Public Prosecutor v Panikuiaka Nopi

• Jurisdiction: Papua New Guinea
• Judge: Prentice CJ, Saldanha J, Andrew J
• Judgment Date: 05 October 1979
• Citation: [1979] PNGLR 536
• Court: Supreme Court
• Year: 1979
• Judgement Number: SC165

Supreme Court: Prentice CJ, Saldanha J, Andrew J

Judgment Delivered: 5 October 1979

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

(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.

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

(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.

(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...