gate. There you pushed her towards a tree. She hit her head against the tree and fell down. You then kicked her on the head with your boots. The deceased died as a result of severe head injury as a result. Her unborn child also died. The State said that you intended to cause grievous bodily harm to your wife when you assaulted her and that resulted in her death.
   
3. A Post Mortem Report by Dr. Nolpi Tawang dated the 30/10/12 revealed the following relevant findings and conclusion:
   

FINDINGS

...

Head & Neck – scalp bruise [on] left frontal area

Head – Scalp dissection revealed traumatised left frontal area

- Skull ... small crack

- Brain matter showed areas of haemorrhages

Chest & abdomen – No evidence of trauma

- No free blood
- Uterus dissection – no free blood

-not traumatized -dead term foetus visualised

SUMMARY

On 11th of October 2012 40 year old female died instantly after sustaining an injury to her head in a domestic violence. Post Mortem Report revealed that the deceased suffered severe head injury and dying dying from the severe head injury sustained. (Sic.)

CONCLUSION

It was concluded that the deceased died of cardiopulmonary failure with foetal death in utero secondary severe head injury sustained. (Sic.)

4. I entered a provisional plea of guilty which I confirmed after I perused the District Court depositions and I accordingly convicted you.
   
5. The sentencing issues for me to consider in your case are:
   
   1. Is your case such a worst case that must attract the maximum penalty of life imprisonment?
   2. If not then what shall be an appropriate sentence for you?
   3. Should any part of your sentence be suspended?
      
6. Let me now consider your personal particulars.
   
   1. You are 57 years of age and come from Map village in the Karinz Local Level Government, Mendi District, Southern Highlands Province.
      
   2. You are the first born in a family of two siblings. Your parents are both dead.
      
   3. You had13 wives, the deceased was the 12th wife. You have 19 children and four grand-children. Five of your children are married while the rest are still in school and you are solely responsible for their livelihood and education.
      
   4. You are a member of the Revival Church.
      
   5. You are a pioneer teacher by profession from your village and have taught in various schools in Southern Highlands for 36 years. You held positions as Senior Teacher and Headmaster in various schools until your retirement in August 2014.
      
   6. This is your first offence.
      
   7. You spent 36 days in remand until you were allowed bail.
      
7. You apologised to God and the Court for taking your wife's life and you said you hope that God will forgive you. You also apologised to her relatives. You said you did not mean to kill her and hope that they will also forgive you. You made mentioned of your dedicated long service to the State as a teacher. You said that out of respect for your late wife you have resigned from your job and have used your life savings to pay compensation to her people to the value of K480000 comprising 58 pigs, 2 cows and K38,000 in cash. So not only did you lose your wife, you also lost your job as a result. You said most of your 19 children are in school and there is no one else to care for them. You promised to God and to the Court not to re-offend ever again.
   
8. Ms. Koek submitted in your behalf that there are several factors that mitigate your offence. These are –
   
   • You pleaded guilty to the charge
   • You are a first time offender
   • You have shown remorse both to the Court and the deceased's family
   • You are of advanced age
   • You kicked the deceased once with you boots and hence did not use a dangerous weapon
   • You did not plan to attack the deceased
   • You cooperated with the police by making early admissions in your Record of Interview
   • You had paid compensation to the deceased's relatives
   • There was provocation in the non-legal sense.
     
9. Ms. Koek conceded, though, that there was loss of two lives here - that of your wife and your unborn child, and, that the offence of murder is very serious hence the penalty of life imprisonment. Notwithstanding that, counsel said that I should use my discretion and impose a sentence that is lower than the maximum because your mitigating factors outweigh your aggravating factors. Counsel said further that the courts appear to have regarded unintentional killings in the domestic setting as deserving of a more lenient treatment. She made reference to Anna Max Marangi v The State (2002) SC 702 and Manu Kovi v The State (2005) SC789 where the Supreme Court had separately laid down certain sentencing guidelines and tariffs for homicide offences like wilful murder, murder and manslaughter.
   
10. Counsel said that the force you used was uncalculated and minimal, no weapon was used and there was no pre-planning of any sort. This would place your case under Category 1 in both Marangi and Manu Kovi and going by the tariffs in Manu Kovi an appropriate sentence for you should be in the range of 12 – 15 years.
    
11. Counsel cited the case of The State v Topi (2010) N4667 as having similar circumstances to yours. There the offender killed the deceased who was 8 months pregnant with a single bush knife blow to the head. The deceased had suspected the offender of having an affair with her husband. The court accepted that here was non-legal provocation but held that the killing of the unborn child was a special aggravating factor. The offender was sentenced to 14 years imprisonment.
    
12. Counsel suggested therefore that an appropriate sentence for you should be 8 – 10 years less the 36 days you spent in custody. She then asked that 4 years be suspended.
    
13. Ms. Luben for the State conceded that there are a lot of mitigating factors in your favour. Counsel accepted that you paid substantial compensation but that should not be seen as excusing the offence. She said that the death of the unborn child is a special aggravating factor as was held in The State v Topi. (Supra.) She agreed with the sentencing range suggested by your lawyer and further conceded that partial suspension may be considered given your very favourable Pre-Sentence Report and your previous good character.
    
14. Let me now consider a few cases with similar factual circumstances to yours to gauze how this court has treated this type of killing. We have already seen in The State v. Topi (supra) that the prisoner there was sentenced to 14 years. The court there took the killing of the deceased with her unborn child as special aggravating factor and that seemed to have weighed heavily on the decision to impose 14 years.
    
15. In The State v Arato (2012) N4764 (26 July 2012, per Ipang AJ (as he then was)) the prisoner, enraged with jealousy, chopped his wife with a bush knife in the full view of the public. The victim sustained multiple bodily injuries. She died several days later at the hospital from her injuries. The prisoner was sentenced the prisoner to 16 years.
    
16. In The State v Lom (2012) N4725 (22 June 20120, per Gauli AJ), the prisoner caught his wife having sexual intercourse with another man and chopped her on her head, arms and legs. The skull was cut open exposing the brain and both the deceased's left arm and right ankle were completely severed. The deceased died on the spot. The prisoner pleaded guilty to murder and was sentenced to 18 years.
    
17. In The State v Berthlyne Kui (2014) N5655 (6 June 2014, per Kirriwom J), the prisoner pleaded guilty to one count of murder. She suspected the deceased of having an affair with her husband. She confronted the deceased with a kitchen knife and stabbed her several times on her left chest. The knife pierced the heart and exited through the back. She died of hypovolaemic shock due to internal bleeding. The prisoner there was sentenced to 13 years, 6 of which were suspended on condition that she would enter into a period of probation.
    
18. Now the law is very much settled that the maximum penalty is reserved always for the worst instances of a particular case. It is also settled that each case is to be treated on its own merits. (Goli Golu v The State [1979] PNGLR 653; Avia Aihi v The State (No.3)[1982] PNGLR 92)
    
19. So does your case fall into the worst category of murder that it should attract the maximum penalty of life imprisonment? Viewed objectively I do not it is. In my opinion it is one that would fall in the lower range of murder. But if it is not, what then should be an appropriate sentence for you?
    
20. To arrive at a sentence that fits the circumstances of your case let me start by considering your mitigating factors. I agree with the factors your lawyer submitted to me. These are:
    
    • You pleaded guilty to the charge
    • This is your first ever offence
    • You have expressed remorse for taking your wife'slife and have apologised to her people
    • Yours is not an empty expression of remorse. You have paid a substantial amount of compensation to the tune of some K400000.00 which comprised of 58 pigs, 2 cows and K39000 in cash. A further K10000 was paid as "bel kol."
    • Prior to this you had an impeccably good character and you served the people of Southern Highlands with distinction and dedication as a teacher, holding various senior positions as Senior Teacher and Headmaster for some 36years.
    • You are now in your late 50s, hence, now old.
    • You only kicked the deceased with your boots once and you did not use any dangerous or offensive weapon
    • You did not plan to attack your wife and
    • You co-operated with the police by making early admissions in your Record of Interview.
      
21. And I also find one extenuating factor in your favour – there was some provocation in the non-legal sense in that the followed you around a bit hurling stones at you in what was very much a public place and no doubt you would have felt a little bit out of place if not insulted and ashamed.
    
22. But there are a few aggravating factors against you. They are:
    
    • The offence of murder is very prevalent and this unfortunately includes killings in the domestic setting
      
    • You not only killed your wife. You also killed your unborn child who according to the Post Mortem Report was already full term and could have been born anytime. This I find to be a special aggravating factor.
      
    • The deceased was also of the weaker sex and I find your attack on her to be an aggravating factor.
      
23. So given the above considerations what should be your sentence? I accept that the circumstances of your case will fall under Category 1 in the sentencing guidelines set in Manu Kovi (supra) and therefore your sentence should be between 12 – 15 years. This is because you did not use any weapons on the deceased, you did not have a strong intention to cause grievous bodily harm, you did not plan to assault the deceased and your attack on her was not vicious nor did you use excessive force.
    
24. You are an outstanding citizen in the Southern Highlands and had dedicated your life to educating your people and I am sure that you stood out in your community, being the first teacher to come out of your village. I also accept that you have suffered a triple blow as a result of this offence. You not only lost your wife and unborn child but also your job. The consequences to you personally - both financial and emotional - have been great indeed. And unfortunately innocent people very close to your heart - your children - will have to suffer out of no fault of their own. However, those are the natural consequences of your crime and you will just have to live with them and take full responsibility for everything that is now falling apart around you.
    
25. I accept the huge compensation that you and your relatives had to pay which I accept reconciled you somehow with your in-laws. However, while compensation may have restored your relationship with them, it can never restore the precious lives that you prematurely took.
26. In all these, as I already said there was at least one extenuating factor – non-legal provocation. Non-legal provocation (as is the situation with legal provocation) is, however, a matter of degree and has therefore to be assessed against the circumstances under which the offence was committed. In your case I think that there was low level of non-legal provocation which you reacted to and unfortunately ended killing your wife and child.
    
27. So taking this with the aggravating factors I have found against you, bearing in mind the need to impose a sentence that must primarily deter you personally but others as well, I think that a sentence within the range imposed in The State v Topi (supra) should be imposed. Topi got 14 years.
    
28. I, however, take into account that even though both matters involved the collateral death of an unborn child, the prisoner in Topi's case used a bush knife to inflict multiple injuries on the deceased and that fact distinguishes your cases.
    
29. In the circumstances I feel that a starting point for you should be 12 years i.e. the bottom of the Category 1 in the Manu Kovi tariffs for murder. And because of your significant mitigating factors I fix a head sentence of 11 years less the 36 days that you spent in pre-trial custody. This leaves you with a balance of 10 years 10 months and 24 days.
    
30. Finally to the last issue – should any of the resultant sentence be suspended? Current Supreme Court authority has it that suspension may only be considered if there is a favourable Pre-Sentence Report that shows that responsible members of the community are willing to assist in supervising an offender if he is released back into the community. (Public Prosecutor v Don Hale (1998) SC 564)
    
31. You have a very favourable Pre-Sentence Report, and coupled with the circumstances in which you committed the offence, your own personal circumstances and your good standing in your community I am of the view that yours is a case that is suitable for a partial suspension. You will therefore serve 6 years 10 months and 24 days only at the Buiebi Corrective Institution. The balance of 4 years will be suspended and you will enter into probation for a period of 4 years with no additional conditions to the compulsory conditions imposed by Section 17 of the Probation Act 1990, except that upon your release you shall immediately report to the Senior Probation Officer at Mendi.
    
32. Finally your K1000 bail will be refunded you. Cash sureties of K500 each paid by your guarantors Neyap Sowai and Kink Hakipu will also be refunded to them.
    

Orders accordingly.
________________________________________________________________
The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Prisoner