Unreported National Court Decisions
N1496
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
CR 1356 OF 1995
THE STATE 
-V-
JOE FOE LESLIE LESLIE
Waigani
Sevua J
12 September 1996
13 September 1996
17 October 1996
CRIMINAL LAW - Attempted Murder - Police officer on duty - Attacked with a shotgun - Sentence - life imprisonment.
Cases Cited
Peter Naibiri & Kutoi Soti Apia, SC 137, 25th October, 1978
Ure Hane -v- The State [1984] PNGLR 105
Counsel
Ms M. Boni for State
Mr D. Koeget for Accused
17 October 1996
SEVUA J: You pleaded guilty on 12th September, 1996 to a charge that, on 13th November, 1994, you attempted to murder one Lawrence Torres, a policeman, who was involved in a police operation to capture you at Siraka Settlement near Gerehu Stage 6, following your escape from Bomana prison. 
At the time you committed this crime, you had escaped from Bomana prison where you were serving a sentence of nine years for murder imposed by the National Court at Waigani on 13th August, 1991.
The brief facts which you admitted and which I accept are these: On 13th November, 1994; police received a tip-off that you were at Siraka Settlement. An operation codenamed “Limalima”, headed by Chief Inspector Emmanuel Hela, Commander of Boroko Police Task Force which involved members of the Task Force, a section of the Mobile Squad and the Reserve Force was mounted to flush you and your gang members out of Siraka Settlement.
At approximately 3 pm, police surrounded the house you were hiding inside. Lawrence Torres, a policeman involved in this operation then proceeded up the stairs of the house you were in and called out if anyone was inside. There was no response, so he pushed open the door, when he saw you lying on the floor with a sawn-off shotgun. You then aimed at his chest and fired a shot which hit him on his right shoulder injuring him. He then ran out of the house an jumped down where a police officer rushed him to the hospital.
In the meantime, other policemen who had surrounded the house fired shots into the house to force you out, however, you did not come out. A policeman then fired a gas canister into the house which caused a fire inside the house, but still you did not come out. It was not until the fire began burning the whole house that you fired another shot at the policemen outside then jumped onto the ground. You were shot on your right leg. You were then apprehended and taken to Boroko Police Station. When you shot Lawrence Torres, you intended to kill him.
Your counsel, Mr Koeget, has made a number of submissions which I have considered very carefully. You are 32 years old from Baruni Village, near Port Moresby. You have had very little education and between 1979 and 1980, you worked as a linesman with Elcom. 
You are not a first offender and I will revert to this issue later. You have pleaded guilty contrary to previous indications that this matter would be a trial. You are sorry for what you did.
Your counsel conceded that there was a physical confrontation between you and police, firearms were used in the confrontation, a policeman was injured and it took sometime before “police flushed you out.” He further submitted that despite life imprisonment being the maximum penalty for this crime, there was no death therefore a lengthy sentence or a fixed term is warranted. He referred to the case of Rex Lialu -v- The State [1990] PNGLR 487, however, I consider that no assistance can be derived from that case as it deals with sentences in manslaughter cases.
At this juncture, let me state that I consider this case very, very serious indeed. You were a prison escapee. The victim and others had a duty to recapture you and return you to prison. They went to Siraka Settlement to apprehend you. You must have known that police were looking for you. You must have known that the victim had proceeded to the house to secure your surrender. Yet, instead of giving yourself up voluntarily, you decided to wage war against the police. You could have surrended willingly, yet you were determined, at all costs, I should say, to fight the police, even if it meant, killing a policeman. As it were, you were lying down and waiting with a sawn-off shotgun and when the victim, Lawrence Torres approached, you aimed at him and pulled the trigger. Attempted murder, in so far as it involves the specific (although unsuccessful) intent to kill may be regarded as potentially more serious than murder and many cases of manslaughter, which involve intents to do less serious things, but result in death.
In my view, your action manifested a very determined motive - to kill any policeman that approached you. The fact that the policeman retreated and jumped off the house thus, avoiding another shot, and the fact that he did not die, can hardly stand effectively to your credit. There is no evidence that the police acted with provocation.
It is true the police were armed, but they did not provoke you in any way. Therefore there was no justification for shooting this policeman.
There are two Supreme Court cases I wish to refer to as I consider them pertinent in this case, because they relate to sentence on attempted murder of policemen. In Peter Naibiri and Kutoi Soti Apia, SC 137, 25th October, 1978, the prisoners were sentenced to life imprisonment following the stabbing of a policeman on his chest and back twice. They pleaded guilty. The facts are different, but I consider it important to refer to what the Court said at p2.
“Outbreaks of violence on police .......... appear to be on the increase .......... . The Courts must therefore do their duty to try to assist the preservation of orderly life and to convince police that they will be assisted and protected in carrying out their duties by the sanction that will be involved against anyone who attack them.”
The second case is that of Ure Hane -v- The State [1984] PNGLR 105. That was a wilful murder case, however Bredmeyer, J was discussing the most serious kinds of wilful murder and referred to the above case I have adverted to. His Honour said at pp108 and 109:
“The Courts must protect the police, as they carry out their duties, by stern punishments on anyone who attacks them.”
“A policeman carrying out his duty deserves the full protection of the law. If he is trying to arrest an escapee, for example, he should be able to do so by virtue of the authority which attaches to his position without fear of attack. He should be able to arrest an escapee, although outnumbered by the escapee’s wantoks.”
I adopt these statements in the present case and I want to reiterate my own belief that, where a policeman is attacked in the course of his lawful duty, the attacker must be severely punished. It is my view that an attack on a law enforcement agency, be it a police officer, Judge, Magistrate or CIS officer, is a very serious matter. I consider that an attack on any of the law enforcement agency is tantamount to an attack on the fundamental democratic institutions we have under our Constitution. The attack on the police officer in the present case, in my view, is tantamount to an attack on the function of the Police Force under s.197 of the Constitution. Neither the Courts nor the community at large should condone or tolerate violence against police officers who are going about their lawful and constitutional duties.
You are not a first offender. As I adverted to earlier, on 13th August, 1991, you were sentenced to nine years imprisonment for murder. In the same year, you escaped and were recaptured and sentenced to five months. On 3rd October this year, you were sentenced to life imprisonment for the wilful murder of a policeman. Although defence counsel submitted that the victim did not die therefore a determinate term should be imposed, the fact that the victim did not die can hardly stand to your credit. Dr Ponifacio’s report states that the victim has suffered a ten percent loss of the efficient use of his right shoulder and this is a permanent disability. 
The doctor noted in a subsequent review that the victim was suffering from constant arthritic pain in his right shoulder joint which requires constant treatment by aspirin to ease the pain. 
The Court is quite concerned about this permanent disability as it means that this policeman will continue to suffer constant arthritic pain for the rest of his life and he did not deserve this. One could say it is the price for his dedication and commitment to service, however, the fact remains that you had no right whatsoever to inflict this injury. It is my view, and I also believe that in circumstances where policemen are attacked and killed or injured in the course of their duties by prison escapees or criminals for that matter, the Courts must be seen to protect the police by imposing stern criminal sanctions. In this way, the police will be convinced that the Courts will assist and protect them in carrying out their duties. I hope that the sanction imposed in this case will be a warning to other prison escapees or criminals for that matter, that if they attack policemen in their lawful duties, the perpetrators can expect the same punishment.
In my view, the factors against you far outweigh your plea of guilty and expression of remorse, so much so that, the maximum penalty should be imposed as both a personal and public deterence. I re-emphasise that you are not a first offender. You were serving time for murder when you escaped. A month before you attempted to kill the policeman in this case, you killed another policeman. Death was the ultimate price of the deceased’s dedication and loyalty to serve the police and the country. It seems to me that you are a very violent and dangerous person who must be segregated from the community of peace loving citizens. I am satisfied that you will kill or harm again therefore the community needs to be protected by having you incarcerated for a long time.
Both crimes were perpetrated under very similar circumstances and at the same location. The similarity is that, in both incidents, police had gone to Siraka Settlement to recapture you because you had escaped from Bomana.
You committed that crime a month prior to the attempted murder of Lawrence Torres, another policeman, the subject of the case before me now.
The print media have previously described you as a “notorious criminal”, “hardcore criminal”, “the most wanted criminal” etc, and judging from your past records, I consider that you are a threat to the community and a menace to society. I consider that you are most likely to offend again therefore you should be locked away for good. I believe that, isolating you for a very long time from the community is what the community deserves.
There is very little that can be said in your favour. Your plea of guilty and expression of remorse fade into insignificance when one considers the severity of this crime, perpetrated by the ready use of a deadly weapon and without any consideration for a human life.
In all the circumstances, I sentence you to imprisonment with hard labour for life and I recommend that you not be paroled. Despite my recommendation, it may be possible, after many years, that your sentence may be reviewed by the Advisory Committee on the Power of Mercy. Alternatively, you may be considered for release under license pursuant to s. 615 of the Criminal Code. Whatever the powers that be do in future, it will depend on the degree of reformation of character and rehabilitation. In passing, perhaps I should say this, if you are released and you commit another wilful murder, you can be assured now that you may well face the ultimate penalty of death by hanging. 
Finally, as to your request to be permitted to the hospital to extract the bullet lodged in your leg, I do not have the power to make a removal order. There are provisions under the new CIS Act which you and your lawyer should consider, and that is as far as I can take this matter.
I order that the shotgun be destroyed after forty (40) days from today.
Lawyer for State: Public Prosecutor
Lawyer for Accused: Acting Public Solicitor