The State v Joel Otariv (2011) N4409

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

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

National Court: Cannings J

Judgment Delivered: 6 October 2011

SENTENCE

CRIMINAL LAW—sentencing—Criminal Code, s299 (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 Loke Ume 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 (2008) N3302; The State v Seth Ujan Talil (2010) N4159

SENTENCE

This was a judgment on sentence for wilful murder.

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 s569 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...