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State v Togir [2021] PGNC 273; N9093 (18 June 2021)

N9093

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 754 OF 2020

THE STATE

V

JOB TOGIR

Aitape: Rei, AJ
2021: 08^th May & 18^th June

CRIMINAL LAW – sentence – prisoner pleaded guilty to a charge of wilful murder – prisoner wilfully murdered the victim with a bushknife killing him instantly – prisoner attacked victim while he was on his way to the river to bath – no provocation – attack on the victim was merciless and barbaric – mitigating and aggravating factors considered – prisoner sentenced to 22 years in hard labour less time spent in pre-sentence custody – s299 Criminal Code Act

Cases Cited:

Manu Koivi -v- The State [2005] SC 789
The State -v- Wakapo [2018] PGNC 427; N7529
The State -v- Kimam [2011] PGNC 58; N4323
The State -v- Apo [2019] PGNC 112; N7827
The state -v- Lati (No 2) [2009] PGNC 121, N3740
The State -v- Ahuma [1998] PNGC 134; 1789

Counsel:

Ms. T. Aihi, for the State
Mr. P. Moses, for the Prisoner

18^th June, 2021

1. REI AJ: INTRODUCTION: The prisoner Job Togir was charged with the offence of wilful murder on the 6^th day of June 2020 that on the 20^th day of February 2020 with intent to cause the death of a person namely Eddie Unakau.

2. He was 20 years of age at the time of his arrest and remanded by now he would be 21 plus years old.

INDICTMENT

3. An indictment was presented in the National Court of Justice at Vanimo, West Sepik Province on 18^th May 2021 that:

“JOB TOGIR of Umnau Village Aitape stands charged that he on the 20^th day of February 2020 at Umnau Village Aitape West Sepik Province Papua New Guinea wilfully murdered EDDIE UNAKAU.”

4. The indictment was read to him. Brief Statement of Facts was also read to him which it is alleged that on the 20^th day of February 2020 between 11 am and 1 pm Job Togir was at his house and saw the deceased Eddie Unakau who is his uncle walk to the river to have his wash. He followed the deceased to the river and used a bush knife and did cut the deceased on the head and again on his back causing the death of the deceased instantly.

5. The charge was laid under Section 299 which is in the following terms:

“(1) Subject to the succeeding provisions of this Code, a person

who unlawfully kills another person, intending to cause his death or that of some other person, is guilty of wilful murder.

(2) A person who commits wilful murder shall be liable to be sentenced to death.”

PLEA

5. The indictment was read to the accused again and was asked to enter a plea.

6. He entered a provisional plea of guilty.

7. Upon a perusal of the committal file on the matter, the Court confirmed the plea of guilty.

ADJOURNMENT

8. Both Counsels submitted in unison that the matter be adjourned to Aitape for sentencing as a Pre-sentence Report (“PSR”) had to be prepared by the Probation and Parole Office to be presented in Aitape for that purpose.

9. On the 18^th of June 2021, the matter was mentioned in Court in which both Counsels made oral Submissions on Sentence.

10. A PSR dated the 18^th of June 2021 was also filed by then.

DECISION ON SENTENCE

11. Mr. P. Moses for the prisoner and Ms. T. Aihi for the State filed written submissions.

12. Applying the case of Manu Koivi -v- The State [2005] SC 789 both counsels agreed that the facts of this case fall within Category 2 of that case and a sentence of 20 – 25 years imprisonment be imposed.

13. In considering a sentence to be imposed, the Court must give consideration to mitigating and aggravating factors.

14. The mitigating factors are:

(i) the prisoner entered early plea thereby saving costs and time

(ii) the expressed giving remorse in committing the crime

(iii) there was no pre-planning as the facts clearly state that he said his uncle the deceased Eddie Unakau walk to the river and he used his bush knife and cut him on the head causing instant death for no apparent reason

(iv) first time offender and

(v) acted alone without any preplanning

15. The aggravating factors are:

(i) it was a vicious attack which was savagery
(ii) lethal or dangerous weapon, a bush knife, was used to attack
(iii) the deceased was unarmed and defenceless
(iv) no apparent legal reason
(v) prevalence of the crime of wilful murder

16. I note from the submissions of Mr. P. Moses there is an extenuating factor in that the prisoner was raised without a father who left him and his other siblings with their mother who fended and provided for them as single parent.

17. To some youths the fact their father or mother leaves them and are being raised by a single parent provides encouragement to them to work hard and become responsible citizens against the odds of not having a steady family unit.

18. To others it brings misery and misfortunes thus provoking them to commit crimes without appreciating the seriousness of their actions.

19. Once they come face to face with the law, they come to court and express their sorrow and seek leniency on sentence.

20. The youth for today should; in my humble opinion, be looking forward to a better living and effectual participation in not only developing themselves but to help develop the nation. Every little act or omission done goes towards either development or depression in a society. They must become useful citizens of the country.

21. The prisoner here did not think likewise. He must be given a lengthy custodial sentence given the seriousness of the crime and its prevalence especially in this part of the country.

22. In passing sentence, I have had regard of a few cases in which decisions on sentence was made in similar cases.

23. The State -v- Manu Koivi [2005] PGSC 34; SC789 This case falls in within category 2 and 3 of the sentencing tariffs of wilful murder. This was a vicious attack on vulnerable parts of the body head, back ribs, weapon was used to inflict the wounds, and the wounds indicate a strong intent to kill. This was a killing of an innocent and defenceless person who was unarmed at that time.

24. The State -v- Wakapo [2018] PGNC 427; N7529 – Geita AJ (as he then was). The prisoner pleaded guilty to one count of wilful murder pursuant to Section 299 (1) of the Criminal Code. It was alleged that prisoner and two of his male friends went to a roadside market belonging to the deceased and his family. They enquired there and the deceased’s wife told them the deceased was not there and they left. Then later on in the night, the deceased was standing at his wife’s market and the prisoner jumped out and ran straight to the deceased and stabbed him on his left chest with a short knife and ran away. He died from loss of blood from the wounds and the court stated that this case fell in category 2 of wilful murder tariffs and sentenced the prisoner to 25 years imprisonment.

25. The State -v- Kimam [2011] PGNC 58; N4323 – Kangwia AJ (as he then was) The prisoner pleaded not guilty to one count of wilful murder pursuant to Section 299 (1) of the Criminal Code and was convicted after a trial. The prisoner attacked the deceased with a grass knife on the head. When the deceased stood up to defend himself, he stabbed him in the chest with that same grass knife. The deceased was unarmed and caught by surprise. Court accepted that this offence was not a premeditated or pre-planned attacked. And found that this case fell into the second category wilful murder tariffs suggested in Manu Koivi -v- The State. The prison was sentenced to 20 years imprisonment less pre-trial custody period.

26. The State -v- Apo [2019] PGNC 112; N7827 – Geita J. The prisoner pleaded guilty to one count of wilful murder pursuant to section 299 (1) of the Criminal Code. On 15 June 2018 the deceased was at his home with his grandchildren when the accused approached him armed with a bush knife and cut him on his neck. He further cut him twice on his arm as he lay bleeding. The deceased died from these wounds.

The court found that this case fell into the second category of wilful murder tariffs suggested in Manu Koivi. The prisoner was sentenced to 22 years imprisonment less pre-trial custody period.

The Court is mindful of the most aggravating feature of any homicide offence which is the loss of life.

Sanctity of Life

27. The most aggravating factor in any homicide case is the loss of life, especially where there are no lawful reasons available to the offender to do so.

28. In the case of The State -v- Lati (No.2) [2009] PGNC 121, N3740, the Court stressed that any homicide involving wilful murder is not just a mere breach of Section 299 of the Criminal Code Act. It is also a serious breach or taking away of a person’s fundamental right to live a free and happy life guaranteed to him or her by the Constitution of Papua New Guinea under Section 35 of the Constitution. To take him or her life away without any lawful reason is a serious breach of that fundamental basic human right.

29. I am reminded of the sentiments expressed by His Honour Kirriwom J in The State -v- Ahumpa [1998] PNGC 134; N1789 that:

“.....when you look at all these cases of deliberate and calculated murders, whether they involve pre-planning or not, whether they were carried swiftly or quickly or slowly and in the most gruesome, barbaric or agonizing manner or the victims are gunned down, axed or knifed or clubbed to death by heavy or blunt objects, the end result is the same, (that) a life has been prematurely taken.”

30. It is evident in this case the deceased did not anticipate any mishap on him going to the river to bath or relax. He knew very well that it was safe to do so as he had done no wrong to the prisoner or anyone else on any prior occasion. That the river was safe.

31. Fate had that it was his last day on earth.

32. There is no evidence that the prisoner was provoked. There is no evidence that he pre-planned to attack to cause grievous bodily harm to end his life. But there is clear evidence that the prisoner did inflict the wounds with the use of a lethal or dangerous weapon twice – the first blow landed on his skull and the second landed on his back, to end the life of an innocent human being abruptly. There is no evidence the deceased retaliated.

33. The prisoner knew the deceased had no way to defend himself. His attack on the deceased was vicious and barbaric.

34. Considering the range of sentences imposed in similar cases and applying the decision in the case of Manu Kovi -v- The State (supra) I consider that a sentence of 22 years is appropriate.

35. The prisoner has been in remand for 1 year 3 months and 18 days.

36. The prisoner is therefore sentenced to 22 years out of which the time spent in remand is deducted leaving him the balance to be served.
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Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Prisoner