State v Wanimba [2005] PGNC 108; N2863 (23 June 2005)

N2863

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE AT WEWAK]

CR NO. 34, 35 & 36 of 2004

STATE

-vs-

JOHN WANIMBA

PAUL GABI

BLASIUS BANA

Wewak : Jalina, J
2005 : 21st and 23rd June

CRIMINAL LAW – Particular offences – Murder – Sentence – Conviction following trial – Death from assaults by policemen after arrest – Prevalence of violent crimes – Abuse of police powers – Deterrent sentence necessary to protect members of the public from police brutality – Criminal Code 300(1).

Cases Cited:

1. State vs Laura (No. 2) [1988-89] PNGLR 98
2. Lawrence Simbe vs The State [1994] PNGLR 38
3. State vs Steven Hino, an unreported National Court judgment, N2218 and dated 18th April, 2002
4. State vs Kore Ase, an unreported National Court judgment, N2220 dated 22nd June, 2001
5. State vs Nickson Sambura and Trophimus Smbura, an unreported National Court judgment, N2219 dated 18th April, 2002
6. The State vs Kepa Wanega, unreported National Court Judgment in CR242 of 2001 and dated 9th April, 2003
7. Pauline Painuk vs The State (SCRA 54 of 2000) un-numbered judgment dated 2001
8. Max Java vs The State SC701, unreported judgment dated 20th December, 2002
9. Mary Bomai Michael vs The State (2004) SC737, unreported judgment dated 1st April, 2004
10. The State vs Damien Magawi, N2419, 13th June, 2003
    

COUNSEL:
M. Zurenuoc for the State
D. Kari for the Prisoners

SENTENCE

21st June, 2005

JALINA, J: These three (3) prisoners were convicted of the murder of one Kennedy Balamus following a trial which lasted four (4) days here in Wewak.

As has become apparent in the trial, the deceased was arrested by the prisoners at Boram Hospital Compound at about 7 pm on 6th August, 2001 and taken to the police vehicle and assaulted. The prisoner John Wanimba used a piece of stick to hit the deceased on the head followed by kicks by the three (3) of them to various parts of the deceased’s body including the head. He was then taken to the Wewak Police Station where the three (3) prisoners again assaulted him in the same manner after he was thrown down from the police vehicle to the grass. After the assault he was locked up in the police cells but the next day (7th August, 2001), his condition worsened and was taken to Wewak General Hospital where he died the next day (8th August, 2001) from injuries to the head. The deceased’s condition upon arrival at the hospital on 7th August, 2001, and the nature and extent of those injuries are specified in the two medical reports which I need not repeat as they are set out in my judgment on verdict.

As has been correctly pointed out by both counsel, the maximum penalty for murder is life imprisonment pursuant to s.300(1) of the Criminal Code Act subject to the Court’s discretionary power to impose a lesser sentence under s.19 of the Code.

Prescription of a sentence of life imprisonment in homicide offences such as murder and manslaughter reflects no doubt how serious Parliament viewed those crimes. Such a penalty, also reflects no doubt, Parliament’s intention to protect the sanctity of human life because a human life, once lost, cannot be restored so that fellow human beings can realize that utmost care should be taken when dealing with human life particularly of another person.

Sentences for murder have increased over the years from 8 or so years suggested in The State vs Laura (No. 2) [1988-89] PNGLR 98. For instance, in Lawrence Simbe vs The State [1994] PNGLR 38 a sentence of 14 years was imposed on the prisoner who killed the deceased by cutting open the (deceased’s) rib-cage after he caught the deceased trying to entice his wife to have sexual relation with her. In The State vs Steven Hino, an unreported National Court Judgment, N2218 and dated 18th April, 2002, a sentence of 15 years was imposed on the prisoner who killed the deceased by stabbing him in the chest area with a grass knife.

In The State vs Kore Ase, an unreported National Court Judgment, N2220 dated 22nd June, 2001, the prisoner was sentenced to 15 years imprisonment for killing the deceased upon hearing news of the deceased killing his first cousin and he hunting the deceased down and inflicting severe injuries on the deceased’s body some of which parts were completely severed. In The State vs Nickson Sambura and Trophimus Sambura, an unreported National Court Judgment, N2219 dated 18th April, 2002, two brothers were sentenced to 18 and 20 years respectively for shooting an old man with a gun in an ambush which was in retaliation for the death of their father from sorcery allegedly performed by the deceased.

In The State vs Kepa Wanega, unreported National Court Judgment in CR242 of 2001 and dated 9th April, 2003, the prisoner was sentenced to 20 years imprisonment for the murder of the deceased by cutting him on the head with an axe during an argument over a piece of land, the ownership of which was disputed between them. That sentence I believe has been confirmed by the Supreme Court last year in Mt Hagen . There have also been a number of high sentences for murder which the Supreme Court has upheld. For instance in Pauline Painuk vs The State (SCRA 54 of 2000) un-numbered judgment dated 2001, an 18 year sentence on the female appellant who murdered a young school girl by stabbing her twice following an argument was upheld by the Supreme Court on appeal. In dismissing the appellant’s appeal and confirming the 18 year sentence, the Supreme Court said that the sentence "was well within the range if not somewhat lenient."

In Max Java vs The State SC701, unreported judgment dated 20th December, 2002, the Supreme Court confirmed a sentence of 20 years which was imposed by the trial judge after a plea of guilty to murder. In dismissing the appeal the Supreme Court said at the bottom of page 3 to top of page 4 of its judgment that "having regard to the prevalence of violent offences in the community, we cannot conclude that the sentence is manifestly excessive."

Recently in Mary Bomai Michael vs The State (2004) SC737, unreported judgment dated 1st April, 2004, the Supreme Court in dismissing an appeal against a sentence of 12 years for murder by stabbing her husband with a knife, severely criticized the Public Prosecutor for failing to file an appeal against such a sentence which appeared to be too lenient for such a serious crime.

Apart from the case of Mary Bomai Michael (supra) which was after conviction following a trial, the other murder sentences were imposed following a guilty plea by the offender. It follows therefore that a sentence for murder on conviction following a trial would warrant a higher sentence. In other words, sentences for murder after conviction following a trial can quite justifiably attract a sentence in excess of 20 years and where circumstances warrant it, even a life sentence would be in order.

The three (3) prisoners have served a total of 50 years between them; thirty (30) years in the case of John Wanimba and 10 years each in the case of Blasius Bana and Paul Gabi; all with an unblemished record but more so in the case of John Wanimba who served in different parts of the country yet kept his unblemished record intact. The East Sepik Provincial Police Commander, Superintendent Leo Kabilo, has filed an affidavit deposing to their respective good character and to the fact that they have carried out their duties as policemen without complaint.

Their lawyer Mr Kari has submitted that I take those factors into account together with their expression of remorse. He also submitted relying on Lawrence Simbe vs The State [1994] PNGLR 38 that each case should be considered in the light of its own facts and circumstances.

Before I proceed further, let me say something about their expression of remorse. Their expression of remorse for what they had done appeared to me to be rather shallow. I would consider someone saying sorry after a plea of guilty to be expressing it from deep down from his heart. If someone says sorry after he is convicted following a long, hotly contested trial, it raises the question as to whether or not he would say sorry if he was found not guilty. I do not think that these prisoners would have said sorry had they been acquitted.

With regard to their respective antecedents as well as their respective good character specified by the Provincial Police Commander in his affidavit which I have taken into account together with their lack of prior convictions, those factors generally do not have much impact on sentence for a very serious crime as wilful murder, murder or manslaughter for the simple reason that the offence involves a premature termination of the life of another human being and the circumstances and cases in which such factors would have any real impact would be limited.

I also do not consider that payment of compensation under the Criminal Law (Compensation) Act would be appropriate as a punishment for serious violent crimes as murder, let alone wilful murder and manslaughter, or even rape and robbery. For me to release the prisoners with an order for compensation or to impose a lenient sentence would be tantamount to me turning a deaf ear to the cry and concern of the community throughout the country against lawlessness involving violent conduct such as wilful murder, murder, manslaughter, rape and robbery. The community’s only hope and protection against such violent crimes are through law enforcement agencies such as the police and the Courts, particularly the higher Courts carrying out their respective duties effectively and impartially. The role of the courts in particular in protecting the community through the imposition of stiff or heavy sentences for serious violent crimes is succinctly described by the Supreme Court in Mary Bomai Michael vs The State, SC737, unreported and dated 15th April, 2004. The Court starts with its concern on the "leaps and bounds" argument at pages 7-8 which I, with respect, fully endorse.

"Accordingly, we are of the view that in the light of the fact that more and more murders and wilful murders are being committed, the National Court must seriously look at tougher penalties. It is the view of this Court that the argument of "leaps and bounds" that some Courts apply with respect, is not found in any statute, and certainly not in the Criminal Code. We consider that the legislature, the Parliament, has determined the maximum penalties for homicide cases and other violent crimes in the Criminal Code. The Parliament has also determined that the National Court would have some discretion on sentencing therefore it ensured that the Court’s discretionary power is found in the statute. That is why Courts have been given that discretion under Section 19 of the Criminal Code. Other than what the Parliament has enacted, we should not go outside of the statutes to look for ways to compromise the National Court’s discretionary power of sentencing by using a notion that has no relation to the prevalence of the offence, the quantum leap, the offence under consideration has taken. The Courts have to appropriately respond to the wishes and or calls of the community to increase sentences to meet the ever increasing level of such serious crimes as wilful murder, murder, manslaughter, rape and armed robbery."

It continued at the bottom of page 9 to the top of page 10 again regarding the "leaps and bounds" argument.

"In our humble view, the Supreme Court should now look at the wider implication of serious violent crimes that are being committed with the readily use of offensive weapons and the prevalence and frequency of perpetration. Therefore, if a Judge considers that a violent crime deserves a tougher criminal sanction, the Supreme Court should not criticize him by using the "leaps and bounds" or "no quantum leap" argument. The reason for this is simple, as Kandakasi, J, observed in the above cases, such serious offences have taken quantum leaps while the sentences have been so pitifully low, even though various National Court judgments have repeatedly described how bad a crime is and have warned of increases in the penalties, they have not, with respect, imposed sentences reflecting those expressions: See His Honour’s judgment particularly in the other case of The State vs Damien Magawi, N2419, 13th June, 2003."

On the general community’s concern about crimes, the Supreme Court said starting from the middle of page 10, which views I also, with respect, endorse:

"The community looks to the Courts for justice and for the protection of its interest. The Courts must therefore be responsive to the needs of the communities. If the community demands tougher penalties for serious violent offences, the Courts just cannot ignore this and turn a blind eye to the needs of the community. Indirectly, we may be contributing to the escalating prevalence of the crimes when we let serious violent offenders walk free or impose very inadequate or suspended sentences on serious violent crimes as has been seen in more recent times. Of course, we do not, for one moment, suggest that the Courts should be influenced by public demands, however, at least, if the community is complaining that the Courts are not appropriately punishing violent offenders, it is a valid issue that must be considered. Ignoring the community’s concerns may lead to distrust in the judicial system and may provide the catalyst for destructive self-help schemes such as payback. That would in turn prove a good recipe for a serious break down in law and order and anarchy. We are now experiencing an unprecedented and a high level of crime. Judges now have the serious responsibility on behalf of the society to ensure this does not get out of control by paying close and serious attention to the kind of penalties imposed for those who are found guilty of committing serious violent offences like rape, murder, wilful murder and armed robbery."

In the East Sepik alone, the majority of cases in the crimes list which are actually pending trial involve very serious violent crimes such as wilful murder, murder, manslaughter, rape, robbery and even grievous bodily harm. Sexual penetration should also fall under this category because it is an offence of violence against another human being even though the offender’s actions do not result in death or external and visible injury to the victim’s body. It contains 49 cases of violence out of a total of 64 cases.

The particular murder case that is presently before me for sentence is not only peculiar but is also special. It is also a case that involves the public at large and the interest of the public in it became quite apparent on Tuesday this week when a lot of people gathered to hear the Court’s verdict. Such public interest in it was demonstrated yesterday when I was hearing submissions in mitigation of sentence as people thought that I was going to sentence the prisoners, so they filled this Court room to capacity. There were also others outside along the cyclone wire fence. That is all because the 16 year old boy in this case died from police brutality after he was arrested. He died from injuries he sustained from continuous assaults on his head by these three prisoners. The public, quite understandably, wanted to know what the Court would do with them because there is now developing a trend in this country where those in positions of authority commit crimes but are not charged and punished but the small people are charged and punished quite severely.

The Wewak crimes list also has another murder case involving the death of the deceased after apprehension by police. It is the matter of Kasieng Kaiwawar (CR33 of 2004) which the lawyers say was committed for trial by the Coroner like the present case. I was unable to list that case for trial in the next sittings of the National Court in Wewak because it is pending hearing of an application for judicial review of the Coroner’s decision. So there appears to be prevalence of police brutality not only in Wewak but in other parts of the country as well. Only a couple of days ago the print and electronic media reported of Hinchliffe, J convicting three policemen in Mt Hagen for wilful murder where a 12 year old boy was shot with a gun outside his house during a police raid at night and his dead body thrown back into a house and burnt to ashes. There was no sense of respect even for the dead. There is therefore a need, a great need I might add, for the community to be protected against police brutality. The job of the police is to enforce the law by making sure that people follow the law. If people break the law, then the job of the police is to arrest offenders and bring them before the Courts and if convicted, to impose penalties that are prescribed by law. The police have no authority in law to impose punishment let alone punishment through assaults on suspects. It is to protect people who are arrested or detained, I believe, that full protection of the law was specified as a fundamental right under s.37(1) of the Constitution. If the people cannot find safety and protection in the hands of the police who are mandated by the Constitution to protect people’s lives and property, where would they go for such safety and protection? If police are going to abuse their powers, who are the people going to turn to? It is accepted that policemen work under trying conditions but that is a matter for the government of the day to address. They cannot vent their frustrations and anger on ordinary people.

In the present case, the life of a 16 year old boy was taken prematurely. There is evidence that he was among the group of boys who were disrupting traffic along Boram Road but there is no evidence that he was the one who took the tin of meat at Boram Trading. Even if he did steal, the prisoners’ job was to arrest him and take him to the cell at the police station and lay a charge. There was no evidence that the deceased was resisting arrest, but even if he did, reasonable force should have been applied but not repeatedly assaulted in the way the prisoners have done. They should have admitted the assault by pleading guilty and then gone on to apologize and say that they went too far. Instead they opted to shift the blame to the deceased and on an inanimate object, namely the rim of the spare tyre. Did they think that a judge would readily accept that someone standing at the back of a vehicle would fall and hit his head on the rim of a tyre which is also in the same back tray of the vehicle and sustain very serious injuries and die from such injuries.? Certainly not. I did not believe them so I convicted them.

In deciding the sentence I should impose, I note that the murder sentences I referred to earlier, some of which were as high as 20 years involved the use of weapons such as knives, axes and guns. No weapons have been used here. However, most of those cases involved an accused who pleaded guilty. Here, the three policemen pleaded not guilty and were convicted following four (4) days trial so a sentence in excess of 20 years would be justified in my view.

Again in deciding the sentence I should impose, I note the victim impact statement from the mother of the deceased which has been tendered by the State Prosecutor. The mother says in her statement that the deceased’s death has brought pain, sorrow and suffering because he was her one and only son who had a bright future and in whom she has expended her energy, effort and resources, but all her hopes and dreams for her and her son has now been shattered. So bearing in mind what I have said above regarding the concern of the community against the prevalence of violent crimes and the role of the police, a punitive custodial sentence should be imposed as a deterrent. The police should be made to realize that they are not above the law but they are subject to the law like anybody else.

As I have sought to demonstrate above, the police have a special place and have a special role in our communities and their duty is to enforce the law and protect the lives and properties while at the same time ensuring that they do so within the bounds of the law. They are not the law and they cannot become a law unto themselves because of the uniform they wear. Let me warn policemen as I pronounce sentence in this case that if they abuse their powers in the manner that these prisoners have done, they can expect severe punishment.

As a deterrent to these prisoners as well as to other members of the disciplinary forces who behave in an undisciplined manner when they are supposed to be disciplined and exercise restraint, the sentence I consider in all the circumstances of this case, bearing in mind that the prisoners were convicted following a trial, is a period of 25 years each in hard labour. I deducted from the 25 years the 7 weeks that each of them has spent in custody. They shall each serve the remaining 24 years, 10 months and 1 week in hard labour. I further order that their bail monies be refunded to them.

Lawyer for the State : Public Prosecutor
Lawyer for the Prisoners : Public Solicitor