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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO 3 of 2014
THE STATE
-V-
EREMAS KUVIR
Namatanai: Kangwia, J.
2015: 14, 16 & 17 April
15 June
CRIMINAL LAW – Murder – Prisoner persistently beat wife leading to death soon after- Intention to do GBH present
CRIMINAL LAW – Murder – Sentence – Defence sought 6 – 10 years while the State sought life imprisonment – Both considered not appropriate
CRIMINAL LAW – Sentence – No mitigating factors present – Beating to death of mother in front of her children - No explanation or reason offered – No justification for death – Prisoner violent person
CRIMINAL LAW – Sentence for spouse beating – Public outcry for spouse beating considered – Need to preserve sanctity of life - Offence prevalent and deterrent sentence appropriate
CRIMINAL LAW – Sentence – Guidelines in Manu Kovi v the State applied as appropriate– Case fell into third category of murder in Manu Kovi which suggested 20 to 30 years – Sentence of 30 years imposed
Cases Cited:
Goli Golu v State [1979] PNGLR 653;
Manu Kovi v the State (2005) SC789
State v David Yakuye Daniel (No 2) (2005) N2890;
State v Laura (No 2) [1988-89] PNGLR 98;
State v Maria Err (1998) N 1749;
State v Ngetto Rex Rongo (2000) N2035;
State v Rudolph Keme Koko (2007) N5049;
State v Yuana Peter (2000) N2035;
Ure Hane v the State [1984] PNGLR 105
Counsel:
R. Luman & E. Ortlauf, for the State
A. Tunuma, for the Respondent
15 June, 2015
1. KANGWIA, J: Eremas Kuvir appears as a prisoner for Sentence. He was indicted on a charge of willful murder under s 299 of the Criminal Code Act (CCA). He pleaded not guilty and the matter went to trial. He raised issue with the element of identification and intention to cause death. At the close of the prosecution case, the prisoner elected to remain silent and the defence declined to call evidence.
2. I rejected the issue of identification as proved and concluded that the prisoner did not intend to cause death but intended to cause Grievous Bodily Harm (GBH) and all other elements of the charge not disputed, I found the offence proved beyond any reasonable doubt and convicted him on the alternative verdict of Murder pursuant to s 539 (1) of the Criminal Code.
BACKGROUND
3. The background to this case was that on 11 October 2013, the prisoner returned to his house at Salimun village, Namatanai between 2am and 3 am. As soon as his wife Lydia John (deceased) opened the door, the prisoner started assaulting her all over her body. He kicked her while she was sitting down and then took a 1 meter stick that was as big as an arm and hit her at the neck and head area. She fell down unconscious and died there. The assaults were committed in front of their children.
4. The Doctor's examination found numerous injuries on her body and suggested that there was a hard object applied to her head with force, causing a crushed area of the right head down to the skull. There was no organ damaged in her abdomen and other areas of her body. The medical report attributed the cause of death to head injury leading to multiple organ failure.
ANTECEDENTS
5. The prisoner is 47 years old and comes from Mualim village, Kokopo, ENBP. He was married to the deceased and had 6 children. He completed vocational training but sought no formal employment. He is the first born out of 6 children. He lived at Salimun village, Namatanai at the time of the offence.
6. The State alleged two prior convictions by the District Court for adultery and stealing. However, I deem adultery as not capable
of attracting a conviction as it entails civil liability. (See s. 11 & 12 of the Adultery and Enticement Act).
Since he was convicted and fined K400.00 for the stealing offence, it became a prior conviction against the prisoner.
ALLOCUTUS
7. On his allocutus the prisoner said;
"I apologize to the Court for what I did to my wife. I did not mean to kill my wife but it happened accidentally. I ask for Court's leniency. I have the small children to look after. I ask for probation in view of that."
SUBMISSIONS
8. On the prisoner's behalf Mr. Tunuma sought a sentence between 5 – 10 years and advanced the following reasons:
1. The prisoner showed remorse in his allocutus.
2. The offence carries life imprisonment but that was subject to the Court's discretion under s. 19 Criminal Code Act.
3. The maximum prescribed penalty was generally reserved for the worst type of murder.
4. The facts and circumstances of this case did not warrant the maximum penalty.
5. The incident occurred in the family home of the prisoner and deceased; that it was in a domestic setting.
9. Mr. Tunuma referred the Court to the sentencing guidelines in The State –v- Laura (NO. 2) [1988-89] PNGLR 98 for murder cases as appropriate for this case. He also referred the Court to the following cases for consideration:
1. The State –v- Maria Err [1998] PNGLR 26 where a sentence of 7 years in light labor was imposed over a killing bordering on manslaughter. It was in a domestic setting.
2. In the State –v- Yuana Peter (2000) N1973 where the prisoner stabbed another in a domestic setting, a sentence of 12 years was imposed.
3. In the State –v- Ngetto Rex Rongo (2000) N2035 where the prisoner during an argument with his wife threw a piece of wood at the victim's head causing death soon after, was sentenced to 06 years.
10. For the State Ms. Ortlauf sought life imprisonment for the prisoner and posed the following reasons:
6. This being a worst case of murder in a domestic setting, it fell within category 4 of the guidelines in Manu Kovi v the State (2005) SC789 and therefore warranted the maximum penalty of life imprisonment.
11. She also referred the Court to the case of The State –v- David Yakuye Daniel (NO. 2) (2005) N2890 where the prisoner stabbed the deceased 8 times with a knife following a history of marital disharmony; the Court sentenced the prisoner to 25 years imprisonment. A plea to de facto provocation for suspected unfaithfulness was rejected on the grounds that the Court would be sending the message that it was justifiable to kill under suspicion of unfaithfulness.
12. She further referred to the case of The State –v- Rudolph Reme Koko (2007) N5049 in which the prisoner came home drunk and beat his wife to death with his hands in front of his children. After citing a range of sentences in earlier cases His Honour Cannings, J sentenced the prisoner to 28 years imprisonment.
13. Ms. Ortlauf submitted that the present case was in the worst category of murder and the maximum sentence of life imprisonment should be imposed.
THE LAW
14. The law creating the offence of murder and prescribing its penalty are under s. 300 of the Criminal Code Act. The relevant parts are in the following terms;
300. Murder
(1) Subject to the succeeding provisions of this code, a person who kills another under any of the following circumstances is guilty of murder:-
(a) if the offender intends to do grievous bodily harm to the person killed or to some other person;
(b) . . .
(c) . . .
(d) . . .
(e) . . .
Penalty: Subject to s. 19, imprisonment for life.
15. The law prescribes life imprisonment but that is subject to section 19 of the Criminal Code Act and the sentencing discretion of the Court. Other sentences may be imposed.
16. It is a common principle of law that the maximum prescribed penalty is reserved for the most serious instances of the offence committed (See Tabi Maima v Ben Hambakon [1971-72] PNGLR 49; Goli Golu v the State [1979] PNGLR 653 and Ure Hane v the State [1984] PNGLR 105).
17. The sentencing principle is not a complete bar to the imposition of the maximum prescribed penalty. Where the circumstances warranted the maximum penalty prescribed by law can be imposed.
DECISION
18. This is a sad case of an innocent mother of 6 children losing the most precious gift every human being possesses at the hands of the very person who accepted her to be at his side in good times and bad times. There is no reason before the Court as to why she ended up losing her life. She lost her life through an unjustified gruesome act by the father of her six children who now sits as a prisoner for sentencing.
19. The defence sought a 5-10 years sentence while the State sought life imprisonment. The question then is whether this case attracts a sentence of 5-10 years or life imprisonment?
20. The Supreme Court in Simon Kama –v- The State (2004) SC 740 suggested variations to the sentencing guidelines in The State –v- Laura (NO. 2) [1988-89] PNGLR 98 for murder cases and set down six categories of sentences with increased tariffs. The first three covered sentences for guilty pleas while the last three covered Not Guilty pleas. Of the Not Guilty pleas the last two categories gave prominence to the use or otherwise of firearms. Its guidelines seem to encroach upon the sentencing discretion of the Court by confining categories of offences to specific instances of crimes committed.
21. In the often cited case of Manu Kovi v the State (2005) SC 789 the Supreme Court suggested guidelines and set tariffs for all homicides into four broad categories each for willful murder, murder and manslaughter.
22. The Supreme Court revisited the sentencing guidelines for Murder in the Laura (No 2) case and suggested guidelines with increases to the tariffs starting at 12 years to life imprisonment under the four broad categories. I consider the suggested guidelines as good law and the tariffs appropriate and suitable for the present time.
23. Although the Supreme Court in both Simon Kama(supra) and Manu Kovi(supra) suggested increases in the tariffs for Murder, I deem it appropriate to apply the guidelines in Manu Kovi as I consider it's guidelines as broad based and more recent.
24. Since the tariffs in Manu Kovi starts at 12 years for murder the defence submission for a sentence of 5-10 years is far removed from what would be an appropriate sentence in the circumstances of the present case.
25. The present case was not a pre meditated killing or a brutal killing in cold blood. In the decision on verdict the Court found that an element of intention to do GBH was present. It was in my view a wife beating case that went terribly wrong.
26. I am also of the view that the circumstances of the present case does not fall into the fourth category of Manu Kovi guidelines to warrant a sentence of life imprisonment despite the killing of an innocent harmless person.
27. The present case is similar in nature to the case of Rudolph Reme Koki (supra). The differences between that case and the present case are that in this case there is no evidence that the prisoner was under influence of alcohol or illicit drugs but he used a stick to hit his wife on the head.
However, the persistent beatings by hands in front of their children in their respective homes are similar in both cases. The Court in the Rudolph Reme Koki case sentenced the prisoner to 28 years imprisonment.
28. Given the sentence in Rudolph Reme Koki, the principles of parity, consistency and uniformity in sentencing dictates that I should not take a quantum leap in the present case by imposing life sentence that the law prescribed.
29. Having decided against imposing the life sentence what then is an appropriate sentence?
30. The present case is against an offender who had no mitigating factors, either common or special operating in his favour. It is also a case in which the reasons if any, for the prisoner's persistent assault of his wife are unknown. The only conclusion apparent is that there was no justification for the assault that caused eventual death.
31. The prisoner's background portrays him as a person of short temper and steadfastly attached with violence. This is evident in his daughter's evidence at his trial.
32. Earlier in the circuit this Court acquitted the prisoner on an indictment charging him with manslaughter. The acquittal was because of a bungled prosecution case and not because he was found innocent. These facts are telling on the type of person the prisoner was despite recording no prior conviction for violent offences. These facts would go to aggravate in his sentencing.
33. In The State –v- Polin Pochalou Lopai [1988-89] PNGLR 48, His Honour Bredmeyer, J. while discussing sentencing principles for manslaughter cases said;
"Every form of punishment takes into account the intention behind the act or omission and the consequences, both the seriousness of the intention and the seriousness of the consequences. . . . with consequences the more serious the consequence the greater the punishment".
34. That expression by his honor explains succinctly how sentences may be weighed and imposed for cases like the present. Sentences where death was a consequence would naturally be high because there is no greater consequence than death.
35. In the present case the Court found the intention behind the attack was to do GBH. However the consequence of the prisoner's actions left his wife and mother of his 06 children dead. She lost her life tragically but not by accident. There was an intention to severely harm her. The consequence of the prisoner's intention was very serious hence it attracts a greater punishment.
36. Courts have time and again sounded the basic principle that life is precious and once it is lost it does not return no matter how remorseful one may be or how many prayers one may utter. Taking one's life unlawfully renders it a very serious crime attracting high custodial sentences.
37. Murder is the second most serious homicide anyone might commit. Regardless of whether murder was committed in a domestic setting or relating to sorcery, the sentences for murder have increased substantially from those suggested in Laura (NO. 2).
38. The Supreme Court in Manu Kovi applied the Laura (NO. 2) guidelines to set higher tariffs for murder to render consistency with manslaughter and wilful murder sentences. The Supreme Court went further and added that, "A sentence of 12 years for murder should be rarely imposed except in exceptional cases where there are special mitigating factors.
39. In the present case there is no special mitigating factor. A lack of a special mitigating factor would make this case exceptional that would attract a sentence higher than the suggested minimum of 12 years in Manu Kovi.
40. On the other hand the cases Ms. Ortlauf referred to demonstrates clearly the overall increases in sentences for murder in domestic settings. Those cases are more relevant and appropriate for the present case.
41. The defence submission on the incident occurring in a domestic setting and the prisoner's expression of remorse fade into insignificance in the face of numerous aggravating features present. They include the persistent beating to death of a mother in front of her helpless children. The combined effect of the assaults by hands, leg and stick exposed a strong desire to do GBH.
42. Although there was no attack with any offensive weapon, the blow on the head by a stick was strong enough to cause a depression on the skull as revealed in the medical report.
43. The prisoner displayed no restraint in front of his helpless, innocent children. I am not impressed nor persuaded one bit by the prisoner's statement in allocutus to look after the children. He did not offer any thought to the welfare of his children before embarking on a blind fury against the children's mother.
44. The children will no doubt live with the ordeal of witnessing their mother dying from their father's brutality.
45. The high sentences in the cases referred to earlier have not deterred the commission of spouse beating offences. Ordinary spouse beating seems to be a common occurrence in this country. Spouse beatings that result in deaths are prevalent. Therefore sentences should reflect deterrence to preserve the sanctity of life.
46. What was an appropriate sentence some years back may not be appropriate in the present time. Naturally, an increase in sentences
for such offences committed in domestic settings was warranted. There is public outcry in the media over domestic violence in general.
Where a death was caused through domestic violence or in a domestic setting, imposing a high custodial sentence would be the natural
consequence.
I consider it the Court's duty to do that in light of public outcry over domestic violence and the frequency of deaths arising from
domestic settings.
47. Given the circumstances of this case and the considerations referred to, I deem that the present case falls into the 3rd category of murder under the Manu Kovi guidelines which suggested a sentencing range of 20 to 30 years.
48. It is also apparent that there are no mitigating factors operating in favour of the prisoner. That position goes to solidify the maximum sentence suggested in the 3rd category of Manu Kovi as the appropriate sentence for this case.
49. In so saying, I sentence the prisoner to 30 years imprisonment. Any period the prisoner spent in custody awaiting trial shall be deducted from that sentence. The balance shall be served at Kavieng CS.
Orders Accordingly,
____________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Prisoner
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