N6435
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR No. 1629 OF 2015

THE STATE
V
RODNEY TAUBEDURA

CR No. 1631 OF 2015

THE STATE
V
FT (A JUVENILE)

Misima: Toliken, J
2016:  06th, 15th April
CRIMINAL LAW – Sentence – Murder – Plea – Deceased speared on right ribs by adult offender, assisted by juvenile offender – Degree of participation considered – Adult offender, main perpetrator - Mitigating and aggravating factors considered – Appropriate sentence for adult offender - 16 years less pre-sentence custody period – Nil suspension – Criminal Code Ch. 262, ss 7, 300 (1)(a).

CRIMINAL LAW – Sentence – Juvenile – Application of Juvenile Justice Act 2014 - Interest and welfare of juvenile paramount – Guiding principles and principles of sentencing juveniles considered – Need for juvenile to accept responsibility for offence – Balanced with need for rehabilitation and re-integration – Appropriate sentence – 5 years less time in custody – Full suspension on condition – Juvenile Justice Act 2014, ss 6, 76, 17. 
Cases Cited:
Avia Aihi v The State (No.3)[1982] PNGLR 92
Goli Golu v The State [1979] PNGLR 653
Manu Kovi v The State (2005) SC 789
Saperus Yalibakut v The State (2006) SC 890
The State v Amos Young (2008) N3312
The State v Roy Fele & Nansen Fele; (No. 3) CR No. 1280 of 2010 (Unreported judgment delivered on 21st July 2013 at Alotau)

Counsel: 
   
H Roalakona, for the State      
C Kambua, for the Prisoner

JUDGMENT ON SENTENCE
15th April, 2016:
1.	TOLIKEN	 J.	Rodney Taubedura (Rodney) and FT, on 06th April 2016, the State presented an indictment charging you jointly with one count of murder, an offence Section 300 (1) (a) of the Criminal Code Ch. 262. You were charged that on 30th July 2015 at Gawa Island, Milne Bay Province, you murdered one Beru Mukaisi. (Deceased) You both pleaded guilty to the charge.

2.	You agreed to the following facts which were put to you on arraignment, and it is upon these facts that I am going to sentence you. On Wednesday 29th July 2015 between 9.00a.m and 1.30p.m., the deceased, assisted by village youths chopped down coconut trees to clear land for the construction of a proposed new church building for the COC Church on Gawa Island. At about 6.00p.m that same day you Rodney Taubedura went to the site and cut down 3 betel nut trees owned by your uncle, and 3 young pawpaw trees and flowers owned by the deceased. This made the deceased angry.

3.	The next day, Thursday the 30th of July 2015, between the hours of 6.00a.m. and 8.00a.m, the deceased was still angry. So, he armed himself with a pinch bar and walked onto the road where he saw two young men, who, he suspected of having cut his pawpaw trees and flowers, and he chased them towards the direction where the two of you were standing, also on the main road. As the deceased approached the two of you, you Rodney called to your brother FT to get you a spear. FT passed you a spear and you speared the deceased on his right rib occasioning him grievous bodily injury from which he died. When you, Rodney, speared  the deceased you intended to cause him grievous bodily harm thereby causing his death while you FT, when you passed the spear to Rodney, you aided Rodney in killing the deceased within the meaning of Section 7 of the Criminal Code. Hence you are equally responsible for the death of the deceased. 

4.	    The offence of murder carries a maximum penalty of life imprisonment. This is the maximum penalty but the court has the discretion to impose a term of years instead, depending on the circumstances of a particular case. It must be stated too that the maximum penalty for any offence is reserved for the worst instances of that offence. No two cases are entirely the same, so each case must be treated on its own peculiar circumstances. (Goli Golu v The State [1979] PNGLR 653 ; Avia Aihi v The State (No.3)[1982] PNGLR 92) 

5.	I must now determine appropriate sentences for the two of you and to do that I must consider the following issues:
1.	Is your case such a worst case that must attract the maximum penalty of life imprisonment?
2.	If not, then, taking into account your respective level or degree of participation in the commission of the offence, what shall be an appropriate sentence for you?
3.	Should any part of your sentence be suspended?
4.	And in respect of FT, since you are a juvenile, what would be a sentence that would best serve your interest and welfare?

6.	Before I get into that, let me first consider your personal particulars. Rodney, you are 25 years of age and come from Pawa village, Gawa Island in the Samarai-Murua District of Milne Bay Province. You are single and have never attended school hence illiterate. You come from a family of 8 siblings (6 boys including the co-accused Fabian and 2 girls) of which 	you are the eldest. You are a member of the United Church. You were arrested on 15th August 2015 and hence you have been in custody for 7 months and 3 weeks. You are a first time offender. 

7.	FT, you are 17 years old and are a younger brother of Rodney. You are the fourth born in your family.  You were 16 years old when you committed the offence and were doing Grade 7 at your local Primary School on Gawa Island. You are also a first time offender and you had been in custody for 7 months and 3 weeks.

8.	You both apologized for your offence and asked the court to be merciful to you. You offered to pay compensation. And FT, you told the Court that you want to go back to school.

9.	Ms. Kambua submitted, among other things, on your behalf that the circumstances of your case place it within Category 2 of the sentencing tariffs set by the Supreme Court in the case of Manu Kovi v The State (2005) SC 789, and should therefore attract a sentence between 16 - 20 years. This is because while you did use an offensive weapon to kill the deceased, you did not plan to kill him nor was the attack on the deceased vicious. You speared him only once with the spear, but unfortunately it pierced the deceased side and he died as a result. And your mitigating factors and anything that you said in your allocutus or submissions that are not contested by the prosecution should also be taken into account in your favour. 

10.	A pre sentence report was filed in your behalf. It appears from the report that there had been a long running dispute between your family and the deceased's family over the portion of land on which the COC Church was to be built. You related two previous incidents in 2007 and 2012, where the deceased and his family members and clansmen had gone onto the land and cut down coconut trees. On the first incident they chopped down 21 coconut trees and burnt down one dwelling house belonging to your family. In the second incident they cut down 2 of your coconut trees. In both instances your family remained calm and did not retaliate. The incident on the 30th July last year was the third incident involving the two families. You openly admitted your offence and accepted full responsibility for it. And you offered to pay customary compensation to the deceased's family. Because of the over-riding need to maintain a just, safe and secure society, the author of the report has left it to the court to assess a suitable punishment or sentence for you.

11.	In respect of FT, Ms Kambua submitted separately that your only involvement in the killing of the deceased is that you fetched the spear which your brother used to kill the deceased with. But even then, counsel submitted, you reluctantly did so after refusing your brother's request twice before you finally went and fetched the spear from a nearby house. Counsel said that you not only acted out of fear and duress from your brother, but also out of an obligation to your brother to protect yourselves from the deceased who was fast approaching you. 

12.	Ms. Kambua submitted that you should be sentenced according to the provisions of the Juvenile Justice Act 2014 (the JJA).  She left it to the Court to impose an appropriate sentence, and if it so decides to impose a custodial sentence for you, then counsel urged the Court to consider suspending the sentence either wholly or partially.
  
13.	A similar plea was also made by Mr. Joel in his Pre-sentence Report.  Mr. Joel particularly directed the Court to the need for diversion and avoidance of a custodial sentence because of your special status as a juvenile. He therefore recommends that you be placed on probation with additional conditions that you are to return to school to complete your Grade 7 education. 

14.	Ms Roalakona, on behalf of the State, agreed that a sentence for you should fall in the range of 16 - 20 years (Category 2 of Manu Kovi) because of the use of an offensive weapon, intention to cause grievous bodily harm when you speared the deceased on a vulnerable part of his body where the spear pierced his right lung, and that this offence is very prevalent. 

15.	So is this case that must attract the maximum penalty of life imprisonment? In other words is it a worst instance of murder. To answer this question I must first objectively assess your individual level of culpability and the harm you caused or which you ought to have reasonably foreseen as a direct result of your actions. This will assist me in setting a starting point for you.

16.	I must deal with each of you separately, principally because FT is a juvenile, and I am obligated by the JJA to accord you (FT) special and separate considerations from your adult brother Rodney. 

17.	Let me first consider your situation Rodney. You are the principal actor in this case. When you saw the deceased approached you angrily with a pinch bar, you immediately sent your brother FT to fetch a spear. It appears that FT was reluctant to heed your command and only went for the spear after the third time you asked or commanded him. You took the spear - an offensive weapon - from FT and threw it at the deceased piercing him on the right side of his rib cage, puncturing his lungs and he died from that. You aimed at a vulnerable part of the body and you displayed a level of deliberativeness that included not only an intention to disarm the deceased, but also to cause him some grievous bodily harm. You knew or ought to have known that landing your spear at that part of the body would cause serious bodily harm to the deceased. 

18.	You had the chance to retreat or get away, but, you did not - you stood your ground ready to fight. The end result of course is that you speared the deceased to death, so the seriousness of your action that morning speaks for itself. 

19.	I assess your culpability to be moderately high, but in the circumstances it cannot be said to be a worst instance of murder. In fact, as submitted by the lawyers, your case would attract a starting point somewhere within Category 2 of Manu Kovi, which laid the following guideline tariffs for murder.
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	

20.	For you I set a starting point of 17 years. What then should be an appropriate sentence for you?

21.	To arrive at an appropriate sentence for you I need to consider your mitigating and aggravating factors. I also need to compare your case with similar cases to maintain some consistency in sentencing. 

22.	I find the following factors to mitigate your offence:
	1.	You pleaded guilty to the charge.
	2.	You are first time offender.
	3.	You made early admissions to the police and co-operated 			with them.
	4.	You are a simple illiterate and unsophisticated islander.
	5.	There was no pre-planning involved.
	
23.	Against you are the following aggravating factors:
	1.	You used an offensive weapon to attack the deceased.
	2.	You speared him on a vulnerable part of the body.
3.	You instigated the incident by cutting down the deceased's pawpaw trees and flowers amidst festering bad feelings between your respective families due to your long running land dispute.
	4.	Though the attack was not vicious you displayed some 			deliberativeness and an intention to cause the deceased 			grievous bodily harm.
	5.	You did not act alone because you were assisted by your 			juvenile brother FT.
	6. 	The offence of murder is very prevalent, even for this 			province, which has a reputation for being peaceful place.

24.	Your lawyer had cited several cases to me to assist me in arriving at a sentence for you that fits the circumstances of your case. Only The State v Amos Young (2008) N3312, seems to bear some similarity to your case. There, the offender was watching a group of men exchanging obscenities at each other, but eventually also got involved. He was armed with double edged knife and assaulted one of the men. The deceased chased the offender who then stabbed him and another man with his knife. The deceased died as a result. After trial the offender was convicted and sentenced to 17 years imprisonment.

25.	A matter which I think also bears some similarity to your case is The State v Roy Fele & Nansen Fele; (No. 3) CR No. 1280 of 2010 (Unreported judgment delivered on 21st July 2013 at Alotau). In that case, I found the offenders guilty after trial for murdering their uncle. An argument had erupted between Roy Fele and his uncles, Bani Billy and Thomas Billy (deceased) over a land dispute.  An altercation or physical confrontation ensued and Roy Fele was joined by his brother Nansen and they started assaulting their uncles. Roy Fele chased after the deceased. He caught him by the chest and wrestled him to the ground and subsequently stabbed him on his lower abdomen with the metal object, inflicting a wound measuring 4 x 3 cm and extensive bruising around wound on the right scrotal area and on the deceased’s penis. Thomas Billy died less than an hour later that afternoon at the Suau Island Health Centre. While the Nansen Fele did not inflict the fatal wound on the deceased, he had joined his brother in assaulting the deceased and was therefore caught by Section 7 of the Code as a principal offender. I sentenced Roy Fele to 15 years imprisonment, and for Nansen Fele, for his part which I viewed as negligible, I sentenced him to the rising of the court because I felt that the time he spent in pre-trial custody (4 years and 4 months and 8 days) was sufficient punishment for him.

26.	Rodney, you must receive a sentence within the suggested range i.e. somewhere from the starting point of 17 years. I take into account your mitigating factors and those that aggravated your offence. Granted, you pleaded guilty and, thus, saved the State money because it did not have to bring in witnesses from your remote island. However, you unlawfully and prematurely had taken a precious life which is not yours to take. In so doing, you have deprived someone of a husband, father, uncle, grandfather and relative. The deceased was a Ward Councillor so the community has been deprived of a leader, though, I must say that he did not act like one that morning when he gave way to anger and went out armed looking for those responsible for cutting down his properties.

27.	Be that as it may, the offence is a very prevalent one. Too many people resort to violence in trying to solve problems and end up killing somebody. I must therefore impose a sentence that will have the effect of deterring you personally, and others as well, on your island and elsewhere.  

28.	An appropriate sentence for you should, all things considered, be 16 years. I therefore sentence you to 16 years imprisonment less the 7 months and 3 weeks of pre-sentence custody. None of your resultant sentence will be suspended. You will serve your sentence at the Giligili Corrective Institution.

29.	Now moving to you, FT. You are juvenile and will be treated quite significantly different from your elder brother Rodney. As a juvenile the law says that when dealing you, the over-riding or paramount consideration is your interest. (Section 6 (b) of the JJA). 

30.	The JJA accords you special protections. To start off with, you cannot be sentenced to life imprisonment because that is prohibited by Section 85 of the Act. While I can sentence you to a term of years, my powers to impose a custodial sentence are further restricted by Section 81 of the JJA, which, basically say that I can only do so if I consider that there are no reasonable alternatives or a combination of alternatives available to me, which, may include committing you to a Juvenile Institution. But even then, I must be satisfied that if I were to send you to jail, that the Corrective Institution has separate facilities for juveniles.

31.	The purposes of sentencing juveniles like you are to, (a) encourage you to understand the consequences of and be accountable for the harm caused by your actions; (b) promote an individual response which is appropriate to your circumstances and proportionate to the circumstances surrounding your offence; (c) promote your rehabilitation and reintegration into the family and community and (d) ensure protection of the public (section 76 (1)).

32.	And in determining a sentence for you, I have to take into account a whole range factors, which include the seriousness of your offence, your degree of participation in the offence, the harm done to the victim and whether it was intentional or reasonably foreseeable, your age, maturity, education, health, character and your attitude, and any history of previous offence and how you have responded to orders for offences, the views in a pre-sentence report and a whole lot of other factors. Also the court is not bound by strict precedence when sentencing juveniles. (Section 77 of the JJA) 

33.	So with those considerations in mind, I must say at the outset, that your culpability seems quite low, though, I do appreciate that you did fetch the spear that your brother eventually used to spear the deceased. If it weren't for your action, the outcome of that imminent altercation would probably have turned out quite differently. You may not have intended the harm that ultimately resulted, but, it was something that you definitely ought to have reasonably foreseen.

34.	 A starting point for you should be 8 years and I deliberately depart from the Manu Kovi guidelines because of your individual circumstances. Besides, I am not strictly bound by precedence when sentencing a juvenile like you as we have seen. But what then should be an appropriate head sentence for you? 

35.	Let me consider your mitigating and aggravating factors to arrive at that. First, your mitigating factors -
	1.	You pleaded guilty early to the charge.
	2.	You also co-operated with and made early admissions to the 			police. 
	3.	You are not merely a youthful offender but a juvenile.
	4.	You have expressed some remorse.
5.	Your degree of participation was minimal and you acted 	mostly when repeatedly prompted by your brother to fetch the spear. (Saperus Yalibakut v The State (2006) SC 890)
36.	Against you are the following aggravating factors:
	1.	The use of an offensive weapon.
	2.	The was some intention to cause grievous bodily harm on 			the deceased by your brother when he speared the deceased 			on a vulnerable part of the body. 
	3.	You aided your brother and hence you did not act alone
	4. 	This a very prevalent offence. 
37.	As I have said, I do not need to consider what sentences, I or other judges, have imposed in previous cases. This is because you must be accorded individualised treatment so that your interests can best be served. This, however, should not be seen as down-playing the seriousness of your offence which has resulted in the death of the deceased.  You should not be under any illusion that you will have to pay for your actions, that is, take responsibility for your part in the death of the deceased. The fact that you have been in custody for more than 7 months now is testimony to the consequences of criminal behaviour, and I am certain that you have learned at hard lesson as a result. 
38.	I accept and acknowledge that this crime has taken you out of school, for you were, but a child when you committed this offence. This will have a huge negative impact on you. I acknowledge that as a juvenile, you ought to be rehabilitated and reintegrated into your family and community. And the surest way for that to happen is through education. Hence, it is in your interest that, that is taken into account when considering what a fitting sentence for you should be.
39.	So taking the circumstances of your case and all the competing interests at play here into account, I think that an appropriate sentence for you should be well below the starting point of 8 years. I fix a head sentence of 5 years and sentence you accordingly. The 7 months and 3 weeks that you spent in pre-sentence custody will be deducted.
40.	Now should the resultant sentence or any part of it be suspended? I think that the circumstances warrant a suspension, so I suspend the sentence wholly on the condition that you will enter into a period of probation for 2 years with the following additional conditions:
	1.	You are to return to School and repeat Grade 7 at your local 		Primary School. The Head Teacher of your local Primary 			School is directed to enrol you for the second term of this 			academic year.  
	2.	You are not to get involved or participate in any disputes, 		discussions or proceedings involving the land over which 		your family and the deceased's family have been disputing. 
	3.	You are not to buy, sell, posses or consume any form of 			alcohol or dangerous drugs such as marijuana. 
41.	Those are my sentences for the two of you respectively and I order accordingly.
________________________________________________________________
The Public Prosecutor	: Lawyer for the State 
The Public Solicitor	: Lawyer for the Prisoners