The State v Pauline Muturu (2012) N5163

• Jurisdiction: Papua New Guinea
• Judge: Toliken AJ
• Judgment Date: 28 November 2012
• Citation: (2012) N5163
• Docket Number: CR 176 OF 2012
• Court: National Court
• Year: 2012
• Judgement Number: N5163

Full Title: CR 176 OF 2012; The State v Pauline Muturu (2012) N5163

National Court: Toliken AJ

Judgment Delivered: 28 November 2012

N5163

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 176 OF 2012

BETWEEN

THE STATE

V

PAULINE MUTURU

Popondetta: Toliken AJ

2012: 17th October, 28th November

CRIMINAL LAW – Sentence – Murder – Prisoner stabbed deceased with kitchen knife – Fatal wound to the heart - Intention to cause grievous bodily harm - Criminal Code Act Ch. 262, s 300 (1)(a).

CRIMINAL LAW - Sentence – Mitigating factors – First time offender – De facto provocation – Expression of remorse – Minimal force used – No pre-planning – Aggravating factors – Use of offensive and dangerous weapon – Prevalence of offence.

CRIMINAL LAW – Sentencing tariffs considered – Guideline sentences considered – Sentence of 13 years less period of pre-sentence custody – Partial suspension considered appropriate in the circumstances – Criminal Code Act Ch. 262, s 19.

Cases Cited

The following cases are cited in the judgment:

Goli Golu v. The State [1988] PNGLR 193

Manu Kovi v. The State (2005) SC 789

Mangi v The State (2006) SC 880

The State v Tupis Tom; The State v Nathan Bobi (No. 2) (2009) N3675

Lawrence Simbe v The State [1994] PNGLR 38

The State v Wakore (2007) N3222

The State v Parao (2009) N3625

The State v Amos Young (2008) N3548

The State v Angeline Winara (No. 2) (2008) N3352

The State v Relvie Joe (2005) N2832 (10 May 2005)

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

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

Jack Tanga v. The State (1999) SC602

John Kapil Tapi v. The State [2000] SC635;

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

Simon Kama v. The State (2004) SC 740)

Thress Kumbamong v. The State (2008) SC 1017

The State v. Mavis Uraro, CR 235 of 2012 (Un-numbered and Unreported

Judgment dated 26th November 2012)

Counsel:

D Kuvi, for the State

E. Yavisa, for the Defendant

SENTENCE

28th November, 2012

1. TOLIKEN AJ: Pauline Muturu, on 17th October 2012 the State indicted you before me on a charge of the murder of Livity Mupang on 01st October 2011 at Bangoho Compound, Popondetta Town, Oro Province.

2. You pleaded guilty to the charge. I confirmed your plea after perusing the District Court committal depositions and finding that the evidence supported your plea. I reserved my sentence until today.

BRIEF FACTS

3. Briefly the facts which you also pleaded to are these. On the night of 01st October 2011, you were at Bangoho Compound, Popondetta Town. That time the deceased was standing in front of a canteen. He was drunk. The deceased called out to you. When you approached him an argument erupted between the two of you. In the course of the argument the deceased punched you and you fell down. The deceased walked away leaving you on the ground.

4. You got up and ran after the deceased. You then stabbed the deceased from behind with a kitchen knife. The knife penetrated the left side of the deceased’s chest and pierced the apex or top of his heart. This resulted in the deceased losing a lot of blood from which he died almost immediately. You intended to cause him grievous bodily harm but ended up killing him instead.

ISSUES

5. The main issue for me to determine is what an appropriate sentence for you should be. This will depend on various factors such as the factual factors surrounding your case, your antecedents, mitigating and aggravating factors and the sentencing trend in this type of cases. These, I propose to discuss in this short judgment.

ANTECEDENTS

6. You are 26 years old and come from Garaina, Kira District, Northern Province. Your parents have separated. Prior to the offence you were living with your 7 year old daughter at Bangoho Compound in Popondetta Town. You were once married, had separated from your partner before the offence. You were educated only up to Grade 8 and you were not formally employed at the time of the offence. You have no prior criminal convictions.

ALLOCUTUS

7. You gave a long story when you addressed the Court on allocutus. This is what you said:

“I was at the haus krai of Noel Tivakuri and we had sent the body home to Tufi. After I had helped the Tivakuri girls I was going back to my house. The boys had returned from a dance at Hegata and were playing music and dancing in from of the club. When we arrived the boys were assaulting another boy from New Guinea Compound. After that all the other girls left. Two other boys came and asked me what the fight was about. I told them of the assault on the boy from New Guinea Compound. As I was talking to these two the deceased came and wanted to talk to me. I told him that I was not his wife. He then showed me a knife and said; “You will catch this knife!” I knew that he was drunk. He tried to hit me with the knife. I struggled with him. I pulled out the knife and stabbed him to make him feel pain but somehow he died from that.

“I had problems with my husband and he has left me with my 7 year old daughter. I had been looking after her myself. She is now doing Grade one (1). Since I have been in custody I do not know how my daughter is being cared for. I now say sorry to the deceased’s family, the community and to the Court. I ask the Court to have mercy on me.”

SUBMISSIONS

Your Lawyer

8. Your lawyer Mr. Yavisa submitted that yours is not the worst of murder cases and therefore should not attract the maximum penalty which is life imprisonment. He asked though that the court should exercise its discretion and impose a term of years instead.

9. Mr. Yavisa referred me to the case of Manu Kovi v. The State (2005) SC789 where the Supreme Court had set sentencing guidelines and tariffs in homicide offences. He submitted that the circumstances of your case fall under Category 2 of the Manu Kovi tariffs which attract a sentence ranging between 16 - 20 years.

10. Counsel submitted that there are only two aggravating factors against you – you used an offensive weapon and you fatally stabbed the deceased once only. Counsel said that there are several mitigating factors in your favour, the main ones being that you pleaded guilty, have expressed remorse and that you were provoked in the non-legal sense.

11. He also submitted that there are extenuating circumstances – circumstances that diminish the seriousness of your offence. These are that you acted alone and you stabbed the deceased once only. Mr. Yavisa then referred me to cases with similar circumstances to yours including Mangi v The State (2006) SC 880 which he said could help me in arriving at an appropriate sentence for you. I will return to these cases later in this judgment.

12. So in the circumstances, counsel submitted that a starting point for you should be lower than Category 2 of the Manu Kovi tariffs. A head sentence of between 12 – 15 years should therefore be imposed less 1 year and 15 days for pre-sentence custody.

The State

13. Mr. Kuvi for the State submitted that the aggravating factors in your cases are; you used a weapon to kill the deceased, the stab wound penetrated the heart and the deceased lost his life. He said that the Supreme Court in Manu Kovi (supra.) stated that life is precious and no amount of compensation or expression of remorse can restore the life lost. A further aggravating factor is the prevalence of this type of offence which has been on the rise in the province as of late.

14. Mr. Kuvi agreed that your case falls within Category 2 of the Manu Kovi tariffs but conceded that there are elements of Category 1 (12 – 15 years) as only minimum force was used and there was no pre-planning. And even though there was no strong intention by you to cause grievous bodily harm you nonetheless used a weapon. So because your case falls in between Category 1 and 2 the appropriate sentence should be between 14 – 17 years.

15. Mr. Kuvi further submitted that yours is a peculiar case because there is no evidence of some kind of a relationship with the deceased. Most cases of this type arise in the domestic setting because of extra-marital affairs and continuous violence against offenders.

16. Mr. Kuvi referred me to the case of The State v Tupis Tom; The State v Nathan Bobi (No. 2) (2009) N3675. In that case the co-accused got involved in a drunken brawl. They got into an argument with the deceased. One of them landed a heavy blow to the deceased’s ribs fracturing them and the deceased consequently died. Counsel said that His Honour Makail J sentenced the accused to 12 years imprisonment.

17. Counsel therefore said that you used a weapon to kill...