State v Nengu [2019] PGNC 114; N7829 (19 March 2019)

N7829

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 1251 of 2013

THE STATE
V

BEN NENGU

Wewak: Geita J
2019: 11, 15, 19 March

CRIMINAL LAW – Guilty Plea - Sentence – Section 302 Criminal Code.

CRIMINAL LAW – Guilty Plea – Accused aided and abetted by holding the deceased down and allowed his friends to assault the deceased resulting in his death from the wounds he received - Accused was found guilty by operation of section 7 Criminal Code.

Cases Cited

Goli Golu vs State [1979] PNGLR 653
Lawrence Simbe vs The State [1994] PNGLR 38
Manu Kovi v The State (2005) SC 789

Counsel:

Mr. Augustus Bray, for Public Prosecutor
Mr. Julius Javapro, for Public Solicitor

JUDGMENT ON SENTENCE

19^th March, 2019

1. GEITA J: After a successful plea bargaining the preferred charge of wilful murder was reduced to manslaughter. Upon State presenting an indictment against the accused for manslaughter he pleaded guilty. The offence comes under Section 302 of the Criminal Code and attracts a life term imprisonment. However subject to Section 19 of the Criminal Code a lesser sentence may be imposed by the Court. The State also invoked section 7 of the Criminal Code.

Brief Facts

2. The facts as agreed by the Prosecution and Defence on the depositions for the plea of guilty are these. On 26^th May 2013 at Nindipole village Yangoru town, an argument broke out between the deceased Kingsley Haunare, his friends and the accused. The deceased and his friends had destroyed the accused’s flower garden and directed insults at him. The deceased's father Lucas Haunare armed himself with a homemade gun and intervened. During the commotion gunshots were exchanged between the two groups resulting in Peter Javepari being shot in the abdomen, pelvis and thigh by Lucas Haunare.
3. Later on in the day Ben Nengu found the deceased Kingsley Haunare and brought him to his village at Nindipole where he was attacked and beaten to death by Paul Javepari and other persons. All whom were armed with homemade guns, bush knives and a screw driver.
   
4. In his allocutus the accused said he was sorry to the Court and to the deceased’s relatives for what had happened. He said this was his first time in Court and asked for leniency. He said he was married with two wives and has 5 children. He said he was a businessman and runs several PMV buses and now is concerned for his business and family if he is sent to gaol.
5. Your Lawyer applied for a pre-sentence report which I have granted. I now have that report and have carefully studied it. The Probation Officer is of the view that you are not a danger to the community and unlikely to re-offend. Your willingness to contribute towards the payment of some compensation was also noted by the Probation Service. Your view according to the Probation Officer is that the community must also be held responsible for the death and they must also pay compensation.
6. You do not have any prior conviction. You were educated up to grade 6 but now a very successful businessman with several PMV buses on the road. You are married with two wives and have five children.
7. No prior convictions.

Aggravating factors

• A life lost

Mitigation factors

• Guilty plea
• Not a habitual offender
• First time offender
• De-facto provocation

Defence Submissions

8. Defence Counsel Mr. Javapro submitted that the maximum should not be applied in this case saying this was not the worst case of its kind: (Goli Golu v State [1979] PNGLR 653. Mr Javapro advanced that his client’s case was one which could easily fall within a prison term of 8 years to be wholly suspended as there was an element of de-facto provocation. He submitted that this case must be decided on its own facts (Lawrence Simbe vs The State [1994] PNGLR 38). Defence submission is that this case ought to fall within category 1, manslaughter, in the schedule of tariffs decided in the Supreme Court case of Manu Kovi v The State (2005) SC 789. He however and further invited Court to exercise its discretion under Section 19 of the Criminal Code. The prisoner is willing to pay compensation of K5000 to the victim’s relatives.

State Submissions

9. Mr. Augustus Bray submitted that the deceased was detained, made helpless and in position to defend himself whilst his attackers attacked him at will with bush knives and other like weapons. The attack was brutal and vicious and perpetrated by a group of men with the help of the accused. Thus they all had the intention to kill under circumstances of aggravation. The State submitted that the accused played a part in the victims killing by apprehending him at the first place and allowed his friends to attack him at will, resulting in his death. The accused therefore is guilty by operation of s.7 Criminal Code Act. From the pre-sentence report no attempt was made to pay some compensation to the victim’s parents. The victim’s family members however have demanded a compensation of K50, 000.00. In his response to the lead case of Manu Kovi (supra) Mr Bray submitted that the Court apply and adopt the tariff guidelines set in Category 1 i.e. 8-12 years, committing such similar crimes.

Sentence in your Case

10. The main issue now before me is to decide on what is an appropriate sentence for you, bearing in mind all relevant facts including your personal and family background and the circumstances under which you committed the offence. I will also be looking at the mitigating and aggravating factors. May I state here that the tariffs of sentences prescribed in Manu Kovi case (supra) for manslaughter are mere guidelines in my view and should not take away the National Court’s discretion to impose sentences that maybe over or above or well below the suggested tariffs. Sentences to be imposed by the Court must of course depend on the peculiar facts of each case.

Remarks to the Offender on Sentence

11. Yours is a guilty plea case and so I will accord you with the general leniency court considers in cases where accused person plead guilty. I have stated in many early plea cases that accused persons, are entitled to the leniency that is usually given when a person enters a plea of

guilty.

12. In the present case, your mitigating factors and aggravating factors are on par more so in light of the fact that you were found guilty by operation of section 7 of the Criminal Code. Your PSR prepared on your behalf appears to be favourable to you. You are not a threat to the community.
13. Might I add here the payment of compensation will only help in mitigating your case but it will not take away the criminality of this crime nor excuse you from criminal sanctions? Furthermore your concern for your family and your loan obligations to the Bank is of no concern to this Court. You have yourself to blame as you brought these miseries upon your family.
14. Due to the foregoing reasons I find that an appropriate sentence favouring you is a part custodial and part non custodial sentence. By considering this sentence, 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. Therefore 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 10 years less any pre-trial custody periods. The whole of the sentence will be suspended and you placed on Probation for 4 years with the following conditions:
    1. You must enter into your own recognizance and be of good behaviour during the suspension period;
    2. You are ordered to perform 200 hours unpaid community work in accordance with a program organized and supervised by the Community Based Corrections Officer at Wewak.
    3. You are ordered to pay K5000 token compensation to the victim’s parents within 4 weeks from today in default distress,
    4. Your Court bail of K1000 is to go towards payment of compensation.
    5. If you breach any one or more of the above conditions, you shall be brought before the National Court to show cause why you should not be re-detained in custody to serve the rest of the sentence

Orders accordingly.
____________________________________________________________
Public Prosecutor : Lawyer for the State
Public Solicitor : Lawyer for the Accused