The State v Seth Ujan Talil (2010) N4159

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

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

National Court: Cannings J

Judgment Delivered: 17 November 2010

SENTENCE

CRIMINAL LAW—sentencing—Criminal Code, s299 (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 s7(1)(b) and s8 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; Paul Mase v The State [1991] PNGLR 88; Public Prosecutor v Sidney Kerua [1985] PNGLR 85; Steven Loke Ume 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.

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...