State v Ngotngot [2018] PGNC 392; N7504 (11 October 2018)

	Home \| Databases \| WorldLII \| Search \| Feedback National Court of Papua New Guinea

CRIMINAL LAW – sentence after trial - particular offence – manslaughter murder –s 302 Criminal Code – police beating during an illegal search – cause of death ruptured spleen - sentencing consideration – weapons & objects used- whether police discharged their duty within the confines of the law -degree of participation & level of criminal culpability.

CRIMINAL LAW - sentencing considerations - guidelines serve as useful guide -whether they restrict primary court’s sentencing discretion – importance of maintaining consistency and parity in sentencing tariffs

Ms. J. Batil standing in for Mr. Sambua, for the State
Ms. J Ainui, for the Prisoners

1. SUSAME AJ: After trial court entered a verdict of guilty for the alternative crime of manslaughter under s. 302 of the Criminal Code other than the wilful murder charge offenders were initially indicted. Offenders are in court to receive their sentence.

2. The crime of manslaughter carries a maximum penalty of life imprisonment, though a penalty lower than the maximum may be imposed by the court by invoking s 19 sentencing discretion.

3. The principle on the passing of maximum penalty provided in law of a particular crime is well settled and continues to be observed in our jurisdiction. The rule is that maximum penalty should not be readily imposed unless the facts and circumstances of the case falls within the worst category of case encountered in practice. (Goli Golu v. The State [1979] PNGLR 653)

4. Each offender was allowed the opportunity to speak in mitigation prior to submissions heard from the counsels representing either side. Below is what each of the offender said.

5. Joe Ngotngot said he respects the decision of the court. He apologized to the court and the deceased’s family for what had happened. He asked the court to consider his years of service in the police force. He asked the court to have mercy on him.

6. Eric John said he respects the decision of the court. He apologized to the court and family of the deceased. He asked the court to have mercy on him.

7. Jack Bemau said firstly, he respects the court’s decision. He apologized to the court and family of the deceased for what had eventuated. He said he just married recently. He has two children, first is 4 years & 2 months old the second is 1 year & 2 months old. He is the only breadwinner of the family and also his relatives. His wife’s parents are living on Nissan Island while his parents are residing in Kavieng. He asked the court to take into consideration these factors and pleaded for court’s mercy.

8. David Haro said first and foremost he respects the court’s decision. Secondly, he said he was very sorry for what had happened. He apologized to the family of the deceased for the death that has occurred. Thirdly, he said he is the eldest in the family of 6 boys. He said his parents have passed on. Since the passing of the parents he has been the one supporting all his 5 siblings, 3 have gone on to be employed and 2 younger ones are still in school. He has had no time to start his own family and is not yet married. Lastly, he asked the court to have mercy on him. He asked the court to take into consideration his years of service in East New Britain Province and the country. He said he was sorry for the life that has been lost.

9. Separate reports were prepared for each offender. The reports contain personal information of the offenders, offenders views of the crime, views expressed by various individuals including members of the offenders family and relatives who sympathized with the offenders, Police Station Commander, Kokopo, a Church Pastor, 2 Ward Members, Fisheries Compliance Officer and victim’s family. The reports provided information on each offender’s financial capacity and willingness of offenders and their family members to pay compensation.

10. The reports recommended probation sentence at the same time acknowledged the court’s discretion to impose an alternative sentence if probation was not considered.

11. Parents of the victim condemned the actions of the policemen involved for causing the death of their son. They were in grieve for the loss of their son. They are not prepared to forgive the offenders and insisted offenders are sent to jail.
Offenders on the other hand expressed that although the court has found them guilty they denied committing the crime and maintained their innocence. Each of them realizing their wrong were remorseful for bringing about the death. They offered words of apologies to the court, the family of the deceased and the community. They expressed willingness to pay compensation to the family of the deceased. Concerns were raised of the welfare of their immediate family members.

12. All other persons interviewed including relatives and family members were sympathetic towards offenders from going to jail. Favourable comments were made of their character, contributions to their families and for their service as Police Officers to the nation in maintenance of law and order. Family members also expressed willingness to offer assistance for payment of compensation.

13. Few expressed sentiments complainant’s are equally to be blamed for indulging in drug activities and not cooperating with police.

14. Their views are appreciated. Court’s view on the sentiments expressed are these. The law expects Police Officers to discharge their policing duties within the confines of the law and the Constitution. If they operate outside the parameters of the law, the same law will turn against them and judge their conduct.

15. With regard to payment of compensation I reiterate what I stated in The State v Joshua Sagalol & 8 ors [2018] N7353, (13 July 2018) that the practice of payment of customary compensation is not new. It has been practiced by our people through generations. The practice varies from society to society in the country but its concept is same. Order for payment of compensation is again discretionary. It has limited application in criminal law. It cannot be used as a substitute for penalty the Court is entitled to impose for a particular crime.

16. In any case parents of the deceased are not prepared to reconcile with the offenders and accept any form of compensation. For that reason court will not consider compensation in addition to the punishment court will impose.

17. Human life is more valuable than gold and silver. If life is prematurely terminated by someone no amount of remorse or material wealth paid as compensation can restore it. It is lost forever.

18. It is unfortunate custodial sentence is unavoidable. Offenders will be separated from their families, their jobs, and community. This a natural consequence of committing a serious crime.

19. Ms. Ainui considered the following as the mitigating factors. Eric John, Jack Bemau & David Haro are first time offenders. They are Police Officers on duty searching for marijuana when the offence was committed. Offenders have served distinctively during their career with the Royal Police Force of Papua New Guinea.

20. The deceased and his family were involved in the cultivation of Marijuana. Ms. Ainui argued the parents were also encouraging the cultivation of marijuana by their son and yet had not reported the matter to the police but turned a blind eye to that. If they had discouraged their sons or reported the matter, the deceased would still be alive. With respect I fail to see how that argument will have a substantial bearing in regard to offenders’ sentence.

21. Ms. Ainui argued further there was no pre-planning on the part of the offenders, they were on duty, searching for marijuana. I take that to mean that there was no pre-planning for the murder of the deceased. That argument is consistent with the finding of the court on verdict. But that same argument cannot be used for the beating of the deceased and other members of his family.

22. The factor I consider weighing in their favour is that the death was never pre- meditated or pre-planned. Each offender was remorseful and offered words of apology to the family of the deceased. From my observation they appeared to be genuine.

23. Eric John, Jack Bemau and David Haro do not have history of prior convictions. Joe Ngotngot has. He was convicted and sentenced to 5 years by the National Court, Kokopo for the offence of grievous bodily harm under s. 319 on 29 July 2016. However, whole of the sentence was suspended with conditions. That is a factor weighing against him.

24. With respect to the other 3 offenders though they are first time offenders that factor is not considered as a mitigating factor. In serious homicide crimes courts have held that offender’s first time status in court is insignificant and has little bearing.

25. I consider the following factors weigh against the offenders. Firstly, the search conducted was without a search warrant and illegal. Deceased was assaulted several times in the cover of the night until dawn. Force used was quite excessive and unnecessary especially when the deceased was already in lawful custody with his hands tied up behind his back and never put up resistance or a fight. He never attempted to escape. Threats of violence and dangerous weapons and other items were used. Other innocent members of the deceased family were also assaulted during the search. Offenders never cooperated with police investigation.

26. Counsels have in their respective submissions reminded the court of the sentencing tariffs in homicide cases established in the Supreme Court case of Manu Kovi v The State [2005] PGSC 34; SC789 (31 May 2005). In addition Ms. Ainui has assisted the court with other judgments on the type of sentences courts have passed in guiding me. I have taken note of them.

27. Manu Kovi v The State (supra) is perhaps the leading case on sentencing tariffs in homicide cases. Tabulated below are the suggested tariffs.

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 WORST CASE	DEATH	LIFE IMPRISONMENT-	LIFE IMPRISONMENT
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.

28. Ms. Ainui submitted sentence should fall within category 1, which is 8 – 12 years following Manu Kovi guidelines. She argued however, this court is not bound by the suggested tariffs in Manu Kovi.

29. I construe her argument to mean that court’s sentencing discretion is unrestricted and unlimited by the tariffs suggested in Manu Kovi. Court may in its discretion impose a sentence outside of category I range and impose a lesser sentence.

30. In support she invited the court to consider sentiments expressed by the Supreme Court in Thress Kumbamong v The State [2008] PGSC 51; SC1017 (29 September 2008)

31. In concluding Ms. Ainui suggested a 7 year sentence to be imposed for Joe Ngotngot, Eric John and David Haro and 5 year sentence for Jack Bemau but all sentences to be wholly suspended with conditions.

32. For the State Miss. Batil also made reference to Manu Kovi sentencing tariffs. She acknowledged the criticisms by the courts of the Manu Kovi tariffs. She submitted court has the unfettered discretion under s 19 to impose a sentence fitting of this case, using Manu Kovi tariffs as a guide, taking into account particular aggravating and mitigating factors and extenuating circumstances.

33. This has been demonstrated in a number of the cases she cited where courts have passed sentences not necessarily following the Manu Kovi tariffs.

34. She submitted the present case would fall within categories 3 & 4. She argued aggravating factors substantially outweigh the mitigating factors and that gravity of the offence renders the mitigating factors insignificant in the case. She urged the court to consider a sentence from the upper end of category 3 and lower end of the scale of category 4 of the Manu Kovi tariffs.

35. In her concluding address she submitted suspension of sentence is within the court’s discretion under s 19.

36. At this point let me express my views on the sentencing guidelines set down in Manu Kovi which has received much criticism from some judges. I acknowledge the rational and wisdom expressed by the bench of the Supreme Court in Thress Kumbamong v The State (supra) and in few other cases.

37. The review of sentencing tariffs by the Supreme Courts in respect of homicide cases in particular in manslaughter came about because of the rise in such deaths which were becoming quite prevalent. It was viewed that tariffs set in previous cases were outdated and inadequate or pretty low and having no deterrent effect against such crimes being committed in our day and age.

38. Supreme Courts in few of the cases came up with set of guidelines for the trial courts to be guided by in reaching a sentence. Few of these cases are; Mary Bomai Michael v The State [2004] PGSC 37; Joseph Nimagi & 02 ors v State [2004] PGSC 31; SC741 (1 April 2004) Simon Kama v The State [2004] PGSC 32; SC 740 and Manu Kovi v The State.

39. With utmost respect I differ in the views expressed. We should not and cannot be overly critical of the Manu Kovi sentencing guidelines. Supreme Court being the Superior Court has the inherent power of review to set new sentencing guidelines for the trial courts to be guided by. This is vital in order to maintain consistency and parity in sentencing tariffs.

40. Sentencing is an important and a difficult task of the court. It is a matter of discretion. Exercise of that discretion must be guided by proper principles. Using the words of the court in Thress Kumbamong v The State, “That discretionary power ought to be exercised judicially and according to law and not arbitrarily, vaguely or fancifully. It must be exercised on proper grounds for good reason and not capriciously.” In that respect sentencing guidelines set by the courts puts judges within parameters to properly exercise judicial discretion to avoid perception of bias or discretion is not perceived to be over exercised then necessary or too leniently exercised.

41. The guidelines set in Manu Kovi cannot and should not be interpreted as an attempt by the Supreme Court to interfere with or restricting the power of the sentencing court. The sentencing court still has the liberty to impose an appropriate penalty in the proper exercise of its discretion. After all each case is decided on its own factual merits, circumstances, including “characteristics of the offence or the offender which may aggravate or mitigate the seriousness of the crime taken together with all other relevant considerations.” [Kapi DCJ (as he then was) in Rex Liau v The State [1990] PNGLR 487 at 489].

42. I consider Manu Kovi guidelines are quite useful in guiding the sentencing court in reaching a sentence in a particular case before it.

43. Using the suggested tariffs in Manu Kovi as a guide, facts and circumstances of the present case do not place it within category 4 to attract the maximum life year sentence. In the alternative a lesser sentence will be considered.

44. Circumstances and facts around which the death occurred are in the judgment on verdict. For the purposes of sentencing I will restate the facts. Police got a tip off from some informers that marijuana was grown on the complainant’s property at Floodway, Warangoi. The offenders were members of the search party. During the search of a particular garden they discovered the marijuana plants and uprooted them.

45. From the outset the search conducted was illegal. It was a case where a search warrant was necessary to legitimize the search. Secondly, deceased nor any member of the family never put up a fight or resistance. Deceased was taken out of the house and had his hands bound behind his back. His hands were in that position when he was questioned, verbally abused and assaulted not once but several times during the search and his apprehension. It has also been established a firearm and other objects were used in the assault of the deceased.

46. Deceased was already in lawful custody with his hands tied up. He made no attempt to escape. All that was required of the Police Officers was for them to take the suspects with the marijuana plants back to the police station and deal with them through the accepted practices and procedures of our Criminal Justice System. In those circumstances the use of force or assault of the suspect was excessive and unnecessary resulting in his death.

47. The nature of their work often requires Police Officers to work at odd and or extra hours to curb lawlessness like doctors and nurses do in the hospitals in attending to sick patients. Both professions have one purpose in common – protect lives.

48. The law requires of them to properly discharge their duties and operate within the code of ethics of their profession even under stressful conditions. As much as possible Police Officers must exercise restraint and not vent their frustrations on ordinary people they have sworn to protect.

49. Inspector Edward Gigi the Police Station Commander, Kokopo conceded to that in the pre-sentence report when he stated the overall duty of a policeman is to arrest and lock the offender in the cell and not to go out there and harass community and destroy properties. No one is above the law and the law must apply to every citizen of this country.

50. Section 197 of the Constitution spells out functions of the Police Force and it reads:

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

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

51. I concur with Miss. Batil that offenders are not ordinary persons. They are members of the Police Force. They have taken a solemn oath to uphold the rule of law at all times in the discharge of their lawful duties. Their actions were contrary to the oath they have taken.

52. One other point which Inspector Gigi stated and which I agree with is that there must always be a team leader preferably a Senior Police Officer in every police operation or raids to maintain command and control. He ensures raids or operations are conducted within the limits of the law. Needless to say there was no command and control of the raid that was conducted by the offenders and others.

53. This is a case involving multiple suspects some of whom have not been arrested and charged except the 4 offenders. The issue is should each of them be sentenced equally?

54. Ms. Ainui made no particular submission on this point except Miss. Batil.
One view is that offenders should be sentenced equally which is the view held by the Supreme Court in Gimble v The State [1988-89] PNGLR 271 at 273 when the court said:

"The general rule is that all active participants in the crime shall be sentenced on the same basis. The Court does not normally stop to consider whether a particular prisoner actually held up the victim, or held the gun, or the iron bar, or was a watchman outside, or was the driver of the get-away vehicle. All are equally guilty because without each playing his part the crime could not be perpetrated.”

55. The other view is that each offender must be punished according to the level of their criminal culpability or degree of participation and their respective circumstances.

“There is no rule of law which require co-offenders to be given the same sentence for the same offence even if no distinction can be drawn between them. Obviously where the circumstances of each offender or of his involvement in the offence are different then different sentences may be called for. But justice should be even-handed and....any difference between the sentences imposed upon co-offenders for the same offence ought not to be such as to give rise to a justifiable sense of grievance on the part of the offender with heavier sentence or to give the appearance that justice has not been done.”

57. Statement of Dawson J in Lowe is consistent with the parity principle of sentencing which has been observed by the courts in this jurisdiction and abroad over many years.

58. That is where two or more persons are charged and convicted together for the same offence, their sentence is determined in accordance to the level of their criminal culpability or the degree of their participation and their individual circumstances.

59. In The State v Tom Keroi Gurua & ors (2002) N2312 (11 December 2002) Kirriwom J reaffirmed the parity principle which I adopted in The State v Joshua Sagalol & 8 Ors (2018) N7353.

60. Miss. Batil concedes to that and submitted offenders in this particular case are sentenced in accordance with their degree of participation and their individual circumstances.

61. The principle is good in doing justice. There is no reason for me to depart from it. But, as a reminder justice should be “even – handed” in that there should not be a marked difference between the sentences imposed to give rise to any grievance between the offenders.

62. Applying the Parity Principle each offender will be sentenced in accordance with their degree of participation in causing the death.

63. Based on the established facts, offenders Joe Ngotngot, Eric John and David Haro took turns and assaulted the deceased during the entire search. Evidence was lacking to prove how Jack Bemau assaulted the deceased. He was convicted as a Principle Offender by operation of s 7 of the Code.

64. Having discussed all of the above what sentence should this court pass? I have carefully considered the characteristic of the present case. In my considered opinion there are some factors which fall within category 1 & category 2 of guidelines in Manu Kovi. Characteristics of the case are: There was no de facto provocation, offenders had deliberate intention to use threats and force on the suspects to obtain information, excessive force with dangerous weapons were used, deceased never put up a fight or resistance, deceased had an enlarge spleen which raptured on application of excessive force.

65. I have also considered sentences imposed in the cases Ms. Ainui cited and these The State v Anton (2012) N4828, The State v Isorombo (2016) N6433) The State v Banuk (2014) N5757 including the case of Thress Kumbamong v The State.

66. Different sentences were imposed not within the range in Manu Kovi. Sentences imposed were 10 years in the first case, 10 & 5 years in the second, 7 years in the third and in the fourth case 9 years but on appeal sentence was wholly suspended with conditions.

67. With respect facts of the above cases are distinguishable from the present case.

68. Police brutality resulting in deaths is becoming quite prevalent in PNG. A punitive sentence passed will be with the aimed of personal and general deterrence in an effort to educate and remind Police Officers to discharge their policing duties within the confines of the law they have sworn to uphold.

69. By any measure punishment court impose when one comes to think of it will be less severe than the punishment deceased had received. Offenders will return to join their families after serving their sentence. Not the deceased.

70. Accordingly, in the exercise of court’s discretion offenders Joe NgotNgot, Eric John and David Haro are each and severally sentenced to 12 years imprisonment while offender Jack Bemu is sentenced to 11 years imprisonment.
Pre-sentence custody period shall be discounted from their sentence with the balance to be served in prison.

71. If the prisoners have received actual threats while awaiting sentence at the Kerevat Jail recommendations by the jail Commander has been considered.

72. I order that the prisoners shall serve their sentence at the Bomana jail, Port Moresby or Beon jail in Madang or any other prison where their safety is guaranteed at the discretion of the Kerevat Jail Commander.

73. I further order that all monies paid as bail and cash surety are to be refunded forthwith.
__________________________________________________________________
Public Prosecutor : Lawyer for the State
Public Solicitor : Lawyer for the Accused

National Court of Papua New Guinea

State v Ngotngot [2018] PGNC 392; N7504 (11 October 2018)