N4409
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 973 OF 2010

THE STATE

V

JOEL OTARIV

Madang: Cannings J
2011: 16 August, 21 September, 6 October

SENTENCE

CRIMINAL LAW – sentencing – Criminal Code, Section 299 (wilful murder) – guilty plea – man killed a woman by striking her on the head with a rock, then drowning her in a river, immediately after raping her – sentencing guidelines for wilful murder – when appropriate to impose death penalty – sentence of life imprisonment

A man pleaded guilty to the wilful murder of a woman in the village. While the deceased was bathing in a river, the offender approached her and raped her, then struck her over the head with a rock, then deliberately pushed her head into the water and drowned her. The State sought a sentence of life imprisonment.

Held:

(1)	The starting point for sentencing for this sort of killing, special aggravating factors, including commission of the offence of wilful murder immediately after the rape of the victim, with some mitigating factors, is life imprisonment.

(2)	Mitigating factors are: the offender acted alone, not in a mob; he co-operated with the police and made early admissions of guilt; he is a first time offender; he pleaded guilty.

(3)	Aggravating factors are: this was a vicious and barbaric killing; the offender directly killed the deceased; the offence was committed immediately after committing another very serious offence; there was a strong desire to kill.

(4)	The mitigating factors are not strong enough to warrant a sentence below the starting point, but are sufficient not to require the maximum penalty. The appropriate sentence is life imprisonment.

Cases cited

The following cases are cited in the judgment:

Manu Kovi v The State (2005) SC789
Saperus Yalibakut v The State (2006) SC890
Steven Ume, Charles Kaona & Greg Kavoa v The State (2006) SC836
The State v Chris Baurek CR 146/2009, 26.05.10
The State v Isak Wapsi (2009) N3695
The State v Moses Nasres CR 1365/2006, 20.04.08
The State v Seth Ujan Talil (2010) N4159

SENTENCE

This was a judgment on sentence for wilful murder.

Counsel

A Kupmain & S Collins, for the State
M Mwawesi & J Mesa, for the offender

6 October, 2011

1. CANNINGS J: This is a decision on sentence for a young man, Joel Otariv, who pleaded guilty to the wilful murder of a fellow villager, a 63-year-old woman, Maria Azara. The offence was committed at Sirin village in the Bogia District, Madang Province, on the afternoon of Friday 22 January 2010. The deceased was bathing in the river close to the village. The offender saw her, approached her, grabbed her, raped her, then struck her on the head with a rock, then deliberately pushed her head into the water and drowned her. The offender was arrested soon after the incident. He admitted to the police what he had done and said he was under the influence of marijuana.

2. An inquiry under Section 569 of the Criminal Code was conducted prior to arraignment to determine whether the offender was capable of understanding the proceedings. The court heard psychiatric evidence that he had during the period that he was in remand been treated with anti-psychotic medication to deal with a chronic cannabis-induced psychosis and that his condition had improved and stabilised and that he was no longer under medication. The court determined that he was capable of understanding the proceedings and therefore fit to plead.

ANTECEDENTS

3. The offender has no prior convictions.

ALLOCUTUS

4. The offender was given the opportunity to address the court on two separate occasions but said that he had nothing to say.

OTHER MATTERS OF FACT

5. As the offender has pleaded guilty he will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State (2006) SC890). It is significant that he has cooperated fully with the police. He was rounded up by people in the village immediately after the incident, then tied to a coconut tree all night before being handed over to the police the next day. When subject to a formal police interview on 19 August 2010 he made admissions, acknowledged his guilt and said that he intended to kill the deceased.

PRE-SENTENCE REPORT

6. Joel Otariv is 23 years old and single. His parents are alive but elderly. He was raised in the village. He has a grade 6 education. His father has two wives and the offender is among ten children of these marriages. The offender says that he had a good family upbringing. He has no formal employment record and expresses no interest in working for wages. He is a villager and is content to stay that way. He admits that he uses drugs and says that this was what caused him to commit the offence. The deceased's relatives were not consulted by the author of the report, and there is no evidence of any reconciliation with them. The report concludes that the offender is not suitable for probation.

SUBMISSIONS BY DEFENCE COUNSEL

7. Mr Mwawesi submitted that there are mitigating factors – the offender confessed when interviewed by the police and continued to take responsibility for his actions by pleading guilty – which brings the case within the third category of cases recognised by the Supreme Court in Manu Kovi v The State (2005) SC789, and a sentence in terms of a specific number of years of imprisonment would be appropriate.

SUBMISSIONS BY THE STATE

8. Mr Kupmain stressed that the mitigating factors highlighted by Mr Mwawesi were the only matters that could conceivably work in favour of the offender but they faded into insignificance when compared to the gravity of the offence. The offender killed the deceased in the course of committing another very serious offence, there was a strong intention to kill and no remorse at all has been shown. The State's position is that life imprisonment is necessary.

DECISION MAKING PROCESS

9. 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?
•	step 3: what sentences have been imposed for similar offences?
•	step 4: what should the head sentence be?
•	step 5: should the pre-sentence period in custody be deducted?
•	step 6: should any part of the sentence be suspended?

STEP 1: WHAT IS THE MAXIMUM PENALTY?

10. 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.

11. Wilful murder is one of only four crimes that attract the death penalty. The others are treason (Section 37), piracy (Section 81) and attempted piracy (Section 82). For other homicide offences (murder, manslaughter and infanticide) the maximum penalty is life imprisonment.

STEP 2: WHAT IS A PROPER STARTING POINT?

12. The Supreme Court has in two recent cases given sentencing guidelines for wilful murder: Manu Kovi v The State (2005) SC789 (Injia DCJ, Lenalia J and Lay J) and Steven Ume, Charles Kaona & Greg Kavoa v The State (2006) SC836 (Kapi CJ, Injia DCJ, Los J, Hinchliffe J and Davani J).

The Kovi guidelines

13. 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 the following table.

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

14. In Ume three men were convicted of the payback killing 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. 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. 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

15. I will apply the guidelines from those two cases to arrive at a starting point. As for the Kovi guidelines this is a category 3 case: it was a cold-blooded, brutal, horrific killing of a defenceless and harmless person. There are some mitigating factors, two of which were highlighted by the defence counsel, so under these guidelines the starting point is life imprisonment, not the death penalty. Under the Ume guidelines, because the offender raped the deceased before he killed her, the case is one of the eight types (No 4 – killing of a person in the course of committing other crimes perpetrated on the victim) that the Supreme Court suggested would warrant the death penalty. However, as I said in The State v Isak Wapsi (2009) N3695 the court should hesitate to use the death penalty as a starting point if an offender has pleaded guilty. The starting point is therefore life imprisonment.

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

16. I have sentenced offenders for wilful murder in four recent cases, which are summarised in the following table.

SENTENCES FOR WILFUL MURDER, 2008-2010, CANNINGS J

No	Case	Details	Sentence	
1	The State v Moses Nasres CR 1365/2006, 20.04.08, Kimbe	Trial – the offender lay in waiting for the deceased as he walked along a track in a squatter settlement – as the deceased walked past, the offender emerged from behind some flowers and pushed an iron rod though the deceased's head, killing him instantly.	Life imprisonment
	
2	The State v Isak Wapsi (2009) N3695, Madang 	Guilty plea – offender killed a fellow villager who he claimed 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.	25 years
	
3	The State v Chris Baurek CR 146/2009, 26.05.10, Madang 	Guilty plea – offender killed a fellow villager who he claimed was a sorcerer – he joined with two others in chasing the deceased and attacking him on his back with bushknives – mitigating factors included that the offender, though fit to plead, had mental and physical health issues, he also made very early admissions of guilt.	20 years	
4	The State v Seth Ujan Talil (2010) N4159	Trial – offender sentenced for two offences of wilful murder committed at a mediation gathering – 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.	30 years

STEP 4: WHAT IS THE HEAD SENTENCE?

The approach

17. 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 set below the starting point range. The more aggravating factors present, the more likely the head sentence will be above the starting point.

Mitigating factors

•	The offender acted alone.
•	He cooperated fully with the police and made early admissions of guilt.
•	He is a first time offender.
•	He pleaded guilty.

Aggravating factors

•	This was a vicious and barbaric killing.
•	The offender directly killed the deceased.
•	The offence was committed immediately after committing another very serious offence.
•	There was a strong desire to kill.
•	The offender has shown no remorse.

Determination

18. The mitigating factors are not strong enough to warrant a sentence below the starting point, but are sufficient not to require the maximum penalty. This case is more serious than the cases of Wapsi, Baurek and Talil and is of similar gravity to Nasres. The appropriate sentence is life imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

19. No. As the offender is sentenced to life imprisonment, it is not appropriate to deduct the pre-sentence period that he has spent in custody.

STEP 6: SHOULD ANY PART OF THE HEAD SENTENCE BE SUSPENDED?

20. No. The pre-sentence report is not favourable and the offence is too serious to warrant any suspension. It would also not be proper to suspend any part of the head sentence as the offender has been sentenced to life imprisonment.

SENTENCE

21. Joel Otariv, having been convicted of one count of wilful murder under Section 299 of the Criminal Code, is sentenced as follows:

Length of sentence imposed	Life imprisonment	
Pre-sentence period to be deducted	Nil	
Resultant length of sentence to be served	Life imprisonment	
Amount of sentence suspended	Nil	
Time to be served in custody	Life imprisonment	
Place of custody	Beon Correctional Institution	

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