State v Nentepa [1990] PGNC 25; N878 (18 April 1990)

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CRIMINAL LAW- Sentencing principles - Manslaughter in commission of robbery - Range of sentences - Aggravating and mitigating factors - Punitive and deterrent purposes.

The prisoners with others robbed a motor vehicle from the deceased’s premises and whilst escaping in the vehicle one of the accomplices shot the deceased.

(1) ;&#16ntences fors for manslmanslaughter should generally be higher than, for rape and robbery, offences against the person but where no death occurs - approved and applied State v Polin Pochalon Lopai N680; State v Rex Lilu.

(2) Sentences for manslaughte and robbery though committed in the one transaction of robbery, should be cumulative as being two separate serious offences in character.

(3) &##160; The mose most promipent serpose for sentence in this kind of case is punitive and public deterrance.

On a plea of guilty to charges of manslaughter, armed robbery and unlawful use of motor vehicle the following reasons for sentence were delievered.

AMET J: The three prisoners pleaded guilty to three charges that on 30 June 1989 in Mount Hagen they:

2. &#S60; aoleyotToLand ruiseruiser Moer Motor Vehicle with violence from Malipukau.

3.&ـ Unlawfulay usly used saed saed said moid motor vehicle without the consent of the owner Malipu Balakau.

The State handed up the fong stnt ofs agreed upon for the purposes of arraignment:

1. &1600 &#160 In t In the evening of ne June 1989, the accused with 2 others went to the house of the deceased, Malipu Balakau, situated at Section 1, Lot 9, Newtown, Mountn.

4.&#16. ; They upatcupe the house, use, and obtained the keys to a Toyota Landcruiser belonging to g to the dthe deceaseceased.

5. ـ;&#gothe othe ve, Ree, Reation No AFZ 586, a86, and asnd as they they move moved outd out, Dokta Kera who was still on the ground, shot the deceased once withshotghis he did on his own accord.

7. & T60; The State alleges that since they should have known that some violence might bd to ome ple resistance to e to the rthe robbery, the accused are liable for manslaughter - contrary to S 30>S 302 of the Criminial Code.

8. &ـ T6e vehe vehicle wcle was driven away by the accused and later ditched when it became bogged in the mud.

9. ;ټ&##160;State allegelleges that this was not an authorised use of the vehi vehicle bcle by they the owner. This contravenes S 422 of riminal Code.

10. ҈ The vehicle tcle the State alleges was stol stolen by threats. This vehicle contained a briefcase belonging to the deceased, which in turn, contained the properties listed in the indictment. This is contrary to s 386(2the Criminal Code..

To complete the factual circumstances from the depositions consistent with the agreed facts are the following:

1. & T60; The prisoners were drinking with others at Ongas Club at Keta in the Muglamp area, from about 10 o’clock in the morning on the day in question.

2. ټ Theided intot Hage Hagen town town and and stealsteal a motor vehicle to steal some money.

5. &##160;;ټ Theyhecle tcle teld up and tood took a rk a ride into town on at the Baiyer Road joad junctiunction anon and wald walked into town, in the early evening.

6.& They walked to the Newtown aown area looking for a likely motor vehicle to steal.

7. They came upon the bome gilonging to the deceased Malipu Balakau at Section 1 Lot 9 and saw two motor vehicles parked in the dry andded tal onthem.

Se other facts surrounding this case which hich receireceived mved much nuch nationational anal and some international prominence need to be stated clearly at the outset. They are these:

1. The deceased,pMalila Ba waau was the Regional Member of the National Parliament for Enga Province.

60;&##160; < 160; ThereThe n is no evid evidence, and the State prosecution has not alleged, that the prisoand thers went to the the deceadeceased’s house knowing it to be the house belonging to Malipu Balakau, the Regional Member of the National Parliament for Enga and Minister for Communications.

4. &##160; T60; There islabsoy televio evidence, and the State prosecution has not alleged, that the prisoners planned and intended to rob Malipu Balakau as a Member of ParliamentEnga inist the State.

5. &##10;&#160 Ther There is similarly no evidence that there was any plan to attack to kill Malipu Balakau as the Regional Member of the National Parliament for Enga and a Minister of the State.

6. ټ The State hce acd pted pted that another man, not yet apprehended, one Dokta Kera, was responsible for the fatal shooting of the sed.

7.&ـ Dokta Kera shot Malipu Balakau of his owis own accn accord aord and nond not in concert with these prisoners.

On these bases, the prisoners have pleaded guilty to unlawful killing simpliciter by association in the commission of the offence of robbery involving the possession and use of a shotgun to effect the same.

It must be stated unequivocally at the outset before I proceed to refer to principles of sentencing and other circumstances that are to be taken into account that, because of the foregoing, these prisoners must be treated like any other offender in similar circumstances. The facts I have stated of the deceased being a National Member of Parliament and a State Minister cannot, in law, be factors that should aggravate the offences by these prisoners. They are not factors that I should take into account to make their sentences high for the simple reason that there is no evidence that they robbed and shot the deceased knowing he was a Member of the National Parliament and a Minister, and because of them. The prisoners must therefore be treated the same as other offenders as if the deceased were an ordinary citizen. This, of course, does not make the offences against the deceased any less serious, nor does it detract from the tragic loss to the nation of one of its prominent leaders. But for the purposes of sentence and punishment this distinction is important to be made and understood as best as it can. I know that for the ordinary people this can be a little difficult to understand.

We start from the premise that the maximum sentence prescribed for this offence is life imprisonment. We then consider where the sentence for this offence in its particular circumstances would fall. This is determined by a consideration of a number of factors, one of which is what sentences offenders in similar circumstances were given. This would indicate what the general range of sentences for similar offences have been.

I have endorsed entirely the views of Bredmeyer J in State v Polin Pochalon Lopai N680 in State v Rex Lilu, that sentences for manslaughter should generally be higher than for rape and robbery, offences against the person and property but where no death occurs.

The unlawful killing in this case is considerably aggravated, in my view, by the fact that it occurred in the course of an armed robbery, a separate and distinct offence in itself.

The general range of sentences for manslaughter, in my view, has been on the light end, as I expressed in State v Rex Lilu. I consider that the lowest average should be increased to between six to fifteen years in cases with aggravated features such as in this case.

The maximum sentence for armed robbery is also life imprisonment. The Supreme Court in a recent decision set-out four (4) general categories under which offence of robbery is commonly committed; (1) robbery of a house, (2) robbery of a bank, (3) robbery of a store, (4) and a street robbery.

Although the robbery in this case was of a motor vehicle, it was primarily a robbery in the house where the occupants including the deceased were held up at gun-point and keys to the motor vehicle taken. And so it is under category (1) of robbery in a house that I propose to consider this case. The Supreme Court stated under this category that:

“Where a group of young first offenders, carrying weapons, invade a house and use the threat of violence to rob the occupants, we consider that a sentence of around seven years imprisonment is appropriate in a contested case. A lesser sentence can be imposed in an uncontested case, that is where the offender pleads guilty. When actual violence is used, for example if one of the victims is bashed or stabbed or shot a higher sentence would be justified. If actual violence is attempted even though it fails, e.g. if a shot is fired at a victim but it misses, that is an aggravated feature which would justify a higher sentence. We consider that the robbery of the occupant of a house is more serious than the robbery of a store or business because it is an invasion of his privacy and family life. One of the basic rights enshrined in the Constitution is “protection for the privacy of their homes”. A man’s home, whether it is a mansion or a shack, is his castle and we think the punishment of robbery of a home should reflect those community values”.

In this case the robbery was aggravated by the tragic shooting of the deceased. I endorse entirely the remarks of the Supreme Court I have quoted. I consider that the average sentence for such a robbery with the fatal consequence warrants a sentence higher than the average robbery sentence. I consider a sentence in the range of 10 to 12 years would be appropriate.

The next issue that arise for my consideration, having determined what appropriate sentence in respect of each offence should be, is whether the sentences should be cumulative one upon the other or concurrent with each other. I refer to the two leading authorities in Papua New Guinea on this subject; Acting Public Prosecutor v Konis Haha [1981] PNGLR 205 which was followed in Public Prosecutor v Kerua [1985] PNGLR 85 where the Supreme Court said in the headnotes that:

“(3) In deciding whether sentences should be made concurrent or cumulative the court should be guided by the following principles:

(i) &##160; Where two or more oore offences are committed in the course of a single transaction all sentences in respect of the offences should be concurrent.

(ii) ټ&#Where tere the offe offences are different in character, or in relation to different victims, the sentences should normally be cumulative.

(iii) &##160; a cour aour arrit arit appropriate sene sentencetences and decided whether they should be concurrent or cumulative, it must look at the total sentence to f it st and appropriate. If it is not, it must vary onry one or e or more sentences to get a just result.”

In this case, the three offences were committed in the course of the single transaction of the robbery of the deceased, in the course of and in furtherance of which he was fatally shot to death. The unlawful use of the motor vehicle is the completion of the robbery. The two major offences of robbery and unlawful killing are however, different in character and the sentences for them must be cumulative. The offence of unlawful use of the motor vehicle is necessarily consequential upon a robbery of a motor vehicle and should be subsumed into the greater sentence for robbery.

The prisoners have pleaded guilty and thus save the court and State much time and expense and also saved the aggrieved spouses of the deceased unnecessary anxiety in having to give evidence in a trial. On the basis on which they have pleaded guilty, and which I have accepted, each of the prisoners has expressed genuine remorse at the death of a national leader. They said they only meant to rob the occupants of the house of the motor vehicle. They did not want to shoot or kill anybody. They did not go to the house knowing it was Malipu Balakau’s house. They expressed apologies to the relatives, the court and the nation.

They are all young men, Wat Pena is said to be 18 years of age whilst the other two are 20 years old. Mek Keroa Nentepa and Dokta Kewa are married. All three are first offenders. Only Dokta Kewa has had some elementary schooling to grade 3; the other two have had no real employment opportunity and are simple villagers.

Mr Pitpit had submitted on behalf of his client, Wat Pena, that because the only evidence against this prisoner was his confessional statement, and the fact that he was not the leader and only stood watch he should be given a lesser sentence than the other two. I do bear in mind the personal particulars advanced on behalf of each prisoner. In the end result, I do not consider that there are any of real significance which should cause me to impose different sentences. In particular, I do not consider Wat Pena’s circumstances warrant a different sentence in the light of the aggravating features I have enumerated.

In a case like this the most prominent purposes for the sentence is a punitive one with a view to public deterrence. It really is not worth repeating that in recent years, offences of gang armed robbery, gang rapes and group killings have become so prevalent and on the increase in most of the urban centres that it is frightening. Gang intrusion and invasion of private homes, which once upon a time were respected, are now common-place and becoming so prevalent people have to resort to living like prisoners in their own homes. The primary purpose for sentencing offenders is to punish them for the wrong they have done to the State, society and the victims. But, of course, that’s not enough if it does not deter others and the offence is on the increase. The secondary but no less important purpose is to deter other like-minded would-be offenders from so offending in similar fashion by the threat of a long term of imprisonment.

I think that perhaps the courts’ sentences have not be stern enough to deter others, although history has shown that long sentences in themselves have not been the answer to increase in criminal offences and criminal behaviour. However, be that as it may, the only option of any significance left to the court presently is imprisonment.

Taking all of the circumstances into account, those in the prisoners’ favour and those against them, I consider that the appropriate sentence for each prisoner in respect of each offence should be the same. I sentence each prisoner as follows:

In order that the sentence rmed ry she cumve upon that of unlawful kill killing, ing, and tand the sehe sentence for unlawful use of motor vehicle shall be concurrent upon the unlawful killing sentence.

I am cognizant of and have taken into account the fact that in respect of the two major offences of unlawful killing and armed robbery, each is a circumstance of aggravation in respect of the commission of the other so that the sentences reflecting the features of aggravation do overlap. In this respect then, I have considered the total effect of the cumulative sentences and am satisfied that it is not inappropriate nor unjust that they should be so accumulated for the totality of the criminal behaviour.

The sentence of each prisoner, taking into account their respective periods spent in custody, is as follows:

1. Unlawful Killing	12 years IHL
2. Armed Robbery (Cum.on 1)	10 years IHL
3. Unlawful Use of Motor - Vehicle (Conc.on 1)	1 year IHL
Cumulative Total	22 years IHL
Less period in custody	8 months 2 weeks 2 days
Period To Serve	21 years IHL 2 weeks IHL

1. Unlawful Killing	12 years IHL
2. Armed Robbery (Cum.on 1)	10 years IHL
3. Unlawful Use of Motor Vehicle (Conc.on 1)	1 year IHL
Cumulative Total	22 years
Less period in custody	8 months 2 weeks 2 days
Period To Serve	21 years 3 months 2 week 2 days IHL

1. Unlawful Killing	12 years IHL.
2. Armed Robbery (Cumulative on 1)	10 years IHL.
3. Unlawful Use of Motor Vehicle(Concurrent on 1)	1 year IHL.
Cumulative Total	22 years IHL.
Less period in custody	7 months 15 days.
Period to Serve	21 years 4 months 2 weeks IHL.

As the case originally belonged to Mount Hagen but was transferred to Port Moresby, it should be to the Baisu Corrective Institution that the prisoners be sentenced. I order that they shall serve their sentences at Baisu Corrective Service Insitution and their warrants of commitment shall be made out accordingly. I order that the Corrective Institution Services effect their return to Baisu as soon as possible.

National Court of Papua New Guinea

State v Nentepa [1990] PGNC 25; N878 (18 April 1990)