The State v Elison Tayamina (No 3) (2013) N5288

• Jurisdiction: Papua New Guinea
• Judge: Toliken AJ
• Judgment Date: 10 May 2013
• Citation: (2013) N5288
• Docket Number: CR 302 OF 2010
• Court: National Court
• Year: 2013
• Judgement Number: N5288

Full Title: CR 302 OF 2010; The State v Elison Tayamina (No 3) (2013) N5288

National Court: Toliken AJ

Judgment Delivered: 10 May 2013

N5288

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 302 OF 2010

BETWEEN

THE STATE

V

ELISON TAYAMINA

(No 3)

Alotau: Toliken AJ

2012: 04th, 05th, 06th, 07th, 14th September

2013: 07thMarch, 10th May

CRIMINAL LAW – Sentence – Wilful murder – Brutal attack on elderly female victim – Reputed sorceress – Multiple stab wounds – Vicious brutal attack on harmless and defenceless old woman - Juvenile offender – Belief in sorcery a mitigating factor – Prevalence of this type of killings – No respect for sanctity of life and rule of law – Denial of charge not an aggravating factor - Need for punitive and deterrent sentence – Age of prisoner taken into account – Existing sentencing guidelines considered - Sentence of 20 years - Criminal Code Act Ch. 262, s 299

Cases Cited

The following cases are cited in the judgment:

Goli Golu v The State [1979] PNGLR 653

Acting Public Prosecutor v Uname Auname & Ors [1980] PNGLR 510

Avia Aihi v The State (No. 3) [1983] PNGLR 92

Ure Hane v The State [1984] PNGLR 105

The State v Aiaka Karavea (1984) N452

Kwayawako & Ors v The State [1990] PNGLR 6

Rex Lialu - v - The State [1990] PNGLR 487

Lawrence Simbe v The State [1994] PNGLR 38.

The State v Kumbi Koti & Ors CR 94 of 1999 (Unreported and unpublished judgment dated 17th of November 2000)

The State v Apa Kuman [2000] PNGLR 319

The State v Boat Yokum (2002) N2337

The State v. Nickson Sambura & Anor (2002) N2219

The State v. John Baiga, CR 733 of 2003(Unreported and unpublished judgment dated 09th & 23rd July 2003

Joseph Mangi & Ors (2004) SC 741

The State v Urari Siviri (2004) N2747

Manu Kovi v The State (2005) SC 789

The State v Maraka Jackson (2006) N3237)

The State v Sedoki Lota & Anor (2007) N3183

Thress Kumbamong v The State (2008) SC 1017

The State v Laurie Kemuel Paugari; The State v Kopol Kepao; The State v Raywill Parapen (2011) N4438

The State v Mavis Uraro CR 235 of 2012 (Unreported and unpublished judgment dated 26th November 2012)

The State v Pauline Muturu, CR 176 of 2012 (Unreported and unpublished judgment dated 28 November 2012)

The State v Dubi Kais CR 136 of 2010 (Unreported and unpublished judgment dated 12th December 2012).

Counsel

D Kuvi and R Auka, for the State

G Pipike, for the accused

JUDGMENT ON SENTNCE

10th May, 2013

1. TOLIKEN AJ. The prisoner Elison Tayamina was found guilty and convicted on 14th September 2012 after trial for the wilful murder of one Seweina Nekeda an offence contrary to Section 299 of the Criminal Code Act Ch. 262. The offence of wilful murder carries the maximum penalty of death.

2. Since the prisoner is a juvenile it was necessary for a Pre-Sentence Report (PSR) to be presented to the Court before sentence. A PSR was ordered and as the verdict in the matter was announced towards the end of the circuit, the mater was adjourned generally to allow for the preparation of a PSR before the allocutus was administered and submissions on sentence.

3. I was not able to take a circuit to Alotau before the end of 2012 though. A PSR had since been filed and so on 07th March 2012 I administered the allocutus on the prisoner and heard submissions on sentence from counsel. I was not, however, able to pass sentence then. I do so now.

THE FACTS

4. The facts upon I am sentencing the accused are as follows. On the afternoon of 24th November 2009, the prisoner had gone into the bush at Wadalei village, Ferguson Island to search for mangoes.

5. On his way back to the village he followed a creek down and up to the bush track that led down to the village. He followed the track and on the way he charged upon the deceased, Seweina Nekeda, a reputedly well known sorceress of the same village as the prisoner.

6. The prisoner set upon Seweina Nekeda, viciously attacking her with a bush knife. He inflicted multiple wounds on the deceased’s body. The medical report by the Village Community Health Workers who examined the deceased’s body revealed 7 major wounds and 2 superficial wounds. These were:

· A cut to the trachea or windpipe.

· 3 penetrating wounds to the heart

· 2 superficial wounds to the skin.

· 3 wounds to the lungs

7. After spending the night in the bush the prisoner went home the next day and reported his crime to his father who then immediately took him to the Village Councillor.

8. A radio message was dispatched to Sergeant Labidi at the Esa’ala Police Post. Sergeant Labidi came to the village on the following day, viewed the body and interviewed witnesses. He, however, did not make any arrest as no suspect had yet been identified.

9. On the 16th of December 2009, Sergeant Labidi, came across from Esa’ala and apprehended the prisoner after he was again informed through the VHF radio that a suspect had owned up to the crime.

10. Sergeant Labidi apprehended and conveyed the prisoner to Esa’ala station. There he conducted a Record of Interview which I had found on Voir Dire to have not been unfair on the prisoner despite the fact that he was a juvenile at the time of the offence.

ANTECEDENTS

11. The prisoner was about 16-17 years at the time of the offence. He would therefore be about 20 – 21 years old now. He is from Wadalei Village, on Ferguson Island, Esa’ala District of Milne Bay Province.

12. He comes from a family of five. While his father is still alive his mother is deceased. He is illiterate having had no formal education. He is a first-time offender.

SUBMISSIONS

13. Mr. Pipike for the prisoner submitted at the outset that the maximum sentence of death is not appropriate in the circumstances of this case. He submitted that there are two important factors that the Court ought to take into account in this case. These are (1) the killing in this case was influenced by a strong belief in sorcery and (2) the prisoner was a juvenile when he committed the offence.

14. In respect of the prisoner’s belief in sorcery counsel submitted that whilst it was once held that sorcery was not a major mitigating factor (The State v Aiaka Karavea (1984) N452 per Kidu CJ.) this has now changed. He submitted that the courts now consider belief in sorcery in homicide offences as a major mitigating factor which must fall under a special category meriting special consideration and sentences have appropriately reflected that. (Acting Public Prosecutor v Uname Auname & Ors [1980] PNGLR 510; Kwayawako & Ors v The State [1990] PNGLR 6; The State v Boat Yokum (2002) N2337; The State v Urari Siviri (2004) N2747; The State v Maraka Jackson (2006) N3237).

15. Counsel submitted that the sentences in the above cases have ranged from 6 – 25 years. Counsel argued the above cases involved more than one perpetrator and some degree of pre-planning and the belief that the victim would cause further deaths if he or she was not killed. These he said distinguished them from the present case.

16. He submitted that the present case is distinguished by the following features:

· There was no pre-planning

· The prisoner acted alone

· Prisoner stumbled upon the deceased in the bush. He found himself alone with her. The deceased transformed herself into a witch and the prisoner was overcome with fear so he killed her.

· He prisoner was found guilty on his own admissions in the record of Interview.

17. On the fact that the prisoner was a juvenile when he committed the offence, defence counsel submitted that the sentencing trend for juveniles had been that of partial custodial and suspended sentences. He cited The State v Apa Kuman [2000] PNGLR 319 where the 16 year old prisoner was sentenced to 4 years for rape and 3 years for grievous bodily harm to be served concurrently for a total of 4 years. The prisoner was ordered to serve 2 years while the balance was to b served on probation.

18. Counsel pointed the Court to the sentencing powers under Section 30 of the Juvenile Courts Act 1991 and invited the court to consider those powers.

19. Counsel also submitted that the circumstances of the case places it midway between Category 1 and Category 2 of the sentencing tariffs in Manu Kovi v The State (2005) SC 789 (Injia DCJ[as he then was], Lenalia and Lay JJ.) as there was no pre-planning or pre-meditation involved. He, however, further submitted that the Manu Kovi tariffs were held to be restricting the Court’s sentencing discretion under Section 19 of the Code in the subsequent Supreme Court case of Thress...