Olivia Warome v The State (2020) SC1991

• Jurisdiction: Papua New Guinea
• Judge: Yagi, Polume-Kiele & Anis JJ
• Judgment Date: 27 August 2020
• Citation: (2020) SC1991
• Docket Number: SCRA NO. 03 OF 2018
• Court: Supreme Court
• Year: 2020
• Judgement Number: SC1991

Full Title: SCRA NO. 03 OF 2018; Olivia Warome v The State (2020) SC1991

Supreme Court: Yagi, Polume-Kiele & Anis JJ

Judgment Delivered: 27 August 2020

SC1991

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCRA NO. 03 OF 2018

BETWEEN:

OLIVIA WAROME

Appellant

AND:

THE STATE

Respondent

Waigani: Yagi, Polume-Kiele & Anis JJ

2020: 24th July & 27th August

CRIMINAL APPEAL — Appeal against sentence — sentence of 10 years imprisonment — one count of unlawful killing – Criminal Code Act, s. 302 —wife killing the sexual partner of the husband – wife surprised and shocked when finding husband and sex partner sleeping naked on a bed – wife acted under extreme de facto provocation – pleaded guilty and first time offender – young mother of 4 young children – conduct of the husband is a relevant factor to be taken into account in sentencing – wife did not cause or provoke the husband into engaging in extra marital affair – identifiable error in the exercise of sentencing discretion – error has the effect of vitiating the sentencing discretion – appeal upheld – head sentence within range so it is affirmed but 3 years suspended on condition to take account of the conduct of the husband to do justice in the case.

Cases Cited:

Ignatius Nalu Pomalou v The State (2006) SC834

William Norris v The State [1979] PNGLR 605

Manu Kovi v The State (2005) SC789.

Anna Max Marangi (2002) SC702

Thress Kumbamong v The State (2008) SC1017

Counsel:

Appellant in Person

Mr D. Mark, for the Respondent

DECISION

27thAugust, 2020

1. BY THE COURT: The appellant was convicted by the National Court after she pleaded guilty to one count of unlawful killing contrary to s.302 of the Criminal Code Act (as amended). She was sentenced to 10 years imprisonment in light labour on 07 March 2018. The pre-sentence custody period was deducted, and she was ordered pursuant to warrant of commitment to serve 9 years imprisonment.

2. On 16 March 2018 the appellant personally filed a notice of appeal and application for leave to appeal. There are six grounds raised by the appellant in the appeal. We set out the grounds as follows:

1. The lawyer (Pub Sol) who represented me at the time of decision on sentencing on 07/03/18 was not my lawyer. He just stood in for my lawyer and did not argue for my non-custodial sentence.

2. Find a lawyer to do my sentence appeal.

3. I am found guilty on manslaughter and am sentenced with 10 years minus 1 year for remand period in custody at Bomana prison.

4. My children’s welfare and Rights are at stack. My two young daughters have started school this year. I was supporting them to go to school and also making sure their basic needs are met since I was employed and their father was unemployed and is currently still unemployed.

5. During bail period I complied with all bail conditions and behave well.

6. The environment in prison is not conducive for an infant aged (5 months) who is on breast feeding.

3. At the hearing the appellant abandoned grounds 1, 2, 3, and 5 and pursued only grounds 4 and 6 which were argued together. Both grounds relate to the issue of the welfare of the appellant’s children.

4. The law on appeals against sentence is governed by sections 22(d) and 23(4) of the Supreme Court Act. These provisions are stated in the following terms:

22. Criminal appeals.

A person convicted by the National Court may appeal to the Supreme Court—

(a) ……………………

(b) ……………………

(c) ……………………

(d) with the leave of the Supreme Court, against the sentence passed on his conviction, unless the sentence is one fixed by law.

23. Determination of appeals in ordinary cases.

(1) ……………………

(2) ……………………

(3) ……………………

(4) On an appeal against sentence, if the Supreme Court is of opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed, it shall quash the sentence and pass the other sentence in substitution for it, and in any other case shall dismiss the appeal.

5. As this is an appeal against sentence, the law provides a two-stage process to be instituted. The first is the leave stage under s. 22(d) where the appellant is required to satisfy the Court that leave be granted and upon leave being granted the second stage kicks in where the Court then proceeds to hear and determine substantive merits of the appeal on sentence.

6. Counsel for the State does not seriously oppose the grant of leave. It is also properly conceded that such grant of leave is discretionary.

7. In determining whether leave is to be granted the appellant is required to demonstrate that there is an arguable case and that it is in the interest of justice that leave be granted: Ignatius Nalu Pomalou v The State (2006) SC834.

8. In this case we note that this is a case of killing in a domestic setting where the husband, due to his infidelity and adulterous misconduct, was the cause of the killing and where the killing occurred in circumstances that indicate strong de facto provocation. We are satisfied that the grounds of appeal raise arguable issue as to whether the sentence imposed is just, fair and proportionate to the circumstances of the case and therefore we consider that it is in the interest of justice that leave be granted. Accordingly, we grant leave.

9. We commence our deliberation by setting out the facts we consider are relevant and pertinent in the case. By and large these are the same facts which the appellant pleaded guilty.

10. The facts of the case resonate with the common problem and storyline of husband’s infidelity in a marriage relationship.

11. At the relevant time the appellant is a young married woman and was aged 26 years. She hails from Mute village, Daulo District of the Eastern Highlands Province. She was a third-year student studying Banking & Finance course at the University of Papua New Guinea.

12. She is married to Kume Keware (husband), a man from Sinesine District of the Chimbu Province. He was employed by Digicel Foundation (PNG) Ltd as an Information Technologist or IT Officer.

13. They have been married for approximately 7 years and have 4 children; the 3 older children are aged 5, 4 and 2 years old respectively. The fourth born child is a baby and was only 6 months old when the appellant was first incarcerated.

14. The family was residing at Gordons, National Capital District with the appellant’s mother and other relatives.

15. The husband has an uncle who has a house at 5-Mile, National Capital District. The family occasionally visit the husband’s uncle at 5-Mile and sleep in his house. For this reason, a bedroom in the house is reserved for the husband and the family.

16. On Wednesday, 15 April 2015 the husband left the house at Gordons in the morning and went to work. However, the husband did not return to the family home at Gordons that afternoon. He was away from the house for at least 4 consecutive days and nights.

17. The week that the husband went to work and did not return home was the pay week. The husband normally receives his pay every Wednesdays on each pay week.

18. The prolong absence of the husband without any contact caused the appellant certain level of discomfort, distress and anxiety to a point where she decided to go out and search for her missing husband.

19. Between 09.00 – 10.00 o’clock in the night on Saturday, 18 April 2015, the appellant took a taxi and went to 5-Mile. She went to check for the husband at his uncle’s residence.

20. When the appellant arrived at the house at 5-Mile, she went straight to the family room. She attempted to open the door to the room, but it was locked from the inside. She then collected a knife from the kitchen and went into the room next door. She climbed over the partition and jumped into the family room. When she landed in the room she switched on the torch in her mobile phone. To her surprise and shock, she saw the husband and a woman in deep sleep together on a bed and completely naked.

21. When the appellant saw the husband and the woman naked in bed and in compromising position, she became very angry and stabbed the woman two times; one on the right beast and the other on the left hand. She also punched the husband before she ran out of the house.

22. The woman died shortly thereafter from the stab wounds.

23. The medical evidence shows that the knife penetrated though the chest and punctured the heart. The death was “due to (the) stab wound to the Heart.”

24. In her written extract of argument, the appellant contended that the learned primary Judge did not give proper consideration and due weight to the welfare of her children in the sentence. The children are very young. The last born is a baby whom she is breast feeding whilst serving her sentence in custody. The prison environment is not conducive to her baby’s care, wellbeing and upbringing. In the next 6 - 7 months the baby will be removed from her motherly care and custody and placed in the care and custody outside the prison confinement. The children depend on her as the mother for care and nourishment. The 3 older children who are living outside the prison facility will be without the parental care and support of their father...