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Nopi, Public Prosecutor v [1979] PGSC 17; [1979] PNGLR 536 (5 October 1979)

Papua New Guinea Law Reports - 1979

[1979] PNGLR 536 - Public Prosecutor v Panikuiaka Nopi�

[1979] PNGLR 536

SC165

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

THE PUBLIC PROSECUTOR

V

PANIKUIAKA NOPI

Waigani

Prentice CJ Saldanha Andrew JJ

1 October 1979

5 October 1979

CRIMINAL LAW - Appeal against sentence - Appeal against inadequacy of sentence - Wilful murder - Failed attempted suicide - Exceptional circumstances - Three months in custody awaiting trial - Sentenced to rising of court - Two years� imprisonment considered appropriate - Appeal dismissed - Sentence confirmed.

The respondent following a violent quarrel with her husband, had retired to the house which she shared with an eighteen months old son and set fire to her house with the intention of suiciding and wilfully murdering her son. The husband alarmed by the child�s cries broke down the door and rescued the respondent and child, the child dying some hours later. The respondent was charged with wilful murder of her child, convicted and sentenced to the rising of the court (having been in custody three months awaiting trial). There was evidence of a married life of considerable violence and evidence that the husband was willing to take the wife back into the family, there being other children.

On appeal against inadequacy of sentence pursuant to s. 23 of the Supreme Court Act 1975,

Held

N1>(1)����� (Andrew J. dissenting) The offence being wilful murder (and not attempted suicide) the public interest, the need for deterrence of a public nature and the need for a personal deterrent, were not met by the sentence imposed.

N1>(2)����� (Andrew J. dissenting) In the circumstances a sentence of two years imprisonment was appropriate.

N1>(3)����� (Per Saldanha J.) In view of the circumstances of the respondent since sentencing (including release from custody, forgiveness by her husband, re-establishment in the family, the advantages both to the community and to the respondent in allowing her to be at large outweighed whatever merit there would be in returning her to custody.

N1>(4)����� (Prentice C.J. dissenting) The appeal should be dismissed and the sentence confirmed.

Appeal

This was an appeal against sentence by the Public Prosecutor on the ground of inadequacy, pursuant to s. 23 of the Supreme Court Act 1975.

Counsel

W. J. Karczewski, for the appellant.

K. Wilson, for the respondent.

Cur. adv. vult.

5 October 1979

PRENTICE CJ:� On pleading guilty to the wilful murder of her (approximately) eighteen months old son, the respondent who had then been three months in custody, was sentenced in the National Court to the rising of the court, and was at once released. The Public Prosecutor appeals from that order under s. 23 of the Supreme Court Act 1975, claiming inadequacy of the sentence to the circumstances of the case. Under the present content of s. 309 Criminal Code, the National Court may sentence a wilful murderer to life imprisonment or to any lesser punishment; though for a brief period (between 1st November, 1975, and April 1976) a compulsory sentence of life imprisonment was required under the Code as it then stood.

His Honour the trial judge found the case a pathetic one, and understandably, with respect, the matter of sentencing a troublesome decision. Following a quarrel with her husband, the respondent had retired to the house which she shared with the infant son (the husband who had another wife, was sleeping in another hut with other of his and the accused�s five children). She set fire to her house with the admitted intent of suiciding and of wilfully murdering her son. Her husband, alarmed by the baby�s cries, broke down the door with an axe, pulled her out, returned and carried the baby out. The child died.

It appears that the married life of the parties had encompassed a number of instances of violence. The respondent exhibited large scars on her right thigh, neck and shoulder which she stated had been inflicted on her by her husband during quarrels in the past. On the night in question he had it seems, thrown an axe at the door of the house to �fight� her (in the statement on the allocutus this was differently described as �trying to kill me�).

Most unfortunately in my opinion, no evidence of custom in the district was led, though the circuit prosecutor purportedly retailed some of what a Mr. Phillip Moore a co-ordinating officer of several years experience in the area concerned, Marawaka, had to say. Mr. Moore apparently stated that in the district there is little payback, and in a matter such as this the people bring it to court and don�t take the law into their own hands; that no compensation had then been demanded, but that any subsequent action by way of compensation or payback was to an extent then dependent upon the sentence of the court to be handed down; that a custodial sentence would most likely satisfy all involved; that the people were largely looking towards the court to see what punishment it imposed. His Honour obtained from the prosecutor his view that the people might not understand if no further punishment were imposed.

Mr. Kapi confirmed that his information coincided with that put forward by the State, but that he understood both husband and wife wished to resume the marriage. On the other hand, the Public Solicitor speaking presumably to instructions, referred to the respondent�s state of mind as �frustrated (anger) felt rejected and decided to take her own life and that of her child� (as recorded in his Honour�s notes). He went on �we know instances of frustration, rejection, depression and no hope in life (in Papua New Guinea and world generally) � suicide ...� The plain fact however is that both in her record of interview and in her statement in the National Court, the only motivation suggested both for her attempted suicide and for the wilful murder was anger.

The motivation for a married woman�s suicide in the Highlands may be very difficult for non-Highlanders and expatriates to understand. But such phenomena are well known. I have myself tried two such in another Highlands area (where the custom may be different), and received evidence therein that the motivation can well be that of revenge in that such action by a wife subjects the husband to such community shame that his standing is forever afterwards affected. Such occurrences and motivations are matters of wide notoriety. In the last such case before me the woman succeeded in drowning two of her three children but failed in the murder of the third and in her own suicide. The trial judge herein, accepted that suicide and attempted suicide were prevalent in the Marawaka area itself.

Unfortunately, with respect, his Honour seems from his remarks on sentence to have confused in my view, the approach that courts normally take to cases of attempted suicide, with that required in those of wilful murder. That this was so is exemplified I believe by his quoting a statement of Professor Howard�s which related to suicide unassociated with wilful murder. In the result, working from references to suicide and comparisons with infanticide, and a perfectly understandable strong sympathy for the respondent, his Honour regarded himself as unable to distinguish the moral culpability and criminal responsibility of an attempted suicide from that of an attempted suicide which included a successful wilful murder. With respect I regard his reasoning as faulty. The court was concerned with wilful murder not attempted suicide.

His Honour�s error in my opinion was compounded by his conclusions that there was �nothing sinister in the fact that the accused decided to take her child with her to an intended death. By custom the child was very close to her, and it was natural to her that when she went so she would take him. To her simple way of thinking, not to have taken him with her would have been to desert the child.� No evidence of custom was called as I have mentioned, and was available to his Honour on this point. And I feel with respect, that impressions from other societies have led the trial judge astray. It is certainly my experience over ten years as a judge in Papua New Guinea, that in most (perhaps all) Highland societies at least children (especially males) are regarded as the husband�s in priority to the claims of the wife. This no doubt relates to tribal affinity and the growth of the tribe�s strength. It materialises repeatedly not only in custody cases, but in the aftermath of marriage breakups, deaths and suicides. Inferences can and should be drawn from this, in my opinion, as to the importance of scrutinising motivation, and as to the discovery of a sentence that will be appropriate.

Individual cases calling for merciful sentences occur from time to time. One such was cited to this court Acting Public Prosecutor v. Tumu Waria of Yogos[dclxviii]¹. I do not consider the public interest, (and in particular) the likely tribal call for retribution, and the need for deterrence of a public nature, could have been met by the sentence imposed herein; and in view of the past history of quarrels between this couple and the existence of other young children of theirs, I consider it clear that an element of personal deterrent was also called for in the case.

I regret that I am unable to take the view of my brother Saldanha, that having regard to the husband�s acceptance of his wife (such could conceivably have been a self-saving gesture on his part), and the time that has elapsed, no imprisonment should now be imposed. There is the additional fact that we have no material before this court that informs us how the family settlement has worked or what the respective tribal components consider. I believe the possibilities of further aberration by the respondent or of other persons taking the law into their hands must not be overlooked, and that a sentence (merciful though it should be), of imprisonment should be imposed � and that it should be of two years� duration. I would allow the appeal.

SALDANHA J:� On 12th June, 1979, at Goroka the respondent, Panikuiaka Nopi, appeared before Wilson J. on an indictment charging her with the wilful murder of her eighteen months old son. She pleaded guilty and was sentenced to be imprisoned till the rising of the court. Pursuant to s. 23 of the Supreme Court Act 1975, the Public Prosecutor appeals against sentence on the ground that it is inadequate and insufficient.

The facts are shortly as follows. The respondent is a woman aged about thirty six. She is married and had five children. The deceased was probably the youngest. He was just beginning to walk and talk and had not yet been weaned.

On 27th February, 1979, the respondent went to the garden to get some food. She returned home at dusk and started to cook. Her husband came shortly afterwards and according to the respondent they quarrelled about food and in the course of the quarrel her husband threw an axe at her which missed her and got embedded in the door of the house. The husband denied that there was any quarrel that evening.

Later that night, possibly about midnight, while the respondent and the deceased child were inside the house the respondent set fire to the house with the intention of committing suicide and killing the child.

The husband who was asleep with the other children and the second wife in a house about two hundred yards away heard the cries of the deceased. He ran to the burning house and after breaking down the door with an axe rescued his wife and child. Both were badly burnt. Unfortunately the child died a few hours later but the respondent lived.

When the allocutus was administered the respondent showed his Honour three large and conspicuous scars on her body obviously caused by cut wounds. In mitigation of sentence respondent�s counsel informed his Honour that her husband had assaulted her on a unmber of occasions and that in some instances she had nearly died. He said the respondent felt frustrated, depressed and rejected and, that she was in a state of mind when she felt that there was no hope left, that she decided to take her own life and that of her child. Counsel�s submissions must have been made in consequence of the instructions he had received from his client, the views he had formed as a result of those instructions and his observations of her demeanour.

His Honour would appear to have accepted counsel�s submissions and having seen for himself the scars on respondent�s body and heard her plea in mitigation he came to the conclusion that there had been a history of violence and cruelty on the part of the husband towards the respondent. I can find no fault with his Honour�s findings. Had there been a trial the full facts would no doubt have emerged. But there had been no trial as the respondent had pleaded guilty. The trial judge had to do the best he could in the circumstances and ascertain the facts from the depositions, the antecedent report and from what he had been told by the two counsel in the case, drawing the necessary inferences and leaning as heavily as possible in favour of the respondent out of feelings of mercy and compassion. In the absence of evidence as to the exact state of her mind at the time when she set fire to the house, given the history of constant quarrels, cruelty and violence and believing that there had been a quarrel that evening when an axe had been flung at her, it was a legitimate inference that the respondent must have been in a state of utter hopelessness when she decided to commit suicide.

The respondent had committed two offences, namely, wilful murder and attempted suicide. In many jurisdictions attempted suicide is no longer an offence and, although it is an offence under the Criminal Code, in conformity with current thinking it appears that the Public Prosecutor does not prosecute an offender who attempts to take his own life. So the state of mind of the respondent would be totally irrelevant as far as the offence of attempted suicide is concerned but should no doubt be taken into account in sentencing her for the wilful murder of the child.

What gives this case special significance is that the attempt to commit suicide was unsuccessful. The respondent was rescued from certain death against her will. She is not being prosecuted for attempted suicide but neither would she have been prosecuted for wilful murder if her attempt to commit suicide had not been unsuccessful. But the fact that she survived when she had no desire to do so is no reason to let her off so lightly. Wilful murder is a serious offence for which the maximum sentence is imprisonment for life. The deceased child was not a helpless babe in arms. He was just beginning to walk and talk. He had a right to live and the sanctity of human life must be protected.

Therefore having regard to all the circumstances and after making every possible allowance for the respondent�s state of mind I consider that a sentence of imprisonment till the rising of the court is inadequate. I would agree with the Chief Justice that the sentence should have been at least two years� imprisonment. I doubt whether such a sentence is likely to deter either the respondent or any other person from committing such an offence (wilful murder coupled with attempted suicide). If the respondent were minded to do the same thing again she would make certain that she did not live and other would-be offenders would hardly imagine that they would live to suffer the consequences of their crime. For better or for worse the respondent survived and she ought to have been punished for her transgression. The community would probably expect some retribution.

The difficulty about incarcerating her now is that after being in custody for three months pending trial she has been at large for three months and sending her to prison will probably do more harm than good. We have had cases where convicted appellants have been at large on bail pending appeal and, upon their appeals being dismissed, they have been committed to prison. But such persons have known from the start the sentence imposed on them and have merely put off the evil day by appealing. In cases where the Public Prosecutor appeals successfully against an inadequate sentence almost invariably the respondent is in prison serving sentence and an increase in the sentence entails the prisoner staying in prison a little longer than he was originally led to expect.

The circumstances of the instant case are vastly different, certainly exceptional, almost unique. The respondent has been led to believe that all is forgotten and forgiven. Her husband has taken her back. In the absence of evidence to the contrary it must be assumed that husband and wife are getting on reasonably well. The social services have agreed to help them. She could be well on the way to being rehabilitated and settling down to a reasonably happy life caring for her children. If she were to be imprisoned now who knows whether her husband would have her back on her release two years later? In my view the advantages both to the community and to the respondent in allowing her to be at large outweigh whatever merit there may be in imprisoning her and I would therefore dismiss the appeal.

ANDREW J:� This is an appeal brought by the Public Prosecutor under s. 23 of the Supreme Court Act 1975 on the ground of inadequacy of sentence.

At the June 1979 sittings of the National Court at Goroka, the respondent pleaded guilty to a charge of wilful murder. She had been in custody for three months and she was sentenced to be imprisoned to the rising of the court.

The facts of the case were particularly tragic. The respondent was a very unsophisticated villager from a remote area some thirty miles from Marawaka in the Eastern Highlands Province. His Honour, the trial judge, found that she and her husband over the years had had many violent quarrels. On at least three occasions she had been seriously injured by her husband and she had scars on her thigh, her shoulder and her neck, which had been inflicted by a sharp instrument. On more than one occasion she had nearly died of these injuries.

On the night of 27th February, 1979, the respondent�s husband made another violent attack upon her. His Honour found as follows:

�He came at her with an axe, and she was frightened that she would be hurt again. He threw the axe which became embedded in the door of her house. Thereafter, whilst in the depths of depression, whilst feeling frustrated and rejected, and in an atmosphere of hopelessness, the accused decided to do away with herself and her approximately eighteen month old child. She set fire to the Kunai house, closed her eyes, and then waited for death. Both she and the child were burnt; but before they were both incinerated the accused�s husband, who had heard the child�s cries, burst in, after breaking down the door with a tomahawk, to rescue them both. The accused miraculously was saved from death; she eventually recovered from her burns. The child sadly died of his burns within a few hours.�

Clearly his Honour was faced with a difficult task in having to sentence the respondent. In my view he adopted a humane approach and this course was reasonably open in the very special circumstances of the case.

Sentencing is not an exact science but a subjective art. It is based on an instinctive feeling for justice, a knowledge of current trends in society and among other sentencing bodies, and a breadth of experience of life itself: see Booth and Pirie, The New Powers of Sentencing (1973), at p. 5. In my opinion the facts of the case were so exceptional, as his Honour found, that an individual sentence was justified and I am unable to see that the learned trial judge was in error.

Counsel for the appellant attacked the findings, inter alia, on the basis that the offence had been regarded as one of attempted suicide and not as a charge of wilful murder. Further, that there was no justification for the finding that the respondent acted �whilst in the depths of depression, whilst feeling frustrated and rejected, and in an atmosphere of hopelessness.� It was also said the sentence did not allow for the elements of public protection and public and personal deterrence.

His Honour had found:

�To regard suicide (the taking of one�s own life) as a form of homicide is an intellectually neat classification, to regard this accused�s conduct, which was an attempt to take her�s and her son�s life (unsuccessful as far as she was concerned but successful as far as her son was concerned) as �wilful murder� is also an intellectually neat classification, and is I consider legally sound.�

Later in the judgment he continued,

�Because I am sworn to uphold the law, and because I must attempt to do justice according to law, remembering, as I do, that justice not administered according to law is not justice at all, I cannot treat this undoubtedly special case of �wilful murder� as something other than an offence.�

It is clear enough from these findings that the offence was regarded as one of wilful murder.

The Public Solicitor, who appeared for the respondent at the trial, submitted that his client had felt rejected and had decided to take her own life and that of her child, he referred to instances of frustration, rejection, depression and no hope in life. From that submission, which must have been based on instructions, is derived his Honour�s findings to that effect, and were thus findings which were reasonably open.

In my view the trial judge was in the best position to assess the likelihood of any danger to the respondent�s other children. He took into account that she had been jolted from her state of emotional crisis and was now sorry for what had happened. He considered that she would continue to be punished by the knowledge that she had killed her own child. He took into account that she had been reunited with her husband and he made available the services of the welfare and advisory services of a community development officer. In all of these circumstances I find that this was an exceptional case and that the sentence was not inadequate or insufficient and I would not disturb it. The criminal law exists for a multitude of reasons, one of which is to assist persons in an appropriate case. Here was an exceptional case where a merciful sentence was passed and as I have already said, I find no error in that sentence.

I would dismiss the appeal.

Appeal dismissed.

Sentence confirmed.

Solicitor for the appellant: K. B. Egan, Public Prosecutor.

Solicitor for the respondent: M. Kapi, Public Solicitor.

[dclxviii] [1977] P.N.G.L.R. 170.