N5619

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 50 OF 2013

THE STATE

V

SAMUEL TAVARI

Alotau: Toliken, AJ.
2013: 17th October
2014: 20th May

CRIMINAL LAW – Sentence – Murder – Plea – Prisoner killed his own brother – Inflicted two cuts on deceased, one the head and another on back of the neck - Prisoner claimed in record of interview that he was influenced by the devil – That he acted under sorcery spell after having chewed betelnut given him by an uncle - Criminal Code Act Ch. 262, ss 300(1)(b).

CRIMINAL LAW – Sentence – Mitigating and aggravating factors considered – First time offender – Remorseful – Killing of brother – Self inflicting – Strong intention to cause grievous bodily harm - Killing unprovoked – Sentence of 15 years. 

Cases Cited:

Goli Golu v The State [1979] PNGLR 653
Avia Aihi v The State (No.3) [1982] PNGLR 92
John Elipa Kalabus v The State [1988] PNGLR 193
Kesino Apo v The State [1988] PNGLR 182
Public Prosecutor v Don Hale (1998) SC 564
Pauline Painuk v. The State, SCRA 54 of 2000 (unnumbered and unreported dated 22nd November 2000) 
Joseph Enn v The State (2004) SC738
Manu Kovi v The State (2005) SC 789 
The State v Jack Mek (1997) N1575
The 	State v Saku Sogave (2000) N2086
State v Baipu (2003) N2451 
The State v Pake (2007) N5051
The State v Laiam (2010) N3995
The State v Anton (2010) N 4117
The State v Lagu (2011) N4354 
The State v Matai (2011) N4256 
The State v Henry Kare; CR 498 of 2010 (unreported and unnumbered judgment dated 9th August 2013). 

Counsel

B Gore, for the State
P. Palek, for the prisoner

JUDGMENT OF SENTENCE

20th May, 2014

1.	TOLIKEN, AJ:	Samuel Tavari, on the 17th of October 2013 you pleaded guilty to an indictment charging you for the murder of your brother Richard Tavari on the 19th day of May 2012 on Loupom Island, Magarida in the Abau District of the Central Province. The charge was brought under Section 300 (1) (a) of the Criminal Code Act Ch. 262.

2.	 Section 300 (1)(a) provides:

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; or

(b)	...
(c)	...
(d)	...
(e)	...

Penalty: Subject to Section 19, imprisonment for life.

(2)	In a case to which Subsection (1)(a) applies, it is immaterial that the offender did not intend to hurt the particular person who was killed.
(3)	...
(4)	...

3.	The brief facts that were put to you on arraignment and upon which I am going to sentence you are these; you and the deceased are biological brothers. On the 19th day of May 2012 between 2.30 – 3.00p.m. you were with your family at your family home on Loupom Island. It was raining and your mother and your sister-in-law had returned from the market soaked. They knocked on the door to be let in but it took a while before you opened the door for them. After opening the door you immediately went back into your room. Your mother then told those in the house to cook if they were hungry. You were not happy with this. You came out with a bush knife and struck your mother with the flat surface of the knife. Your mother cried in pain and ran away but then you proceeded straight to the kitchen where your brother, the deceased, was scrapping coconut. Without a word you attacked him. You cut him first on the left side of his head and then you again cut him on the back of his head. The deceased was totally unprepared for your attack on him and hence was unable to defend himself. His injuries were serious and he was rushed to the Iruna Health Centre but died there due to heavy loss of blood. The State alleged – and you agreed – that you intended to cause grievous bodily harm to the deceased but ended up causing death instead.

4.	I entered a provisional plea of guilty which I confirmed after I had perused the committal Court depositions resulting in your conviction. I adjourned the matter for sentence to the 23rd of October 2013 but was unable to do so. I then adjourned to the December sittings of the Court. However, due to funding problems experienced by the Public Prosecutor the sittings did not eventuate. Hence the matter now comes before me for sentence on this first circuit to Alotau in 2014.

5.	In determining what an appropriate sentence for you will be, I must decide whether or not your case should attract the prescribed maximum penalty – life imprisonment. To do that I must to take into account your personal circumstances and interest and attitude to the offence, the circumstances under which you committed the offence, the State's interest, the way in which the courts have treated this type of offence and the purpose or objective for which your sentence should be served.

6.	 You are from Loupom Island, Magarida, in the Central Province just across the border from Milne Bay Province. You are 25 years of age and are married with 3 children – 2 your own and the other an adopted child. You are the last born in a family of 3 brothers (the deceased being one of them) and a sister. Your father is now deceased but your mother is still alive though now very old. You are a member of the United Church and have completed Grade 10 at Magarida High School in 2006. You have no prior convictions and up to the time of your conviction for this offence you had been in custody for a period of 1 year 5 months 13 days.

7.	You apologised to the Court for breaking the law and for the trouble you have caused. You apologized to your mother, brother, your sister-in-law and your community. You said that you are a first time offender. You also said that you are worried about your wife and 3 children as no one will look after and support them and as such you asked for probation.

8.	I have heard from you lawyer Mr. Palek and Ms. Gore for the State and I agree with them that your case does not fall under the worst category for the offence of murder. Both counsel pointed me to the case of Manu Kovi v The State (2005) SC 789 (Injia, DCJ. (as he then was) Lenalia and Lay JJ.) where the Supreme Court provided sentencing tariffs for homicide offences like murder and the considerations or circumstances for which the suggested tariffs could be applied. Mr. Palek submitted that your case falls in between the top of Category 1 and the bottom of Category 2 of the tariff for murder thus should attract a sentence between 13 – 16 years. Ms. Gore, however, suggested that your case falls under Category 3 and should therefore attract a sentence between 20 – 30 years. 

9.	For completeness, tabulated below are the sentencing tariffs and relevant circumstances for Categories 1, 2 and 3 of Manu Kovi. 

Category	Circumstances	 Sentence	
1.	Plea.
Ordinary cases. - Mitigating factors with no aggravating factors -No weapons used - Little or no pre-planning - Minimum force used -Absence of strong intent to do GBH.	12	– 15 years	
2	Trial or Plea. 
Mitigating factors with aggravating factors - No strong intent to do GBH -Weapons used - Some pre-planning -Some element of viciousness 	16 – 20 years	
 3	Trial or plea
Special Aggravating factors - Mitigating factors reduced in weight or rendered insignificant by gravity of offence Pre-planned. Vicious attack - Strong desire to do GBH - Dangerous or offensive weapons used e.g. gun or axe - Other offences of violence committed.	20 – 30 years	

10.	Both counsel also cited several cases which they submitted should guide the Court in arriving at an appropriate sentence for you. I will refer to the more relevant ones later in this judgment. 

11.	But let me now turn quickly to the mitigating and aggravating factors in your offence. First the mitigating factors. You pleaded guilty early to the charge thus saving time and money for the State. You are a first time offender and were previously of good character. You are youthful and even though you have a Grade 10 education I would like to think that you are a simple villager. You have a young family and you also co-operated well with the police.

12.	You also showed remorse which no doubt is genuine given the fact that you senselessly and needlessly killed your own brother. If anything your guilty conscience must be weighing you down so heavily not only for having killed your brother but also for having put your own family more so your old mother and your now widowed sister-in-law and her children into needless misery. You have deprived the family of the services of your late brother and his widow of consortium and support not to mention the support to his orphaned children. You had shown some remorse during your Record of Interview for killing your brother but said you did not intend to kill him. You said you were spell-bound and controlled by the devil after one of your uncles cast a spell on you when he gave you a betelnut to chew. In the Record of Interview you hence denied knowledge of killing your brother. Despite the credulity of your story your expression of remorse seems genuine and hence I accept it. (John Elipa Kalabus v The State [1988] PNGLR 193) 

13.	It is settled that killing of a close relative (parricide) is a mitigating factor and not an aggravating factor because the loss of the relative self inflicting. In Kesino Apo v The State [1988] PNGLR 182 (Kapi DCJ., Woods, Los JJ.) the court heard an appeal by the appellant against his six years sentence for killing his cousin brother whilst intoxicated. The court dismissed the appeal and unanimously held that the trial judge erred in holding that the killing of a relative was not to be taken in the prisoner's favour. His Honour Kapi DCJ commented that the killing of a person in Papuan New Guinea, whether a relative or an enemy, has special significance where a person other than a relative is killed, the victim's relatives would avenge the death by killing a member of the offender's family often resulting in tribal warfare, death and destruction of property or high compensation demands. This is not the case in cases of killing a relative. His Honour said:

In a sense, a killing of a relative is self-inflicting in that, a killer may lose a warrior, worker or contributor to bride price or even a helper. This may be regarded as a punitive aspect of the killing which he has brought upon himself. It should not be taken into account as a factor against him but in his favour. The trial judge was wrong in holding this against the appellant.

14.	 His Honour Woods J. Said:

It is quite clear that judges have given consideration to the fact that a killing within the family will usually mean that the perpetrator will suffer shame and the other burdens for the rest of his life for the killing of a relative and therefore a long-term of imprisonment is not really necessary or appropriate as a punishment. I therefore find that the trial judge erred in considering this factor. However, there is no hard and fast rule that a greatly reduced sentence is mandatory.

15.	And his Honour Los J. Said: 

The sentencing judge while applying numerous factors in favour of the appellant made an error in applying against the appellant certain factors which should have been applied otherwise. The apparent one relates to the relationship between the appellant and the deceased. The appellant was a fool. But apart from undergoing the punishment imposed by the court, he would be suffering for the rest of his life from self-imposed punishment. The self-imposed punishment is that he had lost a cousin brother whose assistance he would need in difficult times. While there is therefore a need for general deterrence, in terms of personal punishment, he would be suffering twice.

16.	It does not follow, however, that sentences in these situations should be reduced significantly, for the simple reason that a life has been taken unlawfully and whether the person killed is a relative or not a precious life has been taken and therefore appropriate sentences ought to be imposed to exact respect for the sanctity of life and the rule of law. The maximum penalty of life imprisonment bespeaks of that, hence, a significant reduction of sentences in killings of relatives will be seen as unduly condoning these types of killings or that they are treated as any less serious.

17.	And to that end what His Honour Gavera-Nanu J. said in The State v Saku Sogave (2000) N2086 in respect of the principle merits consideration. His Honour there was basically of the view that the principle should not apply in all cases of parricide. His Honour there said:

With great respect, in so far as the principle was stated generally, I query as to whether it can or should be applied in all homicide cases where the victim is a relative, or at all. I rather think that if it has to be applied, it should be applied only in cases, where death was not intended by the offender, and the victim was a very close relative. For instance, in spleen killings, or beatings done in a fit of anger, or even deaths resulting from dangerous driving and so on. Where necessary, the offender should be required to produce evidence to prove that the person (relative) he killed will result in a loss to him within the meaning of the principle, especially if the victim was a distant relative or where the relationship between the offender and the victim is not clear. ... 

But in cases where the offender had deliberately set out to kill or do grievous bodily harm to a relative and caused the death of the relative, as was the case here, the principle should not be applied at all. In other words, the death of a relative should not be a mitigating factor for the offender's sentence or punishment. That indeed is the general community attitude in Papua New Guinea. The offender has to receive the full punishment for the crime he committed. I am unable to cite any case law, but it suffices to say that such community attitude is common knowledge. (Underlining added)

18.	But I guess that in the end it is a question of degree and any reduction of a sentence will depend on how closely related the offender and the deceased were, seen against the circumstances under which the offence was committed. So where there is a deliberate intention to kill or do grievous bodily harm, I agree that an offender should get very little reduction, if at all, unless there is evidence of extenuating circumstances such as de facto provocation for instance.
 
19.	In the present case you said you killed your own brother (fratricide) unconsciously because as you said you were under the power of sorcery performed on you by one of your uncles. I do not take your claim of sorcery seriously though I do take your killing of your blood brother as a mitigating factor in keeping with the principle in Kesino Apo. 

20.	Now turning to your aggravating factors. You used an offensive weapon - a bush knife - to attack your brother catching him completely unaware. He did not in any way provoke your attack on him. He simply did not have the opportunity to defend himself or escape. In fact escape would have been impossible as you attacked him in your family kitchen. You struck him in the head area twice and that is to me evidence of a strong intention to cause grievous bodily harm to your brother. Lastly the homicide offences are very prevalent. So what then should be an appropriate sentence for you?

21.	The offence of murder is a very serious one and that can be seen from the maximum penalty that the law provides for it which is life imprisonment. The penalty reflects the society's view of the offence. The law which is the expression of the peoples' or society's view through Parliament considers the taking of life as something very serious so that people who take other peoples' lives should be severely punished. So while the punishment is to exact respect for life it is also the law's denunciation of the act of taking human life. Of course the law recognizes and in fact provides that some killing can be excused in law while some can be mitigated, such as killing of a close relative as we have seen, without losing sight of the need to advance the purposes or objectives of sentencing for homicides generally which are to punish the guilty, condemn or denounce the perpetration of these offences and of course rehabilitation. 

22.	It is settled that the maximum penalty is reserved for the worst instances of a particular offence and that each case has to be treated on its own merits. (Goli Golu v The State [1979] PNGLR 653; Avia Aihi v The State (No.3) [1982] PNGLR 92)

23.	I agree with both counsel that yours is not the worst type of murder. Hence it should not warrant the maximum penalty. And yes what your sentence ought to be guided by the principle in Manu Kovi. But should the sentence be in the upper end of Category 1 and in the lower end of Category 2 (13 – 16 years) as your lawyer suggested or under Category 3 (20-30 years) as suggested by the State?

24.	I do find elements of all three categories present in your case. There does not seem to have been any pre-planning on your part. If anything you seemed to have acted spontaneously. But you used an offensive weapon and judging by the location and number of your knife blows to the deceased you displayed a strong intention to inflict grievous bodily harm on him. Nobody strikes someone on the head without at least intending to do that person some harm.

25.	So taking all of these and the other aggravating and mitigating factors into account, I am of the opinion that your sentence should fall somewhere in the range suggested by your lawyer – in the 13 – 16 years range. But before I set a starting point for you, do any of the cases cited by counsel bear similarity with your case? 

26.	Granted the circumstances of the cases cited to me are generally not similar to your case but what they do is give a general picture of the general trend of sentencing for this offence. 

27.	Joseph Enn v The State (2004) SC738: The appellant appealed against her sentence of 20 years. An argument erupted at a mediation meeting between the deceased and two others. After they were stopped, the deceased walked back to where he was, to sit down. The appellant armed with a long bush knife walked up behind the deceased and struck the deceased with the bush knife on the left side of the neck. The impact of the knife blow was such that, the head was totally severed from the body. The Supreme Court affirmed the sentence of 20 years.

28.	 The State v Henry Kare; CR 498 of 2010 (unreported and unnumbered judgment dated 9th August 2013). There I sentenced a youthful offender to 15 years imprisonment on a guilty plea for murder. The prisoner in that case inflicted multiple injuries on the victim with a bush knife. He was drunk but was provoked in the non-legal sense by the deceased, expressed remorse and was a first time offender.

29.	The State v Laiam (2010) N3995: The prisoner stabbed the deceased to death on the chest once with a knife. He pleaded guilty to the charge and was sentenced to 15 years.

30.	The State v Anton (2010) N 4117: The prisoner stabbed another woman, whom she suspected of having an affair with her husband, three times with a kitchen knife. The victim died almost instantly. On a plea of guilty Cannings J. held that the starting point for this type of murder (where there is no strong intent to cause grievous bodily harm, use of weapon and some element of viciousness) ought to be 16 – 20 years. There were a number of mitigating factors hence a head sentence below the starting point was considered warranted. A sentence of 14 years was imposed.

31.	Pauline Painuk v. The State, SCRA 54 of 2000 (unnumbered and unreported dated 22nd November 2000): There the Supreme Court confirmed a sentence of 18 years to a plea of murder where the appellant had stabbed the deceased, a young school girl twice.

32.	The State v Lagu (2011) N4354: The prisoner pleaded guilty to killing a fellow villager by stabbing him with a pocket knife during a family gathering for no apparent reason at all. He was sentenced to 20 years.

33.	The State v Pake (2007) N5051: The prisoner pleaded guilty to murder. He had approached a group of friends who were sitting down telling stories and suddenly attacked one of his friends with a bush knife, inflicting a fatal wound to his neck. It was a vicious attack, with strong desire to do grievous bodily harm. He was sentenced to 20 years.

34.	My search for cases of similar nature to yours yielded the following results. 

35.	The State v Saku Sogave (supra): There the prisoner pleaded guilty to the charge of manslaughter after plea bargaining. In the course of an argument with the deceased, who was his uncle over a piece of land, the prisoner attacked him with a bush knife, inflicting three direct and vicious blows to the skull, the neck and the side. The neck was completely severed. The deceased died instantly as a result. The attack was unprovoked and the deceased was a defenseless old man. There was deliberate intention to cause serious injury or death to the deceased. The court took these into account as aggravating factors. It, however, considered the following mitigating factors. The prisoner surrendered himself to the police and admitted committing the crime, pleaded guilty, was a first time offender, expressed remorse and was a close relative of the deceased hence his loss was self-inflicting as he lost someone from whom he could get help in life. The prisoner was sentenced to 20 years. His Honour Gavara-Nanu J. commented though that this was a case where the prisoner ought to have been charged with murder.

36.	The State v Jack Mek (1997) N1575: The prisoner, a youth in his early 20s was sentenced after trial for murder to 8 years imprisonment. He axed his step-father (his deceased biological father's brother) to death after he sided with his mother in an argument with the deceased over the prisoner's sister. The trial judge, His Honour Injia (as he then was) found that the prisoner was incited into killing the deceased by his mother. He took into account that the prisoner was "a young man who had a long future ahead without a father to help him make it through young life, marriage and other aspect of life. By his own doing, he has lost his step-father" [and will have difficulty making] it through in life to become a man." He also took into account that loss of a close relative is a mitigating factor. 

37.	The State v Baipu (2003) N2451: The prisoner pleaded guilty to killing his uncle on suspicion that the deceased was responsible for the death of his father and his wife through sorcery. The matter was taken to the Village Court where compensation was ordered against the suspects. The prisoner did not want to take the compensation until and unless the suspects handed over the implements of sorcery. The mediation was adjourned but soon after that the prisoner apprehended the deceased and another suspect and tortured them. The deceased died as a result while the other suspect escaped. He further apprehended and tortured another man and tortured him but the police intervened. It appeared also that the prisoner had previously undertaken not to harm the suspects but as it turned out he reneged on his undertaking. The Medical Report on the deceased revealed that his forearm was amputated, his radial artery was severed and that his left knee was fractured. The deceased died of severe and heavy blood loss. Even though the prisoner pleaded guilty and was a first time offender and of prior good character, His Honour Jalina J. sentenced him to life imprisonment.

38.	In The State v Matai (2011) N4256 the prisoner pleaded guilty to murdering his brother-in-law by cutting him with a bush knife. He inflicted several cuts to the deceased on various parts of his body. The prisoner and the deceased had long running tensions. The court found that there was non-legal provocation but the viciousness of the attack warrant a heavy sentence hence he was sentenced to 22 years.

39.	So taking the above sentences as a guide together with the circumstances of the instant case I must first fix a starting point between the range of 16 -20 years, being the range I find to be appropriate thus putting your case within Category 2 of Manu Kovi.

40.	 It must be reiterated again that killing of a relative is a mitigating factor that is self inflicting. In this case the prisoner has lost his own brother and indications are that he would be other only surviving male sibling and in so doing he has placed unnecessary burden on himself in that not only has he lost his brothers services, he has also deprived his own mother and his sister-in-law and her children of the support and care that they would have got from the deceased. Hence he deserves a discount.

41.	However, the attack on your brother as I have said was totally unexpected and unprovoked. I have also found that there was a strong intention to cause grievous bodily harm and this I do take into account. There is, however, no evidence that you pre-planned to attack your brother. Despite that, you have unnecessarily taken a life and it does not matter that it was your own brother that you killed. You must pay for your crime because you simply do not have the right to take someone else's life.

42.	Therefore in the circumstances I fix a starting point of 17 years and taking your mitigating factors and aggravating factors into account I sentence you to 15 years. Of this, 1 year, 5 months and 13 days shall be deducted from the time you spent in pre-sentence custody. You will therefore serve 13 years, 6 months and 17 days at Giligili Corrective Institution. 

43.	There is no Pre-Sentence Report to support a suspension of your sentence (whether partially or wholly) hence there will be no suspension. (Public Prosecutor v Don Hale (1998) SC 564) You will therefore serve the full term of your resultant sentence. 

Ordered accordingly.
_______________________________________________

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