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State v Benjamin [2024] PGNC 221; N10884 (5 June 2024)

N10884

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1947 OF 2023

THE STATE

V

JONATHAN BENJAMIN

Lae: Kangwia J.
2024: 5^th June

CRIMINAL LAW – Sentence – Murder – guilty plea - husband killing wife – killing in domestic setting - guilty plea by first time offender - sanctity of life – prevalence of offence – sentenced to 20 years.

Cases cited.
Manu Kovi v State (2005) SC789
Goli Golu v the State (1979) SC172
Lawrence Simbe –v- State [1994] PNGLR 88
Simon Kama v the State (2004) SC740
State v Polin Pochlau Lopai [1988-89] PNGLR 48

Counsel:
P. Matana & N. Pare, for the State
V. Ngibe, for the Defence

5^th June 2024

1. KANGWIA J: Jonathan Benjamin appears for sentence after he was convicted on his guilty plea to murder. The State alleged that whilst under the influence of alcohol he repeatedly assaulted his wife with fists and a saw until she died. He is believed to be 37 years old and married with two children. He has no prior convictions.

2. On his allocutus he says, “I say sorry to the Court for committing the offence. I ask for leniency as a first-time offender. I have two kids to look after”.

3. The pre-sentence report while suggesting that the offender is no threat to anyone makes no recommendation and leaves it to the discretion of the Court given the serious nature of the offence.

4. On his behalf Mr Ngibe while relying on the case of Manu Kovi v State (2005) SC789 submits that a sentence between 18 and 25 years was appropriate. The offender pleaded guilty early as a first-time offender. It was not a premeditated attack.

5. On behalf of the State Mr Pare after referring to comparable sentences submits that a head sentence of 20 to 30 years be imposed as it fell into category 2 and 3 of the Manu Kovi guidelines. There was a loss of life in a vicious attack. The offender used a saw as a weapon to cut the deceased on vulnerable parts of the body accompanied by punches. There was a strong desire to harm the defenceless wife.

6. The offence of murder under s 300 of the Criminal Code states:

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

(b) if death was caused by means of an act—

(i) done in the prosecution of an unlawful purpose; and

(ii) of such a nature as to be likely to endanger human life; or

(b) ...

Penalty: Subject to Section 19, imprisonment for life.

7. The prisoner in the present case is liable to be sentenced to life imprisonment.

8. However, the Court has discretion pursuant to s 19 of the Criminal Code to impose other sentences.

9. It is also an established principle of law that the maximum prescribed penalty for each offence should be reserved for the worst type of each offence. (See Goli Golu v the State (1979) SC 172).

10. There is no precise sentencing formula to be followed as it is not a matter of tariffs. It depends on the facts and circumstances of each case and the exercise of discretion.
11. In determining a sentence for the present case, I adopt what Courts said in the following cases.

12. The Supreme Court in Lawrence Simbe –v- State [1994] PNGLR 88 said.

“Each case of murder must be decided on a case-by-case basis, but always remembering that the sentence laid down by s. 300 is life imprisonment and the term of years is by virtue of s. 19.”

13. The Supreme Court in the case of Simon Kama v the State ( 2004) SC 740 in suggesting its guidelines and tariffs in homicide cases said;.

“Where there is a guilty plea with aggravating factors other than the use of a firearm and the commission of another offence a sentence between 17 and 30 years should apply”.

14. In the manslaughter case of the State v Polin Pochlau Lopai [1988-89] PNGLR 48 the Court 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”.

15. The present case is a sad case of an innocent wife 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. Simply put a wife beating went terribly wrong. Rage blinded the sanctity of life.

16. He repeatedly assaulted his wife with his hand and swung a saw which cut the victim whilst under the influence of alcohol. The victim succumbed to the injuries sustained. There is no one else to be blamed for the death caused. He deserves a custodial sentence.

17. As to how long the sentence might be I am guided by the suggestions in the renowned case of Manu Kovi v the State [2005] SC 789 to arrive at a sentence commensurate with the gravity of the offence. In that case the categories for murder states as follows.

MURDER

Category 1 - In an uncontested case, in an ordinary case with ordinary mitigating factors and no aggravating factors, a starting point of 12 years up to 15 years. A sentence below 12 years should be rarely imposed except in exceptional cases where there are special mitigating factors.

Category 2 - In a contested or uncontested case – mitigating factors with some aggravating factors – pre-planning - weapons used - No strong intent to do grievous bodily harm – some element of viciousness - 16-20 years.

Category 3 - In a contested or uncontested case - aggravating factors - pre-planning - vicious attack – strong desire to do grievous bodily harm - weapons used - mitigating factors reduced in weight or rendered insignificant by gravity of violence committed - 20-30 years

Category 4 - In contested or uncontested cases, the maximum penalty of life imprisonment should be reserved for the worst case of its kind such as the unexplained pre-planned vicious and brutal killing of an innocent and unarmed person using dangerous or lethal weapons (or) substances, summary execution.
18. The circumstance of the present case makes it fall into the third category for murder under the Manu Kovi guidelines. There was strong desire to do grievous bodily harm. There were repeated assaults with his fist and the use of a saw as a weapon. The consequence of his unrestrained acts is the loss of life of his wife. There can never be anything more serious than death. Therefore, his guilty plea as first-time offender fades into insignificance.

The offence is also prevalent in this country.

19. Killing in marital relationships is high and does not seem to subside despite high sentences being imposed by the Courts. Children are left motherless. Spouses are left without wanting support. Relations become sour. The purpose of having a family becomes meaningless.

20. Considering all that has been said a deterrent sentence is warranted. The prisoner shall be sentenced to 25 years imprisonment. From the 25 years the time in custody till today shall be deducted and the prisoner shall serve the balance at CIS Buimo.

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