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State v Papi [2022] PGNC 21; N9435 (16 February 2022)

N9435

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1448 OF 2021

BETWEEN:
THE STATE

AND:
SALOME BONI PAPI

Lorengau: Narokobi J
2022: 16^th February

CRIMINAL LAW – Wilful Murder – Sentence – Principles – Mitigating and aggravating factors –Need to impose a sentence to reflect prevalence of homicides in domestic setting – Objective of deterrence considered- Application of sentencing tariffs

The Prisoner pleaded guilty to a charge of wilful murder under s 299 of the Criminal Code. The victim was the former girlfriend of the Prisoner’s boyfriend. She suspected her boyfriend of having an affair with his former girlfriend. On the fateful day, she approached the victim with a sharpened knife and stabbed her three times, on her chest, her head and her hands. The blow to her chest, penetrated her heart and caused a cardiac arrest leading to her death soon after the infliction of the wound.

Held:

(1) The crime was committed in a domestic setting, where the Prisoner yielded to her passion, when she could have simply walked away from that relationship, instead choosing to take the life of another human being. A sentence of 20 years in hard labour at the lower end of the second category of Kovi v The State (2005) SC789 for wilful murder signalling a need for deterrence is necessary after considering all her mitigating factors. Time will only be deducted for period spent in custody.

Cases Cited:
The following cases are cited in the judgment:

Kovi v The State (2005) SC789
Marangi v The State (2002) SC702

Legislation Cited:

Criminal Code Act, Ch 262
Criminal Law (Compensation) Act 1991

Texts Cited:

Bertrand Russel, History of Western Philosophy, Routledge, 2004, London.

Counsel:
Mr. P. Kaluwin, for the State
Mr. K Pokiton, for the Prisoner

JUDGMENT ON SENTENCE

16^th February, 2022

1. NAROKOBI J: Salome Bonny Papi of Pulandran, Rambutso, Manus Province pleaded guilty to the charge of wilful murder, that she on 18 June 2021, in Lorengau, Manus Province, with the intent to kill, murdered one Rachel Pahun, thereby committing the offence of wilful murder under s 299 of the Criminal Code.
   
2. It falls upon me now to determine an appropriate sentence for the prisoner for this crime, which carries the death penalty, as its maximum sentence. The fact that she pleaded guilty and cooperated with the police, is acknowledged, but on the other hand she has committed a very serious offence, taking away the life of another human being, and this must not be lost on me.
   
3. The maximum penalty for wilful murder is death, but subject to s 19 of the Criminal Code, a lesser sentence of life imprisonment or a term of years may be imposed.
   
4. The details of the crime that was committed by the prisoner to which she pleaded guilty on arraignment were that the incident happened on 18 June 2021 between the hours of 12.30pm and 1.00pm. The prisoner was a shop attendant at a store, Goumei Trading at Ward five, Lorengau Manus Province. She was at work and had come out of the shop at the time. Upon seeing the deceased, Rachel Pahun, she ran at her and stabbed her three times, with a sharpened butter knife – once on her chest on her left breast, after that on her head and then on her hand as the deceased was trying to block her attack with her hands. There was a discrepancy with the number of blows from the medical report and what she said in her allocutus, so I have given the prisoner the benefit of the doubt. She admitted to the police that she stabbed the deceased and in her allocutus said that the reason she had attacked the deceased was because the deceased was having an affair with her boyfriend.
   
5. The relevant parts of the medical report of Serah John, the senior clinical HEO at the Lorengau General Hospital, dated 24 June 2021 of the observations of the deceased when she arrived at the hospital by the following doctors at Lorengau General Hospital -Dr Otto Numan, Dr Ekari and Dr Molean states:
   

“Examination on arrival to the hospital at 1.02pm showed she was unconscious, gasping for breath and had absence of all her vital signs, pupils were fixed and dilated emergency resuscitations went ahead to revive her vital signs and breathe were unsuccessful. Attempts to stop bleeding from the chest wound did not completely stop the bleeding.”

6. The injuries from the knife wounds in the medical report were described in the following terms:
   
   • X1 wound on the right posterior aspect of the upper chest measured 4cm in length and 2-4cm in depth.
   • X1 wound on the middle upper forehead measured 2cm in length and superficial in depth.
   • X1 wound above the right eyebrow measured 2cm in length and superficial in depth.
   • X1 wound on the arm measured 3cm in length and 1cm in depth.
   • X1 wound to the left anterior upper chest extended deep and diagonal towards the mid sternum of the chest and anatomical position of the heart measured 13cm-20cm in depth.
     
7. The medical report then says that she died at 1.10pm (on 18 June 2021) from the “Cardiac Tamponed and tension haemo pneumothorax by the penetrated knife wound in her left chest and multiple knife wound lacerations.” In other words, it was the penetrated knife wound to the left chest that caused the deceased to have a heart attack and die.
   
8. I did consider accepting her plea for a charge of murder, instead of wilful murder as I am entitled to do under s 539(1) of the Criminal Code, but after viewing the murder weapon tended as an exhibit it was clear that the knife, an ordinary butter knife, was specifically sharpened at its point as an arrowhead, as a small hand-held weapon to maim another human being. The attack at a vulnerable part of the deceased’s body, her chest and heart, left me in no doubt of her intention, although in her record of interview she says that she did not intend to kill the deceased.
   
9. In her allocutus, the Prisoner apologised to the court and to the family of the deceased. This is the first time she is in court as an offender. She said that the man who caused her to behave like this has moved on, remarried, and does not want to have anything to do with her. He has not visited her while she was incarcerated. He was initially in a relationship with the deceased. He left the deceased and entered into a relationship with the Prisoner. But she says that while he was with her, the deceased continued to see her boyfriend. This caused her to do what she did. She had to be remanded in the police cells because her safety at the Lorengau Correctional Services was not guaranteed, as a close relative of the deceased works there. But while in police custody, her holding cell was not completely protected from the male detainees and she had received threats or requests for sexual favours. She also reports that a male policeman has approached her too for sexual favours. Apart from this, her family home has been burnt. She asks for the court’s mercy.
   
10. The Prisoner’s counsel makes much of the case of Marangi v The State (2002) SC702. This was what happened in that case:
    

“The circumstances of the killing were that the appellant is a 26-year-old woman from Pasalagus village, Maramuni, in the Enga Province. She was married to a man from her area by the name of Max. They lived at Tabubil for some time where her husband worked. Sometimes in 2000, she returned to her village and lived there. On 22nd December 2000 she received information that her husband was coming home via Mt. Hagen. So she got on a MAF plane and flew down to Mt. Hagen and in the night, she went to one Nancy John’s house, where she expected Max to be staying. She entered the house and saw the deceased one Ms Juliana Ansu, "sleeping" on a lounge chair watching TV. The deceased was seven (7) months pregnant at that time. The appellant had suspected Juliana of being her husband’s girl-friend and having an affair with her husband. She then stabbed the deceased with a kitchen knife on her chest twice. The appellant then left the house with the knife in her hand which she later threw away. The deceased was immediately rushed to the hospital where she was pronounced dead on arrival.”

11. In that case, the court said:
    

“The killings in all these cases occurred in domestic settings. The Courts appear to have regarded unintentional killings in a domestic setting as less serious than other types of unintentional killings and prisoners who pleaded guilty have been given somewhat lenient treatment on sentence.”

12. The most I make of this case for the Prisoner, is that this case was committed in a domestic setting, which includes boyfriend/girlfriend relationships. Special consideration is given for unintentional killings in domestic settings. But Marangi v The State also sounded a warning that offences of this nature have become more prevalent, and there is a need for sentences to be increased.
    
13. It is a generally accepted principle of sentencing in this jurisdiction that the maximum penalty is reserved for the most serious category of the offence. I agree with both counsels that this is not the most serious of its kind, but it was nevertheless serious, as it involved the use of a dangerous weapon, attacking a vulnerable part of the human body. The victim faced a sudden, shocking and painful death.
    
14. Bertrand Russel in his book, “The History of Western Philosophy,” (Routledge, 2004, London, at 26), says that “Prudence versus passion is a conflict that runs through history.” No doubt this was a conflict that raged in the Prisoner, and she lost to her passion in that conflict. Her passion was fuelled by the sexual jealousy that consumed her by her suspicion that her boyfriend was seeing his former girlfriend, while at the same time professing to be her one and only love. King David fell victim to his passion when he sent Uriah to the frontline of battle to be killed by the enemy so that he could have his wife Bathsheba. That passion in the Prisoner festered like magna enclosed in a volcano and erupted on that fateful day 18 June 2021 killing an innocent human being and will now condemn a good part of her young life to imprisonment. The after effect of all this continues and the Prisoner fears that retaliation against her by the family of the deceased is imminent.
    
15. There was much going in favour of the Prisoner before the commission of the crime. She was employed and independent, young, of good health, of good appearance and comes from a pristine part of the country. There are no children yet from this relationship. What makes her think that her boyfriend or partner, whatever she wants to call him, is the only person that she can spend her life with and must kill another person to have him, is not only an offence against the laws of this country, but an offence against reason. She would do well to move on in her life and settle with a man who will appreciate her for who she is. But alas she chose not to take that path. Alas, many other young Papua New Guinean women also don’t take this path. They all fight on as if that man was the only man left in the world. A life has been lost. A future ha]s been snatched away. Grief of the victim’s family will take a long time to heal. This calls for a deterrent sentence.
    
16. But then you have the carnage unfaithful men (and women) leave behind, a trail of disaster in their wake. They take for granted the emotional attachment of their partners, and look for every opportunity to vent their lust, with no consideration for the heartache it will cause. Both the Prisoner and her boyfriend (who has moved on and is now married) have yielded to their passion – one is victor, and the other is vanquished, and the third is a victim. The law punishes the vanquished. The Criminal Law Compensation Act 1991 was enacted to give small comfort to victims. Is this fair? This is not for me to say, that is not my mandate – it is for the legislature to enact laws, to cater for this situation, to hold instigators of such crime to some level of responsibility. Although they were not married, they regarded each other as being in a permanent relationship. As it is now, I will factor this consideration in mitigation following cases such as Marangi v The State.
    
17. So I must weigh up matters which stand in the Prisoner’s favour, her mitigating circumstances and those that go against her, or aggravating circumstances. There are a few matters in her favour:
    
    • She is a first-time offender;
    • Pleaded guilty;
    • She cooperated with the police;
    • Her family home was burnt down in retaliation;
    • There was de facto provocation in the non-legal sense;
    • She was remorseful; and
    • The offence was committed in a domestic setting.
      
18. The State said there was really no option for the Prisoner but to plead guilty and her guilty plea should not be given much weight as it was a clear case. But I respond by stating that in her record of interview, her admission was done voluntarily at the earliest opportunity, and the guilty plea to the most serious of homicides is consistent with her earlier admission and should be considered in her favour.
    
19. The State questions whether her remorse was genuine. She did come across to me as insincere. But I wonder if that is her natural demeanour. I will give her the benefit of the doubt and accept that she was remorseful as she admitted to the offence at the earliest opportunity saving the court’s time and expense.
    
20. The Prisoner raises several concerns regarding the way she is now being treated in the Police cell. I accept the State’s submission on this point. I therefore do not consider them as mitigating factors as there are avenues available to the Prisoner to pursue her concerns to have them addressed. There is nothing stopping her from filing a separate application for enforcement of human rights under the Human Rights Rules.
    
21. The aggravating circumstances are that:
    
    • A sharp object modified specifically to maim was used;
    • There was multiple stab wounds;
    • A vulnerable part of the body was attacked causing the victim’s death;
    • Prevalence of homicides in domestic setting; and
    • The victim was defenceless.
      
22. I have also considered the sentencing tariff for wilful murder cases, and I have regard to Kovi v The State (2005) SC789. The Prisoner’s counsel submits that this case falls within the first category of the tariff for wilful murder, so a sentence of 15 to 20 years is warranted since this is an uncontested and ordinary case with mitigating factors and no aggravating factors. The State on the other hand submits that this case falls within the lower end of the second category attracting a sentence from 20 to 30 years as there was multiple stab wounds and there was an intention to kill. The court should consider a sentence between 25 to 30 years.
    
23. I have given due regard to the Prisoner’s submission that this crime was committed in a domestic setting, but as I said, she yielded to her passion, when she could have simply walked away from that relationship. Instead, she chose to take the life of another human being. I will therefore impose a sentence at the lower end of the second category for wilful murder in Kovi v The State and sentence the Prisoner Salome Boni Papi to 20 years in hard labour signalling a need for deterrence. Time will be deducted for period spent in custody, however, there will not be any additional suspension of sentence on account of the courts need to respond to the prevalence of this crime.
    
24. Considering the concerns raised by the Prisoner about her safety in Lorengau, I recommend that she is transferred to the correctional services facility in Kavieng, as the closest correctional services facility to Manus to spend her term of imprisonment.
    

Judgment on sentence accordingly.

Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Prisoner