State v Bonsu (No.2) [2014] PGNC 312; N5571 (7 April 2014)

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CRIMINAL LAW – Sentence after trial – Murder –Elements present - Section 300 (1) (a) Criminal Code

CRIMINAL LAW – Public Servants providing vital service to rural communities must be protected by Courts –Be they law enforcing officers or Community Health Workers – Perpetrators must be sternly punished - Prevalence of the crime — Need for punitive and deterrent punishment

CRIMINAL LAW – Sentence after trial – Murder –Serious Aggravating factors present –Dangerous weapon - A 4x2 piece of timber used as a weapon - No regard for human life - Death instant – Sentenced to 20 years - Criminal Code s.300 (1) (a)

1. GEITA AJ: The accused pleaded not guilty to the murder of Mark Wabi, at Ambunti Station on 21 February 2012, East Sepik Province. The deceased was a Community Health Worker from Yerakai village also from East Sepik Province.

2. The brief facts as found during trial for purposes of completeness and conviction on 4 April 2014 are these. On the morning of 21 February 2012 between the hours of 9 am and 10.30 am at Ambunti Station government bridge, East Sepik Province, the prisoner inflicted two blows to the neck and head of the victim with a 4x2 piece of timber, killing him instantly: an indictment under Section 300 (1) (a) of the Criminal Code.

4. Upon administering the allocatus pursuant to section 593 of the Criminal Code, the prisoners said:

The prisoner is a member of SDA faith and comes from Bangus village ESP. He was educated up to Tertiary Education level obtaining a Diploma in Business.

2. His relatives paid compensation worth K34, 000.00 in cash and kind to the relatives of the victim.

SUBMISSIONS FOR AND ON BEHALF OF THE PRISONER

7. In his brief oral submissions Defence Lawyer Mr. Fingu conceded that the crime was serious however invited court to also look into other sentencing options available to it. He submitted that a sentencing tariff within Category 2 and 3 of Manu Kovi v The State (2005) N 789 would be appropriate under the circumstances.

8. The State Prosecutor Mr. Joel Done submitted that the upper range of category 3 sentencing tariff in Manu Kovi case (supra) of between 20 to 30 years be considered in light of the seriousness and gravity of the murder. He advanced that a piece of timber was used to inflict the injuries to the deceased's neck and head. The prisoner pleaded not guilty but was found guilty after trail causing meagre State resources to be used to run the trial. This meant bringing witness down from Yerakai village to Maprik to testify. The killing was brutal and an innocent life taken away. Not to mention that the victim was a public servant, a health worker, going about his daily business when killed. Mr Done submitted that the human life is valuable and the prisoner had no regard to terminate the victim's life adding that no amount of compensation would return the victim to life and for court's decision not to be influenced by the payment of compensation. The prisoner was under the influence of alcohol and that the crime of murder was prevalent in Papua New Guinea.

9. Since both counsels have relied on the sentencing tariffs in the case of Manu Kovi (supra) I should point out that another Supreme Court decision of Thress Kumbamong v The State (2008) SC 1017 has departed from the fixed sentencing tariffs pronounced therein. The 2008 Supreme Court was of the view that the proscribed minimum and maximum sentences restricted the discretionary sentencing powers of trial judges. With the greatest of respect I too hold the view that trial judges discretionary powers in sentencing should be jealously guarded and not curtailed, save for Parliamentary intervention. Notwithstanding Thress Kumbamong case (supra) I will hold myself to be guided by the sentencing tariff in Manu Kovi. I set out here under the tariff for ease of reference.

CATEGORY	WILFUL MURDER	MURDER	MANSLAUGHTER
CATEGORY 1	-15 – 20years	-12 – 15 years	-8 – 12 years
Plea. -Ordinary cases. -Mitigating factors with no aggravating factors.	-No weapons used. -Little or no pre-meditation or pre-planning. -Minimum force used. -Absence of strong intent to kill.	-No weapons used. -Little or no pre-planning. -Minimum force used. -Absence of strong intent to do GBH.	-No weapon used. -Victim emotional under stress and de facto provocation e.g. killings in domestic setting. -Killing follows immediately after argument. -Little or no preparation. - Minimal force used. -Victim with pre-existing diseases which caused or accelerated death e.g. enlarged spleen cases.
CATEGORY 2	-20 – 30 years-	-16 – 20 years	-13 – 16 years
Trial or Plea. -Mitigating factors with aggravating factors.	-Pre-planned. Vicious attack. - Weapons used. -Strong desire to kill.	-No strong intent to do GBH. -Weapons used. -Some pre-planning -Some element of viciousness.	-Using offensive weapon, such as knife on vulnerable parts of body. -Vicious attack. -Multiple injuries. -Some deliberate intention to harm. -Pre-planning.
CATEGORY 3	-Life Imprisonment-	- 20 – 30 years-	-17 – 25 years
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 innocent, 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.	-Pre-planned. Vicious attack. -Strong desire to do GBH. -Dangerous or offensive weapons used e.g. gun or axe. -Other offences of violence committed.	-Dangerous weapons used e.g. gun or axe. -Vicious and planned attack. -Deliberate intention to harm. -Little or no regard for safety of human life.
CATEGORY 4	- DEATH -	- LIFE IMPRISONMENT-	-LIFE IMPRISONMENT-
WORST CASE – Trial or Plea -Special aggravating factors. -No extenuating circumstances. -No mitigating factors or mitigating factors rendered completely insignificant by gravity of offence.		-Pre-meditated attack. -Brutal killing, in cold blood. -Killing of innocent, harmless person. -Killing in the course of committing another serious offence. -Complete disregard for human life.	-Some element of viciousness and brutality. -Some pre-planning and pre-meditation. -Killing of innocent, harmless person. -Complete disregard for human life.

10. I now move on to consider whether the offence committed by the prisoner was of the worst type and whether the court should impose the maximum prescribed sentence i.e. life imprisonment. To this end I remind myself that the maximum prescribed sentence are best left for the worst types of cases. (Goli Golu v The State [1979] PNGLR 653 and John Kalabus [1988] PNGLR 193). Although I agree with the State submission that this act of killing was uncalled for, unwarranted and cowardly and an innocent life tragically lost, I do not consider this murder any more vicious, callous and or gruesome under the circumstances it was carried out. I will not impose the maximum sentence.

11. Secondly, what than should the appropriate sentence be in this case. Having had the benefit of oral submissions from both lawyers on all relevant issues including the mitigation and aggravating circumstances for and against the prisoner, I need not restate them here again. The death was tragic, not warranted and possibly bordering on the shadows of being categorized as falling within the ambit of the "worst types" wilful murder cases. I hold the view that the few mitigating factor favourable to you must be the huge amount of compensation paid in cash and kind and that you are a first time offender.

12. You are a young man and come from a well off family and so it would be safe to assume that most of your basic necessities of life were met as opposed to a majority of Papua New Guineans who are struggling with life's necessities. In short you have no reason to resort to stealing from others. Your family operated a fuel depot at Wispa at the time however may have ceased due to this incident. Quite apart from whatever reasons which prompted you to commit that horrendous crime, the dreaded alcohol or beer has once emerged its ugly head as the catalyst in this crime. Courts view generally with people who commit crimes whilst under the influence of alcohol is a no go and no defence, especially circumstances of self-induced intoxication: (Kesino Apo v The State [1988] PNGLR 182.) You had no regard for the victim's life when you bludgeoned him to death, killing him instantly.

13. First up is that you have denied the people of Yerakai and surrounding villages the services of this vital government service by taking away the life of the person who provides those services: Community Health Services. You will agree with me that these people provide a very crucial service to our people on the sport at practically no cost to the rural people. As opposed to main Health Centres and Hospitals which are inaccessible to the rural communities. As can be seen from these facts the enormity of this murder has not only affected the victim and his family but the wider Yerakai and surrounding communities. It follows that the community's expectation of you being punished harshly is ever present.

14. The Courts view in general of persons who cause harm and death to victims providing vital government services must be punished sternly: Be they law enforcing agencies, public servants and the like: (The State v. Joe Foe Leslie Leslie N1496; Peter Naibiri and Kutoi Soti Apia v. The State, SC 137 and Ure Hane -v- The State [1984] PNGLR 105). His Honour Mark Sevua as he was then had this to say in the Joe Foe-Leslie case (supra):

"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..."

15. In that case Leslie was a prisoner on the run with prior conviction and found himself in a shootout with police resulting in two officers being seriously wounded. He was sentenced to life imprisonment which decision was upheld by the Supreme Court upon appeal.

16. In another Nation Court case of The State v Eliza Ute (2004) N2550, His Honour Kandakasi J sentenced a prisoner to 25 years. The prisoner used a gun fatally wounding the victim, a community health worker. He pleaded guilty and was a first time offender. Kandakasi J had this to say and I quote:-

"... I am of the view that, what the Supreme Court said about an offence of violence against a policeman, in Joe Foe Leslie Leslie v. The State (supra) should also apply for the protection of all other persons providing a vital service to the community. This is necessary, given the hard economic times the country is going through and some of the basic services are not readily available particularly in the rural areas. The list of persons falling under that category would include without limiting the list, health workers, teachers, other public servants, NGO and volunteer service providers. Such protection is necessary to encourage members of the community to appreciate the services these persons provide and to enable such persons to take up positions in the provinces without fear of any criminal attack on them."

17. I must say here that the same sentiments equally apply to Community Health Workers and the like. They too are providing vital services to their respective rural communities they serve. We have here a Community Health Worker travel downstream to Aitape Station to replenish his essential medical supplies, only to be murdered on the way by the prisoner. I agree and adopt these sentiments in the above cases as my own in the context of this case as the attack is tantamount to an attack on the functions of our Health System especially Community Health Workers. The Courts and the community at large must not condone or tolerate violence against these officers.

18. Secondly a piece of timber used as a weapon, although not as lethal as a gun or an offensive weapon for instance a knife, once used in a manner and nature resulting in very serious injuries, as has happened in this case, makes this case a more serious case of murders. Perpetrators can expect to be given the sternest of punishments and not less.

19. The principles of sentencing are engrained in four main pillars: deterrence, rehabilitation, restitution, and retribution. The more serious the offence or crime, deterrence and rehabilitation are often employed by Trial Judges. In the case of John Elipa Kalabus –v- The State [1988] PNGLR 193, the former Chief Justice Sir Buri Kidu had this to say:

"There are various purposes of punishments and they include rehabilitation. But rehabilitation of a criminal must not be allowed to obscure the consideration of deterrence and protection of the public from the commission of crimes".

20. The prisoner's family has paid more than K38, 440.00 in cash and kind as compensation. May I add here that an order for compensation is an additional form of punishment allowed by the Criminal Law (Compensation) Act 1991? Certainly the compensation paid already exceeds the maximum, K5, 000.00 allowed by the Act: nonetheless the seriousness of the crime, which in my view will not compensate the loss of a life hence it, is of little consequence because it will not affect the punishment in any substantial way. I have however considered the huge compensation paid to the relatives of the deceased. That has reduced the sentence I would have otherwise imposed had such compensation not been paid. The payment of compensation cannot exonerate the prisoner; it can only mitigate his sentence.

21. The maximum penalty for murder is the death sentence as prescribed by Section 300 (1) (a) of the Code. This is however subject to the sentencing discretion vested upon court by Section 19 of the Criminal Code.

22. Might I add here that the art of sentencing is not a science but is loaded with the exercise of discretion? Having had the benefit of cases researched, and the arguments for and against I have come to the conclusion that in the exercise of my discretion the appropriate sentence to be imposed upon you is the mid range of Category 2 & 3 in the Manu Kovi sentencing tariff: 20 -30 years. In the absence of a guilty plea and aggravating factors the head sentence considered above in my view would suffice. Furthermore I am more inclined to register the community's disgust at this murder and impose a longer prison sentence as a deterrent to others.

23. Given how the courts have treated persons who cause harm to service providers your case is distinguished from the two cases referred to above. You used a piece of timber as opposed to a gun in those two cases to commit the crime. Nonetheless vital services in that community now remains disrupted as a result rendering your case no less serious to those earlier cases. I am of the view that your case is not in the worse category as in Foe Leslie Leslie v. The State (supra) and that of The State v. Elizah Ute (supra). If follows that the sentence that I impose on you should not exceed the 25 years range. Instead I will sentence you to 20 years with hard labour.

Sentenced accordingly.
____________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner

Warren Bonsu	Sentenced to	20 years
	Less remaining mitigation factors including payment of compensation.	2 years
	Balance sentence to be served	18 years

National Court of Papua New Guinea

State v Bonsu (No.2) [2014] PGNC 312; N5571 (7 April 2014)