State v Kalinau [2015] PGNC 245; N6142 (16 November 2015)

N6142

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 658 of 2015

THE STATE

-v-

KENNY KALINAU

Vanimo: Geita J
2015: 11, 12, 13 & 16 November

CRIMINAL LAW – Particular offence – Murder – Conviction following trial – Death resulting from police arrest and detention – Decision on sentence - Section 300 (1)(a) of the Criminal Code.

CRIMINAL LAW – Sentence – 16 years with partial suspended sentence due to favourable mitigating factors and probation for 4 years after serving sentence of 10 years- Probation with conditions

Cases Cited:

Manu Kovi v The State (2005) SC785
The State v Abaya Ulas [2010] N4009
The State v Frank Kagai [197] PNGLR 320
The State v John Kanua Saina (2006) N5014
The State v John Wanimba (2005) N 2863
The State v Theo Benny (2013) N5556

Legislation cited:
None

Counsel:

Mr. Joseph Kesan, for the State
Ms. Renatta Yayabu, for the Prisoner

JUDGMENT ON SENTENCE

16th November, 2015

1. GEITA J: The prisoner was convicted of the murder of John Rodney Sarop following trial which lasted three days in Vanimo.

2. The deceased was apprehended by the prisoner during a gospel rally in Aitape at about 6.30pm on 19 December 2014, assaulted and taken to the police vehicle. The victim was drunk at the time. As he attempted to get away from them he was chased by the prisoner and another policeman and apprehended. He was assaulted again on various parts of his body including slamming him against a coconut tree and throwing him over a shallow creek. The prisoner defecated. He was then taken to the police station and locked up. Upon realising that his condition had worsened, the prisoner and another police officer took the victim to Raihu District Hospital during the night. He was unconscious with bleeding from his head, through the nose and mouth and died soon thereafter. The nature and extent of his injuries are specified in the two medical reports.

3. Both counsels correctly pointed out that the maximum penalty for murder is life imprisonment pursuant to s. 300 (1) (a). However subject to Section 19 of the Criminal Code a lesser sentence may be imposed by the Court in the exercise of its discretion.

4. I administered the allocutus pursuant to s. 593 of the Criminal Code. The prisoner's responses are paraphrased and listed hereunder:

1. Married with three infant children aged between 7 years and an infant child.
   
2. He is aged 33 years and has worked as an auxiliary policeman in Aitape for 6 years.
   
3. Expressed remorse to the family of the deceased.
   
4. Highest grade attained was Grade 8 and is Roman Catholic by faith.
   
5. Sorry to court and asked for leniency.
   
6. Family home and belongings destroyed
   
7. No prior conviction.
   
8. Pleads for a non-custodial sentence and probation.
   
9. His family now displaced and child out of school.
   

ANTECEDENTS

No prior convictions

AGGRAVATING FACTORS

• The loss of a human life
• Found guilty after trial: Cost of running trial to the State.
• Prevalence of offence
• Police brutality incident
  

MITIGATION FACTORS

• First time offender
• Auxiliary policemen for 6 years.
  

DEFENCE SUBMISSIONS

5. Ms. Yayabu rightly pointed that in almost all homicide case custodial sentences are imposed and this case is no exception. However she submitted that the court still had a wide discretion in considering lesser sentences. The prisoner in this case was on duty: He was out to apprehend an unruly member of the public which went wrong. Ms. Yayabu urged the court to take into account the prisoner's pleas in allocutus and that he was a first time offender. Ms.Yayabu submitted that the appropriate sentence for the prisoner should be less than 16 years be at the top end of Category 1 and lower end of Category 2 in Manu Kovi case. Manu Kovi v The State (2005) SC785 – 31 May 2005. Manu Kovi appears to be the lead authority in this jurisdiction with clear guidelines for sentencing tariffs in relations to homicide offences including manslaughter.

STATE SUBMISSIONS

6. Mr. Joseph Kesan however submitted for a higher sentence between 20 years and 25 years in this case. In support of his arguments, he referred the court to what he termed as 'similar cases' to which I am grateful: The State v John Wanimba and 2 Others 2005 N 2863 and The State v John Kanua Saina (2006) N5014

7. In The State v John Wanimba (supra) the prisoner, a policeman was sentenced to 25 years imprisonment for the murder of a 16 years old boy after he was arrested and assaulted. In handing down the decision the late Judge His Honour Jalina J said and I quote:

"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.

8. In The State v John Kanua Saina (supra) two men were convicted after a trial of murdering a man they suspected had killed a friend of theirs by sorcery. His Honour Cannings J in passing sentence said it was a mob attack in which the victim was bashed to death. The two prisoners were sentenced to 25 years imprisonment.

9. The State Prosecutor submitted that the two cases cited were similar in nature to the case before me and invited the court to consider a sentence of between 20 – 30 years.

10. In the Wewak case of The State v Theo Benny (2013) N5556 the prisoner, a correctional officer was on duty with orders to recapture 26 prisoners dead or alive. The prisoner was armed with a five round pump action shot gun. At a road block manned by correctional service officers the victim who was travelling in a PMV panicked, jumped off and ran into the bush. The officers gave chase and fired several warning shots. One of the shots hit the deceased on his head killing him instantly. The offender pleaded guilty and was sentenced to 10 years which was wholly suspended. He had several mitigation factors in his favour.

11. In the Madang case of The State v Abaya Ulas (2010) N4009 the offender, a police officer, was not on official police duty but went to a village where the deceased was staying and with the help of others, raided the house the deceased was staying in and fired at least two shots from a police-issued firearm that he was carrying. The deceased died soon afterwards from loss of blood caused by a bullet wound to the leg. The offender was convicted after a trial. It was dealt with as a category 2 case under the Kovi guidelines and there were a number of mitigating factors warranting a sentence at the low end of the starting point range: 16 years imprisonment.

12. In the present case, the life of a 20 year old boy was taken prematurely. There is evidence that he was intoxicated and behaved unruly during a gospel rally. There is no evidence that the deceased was resisting arrest and obviously posed no real threat or danger to the prisoner and his other police officers. To my mind, all that was necessary under the circumstances was to restrain him and lock him up at the police cell as is commonly practised by most law enforcement agencies until he becomes sober. Police can than question and lay charges. Instead the young boy was assaulted immediately upon apprehension all the way to his death.

13. As can be seen from the two cases referred to me by State, prison terms beyond 20 years were imposed after trial. Your case is no different save you acted alone. The aggravating factors in the two cases were: direct and brutal killing, mob attack, vicious assault. Unfortunately I do not have the benefit of a pre-sentence report due to the unavailability of a Probation Officer in town at the time of your sentence. However I am satisfied with whatever information given to me by your lawyer and the information in your allocutus. Notably you have no prior convictions and this crime committed whilst on duty as a policeman. You are concerned for your wife and young family who are now displaced with their home destroyed as a result of this crime. Human nature is such that whatever good amassed over the years is easily forgotten with the most recent uneventful occurrences as has happed in this case: An auxiliary policeman going about his normal police duties suddenly finds himself, this time on the wrong side of the law. The State has submitted that this is police brutality and called for a long prison sentence.

SENTENCE IN YOUR CASE

14. For the moment it is acknowledged that an innocent young life has been lost under the hands of police in Aitape. That young life will not be replaced by whatever punishment is imposed. The least that can happen is that a strong deterrence message is sent to all policemen and women to exercise common sense and restraint in their policing duties. Most importantly in my view is for the police hierarchy and leadership to put into place immediate measures to avoid repeat of such cases. Put simply train and drill all your auxiliary policemen and women in the art of policing, more so police public relations. Build and restore public confidence in the police force rather than install mistrust and hatred which is dangerous in any civilized society.

15. The demeanour of the prisoner was observed during trial and despite his denials of involvement he appeared to me to be quiet spoken and one committed to his police duties, now gone wrong. He is a first time offender and not a danger to the society. His crime in my view was akin to an overzealous auxiliary policemen carrying out his lawful duties. For the moment there is no evidence that an offensive weapon was used in this assault nor was there any pre planning although some element of intention were present. As a result you must be punished accordingly. In deciding the sentence I should impose, I have taken into account your mitigating circumstances and your aggravating circumstances.

16. Notwithstanding the two earlier cases referred to me by State calling for a longer prison term I am more inclined to lean towards the Wewak and Madang cases quoted above as they bear resemblance in the circumstances surrounding this crime. I am of the view that if you compare the aggravating factors in the present case to the two cases referred to this court earlier the aggravating factors in the two cases far exceed in seriousness and gravity: mob attack, brutal and vicious assault etc. This case is considered solely on its unique facts and circumstances. I am therefore satisfied that I will deal with it as a category 2 case under the Manu Kovi guidelines. A head sentence at the mid-range of the starting point: 18 years imprisonment.

IS YOUR CASE A SUITABLE ONE FOR ALL OR PARTS OF YOUR SENTENCE TO BE SUSPENDED?

17. I first look at the crime committed and am satisfied that it is a very serious offence. I next look at all the circumstances surrounding this crime and take that into consideration. The crime was committed during the course of your duties as an auxiliary policeman on that fatal day. I also look at the effect this crime has on you, more particularly on your wife and children. As I said earlier I do not have the benefit of your pre-sentence report as none were ordered and in any event the Probation Officer was out of town and done would be produced in time during this circuit. Furthermore you are no threat to the community at large, save threats within the prison compound from other inmates as told to me in your evidence. I am therefore satisfied that yours is a suitable case for some of your sentence to be suspended. In the case of The State v Frank Kagai [1987] PNGLR 320-Hinchliffe J, as he was then had this to say:

"Suspension of sentence of imprisonment is not an exercise in leniency but an order made in the community interest and designed to prevent re-offending which a prison sentence standing alone seldom does. Persons charged with serious offences may be dealt with by way of suspended sentence by reason of good character and where the court is of the view that there will be no reoffending and or that the particular individual will be positively damaged by incarceration."

18. I adopt and apply the above consideration in this case. To this end I find that an appropriate sentence favouring you is part custodial and part non-custodial sentence. I wish to reiterate here that I am not downplaying the seriousness of the crime committed. I acknowledge that a precious life has been lost and a family denied of their loved one.

19. In the exercise of my discretion under Section 19 of the Criminal Code Act I order that an appropriate sentence under the circumstances to be 16 years. I further order that parts of the sentence will be suspended with conditions as follows:

1. After having served 10 years of your sentence the balance will be wholly suspended and you will be put on Probation for 4 years and to enter into your own recognizance and be of good behaviour during the suspension period;
   
2. You are refrained from using or have in your possession any and all State issued firearm;
   
3. You are to align yourself with a Faith based organisation and attend church regularly;
   
4. The Office of Community Based Corrections in Vanimo shall take charge of your supervision and furnish your progress report, at quarterly intervals.
   
5. The 11 months of your pre-trial custody will be deducted from your overall sentence.
   

Sentence accordingly,

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