The State v Ngetto Rex Rongo (2000) N2035

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 20 December 2000
• Citation: (2000) N2035
• Court: National Court
• Year: 2000
• Judgement Number: N2035

Full Title: The State v Ngetto Rex Rongo (2000) N2035

National Court: Kandakasi J

Judgment Delivered: 20 December 2000

N2035

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR No 1324 of 2000

THE STATE

-v-

NGETTO REX RONGO

LAE : KANDAKASI, J.

2000: December 5, 12, 20

Criminal Law — Particular offence — Murder — Domestic argument ending in death — Guilty plea — Good mitigating factors — Sentence.

Criminal Law — Practice and procedure — Need to request pre-sentencing report — Pre-sentencing report not removing Court's sentencing power — Court not obliged to accept pre-sentencing report.

Criminal Law — Customary Compensation only a factor in mitigation — Inappropriate to order compensation.

Cases Cited:

Simbe v. The State [1994] PNGLR 38;

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

The State v. Gori Bonu Ganitau & Another [1996] PNGLR 48;

The State v. Horou Posu Kave (1986) PNGLR 305;

The State v. Polin Pochalon Lopai [1988-89] PNGLR 48;

The State v. Sagarina Yakul [1988-89] PNGLR 129

Counsel

N. Miviri, for the State

M. Mwawesi, for the Defendant

20 December 2000

KANDAKASI, J : This is a case of murder contrary to s.300(1) of the Criminal Code Act (Ch. 262)(hereinafter "the Code"). The State presented the relevant indictment charging the Defendant with murder, on the 5th December 2000. On arraignment, the Defendant pleaded guilty to the charge. Upon reading the depositions, I was satisfied that there was sufficient evidence to support the guilty plea and proceed to convict the Defendant. I then adjourned the proceedings to the 12th December 2000 to allow for a pre-sentencing report from the Probation Services. The report was not ready by that date. Thus, on the request of that service, the matter was further adjourned to today. This time the report is before the Court and I am grateful to the Probation Service for having produced it in such a short time and within their limited resources. The parties were given the opportunity to make submission on the report if they wished but they declined to make any submissions.

Facts

On the 17th of April 2000 between 8.00am and 9.00am the Defendant at Lomon village, Yalumet area in the Kabwum District of the Morobe Province, the Defendant had an argument with his wife, Topo Moren ("deceased"). The argument was over a coffee strainer, 2 lamps and a wire used for cooking which were given to the deceased parents but retrieved that morning at the direction of the Defendant. In the course of the argument the deceased got very angry and was about to go out of the family house where the argument was taking place. As she was leaving, the Defendant took a piece of wood and threw it at the deceased. The piece of wood landed on the deceased back close to the neck and the deceased fell down on the floor. Not long after, she died.

The defendant then tried to leave the scene of the crime with his 2 and half year old son. He was however, stopped by a man from the village. Then through the help of community leaders and village court officials the Defendant was brought to Lae and he was arrested and charged.

The medical evidence confirming the death is dated 19th April 2000 from a Robin Peter of the Kabwum Health Centre. He carried out an examination of the deceased's body. The report in pertinent parts reads:

Head - Slightly swollen lump with soft on back of the head.

Neck - Swollen and black strap around the back of the neck, when moving neck back toward the face blood zoomed out of both nose hole with bright red colour.

Legs - Good — Right leg has sore on the foot due to husband burn her with fire.

Diagnosis - Brain damaged (damage to neck and nervous system). Through my investigation she was killed by her husband using hard metal stick or iron to kill his wife died instantly.

Apart from the obvious English or grammatical deficiencies, the report clearly speaks of the deceased dying of brain damage. That was caused by use of a hard and heavy metal object causing instant death. There was evidence of the deceased being burnt on her right leg.

Allocutus

In his allocutus, the Defendant said, he did not mean to kill his wife, the deceased. He was sorry for what he had done in the eyes of God and this Court. He then asked the Court to consider his background. Both his parents are still alive but very old. He has a small son. If he is imprisoned, there will be no one to take care of his son and his aging parents. He therefore, asked for a lighter term which he can serve and go back to his village. He finished by saying, he has some more things to say and those were in three separated letters, all undated, two addressed to the Court and the third addressed to the Public Solicitor all unsigned and not properly closed off. Those letters were admitted into evidence with the consent of the State.

In those letters, the Defendant recites the incident leading to the deceased's death. He says he reported the incident to the village leaders and later surrendered to the police. He also restates what he said orally and adds that, he got married to the deceased in 1995 and their first child was born in 1997. They have not had any problems until the incident leading to the death of the deceased.

Addressed on Sentence

Mr. Mwawesi for the Defendant submitted that his client was 24 years old. His client comes from Lomon village, Yalumet area, Kabwum District, Morobe Province. He is an ordinary villager with no formal education. He is the second in a family of two children and his parents are alive. He is a follower of the Lutheran church and he has no prior convictions. Hence, this is his first offence. He has spent 7 months and 6 days as at 5th December 2000, in custody awaiting his trial.

In mitigation of the Defendant, Mr. Mwawesi asked the Court to take into account the fact that his client pleaded guilty to the charge. That saved the State and the Court the time and expenses of running a trial. His client is a first time offender with no prior convictions. He has co-operated with the village leaders and police over the incident. His parents are elderly. He has a small child out of his marriage to the deceased. The death was not intentional and that it was out of an argument.

Further Mr. Mwawesi submitted that his client appreciates the seriousness of the offence but asks for a more lenient sentence. In so submitting, he said the prescribed penalty under s.300 of the Code is life imprisonment but it was subject to s.19 of the Code.

Counsel referred to a case The State v. Betty Kondai but gave no reference and submitted that 10 years minimum would be appropriate sentence for his client.

The Court tried to find the case counsel relied on but was unable to find it. Hence, the reference to that case is of no assistance to the Court or the Defendant's submission.

May I note for the record with disappointment the inability of counsel to assist the Court with proper submissions. It is the duty of counsel to research the law so as to ensure that their submissions are supported by proper legal authorities. Counsel should have working knowledge of the relevant and applying law.

This is very important because, not only do counsels represent the interest of their clients but they are officers of the Court. As officers of the Court, they should always be ready to assist the Court by pointing out to the relevant law, whether or not it favours their client. As counsel for a defendant in a criminal case, as is the case here, they ought to appreciate that their client's liberty and their lives and their families are in their hands. They should therefore, seriously consider and take up their duties and responsibilities and perform to their very best. Let this serve as a warning to counsel that my Court will seriously consider taking steps that may be detrimental to counsel who are unable to perform their duties that falls short of proper preparation and presentation of cases. Such steps may include referrals to the Lawyers Statutory Committee, recommend a withdrawal of their licence to practice as lawyers or hold them in Contempt of Court.

Getting back to the case at hand, I was ably assisted by Mr. Miviri who draw my attention to the case of Simbe v. The State [1994] PNGLR 38....