State v Banuk (No.2) [2014] PGNC 264; N5757 (18 August 2014)

N5757

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.NO.816 OF 2013

THE STATE

V

JOHN BANUK
(N0.2)

Kokopo: Lenalia, J.
2014: 19th, 20th, 22nd, 23rd May,
20th, 29th June & 18th August

CRIMINAL LAW – Manslaughter – Sentence after a finding of guilty – Criminal Code s.302

CRIMINAL LAW – After a trial, accused found guilty of manslaughter – Criminal Code, s.302 by virtue of s.7 & 8 for being a principal offender and the offence committed in prosecution of a common purpose

CRIMINAL LAW – Principles of sentencing on manslaughter and other homicide offences – Appropriate sentence 7 years imprisonment

Cases cited.

R v Wendo [1963] PNGLR 217
The State v Laiam Kiala and Meirigomosi [1977] PNGLR 470
Goli Golu v The State [1979] PNGLR 653
Avia Aihi (N0.3) v The State [1982] PNGLR 92
Ure Hane v The State [1984] PNGLR 105
Kesino Apo v The State [1988] PNGLR 182
The State v Rex Lialu [1988] PNGLR 449
Rex Lialu v The State [1990] PNGLR 487
Antap Yala v The State (1996) SCR 69 of 1996
Titus Makalaminja and Toby Anunau v The State (2004) SC726
Sakarowe Koe v The State (2004) SC 739
Simon Kama v The State (2004) SC 740
Manu Kovi v The State (31.5.05) SC 789
State v Atren Siva (2013) Unnumbered judgment Cr. No. 63 of 2013

Counsel:

L. Rangan, for the State.
P. Yange, for the Accused.

SENTENCE

August, 18th 2014

1. LENALIA, J: The prisoner in this case is a policeman attached to the Criminal Investigation Division based here in the Kokopo Police Station. He was originally charged with one count of murder pursuant to s.300 (1) (a) of the Criminal Code. After running a trial, on the 20th of June the prisoner was found guilty of a lesser charge of manslaughter pursuant to s.302 by virtue of s.7 and 8 of the Criminal Code.

2. The evidence on which the prisoner was found guilty was that on the night of 24th June 2011, the accused, and three other policemen attended a fight at the Kokopo Business College (KBC) in the township of Kokopo. When they arrived at KBC, they proceeded to the boys' dormitory and after talking to the staff, the students obeyed while some did not. After the students were calmed down, the policemen drove off. As they were driving off someone threw something on the road causing a loud noise.

3. Police stopped and went up to the boys' dormitory and forcefully pulled three students out. The court found that, one of those three students was Stanis Jiki, now deceased. After they took those students, they were taken into two police vehicles, and were taken away to the Kokopo Police Station. Evidence by the State came from four witnesses. The evidence established that, once the policemen came to the station, they parked the vehicles on the car park and ordered the students to get down from the vehicles.

4. They started to whip the students and attention was given to the deceased because he had tried to resist arrest at the College campus. The deceased, Stanis Jiki was ordered to stand against the brick-wall of the police station. The policeman who was responsible for the assault of the victim hit the victim against the brick wall a number of times until he fell down with his head first onto the cement unconscious. They kicked him and tried to wake him up. He did not wake up and water was used to wash him in order to revive him. He did not move. They took the deceased and other students where they were locked in. The deceased died in the early hours of the next day.

Address on allocutus

5. When asked if he wanted to address the court on anything on his last say before hearing his lawyer, the prisoner said, although, he would have a lot to say but he would only mention a few things. He said, he was sorry for what happened to the deceased and pleaded to the court to consider him being a first time offender and the fact that he is a new junior officer with the Police Force. He asked the court to consider, he was not alone on the scene.

6. He said, on his part, he had asked the night shift supervisor to take the deceased on this case to the hospital but those senior officers did not listen to him, hence the victim was left in the cells until the morning of the next day when the victim passed away. He said sorry to the family of the deceased and asked the court to consider leniency on sentence.

Addresses on sentence

7. Mr. Yange, counsel for the prisoner submitted that the prisoner is charged with manslaughter carrying the maximum penalty of life imprisonment. He asked the court to consider mitigations such as the offender was lawfully carrying out official duties when his colleagues and the prisoner were caught up on the situation where students provoked policemen on duty at the Kokopo Business College campus. Counsel asked the court to consider the following mitigations:

➢ The prisoner's prior good character,
➢ He was on official duties when the offence was committed,
➢ His expression of remorse,
➢ And that there was de facto provocation in the non legal sense,
➢ The fact that there were other policemen involved in committing this crime, and
➢ Comments by those contacted in the pre-sentence report.

8. Counsel cited a few case law authorities for manslaughter cases including the sentencing guidelines set down by the Supreme Court in a number of cases including Manu Kovi v The State (2007) SC 789 which case was also referred to by Mr. Rangan. I will refer to some of those cases a little later. Mr. Yange centered his argument on the Supreme Court case of Titus Makalaminja and Toby Anunau v The State (2004) SC726. That case involved two policemen charged with manslaughter. They appealed against their convictions. On appeal, their appeal was dismissed and convictions affirmed.

9. For the State, Mr. Rangan submitted that offence of manslaughter is serious as shown by the prescribed penalty of life imprisonment. Counsel asked the court to consider aggravating factors such as the prisoner was one of the two groups of policemen who were supposed to have been carrying out law and order but instead, they broke the law and such law must now be applied to punish the offender. Counsel asked the court to consider the sentencing guidelines set by the Supreme Court in Manu Kovi v The State (supra).

10. Counsel raised a legitimate question of what ought to be an appropriate penalty for this serious crime of manslaughter by a member of the Police Force. He asked the court to consider if this was a worst type case of killing and sentence the prisoner accordingly.

LAW

11. The prescribed maximum penalty provided by law under s.302 of the Criminal Code is imprisonment for life. This court has discretion under s.19 of the Code to impose a term of years. In homicide case as with any other offences, the determination of an appropriate penalty is an exercise of judicial discretion, having regard to such things as the seriousness of the offence, the nature with which the crime was committed, the degree of participation and of course the personal circumstances of the prisoner and the factors which aggravate or mitigate the offence. The law protects human life and his property and regulates our society.

12. Unlawful taking of another person's life is a very serious crime and offenders ought to be adequately punished for committing such horrendous crimes. The penalty in any given case will depend on its peculiar facts as stated by the Supreme Court in Rex Lialu v The State [1990] PNGLR.487, (see also Antap Yala v The State (1996) unreported judgment SCRA.N0.69 of 1996 and Jack Tanga v The State (1999) SC.602).

13. The crime that you were found guilty of is punishable by life imprisonment under s.302 of the Criminal Code. The Court has power to sentence the offender to a term of years by virtue of the sentencing discretion given the court by s.19 of the Code. It was said in The State v Rex Lialu [1988-1989] PNGLR.449 that, sentences for manslaughter must reflect the serious view taken by the Parliament over the loss of a human life when it fixed the maximum penalty at life imprisonment.

14. It has always been repeatedly said that an imprisonment term in custody should be the starting point in any manslaughter cases for the very reason that, lives must be protected. This is because the crime of manslaughter is serious, it is reflected by the maximum penalty of life imprisonment and as much as possible life being so precious must be protected. Kesino Apo v The State [1988] PNGLR.188, see also Jack Tanga v The State (1999) SC. 602.

15. In the Supreme Court case of Antap Yala v The State SCR. 69/96 (1996), the Court in that case said, sentences for manslaughter will depend on its own peculiar facts and the Court suggested that it was unable to prescribe any particular range of sentences with precision. I totally agree with the above view and adopt such proposition and apply it to the current case.

16. All the above cases were decided sometime back. In 2005, the Supreme Court reviewed the sentencing tariffs for homicide cases in Manu Kovi v The State (2005) SC 789. The tariffs were earlier set in cases such as Antap Yala v The State (Unreported judgment by Supreme Court dated 31.5.96) SCRA.No.69 of 1996, Anna Max Marangi v The State (2002) SC 702, Jack Tanga v The State (1999) SC 602 and even the cases of Sakarowe Koe v The State (2004) SC 739 and Simon Kama v The State (2004) SC 740.

17. According to Manu Kovi's case, (supra), the prisoner in the instant case could be sent to jail either under category 1 or 2. In case of category 1, he could be sentenced to a term between 7-12 years and for category 2, sentences should range from 13 to 16 years.

18. I am persuaded by the principle stated by the Supreme Court in Kesino Apo v The State [1988] PNGLR 188 that, the loss of a dearly loved one is a consideration on sentence. The young victim of this case was a student pursuing his studies in preparation for a future career to take up a job for life if he was successful on his college studies. He lost his life on the hands of policemen.

19. In Rex Lialu v The State (supra) the Supreme Court said that, the proper approach to sentencing in manslaughter cases is to have regard to all the aggregate effect of all relevant considerations and then determine an appropriate penalty. The aggregate effect come from several considerations which the court must consider by carefully examining the circumstances of each case as to how the death was caused.

20. By authority of the above case, the court must consider factors such as the nature and frequency of the attack. The court must consider whether the injuries were caused by a direct hit or did the victim fall on to any objects by heavy landing. I must also consider whether the injuries caused were caused by the prisoner being bare handed or did he use a weapon. As the evidence of the case show, the prisoner and his colleagues used fan belts to whip the victim and used their hands to hit the victim against the brick wall of the police station.

21. On trial of this case, Dr. Hilton Abraham was called to give evidence on his findings when he conducted the post mortem report of the late Stanis Jiki. (See Ex. "4" & "5" of the judgment on verdict dated 20th June 2014). The medical finding shows that the cause of death was direct result of significant injuries to vital organs of the body and he named them such organs as the liver, and the brain.

22. In his opinion, the doctor said, "Significant force must have been applied to the abdomen, chest and head culminating in the development of internal bleeding, haemothorrax and subdural haemorrhage respectively." The court found this was the result of the direct hits, kicks and punches administered on the body of the victim when he was being hit and punched against the brick wall of the police station.

23. There might have been no intention on the part of the prisoner to kill the deceased. However, his presence on the scene and seen together with other policemen and the action he took when he applied punches on the deceased: R v Wendo [1963] PNGLR 217, The State v Laiam Kiala and Meirigomosi [1977] PNGLR 470.

24. The court found you guilty because it found that you were present on the scene and you and your colleague policemen encouraged each other by uttering words like "strong blong iu we nao, iu laik pait bek long mipala antap long skul."

25. What the prisoner did was totally out of what was intended in the PNG Constitution and the Police Force Act 1998. Under s.197 of the Constitution the role and function of the Police Force is to 'preserve peace and good order' in this country. The above section states:

"(1) The primary functions of the Police Force, in accordance with the Constitutional Laws and Acts of the Parliament –

(a) To preserve peace and good order in the country; and

(b) To maintain and, as necessary, enforce the law in an impartial and objective manner.

(2) Insofar as it is function of the Police Force to lay, prosecute or withdraw charges in respect of offences, the members of the Police Force are not subject to direction or control by any person outside the Force."

26. Unlawful taking of another person's life by vicious means is very serious and as such offenders must be appropriately punished depending on whatever mitigations and aggravations that might be considered relevant in each case. The basic principle in homicide cases is that the sanctity and value of a human life is very precious and values more than any wealth the world can offer and as such, it must be given prominence and ought to be protected at all costs by the Courts. That is why the Parliament fixed the maximum penalty of life imprisonment for the offence of manslaughter.

27. In a number appeals from the National Court decisions on homicide cases, the Supreme Court had emphasized the fact that life imprisonment should be considered first for the offence of murder and the Court has to work out what ought to be the appropriate sentence. Only where a person has pleaded guilty or there are no factors in aggravation should a sentence of the magnitude of around 12 years be considered. (See Anna Max Marangi v The State (2002) SC 702, Simon Kama v The State (2004) SC 740, Sakarowe Koe v The State (2004) SC 739 and Manu Kovi v The State (2005) SC789).

28. Inferences may be drawn from what the Supreme Court has said in the above cases that, for crimes of manslaughter, murder or willful murder, primary Courts should impose longer sentences than it has in previous years. This will underpin and underline the gravity of homicide crimes and provide deterrence to the commission of such serious crimes. I am reminded that the case before me is one of manslaughter.

29. Imposition of either the maximum sentence of life imprisonment or a term of years depends on the factors considered on sentence such as aggravations and mitigating circumstances. On mitigations, the court usually considers such things as, the accused's guilty plea, his previous good character, the prisoner's family background and whether the prisoner is a first offender or not. On the instant case, the prisoner is a policeman. He hails from Karkar Island in Madang Province. He has never been in court before.

30. Against the backdrop of what occurred on this case, the court must now give consideration to the serious nature of this crime. The court must consider the aggregate effect of the assault that was applied to the body of late Stanis Jiki. Such brutal assault resulted in the death of a young person who had great hope for his future. I consider the fact that the victim was unarmed. The prisoner and his colleagues took the victim's life away by allowing him to suffer in anguish from the time he was bashed up until he died the early hours of the next day.

31. One of the serious considerations the court must consider is the fact that, the victim was in the hands of the officers of law. That is people who are arrested for whatever crime it is by police, expectation by ordinary people of this country is that, when policemen arrest a suspect, they are fully responsible for his safety. What occurred on this case was outside the boundaries provided by the laws of this nation and where policemen and women are engaged in such conducts, they ought to be adequately punished. Obviously the type of conduct exhibited toward the victim borders on civil actions taken up for vicarious liability against offenders and the department responsible.

32. On this case, I consider the fact that, despite repeated requests by fellow students to the policemen to take the victim to the hospital, policemen ignored such requests and made light of what was being sought and the poor fellow the victim did not expect to die the way you put him to his eternal rest.

33. The basic principles on sentences for manslaughter cases were stated by the Supreme Court in Antap Yala v The State (supra) and affirmed in Jack Tanga v The State (supra). In the two cases above the Court there said that the sentencing court ought to bear in mind the fact that, the punishment for the offence of manslaughter is life imprisonment.

34. Sentences for manslaughter would normally be lower than sentences for murder and willful murder cases. However, there may be some manslaughter cases where the court might consider that due to the serious nature of such offence, it will justify imposition of heavy punishment and even the maximum penalty of life imprisonment.

35. In relation to manslaughter in domestic setting cases, the Supreme Court in Anna Max Marangi v The State (2002) SC 702 summarized previous cases on manslaughter into three broad categories. I do not want to rely on the case of Anna Max Marangi for two reasons. First the principle stated in that case on the manner of uncalculated application of force, the application of vicious force and a direct force in a determinate and calculated manner may also be applicable to ordinary manslaughter case, but the sentencing tariffs have now been reviewed.

36. The prisoner's case could fall under category two in the case of Manu Kovi v The State (supra). That is because as the court found on trial that the victim was repeatedly punched and hit against the brick wall of the police station. Poor boy, he was repeatedly punched then kicked while lying down the cement floor. If there were any elements of pre-planning such should be balanced against the mitigating factors when one is asked for the reasons why the prisoner committed the offence. On the instant case there was no pre-planning.

37. The principle on sentence on any class of homicide case is that, the maximum penalty should be reserved for the most serious instance of an offence under consideration. This means that the maximum penalty should only be imposed on those cases where they are considered to be worst type crimes encountered in practice: Goli Golu v The State [1979] PNGLR 653, see also Avia Aihi (N0.3) v The State [1982] PNGLR 92 and Ure Hane v The State [1984] PNGLR 105.

38. This court has the discretion to sentence the prisoner to a term lower than the tariff suggested in the above case. Due to the nature of the attack and the fact that it was a case vicious attack, I would sentence the prisoner in terms of category 2 or even 3 of the tariffs suggested in Manu Kovi v The State (supra).

39. Let me now refer to a few similar cases where policemen have been convicted of criminal offences. In Titus Makalaminja and Toby Anunau v The State (2004) SC726, the two appellants were both policemen. A person had thrown an empty bottle at the police vehicle. They pursued the man and he was assaulted and brought to the Boroko police station. He died. They were convicted for the offence of manslaughter. They appealed and the Supreme Court dismissed their appeals and confirmed the convictions.

40. In State v Atren Siva (2013) Unnumbered judgment Cr. No. 63 of 2013, the accused was charged for murder. He however pleaded guilty to manslaughter and was convicted on his plea. He was sentenced to 7 years imprisonment.

41. Having said what I have said, I take into account the prisoner's address on allocutus. I considered counsels' submission on mitigation and aggravations. I have also considered the pre- report. I thank the Probation Officer for the work well done. The pre-sentence report suggests that the other comrades' policemen were also responsible for the attack of the victim and the prisoner is made a scape-goat of whatever action exhibited toward the victim at the time he was brutally murdered.

42. On the community input, I have read comments by Mr. John Karis, the Principal of Kokopo Business College. His comments are against the vicious attack by policemen on duty with police uniforms committing a serious crime of manslaughter. He even said, from the start, police unlawfully entered the college campus. The KBC spent a lot of money for repatriation of the body of the deceased and a number of people that travelled with the body from East New Britain to his home District in Wosera District in East Sepik Province.

43. I also have considered terms and comments by Valentine Yanem, the Warden of Students and the brothers of the deceased. The death of the victim is a big loss to the family and relative. According to Albert Jiki the elder brother of the victim, the young victim's future was jeopardized by the negative attitude of policemen who are supposed to be custodians of the law. The brothers of the victim even call for the maximum penalty to be imposed.

44. Crimes of violence and related killings of innocent people are too prevalent throughout the country and as such deterrent sentences must be considered to deter offenders committing such offences. All communities in this country are experiencing a high level of violent crimes affecting our country's quest for peace and harmonious progression of solving disputes in more responsible, diplomatic and amicable manner as provided for by the law.

45. You did not use any weapon to inflict injuries on the body of the deceased which in fact is less serious according to the case of Manu Kovi v The State (supra). Your presence on the scene of assaulting the deceased and other students who were assaulted in front of the police station without you taking any dissenting view encouraged commission of the crime you were found guilty of.

46. In the circumstances of this case, a life has been lost forever. No money, remorse or compensation will assist to resurrect the victim's life. Taking into account the prisoner's plea for leniency, counsel's addresses on sentence, I consider the fact that a loved one in the family met his death prematurely. The victim of this case was a student studying in the college. He had a great future which has now gone into vanity and nothingness.

47. Taking all those considerations together with the fact that a life has been lost, I sentence the prisoner to an imprisonment of 7 years imprisonment. The court suspends 2 years from that sentence on condition that after serving 5 years, he shall be required to keep the peace and to be of good behaviour bond for a period of 2 years. The prisoner's bail money shall be refunded to him and if there was any time spent in custody shall be deducted from the time he is to serve.
___________________________________________________
The Public Prosecutor: Lawyer for the State
Kamen Lawyers: Lawyer for the Accused