The State v Maria Tuu (2008) N3706

• Jurisdiction: Papua New Guinea
• Judge: David, J
• Judgment Date: 17 March 2008
• Citation: (2008) N3706
• Docket Number: CR. NO. 974 OF 2007
• Court: National Court
• Year: 2008
• Judgement Number: N3706

Full Title: CR. NO. 974 OF 2007; The State v Maria Tuu (2008) N3706

National Court: David, J

Judgment Delivered: 17 March 2008

N3706

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 974 OF 2007

THE STATE

v

MARIA TUU

Prisoner

Mt. Hagen: David, J

2008: 06 & 17 March

CRIMINAL LAW – sentence – murder – victim killed by co-wife – guilty plea entered – prisoner surrendered to police voluntarily immediately after committing crime - cooperated with police - remorse expressed and manifested by payment of belkol compensation - de facto provocation - no prior convictions - sentence of 16 years IHL less period of pre-trial custody.

Cases cited:

Goli Golu v. The State [1979] PNGLR 653

Avia Aihi v. The State (No.3) [1982] PNGLR 92

Ure Hane v. The State [1984] PNGLR 105

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

Lawrence Simbe v The State [1994] PNGLR 38

Simon Kama v. The State (2004) SC 740

Manu Kovi v. The State (2005) SC 789

Counsel:

J. Waine, for the State

P. Kumo, for the Accused

17 March, 2008

1. DAVID, J: INTRODUCTION: On 6 March 2008, the State presented an indictment charging Maria Tuu (the Prisoner) that she, on 09 July 2007 at Mt Hagen, in Papua New Guinea murdered one Sina Negints (the deceased) contravening s.300 (1) (a) of the Criminal Code (“the Code”). The Prisoner was convicted of the charge after the Court accepted her guilty plea.

Indictment

2. The indictment was preferred as follows:-

MARIA TUU of WAIPIP village, Nebilyer, Western Highlands Province, stands charge that she on 9th day of July 2007 at Mt. Hagen in Papua New Guinea murdered one SINA NEGINTS.

FACTS

3. The facts to which the Prisoner pleaded are these.

4. The deceased and the Prisoner are the first and second wives of one Mr. Negints respectively.

5. During the early hours of 09 July 2007, the deceased who was with a little child and another lady travelled into Mt. Hagen in a PMV driven by Mr. Negints. They were on their way to the hospital to have the child treated who was suspected of contracting typhoid and malaria. The child could not get treated at the hospital so they left the hospital premises and walked towards the Mt Hagen main market.

6. The Prisoner followed them into town by jumping on another PMV, went to the hospital and then proceeded towards the main market where she confronted the deceased with the child in her arms and the other lady. An argument developed which led to a fight and during the cause of the fight, the Prisoner took out a kitchen knife and stabbed the deceased on her abdomen. The knife penetrated the right kidney and a portion of her liver. The deceased died as a result of the injuries sustained to those organs.

7. The Accused intended to do grievous bodily harm to the deceased.

ANTECEDENTS

8. The Prisoner who is aged twenty eight (28) years is illiterate and is from Waipip village, Nebilyer District, Western Highlands Province. She is the second wife of Mr. Negints and they have a child from their decade old marriage. The Prisoner does not have any prior convictions.

ALLOCATUS

9. On allocatus, the Prisoner admitted murdering the deceased, but said she did not mean to kill. She said her action was influenced by satanic forces.

10. The Prisoner also said that despite being the second wife and that she had a child from her marriage, her husband did not provide her with a house when a bird even had a nest to rest in. Furthermore, she said that she looks after the deceased’s children from the latter’s marriage to their common husband, but it was actually her husband who made her angry which resulted in the fight.

11. The Prisoner also acknowledged that it was God who takes away life and she was sorry for breaking God’s law. She went on to say sorry to the deceased and her immediate family, to her husband and their community, to those in the Court room including members of the public and offenders awaiting their cases to be heard and to the Court for her not heeding its warning for people not to have knives in their possession.

12. The Prisoner asked the Court to have mercy on her as she was a first time offender, had small children at home to look after and asked to be sent back to her village.

LAW

13. Section 300 (1)(a) of the Code creates the offence and prescribes the penalty. The maximum penalty, subject to s.19 of the Code is life imprisonment. I set out the relevant provision as follows:-

300. Murder.

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

(a) if the offender intended to do grievous bodily harm to the person killed or to some other person; or …………………………………….

Penalty: Subject to Section 19, imprisonment for life.

14. It is trite law that the maximum penalty should be imposed on cases of the worst category: see Goli Golu v. The State [1979] PNGLR 653, Avia Aihi v The State (No.3) [1982] PNGLR 92 and Ure Hane v The State [1984] PNGLR 105. It is also settled law that each case must be decided on its own particular facts: see Lawrence Simbe v The State [1994] PNGLR 38.

15. The sentencing tariff for murder cases was initially proposed by the late Chief Justice Kidu in The State v. Laura (No.2) [1988-89] PNGLR 98 in the following terms:-

(a) on a plea of guilty where there are no special aggravating factors, a sentence of six years;

(b) a sentence of less than six years may be imposed only where there are special mitigating factors, such as the youthfulness or very advanced age of the accused;

(c) on a plea of not guilty, a range of sentences from eight to twelve years;

(d) or more in a case where aggravating factors are evidenced.

16. The tariff suggested in Laura (No. 2) has been subjected to review by several Supreme Court cases with a view to adjusting it upwards. Simon Kama v The State (2004) SC 740, 1 April 2004 (Sevua, Kandakasi & Lenalia JJ) and Manu Kovi v The State (2005) SC 789, 31 May 2005 (Manu Kovi) (Injia DCJ, Lenalia & Lay JJ) are recent judgments of the Supreme Court on point. I will follow Manu Kovi, it being the more recent judgment.

17. In Manu Kovi, the Supreme Court, revisited the cases which set the tariff or range of sentences for the offences of wilful murder, murder and manslaughter because it considered that the tariffs for those offences should be consistent. That was a case where the Supreme Court was dealing with an appeal in person against a sentence of life imprisonment for wilful murder which the appellant considered was excessive in the circumstances. The Supreme Court using the categories suggested in Laura (No.2) as a guide, suggested the following tariff ranging from twelve (12) to fifteen (15) years on a guilty plea with ordinary mitigating factors and no aggravating factors for the first category; sixteen (16) to twenty (20) years on a trial or plea with mitigating factors and aggravating factors for the second; twenty (20) to thirty (30) years on a trial or plea with special aggravating factors and special mitigating factors whose weight is reduced or rendered insignificant by the gravity of the offence for the third and life imprisonment on a trial or plea for the worst cases of the offence where there are no mitigating factors or mitigating factors are rendered totally insignificant by the gravity of the crime as the final category. The tariff is summarised in the schedule below.

SCHEDULE

SENTENCING TARIFF FOR MURDER

CATEGORY 1 12 – 15 years

Plea No weapons used.
Ordinary cases. Little or no pre-planning.
Mitigating factors with Minimum force used.
no Absence of strong intent to do GBH
aggravating factors.

CATEGORY 2 16 – 20 years

Trial or Plea No strong intent to do GBH.
Mitigating factors Weapons used.
with Some pre-planning.
aggravating factors. Some element of viciousness.

CATEGORY 3 20 – 30 years

Trial or Plea Pre-planned. Vicious attack.
Special aggravating Strong desire to do GBH.
factors. Dangerous or offensive weapons used eg.
Mitigating factors reduced in gun or axe.
weight or rendered in- Other offences of violence committed.
significant by gravity of
offence.

CATEGORY 4 LIFE IMPRISONMENT

Worst Case – Trial or Pre-meditated attack.
Plea Brutal killing, in cold blood.
Special aggravating factors. Killing of innocent harmless
No extenuating person.
circumstances. Killing in the course of committing
No mitigating factors or another serious offence.
mitigating factors rendered Complete disregard for human life.
completely insignificant by
gravity of offence.

SUBMISSIONS ON BEHALF OF THE PRISONER

18. Mr. Kumo of counsel for the Prisoner submitted that whilst the maximum penalty for the offence was life imprisonment subject to the wide discretion given to the Court to impose a lesser sentence under s.19 of the Code, every case must be looked at in their own circumstances.

19. Counsel then argued that this case fell under category two (2) of Manu Kovi or alternatively under category one (1). He urged the Court to consider a sentence using sixteen (16) years as the starting point there being no strong intention on the part of the Prisoner to do grievous bodily harm albeit the Prisoner using an offensive weapon.

20. Counsel after recounting the Prisoner’s antecedents alluded to above made the following submissions in mitigation:-

(a) She was a first time offender;

(b) She cooperated with the police...