State v Karl [2018] PGNC 405; N7516 (20 September 2018)

N7516

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
CR NO 521 OF 2011

THE STATE

V

PAUL KARL

Kimbe: Miviri AJ
2018 : 21^st August

CRIMINAL LAW – PRACTISE & PROCEEDURE – Plea – Manslaughter- S302 CCA –deceased hit with blunt object – multiple injuries – internal head injuries – unlawful act – offence committed whilst policeman – first time offender – prevalent offence – sanctity of life – strong punitive sentence.

Facts

Prisoner assaulted the deceased with a blunt object causing internal injuries to the head from which he died.

Held

1. Plea bargaining should not defeat the justice of the case.
2. Ultimate authority of legislature not defeated.
3. Protection and sanctity of life
4. 18 years ILL less time in custody deducted.
   

Cases sited
Joseph Leahy [2006] PGSC 21; SC855 (15 December 2006)
Kerua and Kerua, Public Prosecutor v [1985] PNGLR 85
Review Pursuant to Constitution Section 155(2) (b); Application by Herman Leahy
The State v Lilu, [1988] PGNC 60 [1988-89] PNGLR 449
The State v Lopai, [1988-89] PNGLR 48
The State v Ngasele [2003] PGSC 2; SC731
The State v Aihi (No 1) [1981] PGSC 9; [1981] PNGLR 81
The State v Yalibakut [2006] PGSC 27; SC890
The State v Raphael [2018] PGNC 140; N7240
The State v Apia [1978] PGSC 1; SC137
The State v Leslie [1998] PGSC 22 SC 560
In re Powers, Functions, Duties and Responsibilities of the Commissioner of Police [2014] PGSC 19; SC1388
The State v Mase and John [1991] PGNC 62; [1991] PNGLR 88
The State v Setep [2001] PGSC 14; SC666
The State Thress v Kumbamong SC1017.
The State v Paugari [2011] PGNC 159 N4438
The State Manu v Kovi [2005] PGSC 34; SC789
The State v Avia Aihi (N0.3) [1982] PNGLR 92.
The State v Lawrence Simbe [1994]PNGLR 38
The State v Miva [2006] PGNC 103; N3454
The State v Raphael [2018] PGNC 140; N7240
The State v Apia [1978] PGSC 1; SC137
The State v Manu Kovi [2005] PGSC 789
The State v Lawrence Simbe [1994] PNGLR 38
The State v Miva [2006] PGNC 103; N3454
The State v Wanimba [2005] PGNC 108; N2863

Counsel:
A. Bray, for the State

E. Yavisa, for Defendant

SENTENCE

20^th September, 2018

1. MIVIRI AJ: This is the sentence of a man who pleaded guilty to assaulting the deceased who suffered internal injuries to his head from which he died.

Brief Facts on arraignment

2. Prisoner was part of a group of policemen who assisted Kimbe town officials to ‘clean’ the town. On the 8^th April 2011, Near Ela Motors adjacent to K Mart, Emil Gare spit out betel nut. Prisoner a policeman came out to arrest him. He resisted and punched prisoner in the face. A fight ensued between the public, town council and the police. Deceased was assaulted, apprehended and brought to the Kimbe Police Station. There he was further assaulted and died from multiple blunt force trauma to the head. Prisoner was responsible for some of the assaults that caused the death.
   
3. He unlawfully killed the deceased contravening section 302:
   
   • (1) A person who unlawfully kills another under such circumstance as not to constitute wilful murder, murder, or infanticide is guilty of manslaughter.
     

Penalty: Subject to Section 19, imprisonment for life.

Plea

4. Prisoner pleaded guilty that he unlawfully assaulted the deceased who sustained internal injuries to his head leading to death, change from his record of interview where he elected to remain silent.
   
5. This is not the common facts of Manslaughter that this court sees as in Lilu, The State v [1988-89] PNGLR 449 ( 25 October 1989) where there was one punch with the deceased falling back wards cracking his skull on the pavement and dying as a result from internal head injuries emanating from the fall. Nor is it a case of a spleen death as in Lopai, The State v [1988-89] PNGLR 48 (21 February 1989). The initial information laid 10^th April 2011 committal made on the 27^th May 2011 was of wilful murder which has been reduced by plea bargaining to manslaughter under section 302 of the Criminal Code. It is by law the discretion of the Public Prosecutor which he has exercised on behalf of the people by the Constitution, Review Pursuant to Constitution Section 155(2) (b); Application by Herman Joseph Leahy [2006] PGSC 21; SC855 (15 December 2006); State v Ngasele [2003] PGSC 2; SC731 (3 October 2003) therefore any sentence imposed will be proportionate to that offence taking account of all mitigating and aggravating features of the case.
   
6. Extended the National Court exercises judicial power of the people under section 155 (3) and (4) of the Constitution, Aihi v The State (No 1) [1981] PNGLR 81 (27 March 1981). By this authority both mitigating as well as aggravating features of this case must be given due weight and consideration in the determination of sentence upon the prisoner. Sense of Justice is not been blind to the facts of a given case. It should not be the case that because a prisoner has pleaded guilty the effect of the aggravating features should not be down played. Because this is not the same as to sentence the offender on the basis of the facts to which he or she has pleaded guilty to. That is version of facts which within the bounds of possibility is favourable to the offender, Yalibakut v The State [2006] PGSC 27; SC890 (27 April 2006). Here except for the reduction of the charge to Manslaughter there is no agreed statement of facts upon which the plea is taken. So there is no restriction in consideration of all relevant admissible facts both for and against that must be properly screened weighed to arrive at a proportional sentence in the matter. This is a case of a First Constable of police whilst on duty in uniform who has deliberately persisted in assaulting the deceased in full view of all in public at a public frequented area and then continued on at the Police Station climaxing in the death of Emil Gare. He is not solely responsible but is one of the persons involved.
   
7. Just as a policeman is entitled to the full protection of the law, State v Raphael [2018] PGNC 140; N7240 (27 April 2018); Apia v The State [1978] PGSC 1; SC137 (25 October 1978); Leslie v The State [1998] PGSC 22 SC 560 (7^th August 1998). In similar way the citizen Emil Gare or any other for the same coming into contact with policemen executing their duties in law is also entitled to the full protection of the law. The policeman is trained in enforcing the rule of law to ensure peace and good order to maintain as necessary in enforcing the law in an impartial and objective manner, In re Powers, Functions, Duties and Responsibilities of the Commissioner of Police [2014] PGSC 19; SC1388 (2 October 2014). It is clear that has not happened here. And is a very serious breach of oath by the prisoner who has sworn to uphold the Constitution and the laws of the Country to protect lives and property. Police enforce the law independently and impartially to secure goodness of all in the community and the country. And they do so in compliance to the law. Here was a deliberate intent to defy the law by an officer of the law. The conduct is unspeakable and will not be tolerated by the courts. By the character that has been spoken off of the prisoner in the presentence report he ought to have exercised due diligence and restraint in what he did. If he was what he is by Dacca Wagai MPA and rural Commander Oena Afeke, He has no excuse for what was done on this day. Either both these persons have lied because of their association with him or it is simply concealing his true identity and character and putting on a face to secure a favourable sentence. This doubt will not be in favour of the prisoner. It will be against him.
   
8. And it does not look well that he has a prior conviction of arson that he is currently serving sentence of 15 years imprisonment. By law this is a separate criminal offence separated by time date victim and is not in any way linked or related to the present offence. It would therefore be cumulative to the present offence of manslaughter. The principles of Totality are not applicable given these circumstances because the authorities are clear that they relate as demonstrated in Mase and John v The State [1991] PGNC 62; [1991] PNGLR 88 (1 March 1991) where the total sentence for the jointly charged offences of armed robbery, abductions and rape were reduced from 18 years to 14 years by application of totality. Similarly in Setep v The State [2001] PGSC 14; SC666 (18 May 2001) the sentence for rape of 25 years was made cumulative to the earlier sentence of 30 years for murder both being separated by time date victim and not in any way linked together. Kerua and Kerua, Public Prosecutor v [1985] PNGLR 85 (1 April 1985) is another example on point. It is clear based that the sentence of 15 years for arson will be cumulative to any sentence imposed here. It would be an error of law to order that they be served parallel.
   
9. Where the gravity and seriousness of the offence outweighs justice will not ignore what is due on the facts because the ultimate authority is the legislature whose imprint is the maximum that is prescribed under the particular section or provision. Here the maximum is life imprisonment. Tariff and range will enforce consistency but individual facts and circumstance will not be ignored to dispense justice in a particular case as is here, SCRA 29 of 2007 Thress v Kumbamong v. The State (2008) SC1017. In State v Paugari [2011] PGNC 159 N4438 (7 October 2011) before the Deputy Chief Justice were three defendants involved in murder and his honour was of the view that the courts should not be bound by the range suggested either by the Supreme Court or the National Court. That the discretion of the court must not be watered down that the prisoner who instigated must receive the higher sentence. In my view given the facts and circumstances, this is applicable here. I canvas Manu Kovi v The State [2005] PGSC 34; SC789 (31 May 2005) and make reference that the present set of facts and circumstances would fall under category 2 at the higher end because there is repeated assaults using a weapon, a blunt force object, to the head which is a very venerable part of the body including the stomach. Further it is a vicious attack with intent to injure causing multiple injuries and death as a result. This is in addition to what is set out above.
   
10. The crime is committed in the heart of Kimbe town. And the viciousness of the attack is depicted by thirteen photographs eleven of which show individually picture one general view of the deceased from head down. Picture two is the face of the deceased showing extensive swelling on the face. Picture three shows the left side of the face completely swollen, eyes puffed beyond opening. Picture four closer view of left shoulder where fan belt marks are. Picture five shows right hand wounded fingers. Picture six is closer view of the wounded lower lips and jaw with a large gaping cut just below the gum and teeth baseline. Photo seven is closer view of wounded upper lips. Picture eight is closer view of the ruptured stomach of the deceased internally. Picture nine is closer view of the left side of the head showing injuries sustained exposing in the post mortem. Picture ten closer view of left side skull showing thick blood clot exposed in post mortem. Picture eleven is closer view of the back showing marks hit by stone. These are backed by the medical report attached to the affidavit of Doctor Philip Golpak dated the 14^th April 2012 attaching the Autopsy report he conducted of Emil Gare 38 years old on the 12^th April 2011. He states the cause of death as multiple head injuries due to multiple application of blunt trauma to the head. The pathology summary reveals extensive injuries and swelling evidencing severe beatings suffered by Emil Gare.
    
11. What is borne out by this evidence is the immense suffering of Emil Gare at the hands of the prisoner. And all because he spit out betel nut only to give his life in return for that crime if it ever was a crime. Betel nut chewing is part of the Coastal and Islands culture of Papua New Guinea and Emil Gare died because he was simply displaying his culture. Does it balance that a suspended sentence be given that he will not return ever to his family even despite the payment of K11, 000.00 by the prisoner who has great lengths to evidence that and not do the same on that day 8^th April 2011.

Mitigation

12. The prisoner is 39 years old married with three children originally from Kurumugl village Kundiawa, Simbu Province. At the time of the offence he was a First Constable of Police attached with criminal investigation drug Squad Kimbe Police. No doubt by that he was conversant in law particularly with regard to treatment of suspects and persons detained. Conducting criminal investigations dealing with suspects and accused was part of his duties in that section. He may have pleaded guilty but given these facts it did not mitigate but aggravate.
    
13. But by the same this training and experience paved confirmation in the presentence and means assessment reports that he had paid K 11, 000 on the 17^th February 2017 to the family of the deceased. And expressed remorse for the offence. The “Bel Kol money” evidenced that there was no longer any grievances over the matter a statutory declaration of the family of the deceased including the wife was attached with photographs of the payment made.
    
14. Prisoner sought attachment purportedly of reports presumably by medical officers that he sought to rely in support of a condition that he has now evolved as a result of a motor vehicle accident unrelated to the offence. These at the outset are all not by proper form under section 37 evidence of scientific examination of the Evidence Act 1975 and cannot by that fact be relied on. To make findings of fact based pursuant would be an error of law. From observing the prisoner in court he moves with the aid of crutches that is the highest on the evidence. The extent of which whether he is injured or not cannot be ascertained without the evidence coming in by proper form. Opinions on these reports are scientific in nature and would necessarily by section 37 invoke that they are in proper form to be considered as evidence. The sentence that is passed derives its source from law and evidence. Presentence reports are only that and not evidence in that sense under law. They must be verified. There is no verification and therefore there is really no medical or scientific basis to move the court. It would be an error of law to do without.

Issue

15. What is an appropriate sentence for the prisoner?
    
16. The maximum penalty prescribed by section 302 is life imprisonment. Given its facts and circumstances a determinate term of years is appropriate it did not add up to be the worst case of its kind warranting the maximum, Avia Aihi v The State (N0.3) [1982] PNGLR 92. But a life was unnecessarily taken here over the fact that he was chewing betel nut in a public frequented area. Use of force was over and above reasonableness he was not an armed criminal escaping after the commission of a very bad crime. What the prisoner did was gravely out of proportion and drew the good name of all hard working policeman and women into the red. Confidence in the police as an agent of Government at the fore front of law enforcement was gravely effected.
    
17. Counsel have conceded in accordance with Manu Kovi (supra) that the case fell into the second category of manslaughter cases of 13 to 16 years in that, there was use of an offensive weapon. Given this fact it is my view that the sentence must reflect the gravity of that offence depicted by its own facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38. Lawrence Simbe (supra) was a murder case but the principle is relevant also to Manslaughter or any other case for the same, fundamentally it shows out the reality of section 35 of the Constitution the right to life in everyday life here.
    

Sentencing trend tariff

18. The sentencing trend and tariff guided by Manu Kovi (supra) was followed in the case of State v Miva [2006] PGNC 103; N3454 (24 October 2006). There, prisoner was sentenced to 16 years for manslaughter. It was a case where it was a domestic argument between husband and wife and relatives taking sides. Prisoner had pulled the bush knife off the deceased and cut him on his head killing him. A first time offender who had pleaded guilty, showed remorse with tangible evidence thereof, your case does not fit into these categories of manslaughter committed in a domestic killing situation. You are an officer of the law likened to State v Wanimba [2005] PGNC 108; N2863 (23 June 2005), you ought to know that what you were doing was committing a very serious case of homicide. Policemen and women must show the way first to respect the law and not breach the law as here. You do not become law unto yourselves and this sentence will reflect that fact taking account of all set out above. The sentence of the court upon you will be 18 years ILL, time in remand will be deducted forthwith.
    
19. Eighteen (18) years ILL less time in remand is imposed on the prisoner.
    

Sentenced accordingly.

________________________________________________________________

Public Prosecutor : Lawyer for the State

Public Solicitors : Lawyer for the Defendant