State v Tawa (No 2) [2025] PGNC 72; N11195 (21 March 2025)

N11195

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR NO. 16 OF 2024

STATE

V

NITAWA TAWA
(No 2)

RAMU: NAROKOBI J
12, 15 NOVEMBER, 6 DECEMBER 2024
MADANG
10, 21 MARCH 2025

CRIMINAL LAW – Criminal Code, s 300(1)(a), Murder – Appropriate Sentence in the circumstances.

The Prisoner, Nitawa Tawa was found guilty of murder contrary to s 300(1) of the Criminal Code, in that on 19 September 2022, in Mopo Village, Usino, Madang Province, while he was in the company of other men, they aided and abetted each other to kill one Gideon Kururuwa by repeatedly cutting his limbs, ankles and puncturing his side, resulting in his death from loss of blood.

Held:

(1) Considering the value the Constitution places on the village as a viable unit of Papua New Guinean society, a strong deterrent sentence is necessary to help restore the viability of the village as a distinct functioning social entity.

(2) Payment of customary compensation has now come to have the force of law as a form of punishment itself, such that it reduces a term of imprisonment under the Criminal Law (Compensation) Act 1991 after its initial opposition by the Supreme Court in Acting Public Prosecutor v Aumane, Boku, Wapulae, and Kone [1980] PNGLR 510.

(3) Offenders in cases such as State v Abitena (2018) N7290 have had a term of imprisonment reduced for suffering retaliatory action. It is not strictly speaking a mitigating factor as it does not speak to culpability, but it does subject the prisoner to a form of de facto punishment and should be considered when deciding sentence as part of the sentencing judges discretion under s 19 of the Criminal Code and applying the principles of Lawrence Simbe v The State [1994] PNGLR 38. The Pre-Sentence Report findings were that the Prisoner lost all his houses from retaliatory arson and his family have fled from their village and are living in “exile.”

(4) A head sentence of 22 years is ordered less two (2) years for payment of compensation under the Criminal Law (Compensation) Act 1991, and another three (3) years deducted for loss of properties through arson from retaliatory actions by the family of the deceased. In-addition, time spent in custody is deducted under s 3(2) of the Criminal Justice (Sentences) Act 1986.

Cases cited
Acting Public Prosecutor v Aumane, Boku, Wapulae, and Kone [1980] PNGLR 510.
Giamur v State (2007) SC884 SC884
Goli Golu v The State [1979] PNGLR 653
Lawrence Simbe v The State [1994] PNGLR 38
Manu Kovi v The State (2005) SC789
State v Jacob Aku Matai (2011) N4256
State v Mark John (2024) N11107
State v Tawa (No. 1) (2024) N11109

Counsel

Mr C Momoi for the prisoner
Mr J Kasse for the State

DECISION ON SENTENCE

1. NAROKOBI J: The Prisoner, Nitawa Tawa was found guilty of murder, contrary to s 300(1) of the Criminal Code on 6 December 2024. The issue for me to determine, then is what is the appropriate sentence the prisoner should receive?
   
2. Before I go into my sentence, I would like to place on record the very helpful assistance I have received from both Counsels Mr Momoi and Mr Kasse and the insightful Pre-Sentence Report (PSR) produced on short notice by Ms Alice Biko from the Community Based Corrections and Rehabilitation Services under the Probation Act.
   

Facts

3. This is a short summary of the facts of the case. On 19 September 2022, in Mopo Village, Usino, Madang Province, the Prisoner in the company of other men, aided and abetted each other to kill one Gideon Kururuwa by repeatedly cutting his limbs, ankles and puncturing his side, resulting in death from loss of blood. Because there was no postmortem done on the deceased, the element of intention to kill was not met in the charge of wilful murder (Criminal Code, s 299), a verdict of guilty of murder under s 300(1) was returned. The court can convict an offender of an alternative homicide offence from the powers the court has under s 539 of the Criminal Code. Additional details of the facts of the case can be found in State v Tawa (No. 1) (2024) N11109.
   

Principles of Sentencing

4. Sentencing tariffs for murder cases are set out in the case of Manu Kovi v The State (2005) SC789. The Prisoner submits that the appropriate sentence range is category three (3), a sentence of 20 to 30 years is appropriate. State also says that the facts of this case suggests a term of years between 20 and 30 years, that is it falls within category three (3). Category three (3) of murder cases bear the following circumstances:
   
   • Pre-planned. Vicious attack.
   • Strong desire to do grievous bodily harm.
   • Dangerous or offensive weapons used, e.g gun or axe.
   • Other offences of violence committed.
     
5. After considering the facts of the case, and the submissions of the prisoner and the State, I am inclined to agree to a sentence range falling between 20 to 30 years for the reasons, that it was a pre-planned, vicious attack, with a strong desire to cause grievous bodily harm with an offensive weapon.
   
6. Any suspension or deduction in term of years, will be decided after I look at specific circumstances of the case, which I will come to shortly.
   
7. The general principles of sentencing in any conviction are that the court has a discretion to sentence for a term less than the maximum sentence (Criminal Code, s 19).
   
8. Maximum sentences are reserved for the worst instances of an offence (Goli Golu v The State [1979] PNGLR 653).
   
9. Lawrence Simbe v The State [1994] PNGLR 38 is an important case, because it stands for the proposition that while guidelines and comparative cases are important, each case must be determined according to the peculiar facts of the case.
   
10. I am also assisted by Mr Momoi who refers to the case of Rex Lialu v The State [1990] PNGLR 487, that in a homicide case, special regard must be had to the circumstances of the victim’s death and the way it was caused.
    

Antecedent Report and Allocatus

11. Antecedent report from the State shows no prior conviction. In allocutus the prisoner expressed remorse but said that he was going to appeal the decision. He also said that compensation was paid to the family of the deceased. I then ordered a pre-sentence report to confirm payment of compensation. This was done and a PSR was filed on 6 March 2025. Further submissions were then made by Counsels. I consider the PSR in my decision.
    

Comparable Cases

12. Whilst each case is considered on its own peculiar set of facts, I have had occasion to consider two similar cases in Madang, which both Counsels in their submissions have drawn my attention to. In State v Mark John (2024) N11107, I sentenced the prisoner to 22 years in hard labour, less time spent in custody on a guilty plea for a murder charge. The victim was waiting to catch the school bus, when the prisoner hiding amongst the oil palm trees, rushed out and attacked the deceased. The injuries were a knife wound to the head, 15cm deep, fracturing the skull, and further cuts were inflicted on the neck and the back. A sentence of 22 years was ordered, less time spent in custody.
    
13. In State v Jacob Aku Matai (2011) N4256, Cannings J sentenced the prisoner to 22 years, in hard labour less time spent in custody on a guilty plea for murder where the deceased received various knife wounds to his body. The deceased was the prisoner’s brother-in-law and there was a long standing tension between them.
    

Considerations

14. The purpose of identifying aggravating and mitigating factors in sentencing is to assess the culpability of the offender. They demonstrate the state of mind of the offender, how intent the offender was to commit the crime. The more culpable, the higher the sentence, and the opposite is true.
    
15. I have had occasion to consider both the prisoner and the State’s submission on the aggravating and mitigating factors of the prisoner, and I make the following findings on these considerations, firstly outlining the aggravating factors:
    
    • It was a mob attack.
    • A bush knife, an offensive weapon was used.
    • A vicious attack where the victim was mutilated.
    • The deceased died a painful death from the multiple injuries.
    • There was no regard for human life.
    • A prevalence of homicide cases.
      
16. After this observation, I now find the following mitigating factors:
    
    • First time offender.
    • Expressed remorse.
    • There was some level of provocation by the deceased.
      
17. For me to form a view as to which objective of sentencing the facts of the case suggest, I should achieve in my sentence, apart from having regard to the facts of the case, I also have regard to the founding ideals of the independent State of Papua New Guinea espoused by its Constitution pursuant to s 25(2) of the Constitution. These objectives of sentencing were well expressed by Kapi J in the case of Acting Public Prosecutor v Aumane, Boku, Wapulae, and Kone [1980] PNGLR 510.
    
18. Papua New Guinea is a village-based society. National Goal 5, Papua New Guinea Ways, Directive Principle four (4) states:
    

(4) traditional villages and communities to remain as viable units of Papua New Guinean society, and for active steps to be taken to improve their cultural, social, economic and ethical quality.

19. Reading the PSR, tells a story of a village that is living in fear, and tension from this incident despite the “bel kol,” compensation of K2,000.00 money and two (2) live pigs.
    
20. The social glue that keeps the village together is harmonious social and cultural relations. The prisoner was an elder in his village, and by Melanesian mores his dignity was disrespected by the deceased, who called the prisoner an uncle, when he swung a knife at the prisoner, landing instead on a tree branch the prisoner was holding, causing him to fall into a drain. His response together with his relatives to the effrontery was swift, pre-planned, well organised and vicious. True by Melanesian standards he was treated with indignity, but his response did not measure up to the standards of the law, and social values the country now subscribes to. For example, the Constitution states:
    
    • united in one nation
    • pay homage to the memory of our ancestors—the source of our strength and origin of our combined heritage
    • acknowledge the worthy customs and traditional wisdoms of our people—which have come down to us from generation to generation
    • pledge ourselves to guard and pass on to those who come after us our noble traditions and the Christian principles that are ours now.
      
21. Violence in the village is eating away the basic social unit of our society that the Constitution recognises. A clear, and strong deterrent sentence must be given to ensure the protection of the village unit as a viable functioning social entity, and villagers use the village-based mechanisms to restore harmony in the village. The prisoner has allowed vengeance to rule his emotions. He did not choose the available services such as a village court to bring the deceased to answer for his effrontery. The PSR refers to Councillor Sirax Kawaki Mopo, and his efforts to calm the tense situation. Apart from the village court, the actions of the deceased should have been referred to the Councillor to address.
    
22. These considerations as well as the fact that in my view, the aggravating factors outweigh the mitigating factors, has pushed me towards a deterrent sentence as one of the objectives I wish to achieve in sentencing the prisoner.
    
23. Payment of customary compensation has now come to have the force of law as a form of punishment itself, such that it reduces a term of imprisonment under the Criminal Law (Compensation) Act 1991 after its initial opposition by the Supreme Court in Acting Public Prosecutor v Aumane, Boku, Wapulae, and Kone.
    
24. I have come across cases such as State v Abitena (2018) N7290 which have taken into account the fact that a prisoner suffering retaliatory action has had a term of imprisonment reduced. It is not strictly speaking a mitigating factor as it does not speak to culpability, but it does subject the prisoner to a form of de facto punishment, and in my view should be considered when deciding sentence in a sentencing judge’s discretion under s 19 of the Criminal Code and the principles of Lawrence Simbe v The State for each case to be decided on its own peculiar facts. In Giamur v State (2007) SC884 SC884 retaliatory action was seen as a relevant factor to reduce sentence.
    
25. The PSR’s findings were that the prisoner lost all his houses from retaliatory arson and his family have fled their village and are living in “exile” as it were.
    

Sentence

26. Having said all that, I will start with a head sentence of 22 years, as the circumstances of the case are similar to the two cases I cited above. In the exercise of my discretion, having regard to s 2, “Compensation as Punishment,” of the Criminal Law (Compensation) Act, I will suspend two (2) years for the compensation already paid. The K2,000.00 cash and the two pigs given would in my estimation amount to K5,000.00 which is the maximum allowed under the Act (s 5(3)(b)). Because the Prisoner had his properties destroyed in retaliation, which I consider to be a relevant factor in sentencing from my previous discussions, another three (3) years will be suspended. I would have suspended additional time if this was a guilty plea. Time spent in custody will be deducted too under s 3(2) of the Criminal Justice (Sentences) Act 1986.
    

Orders

27. The final orders of the court are therefore as follows:
    
    1. The Prisoner is sentenced to 22 years in hard labour.
    2. Five (5) years of the 22 years is suspended.
    3. In-addition, time spent in custody is deducted.
       
28. Judgment and orders accordingly.
    

Lawyer for the State: Acting Public Prosecutor
Lawyer for the prisoner: Public Solicitor