The State v Malari Toliu (N0 3)

• Jurisdiction: Papua New Guinea
• Judge: Lenalia, J
• Judgment Date: 09 September 2014
• Citation: (2014) N5756
• Court: National Court
• Year: 2014
• Judgement Number: N5756

Full : CR.NO.417 of 2011; The State v Malari Toliu (N0 3) (2014) N5756

National Court: Lenalia, J

Judgment Delivered: 9 September 2014

N5756

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR.NO.417 OF 2011

THE STATE

-V-

MALARI TOLIU

(N0.3)

Kokopo: Lenalia, J

2014: 11th, 12th, 20th August,

2nd & 9th September

CRIMINAL LAW – Willful murder – Sentence after finding of guilty – Principles of sentencing on homicide cases – Section 299 of the Criminal Code

CRIMINAL LAW – Sentence – Sentencing tariffs – Deterrent sentences called for – Court’s consideration aggravating circumstances far outweigh mitigating circumstances – What should be the appropriate penalty

CRIMINAL LAW – Sentencing tariffs – One of the worse type case – Deterrent sentences called for – Life imprisonment considered

Cases cited:

Goli Golu-v-The State [1979] PNGLR, 653

Ure Hane -v- The State [1984] PNGLR 105

Ombusu-v-The State [1996] PNGLR. 335

Manu Kovi-v-The State (2005) SC 789

State-v-Steven Loke Ume, Charles Patrick Kaona & Greg Wawa Kavoa (Unreported National Court Judgment of 7th February 1997

Steven Loke Ume & Ors-vv-The State (2006) SC836

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

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

The State-v-Mark Poroli (2004) N2655

The State-v-Gregory Kiapkot & 4 Others (2012) N4381

Counsel:

L. Rangan, for the State

P. Kaluwin, for the Accused.

September 9th 2014

1. LENALIA, J: The prisoner Malari Toliu, was found guilty on the charge of willful murder of his wife late Ebia Bungtabu. The crime you committed is contrary to s. 299 of the Criminal Code. After the prisoner was found guilty, he was asked to give evidence and call evidence if he wanted to.

2. After having him found guilty, the court gave him three choices to choose whether he wanted to give evidence, make a statement from the defendants’ dock or to remain silent. He chose to remain silent and call no evidence. Mr. Kaluwin confirmed his client’s position and the court asked if the prisoner wanted to say anything in his allocutus. He said he had nothing to say.

3. On this trial, two witnesses were called. The former Ward Councillor, Komet Eslly, now a Ward Committee of Marmar village, Bitapaka LLG gave evidence which corroborated other documentary evidence that you assaulted your wife on the night of the date you committed the assault on the victim. (Read the decision of this court dated 20th August 2014). Then Dr. Hilton Abraham of Nonga Base General Hospital was called to clarify to the court his findings on the report to the Coroner on the post mortem report. The doctor gave evidence on his findings on the body of the deceased.

Addresses on Sentence

4. Mr. Kaluwin of counsel for the prisoner addressed the court on the mitigations on behalf of his client. Counsel submitted that his client committed a serious crime punishable by death. He asked the court to consider the prisoner’s expression of remorse and asked the court to consider the tariffs of sentencing guidelines set out in Manu Kovi v The State (2005) SC789. Counsel submitted that, the court should consider the pre-sentence report which suggests that the killing on the instant case was a payback killing. Counsel acknowledged the fact that the killing on this case was serious and the court should sentence the offender to an appropriate term of imprisonment but that the case does not warrant imposition of the death penalty.

5. For the State, Mr. Rangan made submission on the seriousness of the killing of an unarmed victim. He raised the issue of the prisoner taking the law into his own hands rather than taking the matter into the police if late Embia had committed any trouble. Counsel submitted that this was a vicious killing and the prisoner’s case should fall near or on the highest category of the sentencing tariff enunciated by various Supreme Court decisions as in Manu Kovi v The State (supra). Counsel referred to a few National Court cases including that in The State v Gregory Kiapkot & 4 Others (2012) N4381 and other cases I shall refer to later.

Application of Law

6. The maximum penalty for the offence of wilful murder is death. I quote s.299 (1) and (2) of the Criminal Code. It says:

“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.”

7. The death penalty is imposed where it is appropriate to impose if a court finds that, the circumstance of how such crime was committed warrants such penalty. On this case, your case went through a trial envisage by the right to trial pursuant to s.37 of the Constitution. The fact that you were found guilty or that you did not give evidence or call any witness does not mean it may attract the death penalty. The Court has a wide discretion to impose a lesser penalty of life imprisonment or a shorter term taking into account the relevant factors and circumstances recognized in law such as the factors that mitigate and those that aggravate the circumstances with which the crime was committed.

8. On this case, the proper approach to take and consider on sentence is the court must have regard to all the aggregate effect of all relevant considerations and then determine an appropriate penalty. The aggregate effect come from several considerations which the court must consider by carefully examining the circumstances of each case as to how the death on this case was caused: Manu Kovi v The State (2005) SC789

9. The court’s observation of the medical report on the Coroner’s report and the evidence from, Mr. Eslly Komet on his observation of seeing the accused wife the next morning. In his evidence he observed that the victim was brutally attacked as there were serious suffered by late Bungtabu. According to Eslly, he said on oath, when he saw the wounds, they looked like fresh ones and the cuts may have caused by a sharp instrument like a knife. In case of the doctor’s evidence, it was quite clear that, the victim’s injuries were not simple wounds from blunt objects. To the doctor, the wounds were sharp as compared to someone applying a blunt object to hit the deceased and he concluded that, it may have been that a sharp instrument such as a knife had been applied to cut the victim. In chief and cross-examination he ruled out the possibility of mere punches or the victim being hit with a blunt object.

10. The principle of sentencing in wilful murder cases set by the Supreme Court case of Manu Kovi v The State (2005) SC 789 is the maximum penalty should be reserved for the most serious offences under consideration. What that means is that, the maximum penalty should only be imposed in those cases where they are categorized as the “worse type case” encountered in practice. (See also: Goli Golu v The State [1979] PNGLR, 653, Ure Hane v The State [1984] PNGLR 105).

11. Today, to Malari, you must understand that you can be sentenced to death for killing your wife. The case of Steven Loke Ume & Ors v The State (2006) SC836, establishes that, the maximum penalty is not automatic as the Court or a sentencing Judge may exercise his or her sentencing discretion pursuant to s.19 of the Criminal Code.

12. By authority of the above cases, the court must consider factors such as the nature and frequency of the attack. The court must consider whether were the injuries caused by a direct hit or did the victim fall on to any objects by heavy landing or not. I must also consider whether the injuries caused were caused by the prisoner being bare handed or did he use a weapon.

13. As the evidence on trial of the instant case showed, the prisoner used either a small kitchen knife or bush knife for that matter to inflict serious wounds that were found by the doctor as witnessed by Elder Eslly. On this case, I consider the fact that, the victim did not fall on anything. The injuries she received were the direct result of the wounds intentionally inflicted on her body by the prisoner.

14. The prisoner’s case may be similar to the case of The State v Peter Wirundi (2010) N3994. In that case, the prisoner was charged with the wilful murder of one of his wives. Early in the month of July 2004, the accused went to Lae and returned on 11th July the same year. Upon arriving in Mt. Hagen at about 04:00 o’clock in the morning, he found the deceased in town. After they talked, they jumped on a PMV vehicle to go to the village and they were dropped off at Wanka village, Ogulbeng.

15. On their way back to the village, an argument developed between the prisoner and the deceased. He accused her of having extra-marital affairs with other men. He punched the deceased and she fell to the ground.

16. The deceased then took out a knife and swung it at the prisoner. The knife cut the accused’s leg. There was a struggle whereby the offender overpowered the victim and took the knife off her. With this knife, the Prisoner cut the victim on her neck, right chest and the...