The State v Samuel Tavari (2014) N5619

• Jurisdiction: Papua New Guinea
• Judge: Toliken, AJ
• Judgment Date: 20 May 2014
• Docket Number: CR NO. 50 OF 2013
• Citation: (2014) N5619
• Court: National Court
• Year: 2014
• Judgement Number: N5619

Full Title: CR NO. 50 OF 2013; The State v Samuel Tavari (2014) N5619

National Court: Toliken, AJ

Judgment Delivered: 20 May 2014

N5619

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 50 OF 2013

THE STATE

V

SAMUEL TAVARI

Alotau: Toliken, AJ.

2013: 17th October

2014: 20th May

CRIMINAL LAW – Sentence – Murder – Plea – Prisoner killed his own brother – Inflicted two cuts on deceased, one the head and another on back of the neck - Prisoner claimed in record of interview that he was influenced by the devil – That he acted under sorcery spell after having chewed betelnut given him by an uncle - Criminal Code Act Ch. 262, ss 300(1)(b).

CRIMINAL LAW – Sentence – Mitigating and aggravating factors considered – First time offender – Remorseful – Killing of brother – Self inflicting – Strong intention to cause grievous bodily harm - Killing unprovoked – Sentence of 15 years.

Cases Cited:

Goli Golu v The State [1979] PNGLR 653

Avia Aihi v The State (No.3) [1982] PNGLR 92

John Elipa Kalabus v The State [1988] PNGLR 193

Kesino Apo v The State [1988] PNGLR 182

Public Prosecutor v Don Hale (1998) SC 564

Pauline Painuk v. The State, SCRA 54 of 2000 (unnumbered and unreported dated 22nd November 2000)

Joseph Enn v The State (2004) SC738

Manu Kovi v The State (2005) SC 789

The State v Jack Mek (1997) N1575

The State v Saku Sogave (2000) N2086

State v Baipu (2003) N2451

The State v Pake (2007) N5051

The State v Laiam (2010) N3995

The State v Anton (2010) N 4117

The State v Lagu (2011) N4354

The State v Matai (2011) N4256

The State v Henry Kare; CR 498 of 2010 (unreported and unnumbered judgment dated 9th August 2013).

Counsel

B Gore, for the State

P. Palek, for the prisoner

JUDGMENT OF SENTENCE

20th May, 2014

1. TOLIKEN, AJ: Samuel Tavari, on the 17th of October 2013 you pleaded guilty to an indictment charging you for the murder of your brother Richard Tavari on the 19th day of May 2012 on Loupom Island, Magarida in the Abau District of the Central Province. The charge was brought under Section 300 (1) (a) of the Criminal Code Act Ch. 262.

2. Section 300 (1)(a) provides:

300. Murder.

(1) 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; or

(b) ...

(c) ...

(d) ...

(e) ...

Penalty: Subject to Section 19, imprisonment for life.

(2) 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.

(3) ...

(4) ...

3. The brief facts that were put to you on arraignment and upon which I am going to sentence you are these; you and the deceased are biological brothers. On the 19th day of May 2012 between 2.30 – 3.00p.m. you were with your family at your family home on Loupom Island. It was raining and your mother and your sister-in-law had returned from the market soaked. They knocked on the door to be let in but it took a while before you opened the door for them. After opening the door you immediately went back into your room. Your mother then told those in the house to cook if they were hungry. You were not happy with this. You came out with a bush knife and struck your mother with the flat surface of the knife. Your mother cried in pain and ran away but then you proceeded straight to the kitchen where your brother, the deceased, was scrapping coconut. Without a word you attacked him. You cut him first on the left side of his head and then you again cut him on the back of his head. The deceased was totally unprepared for your attack on him and hence was unable to defend himself. His injuries were serious and he was rushed to the Iruna Health Centre but died there due to heavy loss of blood. The State alleged – and you agreed – that you intended to cause grievous bodily harm to the deceased but ended up causing death instead.

4. I entered a provisional plea of guilty which I confirmed after I had perused the committal Court depositions resulting in your conviction. I adjourned the matter for sentence to the 23rd of October 2013 but was unable to do so. I then adjourned to the December sittings of the Court. However, due to funding problems experienced by the Public Prosecutor the sittings did not eventuate. Hence the matter now comes before me for sentence on this first circuit to Alotau in 2014.

5. In determining what an appropriate sentence for you will be, I must decide whether or not your case should attract the prescribed maximum penalty – life imprisonment. To do that I must to take into account your personal circumstances and interest and attitude to the offence , the circumstances under which you committed the offence, the State’s interest, the way in which the courts have treated this type of offence and the purpose or objective for which your sentence should be served.

6. You are from Loupom Island, Magarida, in the Central Province just across the border from Milne Bay Province. You are 25 years of age and are married with 3 children – 2 your own and the other an adopted child. You are the last born in a family of 3 brothers (the deceased being one of them) and a sister. Your father is now deceased but your mother is still alive though now very old. You are a member of the United Church and have completed Grade 10 at Magarida High School in 2006. You have no prior convictions and up to the time of your conviction for this offence you had been in custody for a period of 1 year 5 months 13 days.

7. You apologised to the Court for breaking the law and for the trouble you have caused. You apologized to your mother, brother, your sister-in-law and your community. You said that you are a first time offender. You also said that you are worried about your wife and 3 children as no one will look after and support them and as such you asked for probation.

8. I have heard from you lawyer Mr. Palek and Ms. Gore for the State and I agree with them that your case does not fall under the worst category for the offence of murder. Both counsel pointed me to the case of Manu Kovi v The State (2005) SC 789 (Injia, DCJ. (as he then was) Lenalia and Lay JJ.) where the Supreme Court provided sentencing tariffs for homicide offences like murder and the considerations or circumstances for which the suggested tariffs could be applied. Mr. Palek submitted that your case falls in between the top of Category 1 and the bottom of Category 2 of the tariff for murder thus should attract a sentence between 13 – 16 years. Ms. Gore, however, suggested that your case falls under Category 3 and should therefore attract a sentence between 20 – 30 years.

9. For completeness, tabulated below are the sentencing tariffs and relevant circumstances for Categories 1, 2 and 3 of Manu Kovi.

Category	Circumstances	Sentence
1.	Plea. Ordinary cases. - Mitigating factors with no aggravating factors -No weapons used - Little or no pre-planning - Minimum force used -Absence of strong intent to do GBH.	12 – 15 years
2	Trial or Plea.; Mitigating factors with aggravating factors - No strong intent to do GBH -Weapons used - Some pre-planning -Some element of viciousness	16 – 20 years
3	Trial or plea; Special Aggravating factors - Mitigating factors reduced in weight or rendered insignificant by gravity of offence Pre-planned. Vicious attack - Strong desire to do GBH - Dangerous or offensive weapons used e.g. gun or axe - Other offences of violence committed.	20 – 30 years

10. Both counsel also cited several cases which they submitted should guide the Court in arriving at an appropriate sentence for you. I will refer to the more relevant ones later in this judgment.

11. But let me now turn quickly to the mitigating and aggravating factors in your offence. First the mitigating factors. You pleaded guilty early to the charge thus saving time and money for the State. You are a first time offender and were previously of good character. You are youthful and even though you have a Grade 10 education I would like to think that you are a simple villager. You have a young family and you also co-operated well with the police.

12. You also showed remorse which no doubt is genuine given the fact that you senselessly and needlessly killed your own brother. If anything your guilty conscience must be weighing you down so heavily not only for having killed your brother but also for having put your own family more so your old mother and your now widowed sister-in-law and her children into needless misery. You have deprived the family of the services of your late brother and his widow of...