State v Mavis Uraro (2012) N5164

• Jurisdiction: Papua New Guinea
• Judge: P. Toliken AJ
• Judgment Date: 26 November 2012
• Citation: (2012) N5164
• Docket Number: CR No. 235 of 2012
• Court: National Court
• Year: 2012
• Judgement Number: N5164

Full Title: CR No. 235 of 2012; State v Mavis Uraro (2012) N5164

National Court: P. Toliken AJ

Judgment Delivered: 26 November 2012

N5164

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR No. 235 of 2012

BETWEEN

STATE

V

MAVIS URARO

Popondetta: P. Toliken AJ

2012: 07th, 10th August, 26th November

CRIMINAL LAW – Sentence – Murder – Guilty plea – Domestic setting – Prisoner stabbed husband’s girl friend on the back with kitchen knife – Mitigating factors considered – First time offender – Strong non-legal provocation – Substantial compensation (K22000) paid –Acted alone – Youthful offender who got married young – Single blow- Aggravating factors considered – Use of dangerous weapon – Element of pre-planning – Prevalence of offence – Effect on husband’s infidelity on accused discussed - Criminal Code Act Ch.262, s 300 (1)(a).

CRIMINAL LAW - Sentence – Guideline sentencing tariffs by Supreme Court per Manu Kovi v. The State (2005)SC 789 and differing opinion in Thress Kumbamong v. The State (2008) SC 1017 considered and discussed – Sentencing Court’s powers under Section 19 of the Criminal Code Act Ch. 262 unfettered – Discretion cannot be curtailed or restricted except by Parliament through legislation – Sentencing court not bound to follow sentencing guidelines and tariffs which fetter its sentencing discretion – Thress Kumbamong followed - Full cognizance of factors and circumstances suggested in Manu Kovi Categories taken – Middle ground taken – Supreme Court to reconcile its differing opinions.

CRIMINAL LAW – Appropriate Sentence – Mitigating factors outweigh aggravating factors – Head sentence of 12 years, less period in pre-sentence custody – Partial Suspension of 5 years, 8 months and 2 days – Criminal Justice (Sentences) Act 1986, s 3; Criminal Code Act Ch. 266, s 19 (6)

Cases Cited

Ure Hane v The State [1984] PNGLR105

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

The Public Prosecutor v. Bruce William Tardew (1986) PNGLR 91

The State v. Maria Pung (Yamai) [1995] PNGLR 173

The State v. Margaret John (No.2) [1996] PNGLR 298

CRA No. 64 of 1994 Antap Yala v. The State, (1996) Unreported Supreme Court-judgement dated 31 May 1996

The State v. Maria Er [1998] PNGLR 26

Jack Tanga v. The State (1999) SC 602

John Kapil Tapi v. The State [2000] SC 635

The State v. Drikore Yuana Peter (2000) N1973

Anna Max Marangi v The State (2002) SC 702

Simon Kama v. The State (2004) SC 740

Manu Kovi v. The State (2005) SC 789

The State v Kevin Wakore (2007) N3222

The State v Maria Tuu (2008) N3706

The State v Lawrence Mattau (2008) N3865

Thress Kumbamong v The State (2008) SC 1017

The State v Lossy Karapus (2009) N3640

The State v Anita Kelly (2009) N3624

The State v Alis Nema Mara (2010) N4133

Counsel:

M. Ruarri, for the State

A. Ninkama, for the Defendant

JUDGMENT ON SENTENCE

26th November, 2012

1. Toliken AJ. On the 09th of August 2012, Mavis Uraro pleaded guilty to the murder of Anna Komane on the 29th of July 2011 at Popondetta town, Oro Province. This is an offence under Section 300 (1)(a) of the Criminal Code Act Ch. 262.

THE BRIEF FACTS

2. The brief supporting facts are these. On 29th of July 2011 at about 11.00 a.m. the accused went looking for the deceased. She found her at the Papindo Supermarket just as she was at the check-out counter trying to pay for her shopping. The prisoner approached her from the back and stabbed the deceased on her back with a kitchen knife. The deceased was rushed to the hospital but later died from heavy loss of blood.

3. I confirmed the plea after reading the evidence in the committal file and being satisfied that the evidence supported the plea, I convicted the accused but was unable to pass sentence due to the large number of plea matters that were before me during the circuit. I do so now.

SENTENCING ISSUES

4. The main issue for me to determine is; what is an appropriate sentence for the prisoner?

5. To arrive at an answer to this though, I must consider the following:

· the relevant facts surrounding this case

· any mitigating and/or aggravating factors, any extenuating circumstances and other considerations

· the sentencing trend for this kind of offence; and

· whether any part of the sentence ought to be suspended.

ANTECEDENTS

6. The prisoner was at the time of the offence 22 years of age. She is now 23 years old. She is of mixed Popondetta and Chimbu parentage. She is married to one Rocky Komane. They have two children who were then aged 5 and 1. Before the offence they were living at Golf Club Settlement, Popondetta Town. She is a member of the Lutheran Church. She has no prior conviction.

ALLOCUTUS

7. In her address to the Court, the prisoner said that she had been having problems with her husband when he started having an affair with the deceased. She said that she has two children and had great difficulty caring for them while her husband was running around with the deceased. She said that she tried settling the matter in the community and with the police but her husband and the deceased never turned up.

8. The prisoner said that she was worried about her children if her husband left them. She did not want to burden her aged parents with her children.

9. She said that she once had a fight with the deceased but they were stopped by the police who advised them to call into the Police Station the next day to sort the matter out. On the next day which was the 29th of July 2011 she went to the Police Station but her husband and the deceased did not turn up. She called her husband who told her that he was at work. This angered her.

10. She left the Police Station and walked across to the Papindo Supermarket where she met the deceased at the check-out counter and stabbed her. She said that she did not intend to kill her but she died.

11. The prisoner said that her relatives paid a total of K22000.00 compensation to the deceased’s relatives on 16th August 2011 at the Police Station.

12. She said that she got married to Rocky Komane when she was just 19 years old. She said she was afraid of contracting AIDS, hence she committed the offence.

13. The prisoner told the Court that her children are now with her husband’s parents. They are, however, now old and asthmatic and she does not know if they would take proper care of the children.

14. She finally apologized to the Court, the deceased’s family and State for breaking the law and pleaded for mercy.

SUBMISSIONS

15. Mr. Ninkama of counsel for the prisoner submitted that this is not a worst case of murder and therefore does not deserve the maximum prescribed penalty of life imprisonment. The Court should therefore impose a sentence lesser than life imprisonment as allowed by Section 19 of the Code.

16. Counsel submitted that there are strong mitigating, special mitigating factors and extenuating circumstances in favour of the prisoner. These are that the offence was committed in a domestic setting as a result of the husband’s unfaithfulness. There was therefore strong non-legal provocation and the prisoner was concerned about her children’s welfare and feared contracting AIDS. He, however, conceded that there are strong aggravating factors in that the prisoner attacked the deceased with a knife and that the attack was premeditated.

17. Counsel referred the Court to the sentencing tariffs set by the Supreme Court in Manu Kovi v. The State (2005) SC 789 and to similar cases involving killings between co-wives and single stab wound deaths upon guilty pleas. He submitted therefore that in the circumstances, this case falls in Category 2 of Manu Kovi, which is a sentence of between 16 – 20 years. However, it should attract a head sentence below that category i.e. a sentence of 12 – 15 years.

18. Mr. Ruarri for the State on the other hand submitted that there are strong aggravating factors against the prisoner. These include the use of an offensive weapon - a kitchen knife - and that it was a surprise attack on unsuspecting, unarmed and defenceless woman. There also seemed to have been pre-planning as the prisoner followed the deceased into town with a strong desire to cause her grievous bodily harm.

19. Counsel submitted that in the circumstances, this case would fall under category 3 of the Manu Kovi tariffs of 20 – 30 years. He, however, referred to the matter of Thress Kumbamong v The State (2008) SC 1017 where the Supreme Court (Salika DCJ, Kandakasi and Yagi JJ) said that despite the tariffs set in Manu Kovi the sentencing discretion of the court...