State v Bongede [2012] PGNC 69; N4683 (17 May 2012)

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CRIMINAL LAW – sentencing – Criminal Code, Section 299 (wilful murder) – conviction after trial – offender killed man in village altercation: deceased and his friends were drunk and being a nuisance – bushknife attack, multiple wounds – sentence of 24 years.

The offender was convicted after trial of wilful murder. The offender was in his village, entertaining a visiting dignitary. The deceased and his friends were drunk and being a nuisance. The accused became frustrated and angry with them, fought with them, then attacked the deceased with a bushknife, inflicting multiple wounds, from which the deceased died due to excessive blood loss. This is the judgment on sentence.

Manu Kovi v The State (2005) SC789
Steven Ume, Charles Kaona & Greg Kavoa v The State (2006) SC836
The State v Lotivi Mal, Moses Mal, Emmanuel Ong & Kathrine Mal (2012) N4561
The State v Mark Bongede (2011) N4470

1. CANNINGS J: This is a decision on sentence for Mark Bongede who was convicted after trial of the wilful murder of a young man, Gary Dembi. The offence was committed at Chungribu village in the Middle Ramu district of Madang Province in the early hours of Thursday 1 January 2009. Both the offender and the deceased were from Chungribu. The offender arrived in the village on New Year's Eve with a delegation of visiting dignitaries including the local member of Parliament, who were staying at the offender's house. After a late evening meal the dignitaries retired for the night but then there was a disturbance nearby involving the deceased and his friends, who were drunk. The offender tried to quieten them down, became frustrated and angry with them, fought with them, then attacked the deceased with a bushknife, inflicting multiple wounds. The medical evidence showed that the deceased died from excessive loss of blood through three open wound sites, having sustained injuries to:

2. The offender's defence that it was not him but his nephew who killed the deceased was rejected. There was no lawful justification or excuse for his killing of the deceased and he was found to have acted with the intention of causing his death. Hence the conviction for wilful murder. Further details of the circumstances of the offence are in the judgment on verdict, The State v Mark Bongede (2011) N4470.

I thank the court for the time that has been spent on my case. The incident in which I was involved occurred when I brought to the village a visiting delegation including a State Minister, Hon Ben Semri MP. I am a community leader and I considered that protocol required that I look after the Minister by trying to stop the noise caused by the drunken youths near my area. Unfortunately I became involved in the fight and cut the deceased youth. The court has convicted me so I say sorry to the family of the deceased and ask God for forgiveness. I am married with seven children. After the incident the police took me to the district office but as soon as I left, the deceased's relatives burned down my three houses, destroyed or stole my personal items and cut down my betel nut, coconut and fruit trees, killed 50 chickens, two dogs and two cats. Soon after the incident the deceased's relatives were paid K15,600.00 compensation. I was on bail for two years and three months and I complied with all my bail conditions. I am very concerned about the welfare of my wife and children. I ask the court to consider all these things. I ask for probation so that I can return to the village.

5. Mark Bongede is 47 years old and married with seven children. His parents are deceased. He has a grade 10 education. He has lived in the village for most of his life and earns an income from the sale of cash crops. He was until 2008 the President of Arabaka Local-level Government. He is still highly regarded in the community. His wife Eileen Bongede is strongly supportive of him and made a written statement recording the properties that the family lost at the hands of the deceased's relatives. This has caused immense hardship to her and her children. Character references were provided by Terence Baera, youth leader from Chungribu (who says that Mark Bongede is a true leader and greatly admired in the local community and that this was the first time he had been involved in such an incident) and by Edmund Ombeba, Middle Ramu District Administrator (who says that Mark Bongede is a very mature, honourable and respectful person and that the case against him is surprising but is something that could have happened to anyone in the circumstances). The report verifies that K15,600.00 cash compensation was paid to the deceased's relatives, however they were not able to be contacted for purposes of the report so it is unknown what their present attitude is to the offender. The report concludes that the offender is suitable for probation.

6. Mr Otto submitted that there are substantial mitigating factors – the offence was committed after substantial de facto provocation, it was a spontaneous incident, he was seeking to protect the visiting Minister and was forced to act in defence of his property and his reputation – which bring the case within the second category of cases recognised by the Supreme Court in Manu Kovi v The State (2005) SC789. The special circumstances in which the offence was committed warranted a sentence as low as 17 years.

7. Mr Collins agreed that this was a category 2 case according to the Kovi guidelines and did not take issue with the mitigating factors highlighted by the defence counsel. However, there was a conviction for wilful murder, which means that the State proved an intention to kill, highlighted by the fact that the offender brought a knife to a fight. A sentence of 25 years is warranted.

8. To determine the appropriate penalty I will adopt the following decision making process:

9. The maximum penalty for wilful murder under Section 299 of the Criminal Code is death. The court has a discretion whether to impose the maximum by virtue of Section 19(1)(aa) of the Criminal Code, which states:

In the construction of this Code, it is to be taken that, except when it is otherwise expressly provided ... a person liable to death may be sentenced to imprisonment for life or for any shorter term.

10. The Supreme Court has in two recent cases given sentencing guidelines for wilful murder: Manu Kovi v The State (2005) SC789 (Injia DCJ, Lenalia J and Lay J) and Steven Ume, Charles Kaona & Greg Kavoa v The State (2006) SC836 (Kapi CJ, Injia DCJ, Los J, Hinchliffe J and Davani J).

11. In Ume the Supreme Court suggested that a number of different scenarios may warrant the death penalty, eg (1) killing of a child, a young or old person, or a person under some disability needing protection; (2) killing of a person in authority or responsibility in the community providing invaluable community service killed in the course of carrying out their duties or for reasons to do with the performance of their duties; (3) killing of a leader in government or the community, for political reasons; (4) killing of a person in the course of committing other crimes; (5) killing for hire; (6) killing of two or more persons in a single act or series of acts; (7) killing by a prisoner in detention or custody serving a sentence for another serious offence of violence; (8) if the offender has prior conviction(s) for murder.

12. In Kovi the Supreme Court suggested that wilful murder convictions could be put in four categories of increasing seriousness, as shown in the following table.

TABLE 1: SENTENCING GUIDELINES FOR WILFUL MURDER DERIVED FROM THE SUPREME COURT'S DECISION IN MANU KOVI'S CASE

No	Description	Details	Tariff
1	Plea – ordinary cases – mitigating factors – no aggravating factors.	No weapons used – little or no pre-mediation or pre-planning – minimum force used – absence of strong intent to kill.	15-20 years
2	Trial or plea – mitigating factors with aggravating factors.	Pre-planned, vicious attack – weapons used – strong desire to kill.	20-30 years
3	Trial or plea – special aggravating factors – mitigating factors reduced in weight or rendered insignificant by gravity of offence.	Brutal killing, killing in cold blood – killing of defenceless or harmless person – dangerous or offensive weapons used – killing accompanied by other serious offence – victim young or old – pre-planned and pre-meditated – strong desire to kill.	Life imprisonment
4	Worst case – trial or plea – special aggravating factors – no extenuating circumstances – no mitigating factors, or mitigating factors rendered completely insignificant by gravity of offence.	[No details provided]	Death

13. Under the Ume guidelines, the case is not one of the eight types that the Supreme Court suggested would warrant the death penalty. As for the Kovi guidelines I accept the submission of both counsel that this is a category 2 case: there are both mitigating and aggravating factors; though the death was not planned or premeditated, there was a strong desire to kill. Therefore the starting point is 20 to 30 years.

14. The recent case of The State v Lotivi Mal, Moses Mal, Emmanuel Ong & Kathrine Mal (2012) N4561 is relevant as it was dealt with as a category 2 case under the Kovi guidelines. Four offenders were convicted after a joint trial of the wilful murder of a man committed during a fight between two groups of people. The third offender directly killed the deceased by striking him in the head with an iron rod; he had the greatest degree of involvement in the offence and was regarded as the principal offender. The first and second offenders did acts for the purpose of aiding the principal offender commit the offence, while the fourth offender counselled the others to commit the offence. The sentences reflected their varying degrees of involvement. The first and second offenders received 20 years each; they were sentenced at the bottom of the starting point range as neither of them directly killed the deceased. The third offender directly killed the deceased and was sentenced at the top of the range: 30 years. The fourth offender did not directly kill the deceased and due to some mitigating factors that applied only to her was sentenced below the starting point range at 17 years.

15. I will now assess the mitigating and aggravating features of the case. The more mitigating factors there are, the more likely the head sentence will be at the bottom of or below the starting point range. The more aggravating factors present, the more likely the head sentence will be near the top of or above the starting point.

18. The mitigating factors are strong and warrant a sentence below the middle of the range. Comparing this case with the Mal case I consider that a sentence above the sentences imposed on the first and second offenders and below the sentence imposed on the fourth offender in Mal is appropriate. The sentence in the present case is fixed at 24 years imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

19. Yes. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment the whole of the pre-sentence period in custody, which is 11 months.

20. This would have been a good case for partial suspension of the sentence if the process of reconciliation with the deceased's relatives were complete. But there is no evidence of that. Compensation was made within a day or two of the death but it is unclear whether anything has happened since then. It is not appropriate in these circumstances to suspend any part of the sentence. The favourable aspects of the pre-sentence report, and the genuine concerns of the offender's wife about the children's welfare have been taken into account in determining the head sentence. The offender and his family would be well advised to continue to work towards peace and reconciliation with the deceased's relatives, while the offender is serving his sentence, as this may be of assistance to him when he becomes eligible to apply for parole.

21. Mark Bongede, having been convicted of one count of wilful murder under Section 299(1) of the Criminal Code, is sentenced as follows:

Length of sentence imposed	24 years
Pre-sentence period to be deducted	11 months
Resultant length of sentence to be served	23 years, 1 month
Amount of sentence suspended	Nil
Time to be served in custody	23 years, 1 month
Place of custody	Beon Correctional Institution

_________________________
Public Prosecutor: Lawyer for the State
Kuman Lawyers: Lawyers for the offender

National Court of Papua New Guinea

State v Bongede [2012] PGNC 69; N4683 (17 May 2012)