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State v Aravi [2019] PGNC 329; N7962 (17 July 2019)

N7962

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 850 OF 2016

THE STATE

V
SODOM JAMES ONAU ARAVI

Alotau : Toliken, J.
2018: 11^th November
2019: 15^th March, 17^th July

CRIMINAL LAW – Sentence – Murder – Plea - Prisoner kills wife with bush knife – Multiple injuries to head area and torso of deceased – Near worst case - Reasons for - Deceased arrogant and disrespectful toward prisoner – Prisoner reacts to lack of respect by in-laws – Aggravating factors considered – Vicious killing – Strong intention to cause grievous bodily harm – Multiple injuries – Prevalence of offence – Mitigating factors considered – Guilty plea – Co-operation with police – Early admissions – No prior convictions – Prior good character – Non-legal provocation – Appropriate sentence – 23 years time in pre-sentence detention - Criminal Code Ch. 262, s 300(1)(a).

Cases Cited:

Ure Hane v The State [1984] PNGLR 105
Avia Aihi v The State (No. 3) [1982] PNGLR 92
Goli Golu v The State [1979] PNGLR 653
Saperus Yalibakut v The State (2006) SC 890
Manu Kovi v The State (2005) SC 789
The State v James Peter Kenneth (2018) N7338
The State v Rende (2013) N5220
The State v Lom (2012) N4725
The State v Mareva (2012) N4805
The State v Makua (2002 N2240
The State v Morris Dowell Sasingako; CR NO. 43 of 2014 (Unnumbered and unreported judgment dated 23^rd September 2016 at Alotau)

Counsel:

P Tusais and J Apo, for the State
N Wallis, for the Prisoner

JUDGMENT ON SENTENCE

17^th July, 2019

1. TOLIKEN, J: On the afternoon of 27^th of December 2015, Mollie Gwaugwauei James (Mollie) had left her son with her sister and went foraging for greens for her family dinner at Hagita Estates. Little did she not know that this will be the last time for her to hold and see her son, that it was her last time to forage for her family dinner and that she will never come home again to her loved ones. That afternoon she was brutally murdered by her husband - the accused, Sodom James Onau Aravi (Sodom).
   
2. They had an argument the previous day. During the argument her husband was heard saying to her that the next day when she goes out to collect greens criminals will rape and kill her and cut her body into pieces.
   
3. When she did not return home on 27^th December 2015 her brothers went looking for her. They did not find her. Interestingly her husband, Sodom, also did not return to the room that was their family home that night either. Mollie’s badly mutilated and decomposing body was found two days later with multiple knife wounds all over her body. Sodom never joined Mollie’s family as they frantically searched for her. When her body was finally found under the oil palm trees he led a Security Guard to where he had hidden the knife he used to kill Mollie.
   
4. The Post Mortem Report by Dr. Siaelo Panta noted the following –
   
   • A laceration cutting through the frontal bone and into the right eye socket exposing the right eye ball and brain matter
   • A laceration measuring approximately of the parietal scalp, cutting down to involve the scalp
   • Laceration of the posterior scalp at the occiput region measuring 3cm across and deep, reaching the bone but not fracturing it.
   • Left Shoulder - A puncture of the left shoulder at the mid clavicle area, and 1cm above the clavicle measuring 2cm across. Deep and penetrating into the left lung cavity.
   • Anterior Chest Wall - 3 x puncture wounds at the right breast measuring 2cm across penetrating deep into the breast tissue.
   • Abdominal Area –
     
     • ✓ A puncture wound at the mid-abdomen, per—umbilical area. Blood also noted at the abdominal wall. The wound measuring 2cm across was deep and penetrating into the abdominal cavity.
     • ✓ 2 x puncture wounds at the left flank area measuring 2cm across, deep into the abdominal wall into the abdominal cavity
     • ✓ A penetrating wound at the right lower back deep into the muscle but not into the abdominal cavity.
   • Right forearm – a single laceration across the anterior surface measuring 13cm
   • Right thigh - Puncture wound at the anterior, upper surface 2cm across deep and penetrating to the bone.
     
5. A total of 13 lacerations were noted on Mollie’s body. Dr. Panta was of the view that the puncture wounds appeared to have been inflicted by a sharp pointed object such as a long knife or grass knife while the wound to the face appeared to have been inflicted by a heavy object such as axe or a bush knife. Mollie died from those lacerations inflicted on her.
   
6. What did Mollie do to deserve this killing? Sodom reveals in his Record of interview (Q & A 52) that he killed her because he was angry with her brother Edward for swearing at him. He further said in his Pre-sentence Report (PSR) that Mollie was never a good wife. She would leave the house when he goes off to work neglecting her household chores. He would come home from work tired and he’ll wash the dishes and cook and wash the children. Sometimes she would come home late and when he questions her where she’d been she’ll ask him what business it is of his to know. He said he’d often tell her that she was free to leave and marry an educated or a rich man. Her brothers did not respect him also. They would come around to his place drunk and would swear at him and cut the flower hedges around his place. They would also threaten to kill him if he were ever to go across to Awayama. These were the reasons he killed his wife Mollie.
   

CHARGE

7. The State indicted Sodom on 20^th November 2018 for one count of murder pursuant to Section 300 (1)(a) of the Criminal Code Ch. 262, apparently after plea bargaining.
   

PLEA

8. The prisoner entered a guilty plea which I was satisfied was safe and convicted him. I then adjourned the matter to allow for a pre-sentence report to be filed. After the report was filed administered the allocutus and I heard submissions on sentence on 15^th March 2019.
   

THE OFFENCE

9. The offence of murder carries a maximum penalty of life imprisonment subject to the Court’s discretion to impose a lesser sentence under Section 19 of the Code. It is trite of course that the maximum be reserved for the worst types of offending. Furthermore whatever the sentence is for a particular case will depend on the circumstances of the case. In other words the penalty must fit the crime – the principle of equivalence. (Goli Golu v The State [1979] PNGLR 653; Avia Aihi v The State (No. 3) [1982] PNGLR 92; Ure Hane v The State [1984] PNGLR 105).
   

ISSUES

10. I must therefore determine whether this is a worst case of murder deserving of the maximum penalty. If it is not, then what should be an appropriate sentence for the prisoner?
    

WHETHER WORST CASE

11. At the outset I must say that this is a near worst case when viewed objectively. It was a brutal merciless killing involving a strong intention to cause grievous bodily harm. There appears to have been some pre-planning involved. It involved the use of dangerous weapons – a kitchen and busk knife.
    

SENTENCING PRINCIPLES

12. The Supreme Court has over the years set guideline tariffs for wilful murder, murder and manslaughter. The current leading authority is Manu Kovi v The State (2005) SC 789. For murder the guidelines are as follows:
    

SENTENCING TREND

13. The following cases are cited for the purpose of consistency.
    
14. The State v James Peter Kenneth (2018) N7338 (Numapo, AJ.): The offender there pleaded guilty for the murder of his wife over some marital issues. He met at the Lae Market and had an argument with her. They then got on a PMV and went home to Kamkumung where they fought. The offender stabbed the deceased twice on her chest and twice on her abdomen with a kitchen knife. The deceased died as a result due to heavy blood loss. The offender fled the scene but was apprehended was apprehended about 9 months after the incident. He was sentenced to 18 years.
    
15. The State v Lom (2012) N4725 (Gauli, AJ): Then the offender and his wife (deceased) and other family members were picking coffee cherries in their coffee garden. After a while the wife left the offender. The offender finished picking the cherries and washed them. He then went to check for his wife only to find her having sexual with another man. The man fled the scene and the offender chased after him but could not catch him. Returning to the scene he set upon his wife cutting right leg completely off at the ankle with the first blow from his bush knife. He then he completely cut off her left arm severing it at the elbow. Finally he cut her twice on her head fracturing the skull and exposing the brain matter. He was 18 years imprisonment.
    
16. The State v Mareva (2012) N4805 (Gauli, AJ): The offender there reported to his neighbours at the Manaba Sub-station at Cape Rodney Rubber Estate that his wife was ill. When the neighbours went over to his house they found his wife dead. The police and Medical personnel at Moreguina were contacted. A medical examination revealed bruises and blackish discolouration all over the deceased’s body particularly on her ears, lips, face, buttocks, arms, legs and back. There were several deep knife-like wounds on both legs as well. The offender confessed to the police that he had caused the death of his wife by repeatedly hitting her with a car jack handle over a period of three days. The Knife-like wounds were caused by the car-jack handle. He was sentenced to 24 years imprisonment on a guilty plea.
    
17. The State v Rende (2013) N5220 (David, J): There the 64 year old offender had had an argument with his wife in their home. He picked up a bush knife and cut multiple times, inflicting wounds to her face wrists and neck. On a guilty plea the court was of the view that a sentenced of 24 years would be appropriate but due to the advanced age of the offender His Honour imposed a sentence of 12 years instead.
    
18. The State v Morris Dowell Sasingako; CR NO. 43 of 2014 (Unnumbered and unreported judgment dated 23^rd September 2016 at Alotau): There the offender, a policeman initially denied murdering his wife and a trial was conducted. After the close of the State’s case he, however, changed his plea to guilty. In the early hours of the morning of 9^th June 2012, the offender and his wife, had an argument at their home at the Police Barracks here in Alotau. During the course of the argument, he physically assaulted the deceased, hitting her all over her face and body, dislocating her right knee. He also used a spanner in assaulting the deceased. He continued to assault his wife until she died. The prisoner then kept the body of his wife in their room until sometime in the afternoon between 3 pm – 4 pm, when an ambulance arrived and took the body of the deceased to the hospital. I sentenced the offender there to 24 years imprisonment.
    
19. The State v Makua (2002 N2240 (Kandakasi, J.): The prisoner was sentenced to 20 years imprisonment for the murder of his wife. He had been suspecting his wife of having affairs with other men. He had a history beating his wife and because of that, the deceased went to live in another village. The offender followed her to bring her back.
    
20. The offender pursued the deceased as she fled into the house of the people she was staying with and locked herself in. He broke the door down and nearly cut another woman with the knife. He then struggled with the deceased inside the house. The deceased ran out of the house and the offender followed her out. Another man tried to restrain the offender but could not. The offender pursued the deceased cutting her legs from behind. After cutting her, he fled leaving the deceased to bleed to death. A Post Mortem Report revealed a massive laceration at the back of the right knee joint severing both the fibula and tibia bones leaving the leg hanging by the skin only. A cut to the right ankle severed the fibula bone from the ankle.
    

CURRENT CASE
Antecedents

21. The offender is 31 years old. He comes from Giwa Village in the Makamaka RLLG, Rabaraba Sub-District, Alotau, Milne Bay Province. He was married to the deceased and they had two children. He is the first born in a family of 10 siblings. Both his parents are alive but are well advanced in years and are living in the village. He is a member of the Aglican Church and has only a 8^th Grade level of education. At the time of the offence he was employed by NBPOL as a oil palm fruit and bunch analyst at the Hagita Estate. He has no prior convictions and has been in pre-sentence detention for a period of 3 years, 6 months and 18 days.
    

Allocutus

22. The prisoner apologised for his offending. He apologized to the deceased’s parents and to his own family and his community. He admitted that what he did was not right and promised never to re-offend. He said he is a first time offender and asked if he could be given a lenient sentence for the sake of his children who now must rely on him.
    

Submissions

23. Mr. Wallis submitted in behalf of the prisoner that this is not a worst case of murder. Counsel said that the prisoner has some good mitigating factors including his guilty plea, his prior good character and non-legal provocation. Counsel, however, conceded that there are aggravating factors as well. He said that the prisoner is not as threat to society. Counsel submitted that the circumstances of this case would fall under Category 2 of the Manu Kovi tariffs hence he should get a sentence to a period of 16 – 20 years.
    
24. The prisoner’ PSR is unfavourable. The deceased are strongly opposed to any non-custodial sentence or probation for that matter and do not want to be compensated in any way.
    
25. Mr. Tusais, submitted on the other hand for the State that this is a worst case (which is not as I gave indicated at the outset) and should therefore attract a sentence between 30 – 40 years.
    

Mitigating Factors

26. I find the following facts as mitigating the prisoner’s offending:
    
    • He pleaded guilty to the charge thus saving time for the Court and money for the State had he forced a trial.
    • He co-operated with the Police by making early admissions in his Record of Interview.
    • He is a first time offender
    • He was of prior good character
    • He was provoked in the legal sense by the deceased’s arrogant and disrespectful attitude toward him and by her abandonment of her wifely duties and lack of responsibility for household chores. This was aggravated by her brothers’ public display of disrespect for him and verbal threats against his life. These were not negatived in any way by the State, hence, are applied in the prisoner’s favour. (Saperus Yalibakut v The State (2006) SC 890)
    • He has a low level of formal education
      

Aggravating Factors

27. The following factors operate against the prisoner:
    
    • He used dangerous weapons namely a bush knife and a kitchen knife.
    • Some pre-meditation was involved.
    • The attack on the deceased was vicious.
    • The prisoner inflicted no less than 13 lacerations to the deceased’s body including the head and eyes.
    • He demonstrated a very strong intention to cause grievous bodily harm.
    • The deceased was of the weaker gender and defenceless.
    • While the prisoner may have been angry with the deceased because of her attitude toward him and her wifely duties, his main reason for killing her was because of the disrespect he received from her brothers as he admitted to the arresting officer. The prisoner therefore took out his anger on the deceased who despite her failings had nothing to do with her brothers’ attitude toward the prisoner.
    • Spousal killings are becoming very prevalent and add to the ever increasing incidence of homicide offences generally in the province and around the country.
      

DELIBERATIONS

28. So what should be an appropriate sentence for the prisoner? This case comfortably sits in Category 3 of the Manu Kovi tariffs and should therefore attract a sentence between 20 – 40 years.
    
29. Killings in the domestic settings are prevalent and add to the litany of homicides that have unfortunately have become too common in our villages, towns and cities. Very few places in this country have managed to escape this plague.
    
30. Appropriate sentences ought to be imposed therefore on offenders principally for the sake of punishment itself. Whether offenders (and would be offenders) are deterred at all should not overly concern a sentencing court because if stiff sentences, be they terms of years, life or death had any deterrent effect at all, we would have seen a reduction in the number of homicide cases (some vicious and brutal) coming before the courts. They have not and so this should strengthen society’s resolve through the courts to mete out retributive sentences so that people who cannot respect the sanctity of life and the law are removed from society. To that end, what the Supreme Court said in Manu Kovi (supra) is worth repeating. It said –
    

“... the sanctity of human life is far more precious and valuable than anything else ... The unlawful taking of another person’s life is a serious and horrendous crime which must be adequately punished. The courts have reiterated this basic and fundament principle in many cases.”

31. The circumstances are quite similar to those in The State v Mareva (supra) and The State v Morris Dowell Sasingako (supra). All three cases exhibited a level of violence that was wilful and vicious. As in the other two cases, the prisoner here showed total disrespect for the sanctity of his wife’s life. He inflicted a total of 13 penetrating and puncture wounds on his wife body. The wound to the head exposed the eye ball and brain matter which bespeaks of the type of force used by the prisoner. Other wounds tell the same story. Whatever, her failings were, she did not deserve to have her precious life snuffed away without the slightest of compunction by the prisoner in the manner he did.
    
32. Did he feel any remorse? Apparently he did not. He did not return to their home or the room at the compound that served as their home that night after he killed the deceased. After killing her, he pretended that everything was normal and did not even help the deceased’s relatives as they frantically searched for her as the depositions show. His expression of remorse in Court carries no weight at all and his concern for the welfare of his young children is something that he ought to have thought about before he prematurely and brutally took the life of their mother. (Utieng v The State; SCR 15 of 2000 (Unnumbered judgment dated 23^rd November 2000)
    
33. Too many of our women folks die under the hands of men who are supposed to protect, provide and love them. In fact women and girls are victims to about two thirds of crimes committed in our communities, if I may hazard a guess.
    
34. Men who kill their wives or spouses should therefore expect to be severely punished. The people expect their courts to respond appropriately and we would be failing our duty to do justice to everyone involved if we fail to do that.
    
35. In the circumstances I should think therefore that an appropriate sentence for the prisoner here ought to be 23 years taking into account his guilty plea and his other mitigating factors.
    

SENTENCE/ORDERS

36. I therefore sentence the prisoner Sodom James Onau Aravi to 23 years imprisonment. From that I deduct the 3 years, 6 months and 18 days for the period spent in pre-sentence detention. None of the resultant sentence will be suspended. The prisoner is to serve his sentence at Giligili Corrective Institution.
    
37. The prisoner has the right to appeal against his sentence within 40 days from today.

Ordered accordingly.
________________________________________________________________
P Kaluwin, Public Prosecutor: Lawyer for the State
L B Mamu, Public Solicitor: Lawyer for the Prisoner