State v Tatawa [2013] PGNC 281; N5207 (25 April 2013)

N5207

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 202 OF 2012

STATE

AND:

LASI RASE TATAWA
Prisoner

Goroka: Ipang AJ
2013: March 27
April 25

CRIMINAL LAW – Sentence - Criminal Code Act, Section 300 (1) (a) – Guilty on 2 counts of murder – the prisoner and 5 others attacked the 2 deceased persons and chopped the deceased persons with bush knives in a sorcery related pay back killing.

CRIMINAL LAW – Sentencing principles in homicide cases observed – State v Manu Kovi (2005) SC 789 taken into consideration

Cases Cited:

State v Manu Kovi (2005) SC 789
State v Romney Naptalai Simonopa (2004) N2251
State v Richard Dusal Bix (2003) N2415
State v Iori Veraga (2005) N2921
Acting Public Prosecutor v Konis Haha [1981] PNGLR 205
Public Prosecutor v Michael Kerua & Ors [ 1995] PNGLR 85

Counsel:

Mr. K. Umpake, for the State
Mr. R. Kasito, for the Prisoner

DECISION ON SENTENCE

25 April, 2013

1. IPANG, AJ: On the 19 March, 2013 I returned the verdict of guilty on both counts of murder pursuant to section 300 (1) (a) of the Criminal Code Act. Chapter 262 against the prisoner. The Defence Counsel Mr. R. Kasito for the prisoner requested for a Pre Sentence Report (PSR) for the prisoner which I have ordered and then adjourned this matter to the 27th of March, 2013 for the submissions on sentence. Submissions on sentence were presented and this is the Decision on Sentence for the prisoner.
   

Brief Facts:

2. The brief facts for the purpose of sentencing are as follow: on the 16th of January, 2011 at around 3.00pm at Seksek village, Goroka, Eastern Highlands Province, the prisoner and 5 others armed themselves with bush knives and confronted the deceased Sisapo Hagen. They chopped the deceased Sisapo all over his body and he died. The prisoner and 5 others proceeded to the deceased Tatape Hagen. They confronted the deceased Tatape and his son Nanako inside his house. They called the deceased Tatape out of his house, the prisoner chopped him on his neck, and the 5 others followed and attacked the deceased. Deceased died of multiple wounds received from the attack.
   

The Relevant Law:

3. The provision in which the prisoner is charged with is section 300 (1) (a) of the Criminal Code Act. The penalty provided under this section reads;
   

"300. Murder

(1) Subject to the succeeding provisions of this code, a person who kills another person under any of the following circumstances is guilty of murder-

• (a) If the offender intended to do grievous bodily harm to the person killed or to some other person;
  

Penalty: subject to section 19, imprisonment for life".

4. The maximum penalty provided for under s. 300 is imprisonment for life. As it is the usual sentencing practice that maximum penalty is reserved for worst types of cases. See State v Romney Naptalai Simonopa (2004) N2251; State v Richard Dusal Bix (2003) N2415 and State v Iori Veraga (2005) N2921. It is also a sentencing practice that each case has to be determined on its own peculiar circumstances. If in the event, a court considers that the circumstances of a case do not warrant imposition of a maximum sentence then subject to s. 19 of the code, a shorter term sentence can be imposed.
   

Sentencing Guidelines in Manu Kovi's Case:

5. The Supreme Court has set up sentencing guidelines for homicide cases in Manu Kovi's case (supra). It is appropriate that I set out these guidelines:
   

NO	DESCRIPTION	DETAILS	TARIFF
1	Plea – ordinary cases – mitigating factors – no aggravating factors	No weapons used-little or no pre-planning- minimum force used – absence of strong intent to do grievous bodily harm.	12-15 years
2	Trial or Plea – mitigating factors with aggravating factors	No strong intent to do grievous bodily harm – weapons used – some pre-planning – some element of viciousness.	16-20 years
3	Trial or Plea- special aggravating factors – mitigating reduced in weight or rendered insignificantly by gravity of the offence.	Pre-planning – vicious attack – strong desire to do grievous bodily harm – dangerous or offensive weapon used eg. Gun, 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 grant of offence.	Pre-mediated 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.

Mitigating Factors:

6. The following are the mitigating factors:-
   
   • Prisoner is a first time offender and has no prior convictions.
   • Prisoner co-operated well with the police.
     

Aggravating Factors:

7. The following are the aggravating factors:-
   
   • Prisoner was found guilty after trial
   • Double murder – worst category of murder cases
   • Use of offensive weapons
   • Mob or group attack on defenseless persons
   • There was pre-planning
   • Brutal and cold-blooded killing
   • No respect for human life
     

Submission by Defence:

8. Mr. R. Kasito of counsel for the prisoner submitted that the circumstances and the descriptions of this instant case resemble category 2 of the Manu Kovi's case which attract sentences ranging from 16 to 20 years. Court should then take into account and deduct the pretrial custody period pursuant to s. 3 (2) of the Criminal Justice (Sentence) Act.
   
9. Kasito also submitted that the court should take in to account the totality principle. In that where offences are committed in a single transaction, the sentences should be served concurrently unless different victims are involved. See Acting Public Prosecutor v Konis Haha [1981] PNGLR 205 and also Public Prosecutor v Michael Kerua & Ors [1995] PNGLR 85. Kasito also invite court to consider the degree of participation of the prisoner in commission of these offences. Also submitted was for the court to consider whether to suspend whole or part of the sentence. Then for the court to make order for compensation to be paid pursuant to s. 5 of the Criminal Law (compensation) Act.
   

Submission by State:

10. Mr. K. Umpake of counsel for the prisoner submitted that the court has discretion under s. 19 of the code however the discretion must be exercised when court is provided with necessary facts.
    
11. Umpake said the circumstances of this instant case would fall under category 3 or 4 of Manu Kovi case (supra). Category 3 would attract 20 to 30 years and Category 4 would attract Life Imprisonment. Umpake further submitted that the circumstance of this case is not appropriate for a suspended sentence. state counsel referred to the case of State v Peter Plessman & Paul Jimmy Moaina Unreported (Full citation not given) in which Batari, J found the two prisoners guilty of killing 2 brothers in their residence based on their guilty plea. In first court 20 years was imposed and on the second count, 25 years was imposed. Batari, J ordered the sentences to be served concurrently.
    

Court's Analysis:

12. Considering all the factors, the mitigating and the aggravating factors, the prisoner's Antecedent Report, the Allocutus, I consider subject to s. 19 of the Code, term of imprisonment.
    
13. In regard to 1st count, I consider a sentence of 25 years imprisonment would be appropriate. For the 2nd count, I consider a sentence of 25 years would be appropriate. I order that the sentence be served concurrently in that prisoner will serve only 25 years imprisonment minus the Pre Trial Period spent in custody .

________________________________________
Public Prosecutor: Lawyer for the State
Paraka Lawyers: Lawyer for the Accused