CR NO. 1836 of 2016; The State v Kevin Henry (No. 4) (2019) N7864

• Jurisdiction: Papua New Guinea
• Judge: Anis J
• Judgment Date: 17 May 2019
• Citation: (2019) N7864
• Court: National Court
• Year: 2019
• Judgement Number: N7864

Full Title: CR NO. 1836 of 2016; The State v Kevin Henry (No. 4) (2019) N7864

National Court: Anis J

Judgment Delivered: 17 May 2019

N7864

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1836 of 2016

THE STATE

V

KEVIN HENRY

(No. 4)

Kerevat: Anis J

2019: 5, 9, 10 & 17 May

CRIMINAL LAW – Sentence – murder –section 300 – Criminal Code Act Chapter No. 262 - victim wife kicked in the stomach – rupture of spleen – sentence after trial – domestic setting - appropriate sentence – types of punishments – whether suspended sentence with imposed conditions suitable or warranted

Facts

The prisoner was found guilty of the offence, murder. The prisoner murdered his wife in a domestic dispute. The prisoner beat and kicked her in her stomach. The wife had an enlarge spleen and the prisoner had known about it before the incident. The wife died as a result of ruptured spleen caused by the assault on her by her husband.

Held

1. The offence was committed in a domestic setting which involved serious assault on the deceased.

2. The prisoner expressed no remorse for the death of his wife.

3. A deterrence sentence was required for this type of offence, and five (5) years was added onto the sentence of 22 years.

4. Despite recommendations from the Community Based Corrections, the Court considered that the prisoner was not suitable to receive a suspended sentence nor be put on probation.

5. The prisoner was sentenced to 27 years imprisonment with hard labour less the time that he had served in custody.

Cases Cited

State v. Kevin Henry (No. 3) (2019) N7800

Steven Loke Ume v. The State (2006) SC836

State v. Lesley Warim Cletus Malo (2006) N4520

State v. John Buku Kaliomo (2007) N5023

State v. Paul Smelkit (2008) N3438

State v. Augustine Tup (2006) N4489

State v. Ngetto Rex Rongo (2000) N2035

State v. Fredinand Naka Penge (2002) N2244

State v. Douglas Mareva (2012) N4805

State v. David Carol (2009) N3762

Counsel

Ms J. Batil, for the State

Mr N. Katosingkalara, for the Prisoner

DECISION ON SENTENCE

17th May, 2019

1. ANIS J: On 16 April 2019, the prisoner was found guilty of murdering of his wife. I refer to my decision in State v. Kevin Henry (No. 3) (2019) N7800.

2. This is my ruling on sentence.

PERSONAL INFORMATION

3. The prisoner is 27 years old. From his marriage to his now deceased wife Getrude Joshua, they had two (2) children (boys). The first born is seven (7) years old and the second is five (5) years old. Both children are now being looked after by their grandparents, that is, by the prisoner’s parents.

4. The prisoner’s level of education is up to grade eight (8) at high school. He did not continue after that. He was employed once as a security guard for about six (6) months.

ANTECEDENT REPORT

5. The prisoner has no prior conviction.

ALLOCATUS

6. Allocatus was administered at 2:40 pm on Friday, 10 May 2019.

7. This is what the prisoner had to say. He said he will respect whatever decision that Court makes. He asked the Court to have mercy on him. He asked that the Court give him a non-custodial sentence. He said he wants to stay out of prison so that he could look after his two (2) young children. He said one of the reasons was because everything that he had, had been taken away by his in-laws after the incident. He said both his parents were old. He said the incident had already been sorted outside of Court.

MITIGATING/AGGRAVATING FACTORS

8. I have considered the mitigating and aggravating factors submitted by both counsel. In my view, the mitigating factors are, (i), no prior conviction, (ii), the deceased had a pre-existing condition, that is, an enlarge spleen, and (iii), killing in a domestic setting with no pre-planning.

9. In regard to the aggravating factors, they are, (i), loss of life, (ii), the excruciating pain suffered by the deceased due to her ruptured spleen before her death, and (iii), the prisoner knew the deceased had a pre-existing condition which was a spleen, that is, before he kicked her in her stomach. I will also add this as the fourth aggravating factor. The prisoner and his father, through their evidence had tried to conceal the actions of the prisoner. As I have ruled in my earlier decision on verdict, the deceased’s dying declaration played a crucial role to the Court finding the prisoner guilty of the offence. Had it not been for the dying declaration of the deceased, the prisoner could have walked scot-free. The fifth aggravating factor this. The prisoner did not express remorse for the death of his wife. He showed no empathy towards his late wife and her relatives.

EXTENUATING CIRCUMSTANCES

10. Both counsel submit that there was evidence of de facto provocation. Both counsel it seems are basing their claim on the evidence of the prisoner and his father where they have said that the deceased had sworn at the prisoner in front of the prisoner’s parents or siblings, prior to the incident.

11. Was there de facto provocation? When I refer to my decision on verdict, I note that I did not find the evidence of the prisoner and his father credible. In fact, I found their evidence bad and unreliable. And I did not find as a fact that the deceased had sworn at the prisoner and his family at that night. As such, I find both counsels’ submission on existence of de facto provocation misconceived. I find no extenuating circumstance which could be applied to diminish the gravity of the offence, murder. See case: Steven Loke Ume v. The State (2006) SC836. Having said that, this is not the same and must not be confused to a case where a prisoner had pleaded guilty. For example, had this been the case (i.e., had Kevin Henry pleaded guilty), he would have been given the benefit of doubt and his claim or evidence that the deceased had sworn at him, may be considered favourably as de facto provocation. See case: State v. Lesley Warim Cletus Malo (2006) N4520.

PENALTY FOR MURDER

2. Let me now consider the applicable penalty. The prisoner was found guilty after a trial for murder under section 300(1)(a) of the Criminal Code Act Chapter No. 262 (Criminal Code). The provision states, and I quote in part:

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;

……

Penalty: Subject to Section 19, imprisonment for life.

13. In this case, both counsel submit that the maximum penalty, that is, life imprisonment should not apply for this case. I uphold the submission. I do not find the murder committed by the prisoner to be amongst the worst of its kind. However, I say this with qualification as I will get to later in my judgment.

COMPARABLE CASES

14. I refer to and note the case authorities cited by the prosecution and the defence.

15. For the State, it submits that a sentence between the range of 14 to 17 years should be applicable for the prisoner. The State submits that killings within domestic settings are prevalent in the society hence a deterrent sentence is required. As for the defence, counsel submits that a sentence range between 12 to 15 years should be considered for the prisoner. Counsel also submits that suspended sentence should also be considered for the prisoner.

16. I have considered the case authorities including those submitted by counsel. I will refer to those that I find similar and relevant, that is, to assist me in this regard. I firstly refer to the case State v. John Buku Kaliomo (2007) N5023. The prisoner pleaded not guilty to manslaughter charge against his wife. Th assault occurred in a domestic setting. The prisoner assaulted his wife and she died because her spleen ruptured as a result. The Court considered, amongst others, that the starting point for manslaughter in a domestic setting be between 8 to 12 years sentence. The Court sentenced the prisoner to 15 years imprisonment. The Court allowed the prisoner’s pre-sentence custody period to be deducted but refused to permit any suspended sentence.

17. In the present case, the prisoner was charged with murder. He pleaded not guilty, the trial was conducted, and he was later convicted with murder. The offence was committed in a domestic setting or during a domestic argument. But I note that the offence in this case is much more serious than in the case of John Buku because the prisoner here, amongst other things, was found guilty of murder. This indicates to me that a higher sentence may be considered, that is, above 15 years.

18. Let me look at this next case, State v. Paul Smelkit (2008) N3438. In this case, the prisoner was sentenced to 22 years for murdering his wife in a domestic setting. This was after the prisoner had pleaded not guilty and after a trial had been conducted where he was convicted of murder. The wife died two (2) days after the assault after suffering from a ruptured spleen and pancreas. The prisoner had tried to blame his wife’s cousin sister to have accidently poisoned her. The Court noted in that case that the...