N4159

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1295 OF 2006

THE STATE

V

SETH UJAN TALIL

Madang: Cannings J
2010: 22 July, 6, 21 October, 1, 17 November

SENTENCE

CRIMINAL LAW – sentencing – Criminal Code, Section 299 (wilful murder) – trial – two offences – absence of proof that the offender directly killed the deceased – whether sentences should be served concurrently or cumulatively – totality principle

A man was convicted after trial of two offences of wilful murder committed at a mediation gathering. It was not proven that the offender directly killed either of the deceased but he was convicted under both Sections 7(1)(b) and 8 of the Criminal Code as he was involved in a violent group attack and aided others in wilfully committing the murders and the offences were committed during the course of prosecuting an unlawful purpose in conjunction with others.

Held:

(1)	When sentencing an offender for multiple offences, the court should arrive at a notional sentence for each offence, before determining whether the sentences should be served cumulatively or concurrently, applying the totality principle and deciding whether to suspend any part of the total sentence.

(2)	The following notional sentences were imposed: count 1: 20 years; count 2: 20 years. The total potential sentence is thus 20 + 20 = 40 years imprisonment.
 
(3)	The sentences should be served cumulatively as there were two different victims.

(4)	However, under the totality principle, the court should avoid imposing a crushing sentence, thus the total sentence was reduced to 30 years imprisonment, apportioned equally between the two offences.

(5)	The pre-sentence period in custody was deducted from the sentence but none of the sentence was suspended as the pre-sentence report did not warrant probation, there being no evidence of reconciliation with the relatives of the deceased or forgiveness or other resolution of the problems created by the offender.

Cases cited

The following cases are cited in the judgment:

Acting Public Prosecutor v Konis Haha [1981] PNGLR 205
Manu Kovi v The State (2005) SC789
Mase v The State [1991] PNGLR 88
Public Prosecutor v Kerua [1985] PNGLR 85
Steven Ume, Charles Kaona & Greg Kavoa v The State (2006) SC836
The State v Chris Baurek CR No 146 of 2009, 26.05.10
The State v Isak Wapsi (2009) N3695
The State v Seth Ujan Talil (2010) N4082

SENTENCE

This was a judgment on sentence for wilful murder.

Counsel

N Goodenough, for the State
A Meten, for the offender

17 November, 2010

1. CANNINGS J: This is a decision on sentence for Seth Ujan Talil who has been convicted after trial of two counts of wilful murder. The deceased are two brothers, Gunai Dodo and Gulali Dodo, aged about 42 and 35 years respectively. They were violently attacked by a group of men, which included the offender, at a mediation gathering at Gonoa village in the Madang District on 19 January 2006. The cause of death in each case was haemorrhagic shock due to multiple knife and axe wounds.

2. The deceased were among a group of five people who were alleged to have used sorcery to kill a young woman several months previously. At the trial it was proven that the offender attacked one member of the group of alleged sorcerers (not the deceased) with a bushknife, causing him life-threatening injuries and maiming him for life. It was not proven that the offender directly killed either of the deceased. He was, however, convicted of wilful murder by virtue of Sections 7(1)(b) and 8 of the Criminal Code.

3. Section 7(1)(b) applied as it was proven beyond reasonable doubt that the offender was present at the scene and acted for the purpose of enabling and aiding others to wilfully murder the two deceased. He encouraged and assisted in the deliberate killing of them. He was therefore deemed to have taken part in committing the two offences of wilful murder and to be guilty of them. He was also convicted under Section 8 as the offences were committed during the course of prosecuting an unlawful purpose in conjunction with others.

4. Further details of the circumstances of the offences are in the judgment on verdict: The State v Seth Ujan Talil (2010) N4082.

ANTECEDENTS

5. The offender has no prior convictions.

ALLOCUTUS

6. The offender was given the opportunity to address the court. He said:

I say sorry to the Court for taking up a lot of the Court's time. I ask for the Court's mercy and will accept any sentence that the Court imposes.

PRE-SENTENCE REPORT

7. A pre-sentence report prepared by the Madang branch of the Community-Based Corrections and Rehabilitation Service shows that Seth Ujan Talil is 25 years old and single. He comes from Bilia village. His parents separated when he was young and his father died soon afterwards. He has been raised by his mother in the village. He has three brothers and one sister, all of whom are younger than him. He has a grade 10 education. He has spent a number of years in formal employment but in recent times has been engaged as a subsistence farmer and he wants to return to that way of life after serving his sentence. He is a member of the Lutheran Church. There is little information available as to the attitude of his family or his village people to the commission of the offences. More significantly, the deceaseds' relatives have not been interviewed. There is no evidence of reconciliation or forgiveness or payment of compensation or any indication that there has been any customary resolution of the problems created by the deaths. Despite this paucity of information it is concluded that the offender is suitable for probation for a period of two years.

8. As I indicated at the sentencing hearing, this recommendation was made without any basis and without an appreciation of the gravity of the offences of which the offender has been convicted.

SUBMISSIONS BY DEFENCE COUNSEL

9. Mrs Meten submitted that this was not a 'worst case' of wilful murder. There are a number of mitigating factors, she submitted, that bring the case within the second category of cases recognised by the Supreme Court in Manu Kovi v The State (2005) SC789, so the starting point should be in the range of 20 to 30 years imprisonment for each offence. It was not a direct killing and the offender had minimal involvement in the deaths. He is a first-time offender. The sentences should be served concurrently as the offences were committed during a single incident. The mitigating factors warrant a total sentence of no more than 20 to 30 years imprisonment, Mrs Meten submitted.

SUBMISSIONS BY THE STATE

10. Mr Goodenough, for the State, agreed that the case fell within the second category of the Kovi guidelines. An aggravating factor is that the offences were committed at a mediation gathering: the murder of people at such a gathering strikes at the very heart of mediation. The court must send a strong message through its sentencing that such conduct is condemned.

DECISION MAKING PROCESS

11. To determine the appropriate penalty I will adopt the following decision making process:

•	step 1: what is the maximum penalty?
•	step 2: what is a proper starting point for each offence?
•	step 3: what sentences have been imposed for equivalent offences?
•	step 4: what is the head sentence for each offence?
•	step 5: should the sentences be served concurrently or cumulatively?
•	step 6: what is the effect of the totality principle?
•	step 7: should the pre-sentence period in custody be deducted?
•	step 8: should all or part of the sentence be suspended?

STEP 1: WHAT IS THE MAXIMUM PENALTY?

12. The maximum penalty for wilful murder under Section 299 of the Criminal Code is death. The court has a discretion whether to impose the maximum by virtue of Section 19(1)(aa) of the Criminal Code, which states:

In the construction of this Code, it is to be taken that, except when it is otherwise expressly provided … a person liable to death may be sentenced to imprisonment for life or for any shorter term.

STEP 2: WHAT IS A STARTING POINT FOR EACH OFFENCE?

13. The Supreme Court has in two recent cases given sentencing guidelines for wilful murder: Manu Kovi v The State (2005) SC789 and Steven Ume, Charles Kaona & Greg Kavoa v The State (2006) SC836.

The Kovi guidelines

14. In Kovi a man who stabbed his wife to death on a PMV in Port Moresby had his appeal against a sentence of life imprisonment dismissed. The Supreme Court suggested that wilful murder convictions could be put in four categories of increasing seriousness, as shown in table 1.

TABLE 1: SENTENCING GUIDELINES FOR WILFUL MURDER DERIVED FROM THE SUPREME COURT'S DECISION IN MANU KOVI'S CASE

No	Description	Details	Tariff	
1	Plea – ordinary cases – mitigating factors – no aggravating factors.	No weapons used – little or no pre-mediation or pre-planning – minimum force used – absence of strong intent to kill.	15-20 years	
2	Trial or plea – mitigating factors with aggravating factors.	Pre-planned, vicious attack – weapons used – strong desire to kill.	20-30 years	
3	Trial or plea – special aggravating factors – mitigating factors reduced in weight or rendered insignificant by gravity of offence.	Brutal killing, killing in cold blood – killing of defenceless or harmless person – dangerous or offensive weapons used – killing accompanied by other serious offence – victim young or old – pre-planned and pre-meditated – strong desire to kill.	Life imprisonment	
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.	[No details provided]	Death 	

The Ume guidelines

15. In Ume three men were convicted of the payback killing in 1995 of an innocent, harmless woman at Pangalu village in the Talasea area of West New Britain. She was tortured and made to die a slow and painful death. The offenders were sentenced to death by the National Court but their appeal to the Supreme Court was upheld and their sentences reduced to life imprisonment.

16. While agreeing that it was a horrendous crime, the Supreme Court held that the trial judge committed a number of sentencing errors, eg suggesting that the death penalty was mandatory, shutting his mind to the existence of mitigating factors (the offenders were ordinary villagers of previous good character and good family and church backgrounds), failing to ascertain each offender's degree of involvement, failing to consider circumstances personal to each offender, failing to consider whether any customary considerations influenced the killing and regarding the rape of the victim as an aggravating factor without making a specific finding of fact that she was raped.

17. As to the facts that would warrant the death penalty, and without being exhaustive, the Supreme Court suggested:

1	The killing of a child, a young or old person, or a person under some disability needing protection.

2	The killing of a person in authority or responsibility in the community providing invaluable community service, whether for free or for a fee, killed in the course of carrying out their duties or for reasons to do with the performance of their duties eg a police officer, correctional officer, government officer, schoolteacher, church worker, company director or manager.

3	Killing of a leader in government or the community, for political reasons.

4	Killing of a person in the course of committing other crimes perpetrated on the victim or other persons such as rape or robbery.

5	Killing for hire.

6	Killing of two or more persons, in a single act or series of acts.

7	Killing by a prisoner in detention or custody serving a sentence for another serious offence of violence.

8	The offender has prior conviction(s) for murder.

Applying the guidelines

18. I will apply the guidelines from those two cases to arrive at a starting point.

19. As for the Ume guidelines, the case falls within scenario No 6: killing two people in one incident. However, as it was not proven that the offender directly killed either of the deceased, I do not think it warrants the death penalty.

20. As to the Kovi guidelines, I readily accept the defence counsel's submission – agreed to by the State – that this is not a worst-case scenario. I less readily accept the proposition that this is a category 2 case. I think there is an argument to say that each offence falls within category 3: a brutal killing, in cold blood, of a defenceless and – at the time he was killed – harmless person. However, as it is not a case of a direct killing and as the State has agreed that the case belongs to category 2, I will treat it as a category 2 case.

21. The starting point is therefore in the range of 20 to 30 years imprisonment for each offence.

STEP 3: WHAT SENTENCES HAVE BEEN IMPOSED FOR EQUIVALENT OFFENCES?

22. Two recent wilful murder cases in Madang provide useful points of comparison as, just as in this case, an underlying motivation for the killing was a belief in sorcery.

23. In The State v Isak Wapsi (2009) N3695 a young man pleaded guilty to the wilful murder of a man at Kukum village in Bogia District. He claimed that the deceased was a sorcerer. The deceased was working at a fermentery and the offender approached him without warning or provocation and cut his legs with a bushknife, severing the right leg and inflicting significant damage to the left leg. The sentence was 25 years imprisonment.

24. In The State v Chris Baurek CR No 146 of 2009, 26.05.10 a 40-year-old man pleaded guilty to the wilful murder of a man at Pau village in Madang District. He claimed that the deceased was a sorcerer. He went with two accomplices to the deceased's house, armed with a fishing gun and bushknives. They chased the deceased, he fell and then the offender and his friends chopped him on the back, killing him. The offender had both mental and physical health problems, which were taken into account as mitigating factors. The sentence was 20 years imprisonment.

STEP 4: WHAT IS THE HEAD SENTENCE FOR EACH OFFENCE?

25. The circumstances in which each deceased was killed were the same. For the purpose of allocating a notional sentence for each offence, there is no reason to differentiate between them.

26. I will now assess the mitigating and aggravating features of the case. The more mitigating factors there are, the more likely the head sentence will be below the starting point range. The more aggravating factors present, the more likely the head sentence will be above the starting point range.

Mitigating factors

•	The offender was motivated by a genuine belief in sorcery.
•	It was not proven that he directly killed the deceased.
•	He is a first time offender.

Aggravating factors

•	The offender acted in a group.
•	This was a vicious and barbaric killing.
•	The offender has shown no remorse.
•	The circumstances of the incident show that there was a strong desire to kill.
•	There has been no peace or reconciliation with the deceased's relatives and no payment of compensation.

Determination

27. Though there are more aggravating factors than mitigating factors, I am inclined to sentence at the bottom of the range due to the fact that it was not proven at the trial that the offender directly killed the deceased. I fix the head sentence at 20 years imprisonment for each offence.

Total potential sentence

It is:	20 years (count 1) + 20 years (count 2) = 40 years imprisonment	

STEP 5: SHOULD THE SENTENCES BE SERVED CONCURRENTLY OR CUMULATIVELY?

28. The general rule is that if two or more offences are committed in the course of a single transaction all sentences in respect of the offences should be concurrent unless there are different victims (Public Prosecutor v Kerua [1985] PNGLR 85; Mase v The State [1991] PNGLR 88). Here, there was one incident but two victims. I reject the defence counsel's submission that the sentences should be served concurrently. I agree with the prosecutor who submitted that the total sentence must reflect the fact that two lives were lost. The sentences will be served cumulatively.

STEP 6: WHAT IS THE EFFECT OF THE TOTALITY PRINCIPLE?

29. I now look at the total sentence that the offender is potentially facing to see if it is just and appropriate having regard to the totality of the criminal behaviour involved. The court needs to guard against imposing crushing sentences, those that are over the top or manifestly excessive (Acting Public Prosecutor v Konis Haha [1981] PNGLR 205).

30. Sentencing a young man to a 40-year sentence may, in the circumstances of this case, be unjust, as it was not proven that he directly killed either of the deceased and no other person has been prosecuted for the deaths. I will therefore reduce the total sentence to 30 years imprisonment, apportioned equally between the two offences, ie count 1, 15 years and count 2, 15 years.

STEP 7: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED?

31. Yes. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment, the whole of the pre-sentence period which is 1 year, 3 months.

STEP 8: SHOULD THE SENTENCE BE SUSPENDED?

32. There is nothing in the pre-sentence report to warrant suspension of the sentence, there being no evidence of reconciliation with the relatives of the deceased or forgiveness or other resolution of the problems created by the offender. I decline to suspend any part of the sentence.

SENTENCE

33. Seth Ujan Talil, having been convicted of two counts of wilful murder under Section 299 of the Criminal Code, is sentenced as follows:

Length of sentence imposed	30 years imprisonment	
Pre-sentence period to be deducted	1 year, 3 months	
Resultant length of sentence to be served	28 years, 9 months	
Amount of sentence suspended	Nil	
Time to be served in custody	28 years, 9 months	
Place of custody	Beon Correctional Institution	

Sentenced accordingly.
_________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender