The State v Daniel Javopa (2014) N5579

• Jurisdiction: Papua New Guinea
• Judge: Toliken, AJ
• Judgment Date: 17 April 2014
• Citation: (2014) N5579
• Docket Number: CR NO. 326 OF 2012
• Court: National Court
• Year: 2014
• Judgement Number: N5579

Full Title: CR NO. 326 OF 2012; The State v Daniel Javopa (2014) N5579

National Court: Toliken, AJ

Judgment Delivered: 17 April 2014

N5579

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 326 OF 2012

THE STATE

V

DANIEL JAVOPA

Popondetta: Toliken, AJ.

2013: 26th September

2014: 17th April

CRIMINAL LAW – Sentence – Double Wilful Murder of mother and child – Guilty plea – Worst case - No exceptional or especially aggravating factors – Life sentences – To be served concurrently - Criminal Code Act Ch. 299

Cases Cited:

Papua New Guinea Cases

Steven Loke Ume v The State (2006) SC 836

Goli Golu v The State [1979] PNGLR 653; Avia Aihi v The State (No.3) [1982] PNGLR 92; Ure Hane v The State [1984] PNGLR 105)

The State v State v Ombusu (Unreported and Unnumbered National Court Judgment (17.02.95

Ombusu v The State [1996] PNGLR 335

The State v Ben Simakot Simbu (N0.2) (2004) N2548

The State v Mark Poroli (2004) N2655

The State v Steven Loke Ume, Charles Patrick Kaona and Greg Wawa Kavoa (Unnumbered and Unreported Decision of Woods J dated 7 February 1997):

John Elipa Kalabus v The State [1988] PNGLR 193

Manu Kovi v The State (2005) SC 789

Regina v Peter Ivoro [1971-72] PNGLR 374

The State v Mongi (2007) N3259

The State-v-Arua Maraga Hariki (2003) N2332

Arua Maraga Hariki v The State, SCR 12 of 2013 (unnumbered and unreported judgment dated 29th August 2007)

The State v Kiapkot (2011) N4381

The State-v-Kenny Wesley CR. No. 293 of 2010 (Unreported Judgment of dated 1.5.12.)

The State v Amos (No.3) (2012) N5073

The State-v-Seth Ujan Talil (17.11.2010) N4159

Alois Erebebe & Anor v The State (2013) SC 1228

Tony Imunu Api-v-The State (29.08.01) SC684

The State v Peter Wirundi (2010) N3994, The State v Sapu (2012) N4533 and The State v Tayamina (No.3) (2013) N5288

Overseas cases:

Profitt v Florida 428 US 249

Sandra Lockett v Ohio [1978] USSC 154

Counsel:

J.Waine, for the State

J. Mesa, for the prisoner

JUDGMENT ON SENTENCE

17th April, 2014

1. TOLIKEN, AJ: On 12th September 2013 the prisoner pleaded guilty to an indictment charging him with two counts of wilfully murder in contravention of Section 299 of the Criminal Code Act Ch. 262.

2. The indictment charged the prisoner as follows:

COUNT ONE:

“DANIEL JAVOPA of Kararat Village, Oro Bay, Oro Province stands charged that on the 17th of December 2011, t Oro Bay, in Papua New Guinea he wilfully murdered JUNIOR ALESTER SORARI.

COUNT TWO:

AND ALSO the said DANIEL JAVOPA of Kararata Village, Oro Bay, Oro Province stands charged that on the 17th of December 2011, at Oro Bay, in Papua New Guinea, he wilfully murdered VICTORIA SORARI.

THE FACTS

3. The brief facts for the purpose of arraignment are that up to the 17th of December 2011 the prisoner had been living in a de facto relationship with one Victoria Sorari (deceased victim) and her 7 year old son Junior Alister Sorari (deceased victim) at Kararata Village, Oro Bay, Northern Province. On the morning of the 17th of December 2011 the prisoner’s sister and Victoria Soari accompanied the prisoner to weed the prisoner’s garden at his request. Victoria Sorari took her son Alister along. After weeding the garden for some time the prisoner asked them to go further inland through scrubs and tall grass. When they came to a clearing where a fallen tree was the prisoner swung his bush knife at Victoria who was carrying her son Alister. In the process he chopped the child firstly on the right base of his skull. A second chop caught the child on the neck. The child sustained a fractured skull and a deep laceration to the neck as a result.

4. The prisoner then chopped Victoria on the left side of her neck severing the spinal cord and vertebrae leaving the head hanging only by the skin. Victoria further sustained a fracture to her left forearm (ulna). Both victims died from heavy loss of blood.

THE SENTENCING ISSUE(S)

5. The State had asked for the maximum penalty – death. Hence the issues for me to determine are –

1. Is this a worst instance of wilful murder?

2. If it is, is it deserving of the death penalty or a lesser penalty?

THE LAW

The Offence

6. The offence of wilful murder is provided by Section 299 of the Code in the following terms:

299. Wilful murder.

(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.

Sentencing Principles and Guidelines

7. The death penalty is not mandatory for while Parliament legislated for the ultimate penalty, it did not remove the sentencing court’s discretion under Section 19 (1)(aa) of the Code to impose a life sentence or a term of years depending on the circumstances of each case. Hence the death penalty remains merely the maximum. (Steven Loke Ume v The State (2006) SC 836)

8. What is, however, clear and implicit from Parliament’s prescription of the death penalty is that it views the wilful taking of life with such gravity so that where appropriate the death sentence must be imposed subject of course to the Court’s discretion. But under what circumstances should the death penalty be imposed and what should the court consider to impose it?

9. As is trite law the maximum penalty in any given case is always reserved for the very worst instance of the offence under inquiry. No two cases are identical hence, each case is to be treated on its own merits or peculiar facts. (Goli Golu v The State [1979] PNGLR 653; Avia Aihi v The State (No.3) [1982] PNGLR 92; Ure Hane v The State [1984] PNGLR 105)

10. For the offence of wilful murder, which prior to the 1991 re-introduction of the death penalty carried the maximum of life imprisonment, the Supreme Court in Ure Hane v The State (per Bredmeyer J. (supra)) considered the following circumstance as warranting the imposition of the then maximum –

(a) any murder done in the course or furtherance of theft;

(b) any murder by shooting or by causing an explosion;

(c) any murder done in the course or for the purpose of resisting or avoiding or preventing a lawful arrest, or of effecting or assisting an escape or rescue from legal custody;

(d) any murder of a police officer acting in the execution of his duty or of a person assisting a police officer so acting;

(e) in the case of a person who was a prisoner at the time when he did or was a party to the murder, any murder of a prison officer acting in the execution of his duty or a person assisting a prison officer so acting.

11. In Steven Loke Ume v The State (2006) (supra) (Kapi CJ, Injia DCJ (as he then was), Hinchliffe, Davani JJ.) had the occasion to expand on the principles laid in Ure Hane and provided further guidance on what a sentencing court can take into account when considering whether or not to impose the death penalty. It said (and perhaps it is appropriate if what it said could be cited verbatim here) that –

40. The punishment for willful murder must be considered in the same way punishment for other murder offences or any other criminal offence for that matter, is considered. The sentencing principles in homicide cases are settled. In the exercise of its sentencing discretion, the Court must take into account all relevant aggravating circumstances, all relevant extenuating circumstances and all relevant mitigating factors. The Court must then balance these factors and determine a punishment which fits the particular crime.

41. The consideration of aggravating factors is of course not new. They include pre-planning, degree of pre-mediation, weapons (if any) used, multiplicity of attack or injuries inflicted, any inhuman acts such as torture or cutting up the body performed after the killing, and so on.

42. As to extenuating circumstances, the concept is also not new. They relate to the circumstances of the commission of the offence itself – factors which reduce the seriousness of the crime. They are relevant factors for purpose of sentencing in all criminal offences. Examples of extenuating circumstances include de-facto provocation, duress or coercion, the degree and extent of the offender’s participation, the offender’s medical condition such as psychopathic personality, offender’s lack of sophistication or traditional customs, practices and beliefs which influence the offender to act in the way he did.

43. As for mitigating factors, relevant factors to be considered include the offender’s youth, good personal and family background, personal antecedents such as good character, education, employment and Christian background; first offender; guilty plea; early confession to police;...