Manu Kovi v The State (2005) SC789

• Jurisdiction: Papua New Guinea
• Judge: Injia DCJ, Lenalia J, Lay J
• Judgment Date: 31 May 2005
• Citation: (2005) SC789
• Docket Number: SCRA No 51 of 2003
• Court: Supreme Court
• Year: 2005
• Judgement Number: SC789

Full Title: SCRA No 51 of 2003; Manu Kovi v The State (2005) SC789

Supreme Court: Injia DCJ, Lenalia J, Lay J

Judgment Delivered: 31 May 2005

SC 789

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCRA NO. 51 OF 2003

BETWEEN:

MANU KOVI

-Appellant-

AND:

THE STATE

-Respondent-

Waigani : Injia DCJ, Lenalia & Lay JJ

2004 : July 27th, October 27th

2005 : May 31st

Criminal Law - Willful Murder – Sentence – Principles – Mitigating and aggravating factors –Need for consistency in developing sentencing tariff for murder offences – New Tariffs suggested for Willful Murder, Murder and Manslaughter – Particular sentence – Life imprisonment - Within range - Appeal dismissed.

Cases cited in the judgment:

Acting Public Prosecutor v Nitak Mangilonde Taganis[1982] PNGLR 299;

Anna Max Marangi v The State (2002) SC 702;

Antap Yala v The State, Unrep. Supreme Court Judgment, in SCRA No. 69 of 1996 dated 31st May 1996;

Application by ICRAF: Re: Miriam Willingal [1997] PNGLR 119;

Hure Hane v The State [1984] PNGLR 105;

Jack Tanga v The State (1999) SC 602;

John Kalabus v The State [1988] PNGLR 193;

Lawrence Simbe v The State [1994] PNGLR 38;

Public Prosecutor v Apava Keru and Aia Moroi [1985] PNGLR 78;

R v Peter Ivoro [1971 – 72] PNGLR 374;

Rex Lialu v The State [1990] PNGLR 487;

Sakarowa Koe v The State (2004) SC 739;

Sap James Kumbapen v The State Unreported Supreme Court Judgment in SCRA No. 14 of 2001, dated 26 April 2002;

Simon Kama v The State (2004)SC 740;

State v Angaun Kakas & Others [1995] PNGLR 20;

State v Balise Kurimo (1999) N1879;

State v Ben Simakot Simbu (No 2) (2004) N2548;

State v Billy Kauwa [1994] PNGLR 503;

State v Harua Marigi Hariki (2003) N2332;

State v Kepak Langa (2003) N2462;

State v Kopela Madiroto (1997) N1554;

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

State v Lucy Moro(1998) N1328;

State v Margaret John (No. 2) [1996] PNGLR 296;

State v Maria Er (1998) N1740;

State v Maria Pelta Pung [1995] PNGLR 173;

State v Mark Porou (2004) N2655;

State v Michael Gende (1997) N1678;

State v Napoleon Seteb (1996) N1478;

State v Paulus Non Pable (1995) N1873;

State v Peter Kot (2000) N2027;

State v Steven Loke Uma, Charles Kaona & Greg Wawa Unreported National Court Judgment dated 7 February 1997;

Tony Imunu Api v The State Unrep. Supreme Court Judgment in SCRA No. 16 of 2001, dated 29 August 2001;

Appellant in person

C Manek for the Respondent

31st May 2005

BY THE COURT: The Appellant appeals in person against a sentence of life imprisonment for willful murder imposed by the National Court. He says the sentence was excessive in the circumstances. In his Notice of Appeal, he appealed against conviction as well but he did not pursue this ground at the hearing.

FACTS.

The short facts are that the deceased, the late Pauline Karo, is the Appellant’s wife. They had an eight (8) year old daughter of the marriage. For some time they had been living apart. On the early morning of 14 August 2002, the Appellant and the deceased met at Badili and had an argument over, what he now says, was their daughter (and not a radio as the trial judge found). Later they parted company. The Appellant went to a supermarket at Sabama and purchased a small bushknife. He then boarded a Public Motor Vehicle (PMV) bus and came to the Waigani road junction in front of the Islander Travelodge Hotel. He got off the bus and boarded another PMV bus which was traveling towards Waigani and Gerehu. The deceased was a passenger in that bus. The Appellant sat next to her and spoke to her. When the bus reached the road junction situated in front of Boroko Motors, the Appellant pulled out the bushknife, which was hidden under his clothes, and cut her repeatedly. The bus crew and passengers stopped the Appellant from further attacking her. He surrendered himself and was taken into police custody. The deceased was rushed to the hospital but she died on the same day from loss of blood from multiple stab wounds. The medical report of Dr Golpack shows multiple knife wounds on both sides of her head, on her left arm, elbow joints and wrist and on her back. One of the wounds at the back located at the tip of the right shoulder penetrated her right lung causing it to collapse.

SUBMISSIONS.

The Appellant submits the sentence is excessive in the circumstances. He says the trial judge erred in not taking into account the fact that his wife was unfaithful to her when he was in prison. When he was released from prison, he took the matter to court and later forgave her. He says he tried hard to “uphold the dignity of our marriage through love and forgiveness” but she made life difficult for him. On the bus he tried to talk to her about why she sent away their small daughter to live with someone else but she did not respond. This “stimulated my anger and this has aggravated me to do what I shouldn’t have done”. He says the killing was “through emotional stress and passion”.

The Appellant also says the trial judge did not take into account the fact that he had pleaded guilty and saved the court’s time, expressed remorse and that he is a humble law-abiding ordinary citizen with “no crime records of any criminal activities through my years of living”. He expressed remorse and asked this Court to be merciful to him by reducing the sentence to a term of years. To support his call for leniency, he submitted a character reference from Mr Tony Miria who is a Community leader in the suburb of Sabama.

Mr Manek for the Respondent submitted that the sentence was appropriate in the circumstances. This killing was serious because it took place in the heart of the capital city, in full view of other passengers in a moving PMV and in broad daylight. He repeatedly stabbed her without regard for the safety of other passengers. This is an unprecedented killing which has not been experienced in the past. It was premeditated and planned. The victim was defenceless. The Appellant had a prior conviction for stabbing the deceased with a knife and causing grievous bodily harm for which he was sentenced to eighteen (18) months imprisonment. He committed the present crime two (2) years after coming out of prison. He had clear intention to kill her this time. This was not a case of crime of opportunity or passion. All these circumstances and the mitigating factors put to us by the Appellant were raised before the trial judge. His Honour properly took them into account in arriving at the sentence.

Mr Manek also submits the sentence was within the range of sentences imposed for willful murder in this kind of killing. He referred us to a number of Supreme Court decisions in murder and willful murder cases in which a sentence of life imprisonment was confirmed on appeal1. He also referred us to a number of Supreme Court decisions in which lengthy terms of imprisonment were imposed in murder cases.

Mr Manek submits the Appellant had not shown any error in the trial judge’s exercise of sentencing discretion and the appeal should be dismissed.

Relevant Principles – Sentencing tariff.

Mr Manek’s submission on the range or tariff of sentence for willful murder cases requires us to revisit the cases which set the tariff not only for willful murder but also for murder and manslaughter.

We say this because the tariff for the three types of murder offences should be consistent. Our reading of some of the judgments of this Court and the National which suggest tariffs for each of these three offences appear to be inconsistent. We examine those cases and suggest tariffs for all three (3) willful murder offences, in a manner we consider is reasonably consistent with each other.

In homicide cases, as with any other offences, the use of a tariff though has its limitations, because the determination of appropriate punishment in each case, is an exercise of discretion, having regard to the seriousness of the offence, the gravity or otherwise of the circumstances of the offence, the personal circumstances of the prisoner which aggravate or mitigate the punishment and the interests of the

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1 SCRA No. 14 of 2001 Sap James Kumbapen v The State Unreported Supreme Court Judgment dated 26 April 2002 of Hinchliffe, Jalina & Lenalia JJ.

SCA No. 16 of 2001 Tony Imuru Api v The State dated 29th August 2001 of Los, Sevua & Kandakasi JJ.

community in ensuring the punishment achieves its purposes. As the Supreme Court said in Lawrence Simbe v The State 2:

“We say that it is not a matter of a tariff for particular types of murder but, rather, that each case must be decided on its own facts, bearing in mind the various factors that are involved in each case, the gravity of the attack, and the concern of the Court at people who take the law into their own hands”.

However sentencing tariffs provide a useful guide in the exercise of sentencing discretion in particular types of cases and Courts must be encouraged to develop them. In developing tariffs, Courts must bear in mind that it is not a mathematical exercise involving technical classification of some broad circumstances of the offence and then fixing a mathematical figure besides them. It is an exercise of judicial discretion and care must be taken to develop them for the future use of Courts.

We begin...