The State v Elvis Tanabo

• Jurisdiction: Papua New Guinea
• Judge: Polume-Kiele J
• Judgment Date: 21 September 2015
• Citation: (2015) N6083
• Court: National Court
• Year: 2015
• Judgement Number: N6083

Full : CR. 1446 of 2014; The State v Elvis Tanabo (Prisoner) (2015) N6083

National Court: Polume-Kiele J

Judgment Delivered: 21 September 2015

N6083

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 1446 of 2014

THE STATE

V

ELVIS TANABO
Prisoner

Kainantu/Goroka: Polume-Kiele J

2015: 15, 31st July

2015: 21st September

CRIMINAL LAW – Guilty Plea – Murder, Criminal Code Act, Section 300 (1) (a) - The penalty of which subject to Section 19 is imprisonment for life” - Victim cut on the head three times and other parts of her body with a bush knife – Victim and prisoner husband and wife.

CRIMINAL LAW- Sentence – Early guilty plea – First time offender- Incarceration appropriate.

CRIMINAL LAW – Sentence – Life imprisonment- Criminal Code, Section 300 (1) (a) - Criminal Code Act and Section 19

The Facts

The relevant facts put to the prisoner during arraignment which were consistent with his instructions to his defence counsel and contained on the depositions for the plea of guilty were that: On the 26th of September 2014 at about 6 p.m., the prisoner and (his wife) the victim were on the road leading to Tombetaka Village. After some argument, the prisoner got a bush knife and cut the victim three times on her head and he also cut the victim on other parts of her body. The victim fell to the ground and died instantly from the injuries sustained and loss of blood. The body was taken to Kainantu Hospital for purposes of a post mortem report.

Held

(1) The maximum penalty for murder subject to s 19 is life imprisonment under Section 300 (1) (a) of the Criminal Code.

(2) The starting point for sentencing for this sort of killing is 13 to 16 years imprisonment, Manu Kovi v The State (2005) SC789 guidelines considered.

(3) Mitigating factors: he is a first-time offender; early guilty plea.

(4) Aggravating factors: a premeditated attack, it was a vicious attack; there was a strong desire to inflict grievous bodily harm; the use of an offensive and lethal weapon, loss of life, and prevalence of the offence.

(5) A sentence of life imprisonment to be served at CIS, Bihute.

Cases Cited

Avia Aihi v The State [1982] 92;

State v Carol Alfred [2009] N3602

Goli Golu v the State [1979] PNGLR 653;

Joseph Ann v State (2004) SC 742

John Kalabus v The State [1988] PNGLR 193

Kepa Wenege v State (2004) SC 738,

State v Komboni [2015] PGNC 63; (17 June 2015) N5991)

Kuri Willie v The State (1987) PNGLR 298

Lawrence Simbe v The State [1994] PNGLR 38;

State v Loangesa [2007] N3187

Manu Kovi v The State [2005] PGSC 34; SC 789

Mary Bomai Michael vs. the State (2004) SC737)

State v Mavis Uraro (2012) N5164

Max Java v State (2002) SC 701 (unreported)

Paulus Mandatitip and Anor -v- The State [1978] PNGLR 128

SCR No 1. Of 1984: Re Maximum Penalty [1984] PNGLR 418;

Steven Loke Ume & Ors v The State (2006) SC836

State v Taulaola Pakai (2010) N4125

Thress Kumbamong v. the State (2008) SC 1017

Ure Hane v The State [1984] PNGLR 105;

Counsel:

Ms. Barbara Gore, for the State
Mr. John Biki, for the Accused

JUDGMENT ON SENTENCE

21st September, 2015

1. POLUME-KIELE J: The prisoner, Elvis Tanabo appeared before me on the 16th of July 2015. The accused pleaded guilty by his own plea to one count of murder contrary to s 300 (1) (a) of the Criminal Code Act. The maximum penalty for murder subject to s 19 of the Criminal Code Act, is imprisonment for life.

“Section 300 (1) (a) of the Criminal Code provides:

“Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder.

(a) if the offender intended to do grievous bodily harm to the person killed or to some other person; the penalty of which subject to Section 19 is imprisonment for life”.

2. For the purposes of this present case, Subsection (2) provides that in a case to which Subsection (1) (a) applies, it is immaterial that the offender did not intend to hurt the particular person who was killed”

“Section 19 discretionary power provisions as to punishments relevant to this present case are as follows:

“(1) In the construction of this Code, it is to be taken that, except when it is otherwise expressly provided–

(a) a person liable to imprisonment for life or for any other period, may be sentenced to imprisonment for any shorter term”

Committal Court Disposition

3. The Kainantu District Court Deposition were tendered into evidence by consent which comprised of the following:

(i) The Record of interview both the original pidgin and English Version conducted on 29th of September 2014, CB 61 of 2014; marked as Exhibit "A" relating to the defendant Elvis Tanabo during which he admitted to using a bush knife to kill one namely Ruthy Elvis on the 26th of September 2014 at about 6.00 p.m. at Tombetaka Village, Gadsup, Obura-Wonenara.

(ii) The Statements of State witnesses namely Police Constable Agatha Akia dated 10th October 2014, Police Investigator Undo Noba, dated 30th October 2014, Rodney Dapu dated 6th October of Tombetaka Village, Pura Isam dated 6th October 2014 of Tombetaka Village who all respectively confirmed the identity of the prisoner and his demeanour following the commission of the offence. Included in the Court disposition is the Autopsy Report dated 28th September 2014 performed by Dr Thomas Koimbu confirming the death of the victim due the injuries sustained. It should be pointed out that the record of interview indicated that the date of the commission of the crime as the 26th of September 2014 and not the 20th of September 2014.

4. Upon the reading of the Committal Court dispositions and being satisfied that the evidence contained in the dispositions supported the charge, the prisoner’s guilty plea was accepted and the prisoner was convicted on the charge of murder under s 300 (1) (a) of the Criminal Code.

Pre-Trial Detention

5. The prisoner had been remanded on the 07th of October 2014 and has been held in custody for a period of 11 months 14 days to the date of this judgment on sentence.

Allocutus

6. In administering the allocutus, the prisoner was given an opportunity to speak on the question of penalty. The prisoner said that he was sorry to God and the court for killing his wife. He is sorry for his children aged between 2 and 4 years who he left behind. The prisoner also asked for leniency from the court. The prisoner stated that this is his first time in court and is worried about the welfare of his children and also his aging parents who have no one to take care of them. However prior to sentence, Counsel for the prisoner, Mr. John Biki submitted that this is a case involving family circumstances and thus requested that the Probation Officer, Kainantu be directed to prepare a Pre-Sentence Report on behalf of the prisoner

Pre-Sentence Report

7. The Community Based Corrections Office in this regard was directed by the Court to provide a Pre-Sentence Report which has been made available to this court for consideration. Mr. Bennet Amuino's efforts in putting together a pre-sentence report and means assessment report on the accused is appreciated. This Court will take into consideration these assessments in its determination of the severity of the penalty and decision making process. According to the Pre-Sentence Report, the prisoner is about 27 years old, married with two children and comes from Ayamontenu Village in Kainantu, Eastern Highlands Province. He is educated up to Grade 3 and lives in Kainantu with his parents. The prisoner is a subsistence farmer. However due to the remoteness of the area from which the prisoner comes from including the non-availability of members of his community to interview, the Probation Officer was unable to compiled a balanced assessment on the prisoner in relation to the prisoner’s overall suitability for probation and rehabilitation back into the community. However, in spite of this shortcomings, the Pre-Sentence Report concluded that the prisoner posed real danger to the community. In these circumstances, the prisoner is not a suitable candidate for probation or rehabilitation back into the community. This is a case of a young man who has intentionally caused the death of his wife.

Mitigation factors

8. The mitigating factors are:

· No prior conviction

· Early guilty plea

· Surrendered and o-operated with police

· First time offender

Aggravating factors

9. Aggravating factors are:

· Premeditated attack

· Use of dangerous weapon, bush knife used in the attack

· It was a vicious attack

· There was a strong desire to inflict grievous bodily harm

· Loss of life, and

· Prevalence.

Issue for determination before the Court

10. The issue to be determined by the court is “Whether or not this case falls within the worst types of offences that warrant the imposition of subject to s 19 of the Criminal Code, the maximum penalty of life imprisonment”

Submissions on sentence

11. Counsel for the prisoner, Mr Biki submitted that the issue before the court was whether the present case is one of the worst types of case under s 300 (1) (a) of...