The State v David Yakuye Daniel (No 2) (2005) N2890

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 08 September 2005
• Citation: (2005) N2890
• Docket Number: Cr No 947 of 2002
• Court: National Court
• Year: 2005
• Judgement Number: N2890

Full Title: Cr No 947 of 2002; The State v David Yakuye Daniel (No 2) (2005) N2890

National Court: Cannings J

Judgment Delivered: 8 September 2005

N2890

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 947 OF 2002

THE STATE

V

DAVID YAKUYE DANIEL (NO 2)

KIMBE : CANNINGS J

21 JULY, 25 AUGUST, 8 SEPTEMBER 2005

Criminal law – sentence – Criminal Code, Section 300 (murder) – prisoner convicted after pleading not guilty – murder of wife, who he suspected of marital infidelity – stabbing – whether provocation in a non-legal sense a factor in mitigation.

Criminal law – sentencing guidelines for murder cases – recent Supreme Court decisions – identification of starting point for head sentence – identification of relevant considerations – application of relevant considerations.

Criminal law – sentence – suspension inappropriate in murder cases unless special circumstances or reconciliation and compensation process with deceased’s relatives is complete.

The prisoner was convicted of the stabbing murder of his wife, who he suspected of having an affair. There was evidence that the prisoner had, prior to the incident in which he killed his wife, attempted to sort out their marital problems by peaceful means. The defences that he raised at the trial – self-defence and provocation – were rejected.

Held:

(1) This was a serious case of murder but not in the worst-case category.

(2) Guidelines given in recent Supreme Court cases taken into account. Simon Kama v The State (2004) SC740 considered; Manu Kovi v The State (2005) SC789 applied.

(3) This case falls within category 3 of Kovi in that it was a vicious attack involving the use of a dangerous weapon, a knife, exhibiting a strong desire to do grievous bodily harm. Therefore the starting point is within the range of 20 to 30 years imprisonment.

(4) One of the mitigating factors was provocation in the non-legal sense in that the prisoner suspected that his wife had been having an affair. However, it was only a mildly mitigating factor.

(5) The prisoner is sentenced to 25 years imprisonment.

Cases cited

The following cases are cited in the judgment:

Manu Kovi v The State (2005) SC789

Simon Kama v The State (2004) SC740

The State v Daniel Ronald Walus (2005) N2808

The State v David Yakuye Daniel (2005) N2869

The State v Hiliong Gunaing (2005) N2803

The State v Jacky Vutnamur and Kaki Kialo (No 2) (2005) N2868

SENTENCE

This was a judgment on sentence for murder.

Counsel

F Popeu for the State

R Inua for the prisoner

CANNINGS J:

INTRODUCTION

This is a decision on sentence for a man convicted of the murder of his wife.

BACKGROUND

The murder took place at Kandrian, West New Britain, on the morning of Sunday 24 December 2001. There had been a period of marital disharmony and the prisoner suspected his wife of having an affair with another man. He tried to sort out the problem by peaceful means but on the night before the incident, they had an argument and she left their house. The following morning he followed her to the beach. He waited for her while she went to the toilet and then approached her when she came out. He was carrying a knife. There was an altercation and he stabbed her eight times, five of the wounds being intentional and forceful.

At the trial, I rejected the defences of self-defence and provocation. The prisoner was charged with wilful murder. He pleaded not guilty. I concluded that he did not intend to kill his wife but that he did intend to inflict grievous bodily harm. Therefore he was convicted not of wilful murder but murder (The State v David Yakuye Daniel (2005) N2869).

RELEVANT LAW

Section 300 of the Criminal Code provides that the maximum penalty for murder is life imprisonment. However the court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code. For example:

· a shorter term of imprisonment may be imposed (Section 19(1)(a)); or

· a fine up to K2,000.00 may be imposed instead of or in addition to a term of imprisonment and the prisoner can be imprisoned until the fine is paid (Sections 19(1)(b), 19(1)(c)); or

· the prisoner may be given a ‘good behaviour bond’ (Section 19(1)(d)); or

· the prisoner can be discharged and the sentence postponed (Section 19(1)(f)); or

· the court can suspend all or any portion of the sentence imposed, subject to conditions (Section 19(6)).

ANTECEDENTS

The prisoner has no prior convictions.

ALLOCUTUS

I administered the allocutus, ie the prisoner was given the opportunity to say what matters the court should take into account when deciding on punishment.

He stated:

I respect the decision of this court. But this woman, my wife, stabbed me first and I defended myself when I stabbed her. If I didn’t do that to save my life I would have died. I would not be standing here. That woman would be standing here. I did not want my wife to die. But somehow she did die and I am very sorry that she died. When this incident happened the people at Kandrian backed the police officers. The officers at the health centre did not treat me properly. They did not help me get a medical report and my properties have been lost. There were some small amount of compensation and the police witnessed this. But this has not been reported to the court. I did not have any family and relatives to look after my things. So I forgive them in God’s name for what they have done. I say sorry to the relatives of my wife for her unexpected death. However, to quote Romans 6:23: “Pei bilong sin em dai tasol” [the wages of sin is death]. I apologise in the eyes of God and I say sorry to the Court for breaking the laws of this country. I say thank you to God for saving my life. I was not the cause of this trouble. I have been in custody for three years and seven months and there have been many escapes in that time. I have not run away. I respect the laws of the country and I respect the warders at the gaol. I respect the community in this province and the people of this country. In the time I have been in custody I have faced many illnesses including typhoid, malaria, diarrhoea and scabies. My eyes have gone bad. I am not in a good condition staying in the jail and I ask the court to take this into account. I ask the court to look at my age and my future. What I have done will stay with me now and forever and I do not want to look stupid in the eyes of the public. My mother and my father are deceased and they died when I was very young. I was still a child when the people of Kandrian adopted me. I have no brothers or sisters and so my life will be very difficult. I respect the grace of the high court. I have not had a bad name in the community or the police or the public. This is my first time to be in this sort of trouble. I am still shocked about what happened. I ask the court to consider this and show me mercy and consider a non-custodial sentence. I will look for some money to pay some more compensation to my wife’s relatives. If I am in custody and unable to pay more compensation my wife’s relatives will have grudges against me forever. I have left them properties worth K8,500.00. That should be considered as part of the compensation. I would also like to be transferred to Kerevat because that is where my adopted father is. The court must think about what purpose would be served in sentencing me to a long period in custody. There are plenty of youths at the jail and they have committed great crimes and the court has sentenced them for very long periods in custody. It serves no purpose because life in gaol is so bad they are always thinking about escaping. Plenty of them escaped. I ask for the mercy of this court. I sincerely apologise from my heart to God our creator and, in the eyes of the Court, to the Judge and the Court staff and to the State and the Public Solicitor and Public Prosecutor lawyers and my lawyer and to everybody here for what I have done.

SUBMISSIONS BY DEFENCE COUNSEL

Mr Inua submitted that if the Court follows the sentencing guidelines laid down in the recent case of Manu Kovi v The State (2005) SC789, Supreme Court, Injia DCJ, Lenalia J, Lay J, then the Court should look at a starting point of 16 to 20 years imprisonment. This was not a case of vicious murder. There was provocation in the non-legal sense in that the prisoner knew of an affair his wife had been having with another man and he wanted to sort out the matter peacefully. It was not a case of pre-planning or stalking. It was not a killing committed in the course of committing another offence. The prisoner has at all times, apart from this incident, been a law-abiding citizen. He has expressed remorse and it was a shock to him when the deceased died. It is certainly not a case of a summary execution. It was not in full view of the public. There are no other aggravating circumstances.

SUBMISSIONS BY THE STATE

Mr Popeu agreed with Mr Inua that the case falls within the second category of cases outlined by the Supreme Court in Manu Kovi’s case. The starting point for the sentence would be in the range of 16 to 20 years. There have been cases decided by the National Court in Kimbe in which the court has sentenced prisoners on charges of manslaughter of women to sentences in that range. He referred to The State v Hiliong Gunaing (2005) N2803, Cannings J and The State v Daniel Ronald Walus...