The State v Joel Otariv (2011) N4409

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 06 October 2011
• Docket Number: CR No 973 of 2010
• Citation: (2011) N4409
• Court: National Court
• Year: 2011
• Judgement Number: N4409

Full Title: CR No 973 of 2010; The State v Joel Otariv (2011) N4409

National Court: Cannings J

Judgment Delivered: 6 October 2011

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

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