The State v Hendere Roy

• Jurisdiction: Papua New Guinea
• Judge: Toliken, J.
• Judgment Date: 19 March 2015
• Citation: (2015) N5968
• Court: National Court
• Year: 2015
• Judgement Number: N5968

Full : CR NO. 1022 of 2013; The State v Hendere Roy (2015) N5968

National Court: Toliken, J.

Judgment Delivered: 19 March 2015

N5968

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1022 OF 2013

THE STATE

-V-

HENDERE ROY

Defendant

Popondetta: Toliken, J.

2015: 04th, 19th March

CRIMINAL LAW – Sentence – Murder – Plea – Guilty – Killing in Domestic setting – Single stab wound to the chest with kitchen knife piercing lung and heart – Prisoner subjected to domestic abuse and violence over 5 years – A special mitigating factor - Mitigating factors outweigh aggravating factors – Appropriate sentence – 14 years less time spent in remand – Resultant sentence, 13 years and 2 months - Appropriate case for suspension - 6 years to be served, balance suspended on condition – Criminal Code Ch. 262, s 300(1)(a).

Cases Cited:

Thress Kumbamong v The State (2008) SC 1017

Saperius Yalibakut v The State (2006) SC 890

Mann Kovi v The State (2005) SC789

Avia Aihi v The State [1983] PNGLR 92

Golu Golu v The State [1979] PNGLR 653

Public Prosecutor v Don Hale (1998) SC 564

The State v Uraro (2012) N5164

The State v Muturu (2012) N5163

The State v Maria Tuu (2008) N3706

The State v Drekore Yuana Peter (2000) N1973

Counsel:

J. Done, for the State

E. Sasingian, for the Prisoner

SENTENCE

19th March, 2015

1. TOLIKEN, J: Hendere Roy, on the 04th of March 2015, you admitted before me to killing your late husband, Roy Okere, at Evasusu Village, Sohe District, Northern Province on the 05th day of March 2013. For that the State indicted you with one count of murder pursuant to Section 300(1)(a) of the Criminal Code Ch. 262.

2. The brief facts put to you on arraignment were that on 05th day of March 2013, between 12.00 p.m. and 1.00 p.m. you and the deceased were at Evasusu Village. You had an argument over cooking arrangements. You refused to do the cooking and you continued to nag the deceased so he picked up a stick and hit you on the back of your shoulder blades and again on your legs. You got a kitchen knife and stabbed the deceased on the left side of his chest piercing the heart. This led to heavy bleeding and the deceased died as a result. You intended to cause grievous bodily harm to the deceased when you stabbed him. However, you ended up killing him instead.

3. The offence of murder carries a maximum penalty of life imprisonment. But the Court has discretion under the Criminal Code (s 19) to impose a lesser sentence. While the maximum penalty is life imprisonment, the law is well established in that the maximum penalty for any offence is reserved for the worst instances of a particular offence. Furthermore a sentence in any given case will depend very much on the particular circumstances of that case. (Golu Golu v The State [1979] PNGLR 653; Avia Aihi v The State [1983] PNGLR 92)

4. My task then is to determine an appropriate sentence for you. And I must start by deciding whether the circumstances of your case justify the imposition of the maximum penalty of life imprisonment. If it is not, then I must impose a sentence that befits the circumstances of your case.

5. And to assist me in doing that I will have to consider several things. I will need to consider your personal particulars, your address to the Court and submissions by your lawyer and the State, the circumstances under which you committed the offence, factors that mitigate or aggravate the offence, the purpose of punishment or sentencing for this type of offence, what other judges of this court have decided in similar cases and any guidelines that the Supreme Court has laid down.

6. You are 25 years old and come from Evasusu Village. You were married to the deceased for 5 years before his death and you have 3 children. The youngest is only 1 year and 11 months old. You were 8 months pregnant with this child at the time of the offence. You were educated up to Grade 5 only. You could not continue your education because you got married to the deceased.

7. I asked you to say something to the Court before I sentenced you and this is what you said:

“Sorry God, sorry Court and sorry to my husband [and] to the community. My husband and I were married. I was his second wife. He used to abuse his first wife and she committed suicide. I have three children. One was still in my stomach – 8 months. He got cross to me over food. I didn’t mean to do it. Thank you.”

8. Your lawyer Mr. Sasingian submitted that your case is not a worst case that should attract the maximum penalty of life imprisonment. He said that you are a first time offender, you pleaded guilty to the charge, made early admissions, you are the victim of domestic violence which he said is a special mitigating factor, and that you acted in the spur of the moment. He, however, conceded that there are factors against you. You used a dangerous weapon to fatally attack the deceased, life was lost and this is a very prevalent offence.

9. He therefore submitted that an appropriate sentence for you should fall somewhere between 12 – 20 years less the 10 months which you have been in remand. The range suggested by counsel falls between Category 2 of the sentencing guideline set by the Supreme Court in Manu Kovi v The State (2005) SC789. And because you have a good Pre-Sentence Report counsel submitted that half of this should be suspended.

10. Mr. Done for the State submitted that despite the alleged abuse on you by the deceased, you had no right to kill him. You had recourse to the police but you did not seek their assistance. You took a life by the use of kitchen knife and this is a very prevalent offence. Counsel agreed that a sentence for you should be in the range suggested by your lawyer.

11. The offence of murder is a very serious one as we have seen. The fact that it carries the maximum penalty of life imprisonment reflects the fact that life is precious. It is a gift from God, and once taken, cannot be replaced by us mere humans. As the Author of life God did not take the taking of life lightly. In the Law He gave to Moses the penalty for taking another person’s life was death – regardless of whether the killing was intentional or unintentional. Divine justice therefore demanded life for life. Of course because His ways are just and righteous as the Supreme Judge, his Law tempered justice with mercy so that manslayers were offered an avenue to escape the avengers of blood by escaping to designated cities of refuge. (see the Book of Deuteronomy)

12. The need to respect the sanctity of life continues to be the main reason why our laws also provide very stiff penalties for homicide offences. Wilful murder attracts the ultimate penalty of death while murder and other lesser offences like manslaughter attract life sentences.

13. Sentences for murder as well as other homicide offences have, however, continued to rise, and, for good reason. In Manu Kovi v The State (supra) the Supreme Court set out sentencing guidelines for wilful murder, murder and manslaughter. For each offence it provided four categories enumerating the circumstances and the range of penalties on a graduating scale from less serious to the worst. For murder these are –

Category	Circumstances	Sentence
1. Plea. Ordinary cases.; -Mitigating factors with no aggravating factors.	No weapons used. -Little or no pre-planning.; -Minimum force used.; -Absence of strong intent to do GBH.	12 – 15 years
2. Trial or Plea.; -Mitigating factors with aggravating factors.	No strong intent to do GBH.; -Weapons used.; -Some pre-planning; -Some element of viciousness	16 – 20 years
3. Trial or plea; -Special Aggravating; factors.; -Mitigating factors reduced in weight or rendered insignificant by gravity of offence	Pre-planned. Vicious attack.; -Strong desire to do GBH.; -Dangerous or offensive weapons used e.g. gun or axe.; -Other offences of violence committed.	20 – 30 years
4. WORST CASE – Trial or Plea; -Special aggravating factors.; -No extenuating circumstances.; -No mitigating factors or mitigating factors rendered completely insignificant by gravity of offence.	Pre-meditated attack.; -Brutal killing, in cold blood.; -Killing of innocent, harmless person.; -Killing in the course of committing another serious offence.; -Complete disregard for human life.	LIFE IMPRISONMENT

14. Counsel did not cite any cases to me on previous sentences by this court. However, I shall refer to a few cases, two of which I dealt with here in Popondetta where the offenders were both women and where deaths also resulted from single stab wounds with kitchen knives.

15. In The State v Uraro (2012) N5164 the prisoner pleaded guilty to stabbing the deceased on the back with a kitchen knife. The deceased had been having an affair with the prisoner’s husband and after a failed mediation attempt at the Police Station the prisoner went looking for the deceased in town. She found her at the check-out counter at the Papindo Supermarket and stabbed her once on the back with a kitchen knife. The deceased was caught completely unawares. She died as a result. Among the mitigating factors that I found for the prisoner there, she was a first time offender, there was non-legal provocation,...