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State v Yuanis [2024] PGNC 76; N10736 (15 March 2024)

N10736

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 57 OF 2023

THE STATE

V

THOMAS YUANIS

Minj: Toliken J
2023: 29^th March, 15^th November
2024: 15^th March

CRIMINAL LAW – sentence – murder – guilty plea – multiple injuries – amputated arm and leg – mitigating and aggravating factors considered – uncontested claim of de facto provocation - appropriate sentence – 25 years less time in pretrial/sentence detention –Criminal Code Ch.262, s 300 (1)(a).

Cases Cited:

Lawrence Simbe v The State [1994] PNGLR 38
The State v. Laura (No.2) [1988-89] PNGLR 982
Avia Aihi v The State (No.3) [1982] PNGLR 92
Goli Goli v The State [1979] PNGLR 653
Saperus Yalibakut v The State (2006) SC890
Manu Kovi v The State (2005) SC789
Simon Kama v The State (2004) SC740
State v Pinapang (2017) N6616

Counsel:
J Kesan and A Mundi, for the State
R Mangi, for the Prisoner

SENTENCE

15^th March 2024

1. TOLIKEN J: Thomas Yuanis, on 28^th March 2023, you pleaded guilty to an indictment charging you with one count of murder pursuant to Section 300 (1)(a) of the Criminal Code (the Code).
   
2. You were charged that on the 19^th day of October 2020, at Bumbi Village, Jimi, Jiwaka Province you murdered one Jenitah Yu.
   

3. You admitted the following facts which were put to you when you were arraigned. These are the facts upon which I will sentence you. Jenitah Yur was your wife. Prior to her killing the two of you never had any arguments.

4. In the morning of 19^th October 2020 at Togoban Village, the deceased and her sister Serah Yur left the house and went down to Jimi River to harvest their peanut garden. You arrived at the garden at around 11.00 am while they were harvesting the peanuts armed with a bush knife.

5. You approached the deceased and without saying a word you chopped her right hand twice severing it from the body. You then chopped off her leg and continued to cut her all over her body. Her sister Serah watched from close by as you killed her sister instantly. She cried and shouted for help and another woman by the name of Pauline Simon came and saw the remains of the deceased. She then left and called in villagers who came and took the remains of the deceased to the village. The deceased was immediately buried.

6. After killing the deceased, you fled to your village and went into hiding. You were later arrested by the police. You claimed that the deceased was in the garden with another man having sex, so you killed her instantly.

7. A brief report to the Police by one Abraham Kuipun of Togban Health Centre who attended to the body of the deceased reveal the following:

• Completely chopped off upper right arm above the wrist joint.
• Completely chopped left leg above the ankle joint held by about 2 -3 cm skin.
• X2 deep cuts on the lower right leg associate to palm 6 -7 cm deep.
  • Deep within and around the genital area. (sic.)
    

8. The offence of murder carries the maximum penalty of life imprisonment. However, I may only impose the maximum penalty on you if I consider your case to be a worst case of murder. Furthermore, whatever your sentence will be, will to a large extent depend on the circumstances under which you killed the deceased. These are well established principles of sentencing. (Goli Goli v The State [1979] PNGLR 653; Avia Aihi v The State (No.3) [1982] PNGLR 92; Lawrence Simbe v The State [1994] PNGLR 38)

9. So, is this a worst case of murder? Viewed objectively it may very be. It does appear to fall into Category 4 for the offence of murder in the sentencing guidelines set by the Supreme Court in Manu Kovi v The State (2005) SC789 because of the existence of the following – it was a brutal and cold-blooded killing, the victim was totally harmless and defenceless, and complete disregard for human life. However, there are also features of the third category present such as a strong desire to cause grievous bodily harm and use of offensive and dangerous weapon.

10. At the outset I must categorically say that this is a worst type of murder, such that I must start at the maximum penalty to decide what an appropriate sentence for you ought to be.

11. When you were asked to address the court before sentencing, you apologized to the Court, to God, to your wife (deceased) and her family and to your own family. You said that this thing would not have happened had you not caught the deceased having sex with another man and that her sister acted as look out or spy. You said you saw them with your own eyes laying down together. You confronted the deceased and told her that she has committed adultery and that you will not kill her but only paralyze her. You admitted cutting her leg and arm but deny chopping them off. You also denied cutting her all over her body. After cutting her you said you left for the village. The community later handed you over to the police. You also said you were initially discharged by the District Court, but later rearrested. You asked for mercy because you have a son who now has no one to look after.

12. You are from Bumbi Village, Jimi, Jiwaka Province. You were married to the deceased and at the time of the offence you were 30 years old. You would be about 34 years old now. You are the last born of 6 children, all of whom are married and are living their separate lives. Your father is deceased, but your mother is still alive. Prior to committing this offence, you lived a subsistence lifestyle.

13. Mr. Kesan submitted on behalf of the State that this is a worst case of murder, deserving of the maximum penalty of life imprisonment. This is because you preplanned to kill your wife. You attacked her by surprise and brutally killed her in cold blood as she was doing her gardening, totally defenseless. You also displayed complete disregard for human life and mutilated her limbs and body.

14. Your lawyer Ms. Mangi submitted on the other hand that yours is not a worst offence and therefore should attract a sentence of 15 years. Counsel submitted that you never intended to kill the deceased, as you said in your record of interview and again repeated in your address to the Court. Counsel cited several mitigating factors, including your guilty plea and expression of remorse among others which I will presently come. She urged the Court to impose a sentence that will not only punish you but also deter you as well.

15. An oral presentence report (PSR) was filed in your behalf. While it recommended probation supervision for you I note that apart from you and your aunt, Elise Ngembil, none of the deceased relatives or community leaders were interviewed to gauze their views on your suitability for probation. I also note that the report says that your people paid K5000.00 and seven pigs valued at K1000.00 each to the deceased’s people. However, it appears that the information came from yourself and was not corroborated by anyone. I therefore am skeptical about the veracity of your account. Bel kol or compensation may have been paid, but I cannot accept your word for it as you were in custody when this event would have likely happened, hence, your statement to the Probation Officer was hearsay.

16. I find the following to aggravate your offending:

• You used a dangerous weapon to kill the deceased.
• You inflicted multiple injuries/wounds on the deceased which included amputations to her limbs.
  • The offence is prevalent.
    

17. In your favour are the following mitigating factors:

• You pleaded guilty very early to the offence.
• You are a first-time offender.
• You were of prior good character.
• You co-operated with the police by making admissions in your record of interview.
• I can accept that you most probably were provoked in the non-legal sense. The State has not negatived your claim that you caught the deceased having sex with another man. Whoever this man was you did not say or name him, not in the record of interview when you first made the statement, not in your address to the Court before sentencing, nor in your PSR where you reiterated this version of what prompted you to attack your wife the deceased. I do not completely believe you but since the State has not countered your claim, I am bound to apply this to your benefit. (Saprus Yalibakut v State (2006) SC890).
  

18. I am unable to accept that bel kol was paid in the absence of corroboration. I am also not willing to accept Ms. Mangi’s submission that you are remorseful, and that payment of compensation is evidence of such. Rather I find that any expression of remorse by you was not genuine.

19. So, given the above, what then should be an appropriate sentence for you? Should you get the maximum penalty? You might as well because you brutally and mercilessly killed your wife. You were deliberate and merciless in your attack on her. She was defenseless, and in fact was not prepared to make an escape. You deny severing her limbs, however, the report by Abraham Kuipun shows very clearly that the deceased’s upper right arm was cut off and the left leg was cut off at the ankle. This is supported by coloured photographs. No objection was raised to the Court’s use of these photographs, and the medical report, which were tendered by consent.

20. Are they inadmissible because Mr. Kuipun was not a medical officer? Not necessarily. This is because Mr. Kuipun essentially and merely reported what he personally observed. Nowhere in his report does he express any opinion as to the cause of death or the likely effect of the wounds he observed on the deceased which is the domain of an expert witness such as a medical officer. The photographs of course speak for themselves and are undeniable.

21. Counsel cited several cases to me to assist me in determining an appropriate sentence for you. I do not find the cases cited by Ms. Mangi helpful because those cases do not come anywhere close to the circumstances of your case. Counsel appears to downplay your very serious culpability or moral blameworthiness.

22. In my view there is nowhere a sentence of 15 years can fit the circumstances of your offending and level of culpability. I am more inclined to agree with Mr. Kesan that you really should get a life sentence, or at the very least get a sentence similar to that in State v Pinapang (2017) N6616 where his Honour Cannings J sentenced the offender to 21 years. The offender there cut her adoptive mother’s neck with a bush knife.

23. The circumstances of your case are more serious. You chopped off the deceased’s upper right arm above the wrist and the left leg above the ankle. Two further cuts were observed on the right leg measuring 6-7cm. Mr. Kuipun also observed that the deceased’s genitals were mutilated but this was not pleaded in the supporting facts, so I say no more about that.

24. What is clear to me though is that you must get a sentence higher then Pinapang or any of the cases cited to me by Ms. Mangi and Mr. Kesan.

25. But for your uncontested claim of de facto provocation, I would have no hesitation but to impose the maximum penalty – life imprisonment. However, if indeed you came upon your wife having sex with another man, this would constitute an extenuating circumstance of some significance which would seriously reduce your culpability as well warranting a significantly lower sentence.

26. In the circumstance I should think that a sentence of 25 years would be appropriate.

27. I therefore sentence you to 25 years imprisonment from which the time you spent in pretrial/sentence detention shall be deducted. None of the balance of your sentence shall be suspended. You will serve your sentence at Barawagi Corrective Institution. And finally, if you are not happy with your sentence, you have 40 days to appeal to the Supreme Court.

Ordered accordingly.

________________________________________________________________

R Luman, Acting Public Prosecutor: Lawyer for the State

LB Mamu, Public Solicitor: Lawyer for the Prisoner