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State v Tabogani [2008] PGNC 194; N3559 (10 September 2008)

N3559

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1161 OF 2006
(NO. 2)

THE STATE

V

STEVEN TABOGANI
Of SIRISIRI, RABARABA
MILNE BAY PROVINCE
Prisoner

Alotau: Davani .J
2008: 9th, 10th September

SENTENCE – Murder – one stab wound – no preplanning – some viciousness - some intent to do grievous bodily harm – s.300(1)(a) of Criminal Code Act

SENTENCE – prisoner has prior convictions – trial – mindless, senseless attack – 17 years

Facts

After a trial, the prisoner was found guilty of the crime of murder under s.300(1)(a) of the Criminal Code Act. The Court found that the killing was unprovoked and mindless where the prisoner accosted the victim on the road and stabbed him for no reason. The prisoner also has prior convictions.

Issue

• What is an appropriate sentence for a crime of this nature?
  

Held

Seventeen (17) years in hard labour, less time spent in custody on remand.

Cases cited

Manu Koivi v The State (2005) SC789

Counsel:

P. Kaluwin, for the State
R. Yayabu, for the Accused

SENTENCE

10 September, 2008

1. DAVANI .J: On 8th September, 2008, I found the prisoner guilty of the offence of murder under 300(1) (a) off the Criminal Code (‘CCA’).
   

Evidence

2. After a trial, I found the following facts to have been proven. That on 13th May, 2005, at Garuboi Street, in Alotau, about 7 to 8 pm, the deceased Joe Gerald and 2 women were walking up the street, headed towards the Suau compound for a dance. On the way, they met the prisoner and 3 of his friends. His friends were ahead of him. As the deceased approached, he shouted at him, then slapped him. At the same time, he stabbed him. The deceased ran for a few metres, then collapsed.
   

Analysis of evidence and the law

3. The prisoner was drunk. For a reason, he stabbed an innocent man. There was no reason for doing so. It was a mindless, senseless attack.
   
4. The prisoner, aged about 21 at the time of the attack, has 2 prior convictions and a charge of robbery which was dismissed, because of the lack of evidence. The offences range from being drunk and disorderly, to being in possession of drugs to robbery and now to murder. He is a young man who has found himself now at the point of no return where he is now a cripple after being shot by CS. That is the price he has paid for his life of crime.
   
5. There are many reasons why people turn to crime. For this young man, it may have been the fact that he could not find a job or that he came from a broken home and as a result, hung around with the street boys, resorting to crime as a means of living. We will never know. But I accept these facts of life which I see sketches of in the Court file and the fact that he was very genuine in his remorse, accepting the reality that being a cripple, life does not mean much anymore.
   
6. He has asked the court and the almighty for forgiveness. He must accept that we are all part of God’s divine plan, definitely killing another human being is not a Christian practice. He must look to God for his forgiveness. Man must continue to enforce God’s laws as he wants us to.
   
7. The killing being uncalled for and unwarranted, considering the circumstances for a penalty that is just and fitting, society cannot have individuals running around killing innocent people.
   
8. The aggravating factors most serious are the use of a weapon, on an unarmed person for no reason and the fact that this matter had to proceed to trial.
   
9. Defence Counsel submitted for a sentence with the second category of Manu Koivi v The State (2005) SC 789. In this case, I find it does fall within that category in that there are mitigating and aggravating factors, a knife was used, there was no pre-planning, there was some viciousness and some intent to do grievous bodily harm. I find a sentence of 17 years is appropriate under the circumstances.
   
10. The accused spent sometime on remand, in custody. Neither the CS nor Defence Counsel could give me that information in Court. In any event, this period will be applied towards reduction of sentence. The prisoner shall serve the reduced term when ascertained, incarcerated. As he is now crippled, it is up to the CS to give him the appropriate kind of work.
    

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused