The State v Eremas Kuvir

• Jurisdiction: Papua New Guinea
• Judge: Kangwia, J
• Judgment Date: 15 June 2015
• Citation: (2015) N6035
• Court: National Court
• Year: 2015
• Judgement Number: N6035

Full : CR NO 3 of 2014; The State v Eremas Kuvir (2015) N6035

National Court: Kangwia, J

Judgment Delivered: 15 June 2015

N6035

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 3 of 2014

THE STATE

-V-

EREMAS KUVIR

Namatanai: Kangwia, J.

2015: 14, 16 & 17 April

15 June

CRIMINAL LAW – Murder – Prisoner persistently beat wife leading to death soon after- Intention to do GBH present

CRIMINAL LAW – Murder – Sentence – Defence sought 6 – 10 years while the State sought life imprisonment – Both considered not appropriate

CRIMINAL LAW – Sentence – No mitigating factors present – Beating to death of mother in front of her children - No explanation or reason offered – No justification for death – Prisoner violent person

CRIMINAL LAW – Sentence for spouse beating – Public outcry for spouse beating considered – Need to preserve sanctity of life - Offence prevalent and deterrent sentence appropriate

CRIMINAL LAW – Sentence – Guidelines in Manu Kovi v the State applied as appropriate– Case fell into third category of murder in Manu Kovi which suggested 20 to 30 years – Sentence of 30 years imposed

Cases Cited:

Goli Golu v State [1979] PNGLR 653;

Manu Kovi v the State (2005) SC789

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

State v Laura (No 2) [1988-89] PNGLR 98;

State v Maria Err (1998) N 1749;

State v Ngetto Rex Rongo (2000) N2035;

State v Rudolph Keme Koko (2007) N5049;

State v Yuana Peter (2000) N2035;

Ure Hane v the State [1984] PNGLR 105

Counsel:

R. Luman & E. Ortlauf, for the State

A. Tunuma, for the Respondent

15 June, 2015

1. KANGWIA, J: Eremas Kuvir appears as a prisoner for Sentence. He was indicted on a charge of willful murder under s 299 of the Criminal Code Act (CCA). He pleaded not guilty and the matter went to trial. He raised issue with the element of identification and intention to cause death. At the close of the prosecution case, the prisoner elected to remain silent and the defence declined to call evidence.

2. I rejected the issue of identification as proved and concluded that the prisoner did not intend to cause death but intended to cause Grievous Bodily Harm (GBH) and all other elements of the charge not disputed, I found the offence proved beyond any reasonable doubt and convicted him on the alternative verdict of Murder pursuant to s 539 (1) of the Criminal Code.

BACKGROUND

3. The background to this case was that on 11 October 2013, the prisoner returned to his house at Salimun village, Namatanai between 2am and 3 am. As soon as his wife Lydia John (deceased) opened the door, the prisoner started assaulting her all over her body. He kicked her while she was sitting down and then took a 1 meter stick that was as big as an arm and hit her at the neck and head area. She fell down unconscious and died there. The assaults were committed in front of their children.

4. The Doctor’s examination found numerous injuries on her body and suggested that there was a hard object applied to her head with force, causing a crushed area of the right head down to the skull. There was no organ damaged in her abdomen and other areas of her body. The medical report attributed the cause of death to head injury leading to multiple organ failure.

ANTECEDENTS

5. The prisoner is 47 years old and comes from Mualim village, Kokopo, ENBP. He was married to the deceased and had 6 children. He completed vocational training but sought no formal employment. He is the first born out of 6 children. He lived at Salimun village, Namatanai at the time of the offence.

6. The State alleged two prior convictions by the District Court for adultery and stealing. However, I deem adultery as not capable of attracting a conviction as it entails civil liability. (See s. 11 & 12 of the Adultery and Enticement Act).

Since he was convicted and fined K400.00 for the stealing offence, it became a prior conviction against the prisoner.

ALLOCUTUS

7. On his allocutus the prisoner said;

“I apologize to the Court for what I did to my wife. I did not mean to kill my wife but it happened accidentally. I ask for Court’s leniency. I have the small children to look after. I ask for probation in view of that.”

SUBMISSIONS

8. On the prisoner’s behalf Mr. Tunuma sought a sentence between 5 – 10 years and advanced the following reasons:

1. The prisoner showed remorse in his allocutus.

2. The offence carries life imprisonment but that was subject to the Court’s discretion under s. 19 Criminal Code Act.

3. The maximum prescribed penalty was generally reserved for the worst type of murder.

4. The facts and circumstances of this case did not warrant the maximum penalty.

5. The incident occurred in the family home of the prisoner and deceased; that it was in a domestic setting.

9. Mr. Tunuma referred the Court to the sentencing guidelines in The State –v- Laura (NO. 2) [1988-89] PNGLR 98 for murder cases as appropriate for this case. He also referred the Court to the following cases for consideration:

1. The State –v- Maria Err [1998] PNGLR 26 where a sentence of 7 years in light labor was imposed over a killing bordering on manslaughter. It was in a domestic setting.

2. In the State –v- Yuana Peter (2000) N1973 where the prisoner stabbed another in a domestic setting, a sentence of 12 years was imposed.

3. In the State –v- Ngetto Rex Rongo (2000) N2035 where the prisoner during an argument with his wife threw a piece of wood at the victim’s head causing death soon after, was sentenced to 06 years.

10. For the State Ms. Ortlauf sought life imprisonment for the prisoner and posed the following reasons:

1. This was a trial matter with aggravating factors and no mitigating factor present.

2. Any mitigating factors in the prisoner’s favor were rendered insignificant by the aggravating factors and the gravity of the offence.

3. The killing involved violent and persistent beating of an innocent woman by her husband within a domestic setting and in the presence of his children.

4. There was a clear breach of trust towards his wife and kids.

5. The sentence range for offences committed in domestic settings where a strong desire to do GBH existed was 20-30 years.

6. This being a worst case of murder in a domestic setting, it fell within category 4 of the guidelines in Manu Kovi v the State (2005) SC789 and therefore warranted the maximum penalty of life imprisonment.

11. She also referred the Court to the case of The State –v- David Yakuye Daniel (NO. 2) (2005) N2890 where the prisoner stabbed the deceased 8 times with a knife following a history of marital disharmony; the Court sentenced the prisoner to 25 years imprisonment. A plea to de facto provocation for suspected unfaithfulness was rejected on the grounds that the Court would be sending the message that it was justifiable to kill under suspicion of unfaithfulness.

12. She further referred to the case of The State –v- Rudolph Reme Koko (2007) N5049 in which the prisoner came home drunk and beat his wife to death with his hands in front of his children. After citing a range of sentences in earlier cases His Honour Cannings, J sentenced the prisoner to 28 years imprisonment.

13. Ms. Ortlauf submitted that the present case was in the worst category of murder and the maximum sentence of life imprisonment should be imposed.

THE LAW

14. The law creating the offence of murder and prescribing its penalty are under s. 300 of the Criminal Code Act. The relevant parts are in the following terms;

300. Murder

(1) Subject to the succeeding provisions of this code, a person who kills another under any of the following circumstances is guilty of murder:-

(a) if the offender intends to do grievous bodily harm to

the person killed or to some other person;

(b) . . .

(c) . . .

(d) . . .

(e) . . .

Penalty: Subject to s. 19, imprisonment for life.

15. The law prescribes life imprisonment but that is subject to section 19 of the Criminal Code Act and the sentencing discretion of the Court. Other sentences may be imposed.

16. It is a common principle of law that the maximum prescribed penalty is reserved for the most serious instances of the offence committed (See Tabi Maima v Ben Hambakon [1971-72] PNGLR 49; Goli Golu v the State [1979] PNGLR 653 and Ure Hane v the State [1984] PNGLR 105).

17. The sentencing principle is not a complete bar to the imposition of the maximum prescribed penalty. Where the circumstances warranted the maximum penalty prescribed by law can be imposed.

DECISION

18. This is a sad case of an innocent mother of 6 children 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. She lost her life through an unjustified gruesome act by the father of her six children who now sits as a prisoner for sentencing.

19. The defence sought a 5-10 years sentence while the State sought life imprisonment. The question then is whether this case attracts a sentence of 5-10 years or life...