The State v Seth Ujan Talil (2010) N4159

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 17 November 2010
• Citation: (2010) N4159
• Docket Number: CR NO 1295 OF 2006
• Court: National Court
• Year: 2010
• Judgement Number: N4159

Full Title: CR NO 1295 OF 2006; The State v Seth Ujan Talil (2010) N4159

National Court: Cannings J

Judgment Delivered: 17 November 2010

N4159

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1295 OF 2006

THE STATE

V

SETH UJAN TALIL

Madang: Cannings J

2010: 22 July, 6, 21 October, 1, 17 November

SENTENCE

CRIMINAL LAW – sentencing – Criminal Code, Section 299 (wilful murder) – trial – two offences – absence of proof that the offender directly killed the deceased – whether sentences should be served concurrently or cumulatively – totality principle

A man was convicted after trial of two offences of wilful murder committed at a mediation gathering. It was 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.

Held:

(1) When sentencing an offender for multiple offences, the court should arrive at a notional sentence for each offence, before determining whether the sentences should be served cumulatively or concurrently, applying the totality principle and deciding whether to suspend any part of the total sentence.

(2) The following notional sentences were imposed: count 1: 20 years; count 2: 20 years. The total potential sentence is thus 20 + 20 = 40 years imprisonment.

(3) The sentences should be served cumulatively as there were two different victims.

(4) However, under the totality principle, the court should avoid imposing a crushing sentence, thus the total sentence was reduced to 30 years imprisonment, apportioned equally between the two offences.

(5) The pre-sentence period in custody was deducted from the sentence but none of the sentence was suspended as the pre-sentence report did not warrant probation, there being no evidence of reconciliation with the relatives of the deceased or forgiveness or other resolution of the problems created by the offender.

Cases cited

The following cases are cited in the judgment:

Acting Public Prosecutor v Konis Haha [1981] PNGLR 205

Manu Kovi v The State (2005) SC789

Mase v The State [1991] PNGLR 88

Public Prosecutor v Kerua [1985] PNGLR 85

Steven Ume, Charles Kaona & Greg Kavoa v The State (2006) SC836

The State v Chris Baurek CR No 146 of 2009, 26.05.10

The State v Isak Wapsi (2009) N3695

The State v Seth Ujan Talil (2010) N4082

SENTENCE

This was a judgment on sentence for wilful murder.

Counsel

N Goodenough, for the State

A Meten, for the offender

17 November, 2010

1. CANNINGS J: This is a decision on sentence for Seth Ujan Talil who has been convicted after trial of two counts of wilful murder. The deceased are two brothers, Gunai Dodo and Gulali Dodo, aged about 42 and 35 years respectively. They were violently attacked by a group of men, which included the offender, at a mediation gathering at Gonoa village in the Madang District on 19 January 2006. The cause of death in each case was haemorrhagic shock due to multiple knife and axe wounds.

2. The deceased were among a group of five people who were alleged to have used sorcery to kill a young woman several months previously. At the trial it was proven that the offender attacked one member of the group of alleged sorcerers (not the deceased) with a bushknife, causing him life-threatening injuries and maiming him for life. It was not proven that the offender directly killed either of the deceased. He was, however, convicted of wilful murder by virtue of Sections 7(1)(b) and 8 of the Criminal Code.

3. Section 7(1)(b) applied as it was proven beyond reasonable doubt that the offender was present at the scene and acted for the purpose of enabling and aiding others to wilfully murder the two deceased. He encouraged and assisted in the deliberate killing of them. He was therefore deemed to have taken part in committing the two offences of wilful murder and to be guilty of them. He was also convicted under Section 8 as the offences were committed during the course of prosecuting an unlawful purpose in conjunction with others.

4. Further details of the circumstances of the offences are in the judgment on verdict: The State v Seth Ujan Talil (2010) N4082.

ANTECEDENTS

5. The offender has no prior convictions.

ALLOCUTUS

6. The offender was given the opportunity to address the court. He said:

I say sorry to the Court for taking up a lot of the Court’s time. I ask for the Court’s mercy and will accept any sentence that the Court imposes.

PRE-SENTENCE REPORT

7. A pre-sentence report prepared by the Madang branch of the Community-Based Corrections and Rehabilitation Service shows that Seth Ujan Talil is 25 years old and single. He comes from Bilia village. His parents separated when he was young and his father died soon afterwards. He has been raised by his mother in the village. He has three brothers and one sister, all of whom are younger than him. He has a grade 10 education. He has spent a number of years in formal employment but in recent times has been engaged as a subsistence farmer and he wants to return to that way of life after serving his sentence. He is a member of the Lutheran Church. There is little information available as to the attitude of his family or his village people to the commission of the offences. More significantly, the deceaseds’ relatives have not been interviewed. There is no evidence of reconciliation or forgiveness or payment of compensation or any indication that there has been any customary resolution of the problems created by the deaths. Despite this paucity of information it is concluded that the offender is suitable for probation for a period of two years.

8. As I indicated at the sentencing hearing, this recommendation was made without any basis and without an appreciation of the gravity of the offences of which the offender has been convicted.

SUBMISSIONS BY DEFENCE COUNSEL

9. Mrs Meten submitted that this was not a ‘worst case’ of wilful murder. There are a number of mitigating factors, she submitted, that bring the case within the second category of cases recognised by the Supreme Court in Manu Kovi v The State (2005) SC789, so the starting point should be in the range of 20 to 30 years imprisonment for each offence. It was not a direct killing and the offender had minimal involvement in the deaths. He is a first-time offender. The sentences should be served concurrently as the offences were committed during a single incident. The mitigating factors warrant a total sentence of no more than 20 to 30 years imprisonment, Mrs Meten submitted.

SUBMISSIONS BY THE STATE

10. Mr Goodenough, for the State, agreed that the case fell within the second category of the Kovi guidelines. An aggravating factor is that the offences were committed at a mediation gathering: the murder of people at such a gathering strikes at the very heart of mediation. The court must send a strong message through its sentencing that such conduct is condemned.

DECISION MAKING PROCESS

11. 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 for each offence?

· step 3: what sentences have been imposed for equivalent offences?

· step 4: what is the head sentence for each offence?

· step 5: should the sentences be served concurrently or cumulatively?

· step 6: what is the effect of the totality principle?

· step 7: should the pre-sentence period in custody be deducted?

· step 8: should all or part of the sentence be suspended?

STEP 1: WHAT IS THE MAXIMUM PENALTY?

12. 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.

STEP 2: WHAT IS A STARTING POINT FOR EACH OFFENCE?

13. The Supreme Court has in two recent cases given sentencing guidelines for wilful murder: Manu Kovi v The State (2005) SC789 and Steven Ume, Charles Kaona & Greg Kavoa v The State (2006) SC836.

The Kovi guidelines

14. 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 table 1.

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 – No weapons used – little or no 15-20 years
mitigating factors – no pre-mediation or pre-planning
aggravating factors. – minimum force used –
absence of strong intent to kill.

2 Trial or plea – mitigating Pre-planned, vicious attack – 20-30 years
factors with aggravating weapons used – strong desire
factors. to kill.

3 Trial or plea – special Brutal killing, killing in cold Life
...