State v Manikumbu [2023] PGNC 23; N10116 (13 February 2023)

N10116

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 379, 380, 382, 384, 387 AND 388 OF 2022

STATE

V

NATHAN MANIKUMBU, AIDEN POSONG AND GARRY KATAMOG

Waigani: Berrigan J
2002: 5^th November
2023: 13^th February

CRIMINAL LAW - SENTENCE – GUILTY PLEA - WILFUL DAMAGE – S444(1), Criminal Code – Police constable and reserve constables fired tear gas into a motor vehicle while pursuing it on the Poreporena Freeway, Port Moresby at night – then smashed rear passenger window to remove occupants – Sentence of 1 year, 1 year and 1½ years’ imposed, respectively.

CRIMINAL LAW – SENTENCE – GUILTY PLEA - GRIEVOUS BODILY HARM – S 319, Criminal Code – Meaning of Grievous Bodily Harm – Severe head injuries, together with other bodily injuries caused by a sustained assault from multiple assailants using multiple weapons – Sentence of four years, four years, and four and a half years’ imposed, respectively.

The victims were travelling from Vadavada to Badili, Port Moresby in the early hours of the morning when they were directed by the offenders, a regular police constable of eight years’ standing, and two reserve police constables of two years’ experience, to pull over. They refused to do so because they were intoxicated and had alcohol in the vehicle. In response the offenders fired tear gas into the victims’ vehicle whilst pursuing them up the Poroporena Freeway, smashing the rear window and causing the victims to stop. The offenders smashed a rear passenger window, dragged the victims from the vehicle, directed them to lie face down on the ground and proceeded to hit them repeatedly to their heads and bodies with fists, police boots, gun butts, an iron rod and a baseball bat before other police officers arrived and continued to assault the victims. Four of the victims suffered head injuries and concussion. All of these suffered multiple soft tissue injuries to their faces, extensive abrasions and bruising to their upper and lower limbs and body. In some cases the victims also suffered lacerations to their scalp, ears or eyes. One suffered partial hearing loss. Another victim suffered a permanent injury to his leg and bruising and abrasions to his upper and lower body.

Held:

(1) Whether bodily injury is “of such a nature as to endanger or be likely to endanger life, or to cause or be likely to cause permanent injury to health” is a matter to be determined on a case by case basis.

(2) Likely means a substantial or real and not remote possibility: The State v Roland Rebon (2008) N3495; reasonably foreseeable by an ordinary person: R v Domara-Saope and another [1967-68] PNGLR 71; or a substantial, or a real and not remote chance regardless of whether it is less or more than 50%: Boughey v R (1986) 61 CLR 10 adopted.

(3) In determining this issue an assessment must be made, amongst other things, of the effect of the injury on the particular individual. Thus the age, health or any other particular factors fall for consideration: Bollom [2003] EWCA Crim 2846 adopted.

(4) There may be cases where multiple injuries, each of which on its own might not constitute grievous bodily harm, might be considered grievous when considered together.

(5) The severity of the head injuries in each case, or the permanent leg injury in another, especially when taken together with the other injuries, established injury of such a nature as to endanger or be likely to endanger life, or to cause or be likely to cause permanent injury to health.

(6) Sentences of one year, one year, and one and a half years imposed for wilful damage, respectively, reflecting the greater culpability of the regular constable.

(7) Sentences of four years, four years, and four and a half years imposed for grievous bodily harm, respectively.

(8) All sentences to be served concurrently.

Cases Cited:

Papua New Guinean Cases
The State v Roland Rebon (2008) N3495
R v Domara-Saope and another [1967-68] PNGLR 71
The State v Moses Kaupa (2011) N4258
The State v Terea [2005] PNGLR 247
The State v Betty Kaime, unreported, 13th November 2008
The State v Jan Tundubo & 4 Ors, unnumbered, 10th December 2008
State v Daniel Kapen (2013) N5133
The State v Maip (2015) N6091
The State v Kaia (2018) N7341
The State v Mai (2018) N7182
Lawrence Simbe v The State [1994] PNGLR 38
Goli Golu v The State [1979] PNGLR 653
Sanawi v The State (2010) SC1076
David Kaya and Philip Kuman v The State (2020) SC2026
The State v Tardrew [1986] PNGLR 91
State v Kande & 2 Ors (2021) N9252 at [76]

Overseas Cases
Boughey v R (1986) 61 CLR 10
DPP v Smith [1960] 3 WLR 546
Bollom [2003] EWCA Crim 2846

References Cited:
Sections 19, 319, 444(1) of the Criminal Code

Counsel
Mr N. Pare, for the State
Mr J. Kolowe, for the Offenders

DECISION ON SENTENCE

13^th February, 2023

1. BERRIGAN J: The three offenders, Nathan Manikumbu, Aiden Posong and Garry Katamog, pleaded guilty to one count of wilfully destroying property, contrary to s 444(1) of the Criminal Code, and five counts of doing grievous bodily harm, contrary to s 319 of the Criminal Code. The maximum penalties for the offences are two and seven years of imprisonment, respectively. At the time Garry Katamog was a regular constable of the Royal Papua New Guinea Constabulary (RPNGC). Nathan Manikumbu and Aiden Posong were reserve constables.
   

Brief Facts

2. Sometime in the very early hours of 8 September 2019, the victims, Storick Simon, Apo Aniki, Mak Lari, Nelson Lari and Rambo Peter, were travelling in a motor vehicle, a Prado, from Vadavada to their residence at Gorobe Talai Settlement at Badili, Port Moresby when the offenders signalled to them to stop. The driver, Storick Simon, refused to do so upon realising it was the police as he and his passengers were drunk and there was beer in the vehicle. Instead, he continued driving towards Badilli upon which the offenders gave chase. Whilst pursuing the offenders up the Poreporena Freeway the offenders fired tear gas into the victims’ vehicle, breaking its rear window. The complainant stopped the vehicle as all were suffering from the effects of the gas. The offenders also stopped, exited the police vehicle and approached the complainant’s vehicle. They broke the left passenger door window and together pulled the five victims from the vehicle and ordered them to lie flat on the ground. They proceeded to hit the victims with gun butts, an iron bar and a baseball bat whilst also kicking them with police boots and punching them with their fists. Rambo Peter managed to escape before some other members of the RPNGC arrived and further assaulted the four remaining men on the ground. The victims were put on a police vehicle and taken to Gordons Police Station where they were held until 10 am without charge before being taken to Airport Police Station from where they were released at about 1030 am.
   
3. The victims, Storrick Simon, Maxi Lari, Nelson Lari and Rambo Peter suffered head injuries of such a nature to endanger or be likely to endanger life or to cause or be likely to cause permanent injury to health: s 1, Criminal Code. In addition, Storrick Simon suffered concussion, multiple tissue injuries to the face, lacerations to the right eye, and bruising and abrasions to the face, upper and lower limbs, Max Lari suffered concussion, lacerations and partial deafness to his left ear, extensive abrasions to the back, and bruises and abrasions to the upper and lower limbs, Nelson Lari suffered concussion, extensive soft tissue injuries to his face and right eye, and bruises and abrasions of the upper and lower limbs, and Rambo Peter suffered concussion, extensive soft tissue injuries and wounding to the scalp, and bruising and abrasions to the upper and lower limbs. Apo Aniki suffered a permanent injury to his lower leg and bruising and abrasions to his upper and lower body.
   
4. The total cost of the damage to the rear and passenger windows was K3,829.12.
   

Grievous bodily harm

5. Grievous bodily harm is defined in s 1 of the Criminal Code to mean “any bodily injury of such a nature as to endanger or be likely to endanger life, or to cause or be likely to cause permanent injury to health”. The words should be given their ordinary meaning. The injury must be of such a nature as to endanger or be likely to endanger life. Likely means a substantial or real and not remote possibility: The State v Roland Rebon (2008) N3495; reasonably foreseeable by an ordinary person: R v Domara-Saope and another [1967-68] PNGLR 71; or as the High Court of Australia said persuasively in Boughey v R (1986) 61 CLR 10, a substantial, or a real and not remote chance regardless of whether it is less or more than 50%. Alternatively, the injury must be one to cause or be likely to cause permanent injury to health. As appears from the definition, the harm does not need to endanger life or be permanent but must be of such a nature as to be likely to. It follows that whether an injury constitutes grievous bodily harm must be considered on a case by case basis.
   
6. There are few cases in this jurisdiction which consider in detail what constitutes grievous bodily harm. In most cases it is clear. It is the case that medical evidence will usually be required to establish it: see The State v Moses Kaupa (2011) N4258. But as made clear in that case, it is possible to envisage cases where medical evidence will not be required given the nature of the injury or the totality of the other evidence.
   
7. In England the expression “grievous bodily harm” is not defined in the statute. It has been held it to mean “really serious harm”. Whilst bearing in mind that grievous bodily harm is expressly defined in our jurisdiction, I find some of the English authorities persuasive in terms of general principles.
   
8. As in every case, whether an injury is “of such a nature as to endanger or be likely to endanger life, or to cause or be likely to cause permanent injury to health” is a matter to be determined on a case by case basis. In addition, in determining whether the injury is grievous, an assessment must be made, amongst other things, of the effect of the harm on the particular individual. Thus the age, health or any other particular factors fall for consideration: Bollom [2003] EWCA Crim 2846. As the Court said in that case, injuries which might constitute grievous bodily harm on an elderly person, a very young child, or a physically vulnerable person, might not constitute grievous bodily harm on a healthy adult. In determining the gravity of the injury or injuries it is necessary to see them in their “real context”.
   
9. It is also my view that there may be cases where multiple injuries, each of which on its own might not constitute grievous bodily harm, might be considered grievous when considered together.
   
10. Whilst there was no dispute about the nature of the harm done in this case, it is somewhat different from many of the cases of grievous bodily harm which come before the Court, involving a broken bone from a single assault for instance. In this case, the totality of the material, including the medical and photographic evidence, and the witness statements establish that the bodily harm caused was grievous. Four of the five victims suffered head injuries and concussion as a result of being hit repeatedly to their heads by multiple offenders, not only with fists and police boots but with weapons improvised for that purpose, including gun butts and an iron bar. Other officers continued to attack the victims, again in the same manner, aided by the offenders by their presence and encouragement. Any one of those assaults could have resulted in permanent injury or death but given the repeated nature of the injuries, and the nature of the weapons used to inflict them, they can only be regarded as constituting injury of such a nature that at a minimum was likely – that is was a real and not remote chance – to endanger life or to cause permanent injury to health. In addition, some of the victims suffered lacerations to their eyes, their ears, or their scalp. All suffered extensive bruising and abrasions to their upper and lower limbs, and backs. On their own those other injuries might not constitute grievous bodily harm but when taken together with the head injuries they only strengthen the finding of grievous bodily harm. In short, the victims were beaten all over their bodies and especially to their heads for a sustained period of time. The head injuries, the concussions, the additional tissue injuries to their eyes, ears or scalp, and the extensive bruising and abrasions to their bodies establish the very severe risk to the life of, or of permanent injury to the health of, the victims in each case. One also suffered partial hearing loss. The fifth victim suffered a permanent leg injury and bruising and abrasions to his body. In my view there is no doubt that the injuries done in each case constituted grievous bodily harm.
    

Allocutus

11. The offenders gave statements on allocutus which I have considered.
    
12. Nathan Manikumbu said: “Your Honour, firstly I say sorry to the court, secondly I say sorry to the complainant and the victim, my family and my friends. The thing wasn’t suppose to happen. We act in the line of duty as police officers. If the complainant or the victims had listened to us at the first time then nothing like this would have happened. For that, I ask the leniency for the court, if there’s a way we can sort it out. Thank you”.
    
13. Aiden Posong said: “First of all I would like to apologize to the court for taking its time this far, likewise to the Good Lord and also I’d like to apologize to the victims and also my family and friends who stood with me this far. I’d like to ask the court for leniency and whatever that has occurred has already occurred. It all happened during the time when I was on a time of official duty and I believe it wouldn’t have occurred in the first place if only the victims had complied with what we had requested. Apart from that I’d like to say sorry once again and ask the court if I could serve my sentence outside and also asks if its possible if we could come up with an agreement with the victims or complainants, if possible we can pay some form of compensation or something that is all I can say, thank you.”
    
14. Garry Katamog said: “Firstly, Your Honour, I’m very sorry for taking this court’s time and to the victims, I’m very sorry, to my family, I’m very, very sorry for that. None of this should have happened, there was a misunderstanding between both of us. I’m appealing to this good court if I am to be sentenced I hope I can be regarded for my good appearances in my community and my family. I’m a family member and I hope that you can consider leniency upon me”.
    

Comparative Cases and Submissions

15. Defence counsel submits that whilst serious this is not a case warranting the maximum penalty. In mitigation, the offenders pleaded guilty and genuinely expressed remorse. They are first time offenders. All are married with children and are reserve policemen. He says that it is very significant that at the time of the offence they were acting in the line of duty. They were on patrol and observed the victims who were under the influence of alcohol and refused to stop, requiring the offenders to chase them, putting their own lives at risk, and ultimately causing the offenders to act out of frustration when they finally stopped the victims. If the victims had stopped in the first instance the offending would never have happened. In addition, the injuries suffered are not as severe as those imposed in other cases where the maximum has not been applied. The aggravating factors, namely the injuries sustained, the damage done and the prevalent nature of the offences, whilst serious, are outweighed by the mitigating factors. As such, counsel called for a sentence in the range of two to three years’ imprisonment for grievous bodily harm and a sentence of one to six months for wilful damage. K5000 is suggested as an appropriate amount in compensation. The sentence should be wholly suspended.
16. The State submitted that the offences are of the worst kind warranting the maximum penalty in each case. It submits in mitigation that the offenders have no prior convictions, cooperated with police, pleaded guilty and that there was some de facto provocation but that these factors are far outweighed by the matters in aggravation: the guns, sticks and other weapons used to attack the victims; the value of property damaged; the offence occurred in the night; the offenders were public servant’s/police officers; were in company with themselves and others; were not youthful; took turns assaulting the victims; used excessive force; the offence is prevalent and is a form of police brutality. The offenders were held without medical treatment until they were finally released the following day without charge.
17. The State referred to the following cases in support of its submissions:
    1. The State v Terea [2005] PNGLR 247, Cannings J – The accused pleaded guilty to a charge of wilful and unlawful damage to property under s 444 (1) of the Criminal Code. The accused was a public servant working with the Bougainville Provincial Administration as a graphic artist. He arrived at a workplace drunk, armed with a screwdriver which he used to damage office equipment and fittings. He was sentenced to one year of imprisonment, wholly suspended on conditions;
    2. The State v Betty Kaime, unreported and unnumbered judgement of Makail J dated 13^th November 2008. The offender smashed the windscreen of a police vehicle, causing K1200 in damage, after discovering that her husband, a police officer, was using it to transport his girl friend. She was sentenced to six months, wholly suspended on restitution and conditions;
    100. The State v Jan Tundubo & 4 Ors, unnumbered and unreported judgement of Makail J dated 10^th December 2008. The offenders armed themselves with axes and knives and went into a primary school and entered the office of the school principal. They destroyed the computer, the printer and printer cables, scanner and the photocopier. The costs of all these damaged school items stood at K16, 442.80. Makail J imposed a head sentence of 1 year, wholly suspended with strict conditions including restitution.
    4. State v Daniel Kapen (2013) N5133. The prisoner was a policeman. The prisoner approached youths who were drunk and fired one shot from his gun into the feet of one of the youths. The injury was serious and permanent. The prisoner claimed self-defence but was convicted following trial. He was sentenced to five (5) years imprisonment, less time served in custody. Two years was suspended on the basis of the prisoner’s prior long and distinguished service in the police force. The balance was to be served in custody;
    5. The State v Maip (2015) N6091, David J. The offender, a policeman shot the victim with a handgun three times on his left leg fracturing both the femur and tibia following some de facto provocation. The victim was hospitalized for two months as a result. He pleaded guilty to unlawfully doing grievous bodily harm and offered to pay compensation. The Court observed that the offender was a law enforcement agent being a policeman in uniform holding the rank of Senior Constable and a Rural Police Station Commander; the offence was committed in the purported execution of duty; the offender unnecessarily called for police reinforcement; police brutality was rife in the country; the offence was prevalent; the offender was a mature adult who should be more familiar with the law as a result of his education, training and employment by contrast to ordinary people. He was sentenced to four years imprisonment in hard labour, partly suspended on conditions;
    6. The State v Kaia (2018) N7341, Numapo, J. The offender, a police officer attached to the Lae Prosecution Section, whilst off duty and intoxicated, got into an argument with a customer and a security guard. He left and returned with some duty officers. The victims were taken to the police station in a police van. Whilst enroute the offender assaulted the victims. At the station the offender broke one of the victim’s arms with an iron bar and broke the other’s nose with the wooden handle of a spade. Having regard to the prevalence of police brutality, the fact the assault took place in the police station in the presence of other officers, a custodial sentence was required to deter similar offences. The offender was sentenced to three years of imprisonment on each count to be served concurrently.
18. Whilst not concerning police officers, the following cases usefully summarised by Kaumi J in The State v Mai (2018) N7182 are also helpful for comparative purposes:
    

Case	Details	Sentence
The State v Nickson Pani (No.2) (10/01/00) N2033, (Kandakasi. J)	Offender shot and injured victim on his left hand in the course of an armed robbery.	4 years imposed, partly suspended on terms, inclusive of Good Behaviour Bond- First time offender.
The State v Darius Taulo (15/12/00) N2034 (Kandakasi .J)	Offender attacked victim (wife)	3 years imposed-wholly suspended on strict terms-compensation already paid-a preparedness to undergo his wife’s (victim’s) traditional form of compensation-Adult offender-was not a danger to society-Pre-sentence report supported rehabilitation of offender.
The State v Henry Idab (2001) N2172 Kandakasi. J	Guilty plea-Group of men attacked another group mistakenly and a village Court Magistrate sustained serious bush knife injuries to both hands, 85% loss of efficient use of hands.	5 years imposed- partly suspended on strict terms.
The State v Rueben Irowen (2002) N2239 (Kandakasi .J)	Offender forced his two wives (victims) to strip naked and effected serious bodily harm to them.	Maximum 2x sentence of 7 years imposed cumulatively.
The State v Eddie John Naopa (2003) N2411 (Kandakasi J)	Guilty plea-Victim lost one of her eyes completely from a slingshot.	5 years imposed-partly suspended because of guilty plea and order for compensation.
The State v Vincent Naiwa [2004] PGNC 58; N2710 (22 June 2004) Kandakasi. J	Guilty plea- Offender attacked sister-in-law with bush knife for no good reason-Left hand rendered useless.	Prevalent Offence –No compensation paid and having no means to pay-Pre-sentence report not balanced-custodial sentence appropriate-5 years imposed
The State v Ria Bennard CR 374/2005 (20/05/05)	Guilty plea-29 years old-Offender was under the influence of alcohol-Cut his brother with a bush knife-then cut his father when he came to his brother’s aid-Life threatening injuries.	4 years each count total 8 years cumulative sentence.
The State v Heni [2008] PGNC 200; N3541 (11 December 2008) Cannings. J	Guilty plea-Offender attacked man with a bush knife.	4 years imposed- None of which suspended.
The State v Abel City Ka Kund CR No. 1268 of 2009 + The State v Wali Pyakai CR No. 1269 of 2009 Makail. J	Guilty plea-multiple offenders-Attack on unsuspecting victim-Serious injury-Permanent loss of teeth-No use of offensive weapons.	Non-custodial sentence imposed-2 years imposed-4 month deducted for pre-trail custody- Balance wholly suspended.
The State v David Carol [2009] PNGNC 143; N3762 (23 September 2009)	Guilty plea-Offender punched victim (wife) hard on the mouth causing injuries to her mouth.	12 months imposed-fully suspended as appropriate sentence with 2 years good behaviour bond.
The State v Ray Sheekiot [2011] PGNC 165; N4454 (22 November 2011)	Guilty plea-Offender cut his cousin-sister on the neck and cheek with a knife.	4 years imposed, fully suspended in view of a favourable pre-sentence report and payment of compensation and reconciliation.
The State v Bill Kara [2012] PGNC 19; N4663 (10 May 2012) (Cannings .J)	Guilty plea-Offender cut his female neighbour in an urban setting, cutting her on the face with a bush knife, inflicting an eye injury and superficial facial injuries requiring seven stitches.	Starting Point- 3 ½ years- 4 years imposed- fully suspended in view of a favourable pre-sentence report and preparedness to pay further compensation.
The State v Boi [2012] PNGNC 204; N4781 (31 August 2012)	Offenders repeatedly assaulted victim with the use of fists causing injuries to facial area, teeth, head and back.	3 years imposed-wholly suspended with conditions-2 years good behaviour bond and case surety paid to Registrar.
The State v Joachim Otto Bare CR No. 638 of 2015 (Murray .J)	Guilty plea- Offender was intoxicated and punched the victim on his jaw resulting in lacerations and a broken tooth in the lower right jaw.	3 years imposed-Less pre-trial custody of 2 years, 8 months and 4 days-Balance wholly suspended with conditions.

Consideration

19. Section 19 of the Criminal Code provides the Court with broad discretion on sentence. Whilst guidelines and comparative cases are relevant considerations, every sentence must be determined according to its own circumstances: Lawrence Simbe v The State [1994] PNGLR 38. This is a serious case but I am not persuaded that the offences are of the worst kind warranting the maximum penalty: Goli Golu v The State [1979] PNGLR 653 applied.
20. Nathan Manikumbu is 35 years of age. He is from Saikisi Village, Maprik District, East Sepik Province, and is a long-term resident of Hohola in Port Moresby, where he lives with his family, including his wife and two very young children, both of whom attend primary school and are dependent on him. His parents are still alive and he has three brothers and two sisters. He completed Grade 12 at Don Bosco before obtaining his Technical Training Certificate from Lae Polytech. He commenced training with the police force in 2017 at the Bomana Police Training College. At the time of the offences he was a reserve constable. He is in good health.
21. Associate Pastor Masang Edward of the Port Moresby Multi-Cultural Full Gospel Church, Hohola, confirms that Nathan Manikumbu is an active member of the Church. Jackson Wanil, Community Leader, also speaks highly of Mr Manikumbu, whom he has known for 11 years. He says that he is a youth leader in Hohola and has assisted community leaders with dispute resolution. He is also supported by his family, represented by his older brother who begged the Court for leniency and said that the family is willing to support the offender make reconciliation through compensation in the Melanesian way.
22. Garry Katamog is 37 years of age. He is from Giri Village, Bogia District, Madang Province, and is a long term resident of Port Moresby, where he lives with his family including his dependent wife and two young sons, one of whom is at school and the other a toddler. His parents are dead but he has a close family of one brother and one sister. He completed Grade 11 in Madang before being recruited for training at Bomana Police Training College in 2012. He has been a regular member of the RPNGC since then. He is in good health.
23. Mr Berry Smith, Peace Mediation Chairman, Moresby North East, has known Garry Katamog for almost seven years. He says that he is one of the most well-behaved police officers or individuals living in the settlement. He has been a major help to his team in the conduct of mediation and is an example to the youth in the community. He is a humble person with a high level of respect for his peers and the community. His elder brother also says that the offender is a very good and humble person in the family and the community and begged the Court to have mercy on him, and allow the family to make peace with the victims through compensation.
24. Aiden Posong is 32 years of age. He is from Sori Island, Manus District in Manus Province but has lived his entire life in Gerehu, Port Moresby. His parents are elderly and he is third born in a family of two brothers and two sisters. He is married with a boy and a girl, both of whom are toddlers, all of whom are dependent on him. He completed Grade 12 at De La Salle Bomana Secondary School and has a Certificate in Metal Fabrication and Welding from Koki Technical School. He began training at Bomana Training College in 2017 and has been a reserve constable since then. He is in good health.
25. Pastor David Harau, National Board Chairman, Every Home for Christ, PNG, has known Aiden Posong for three years and says that he is reliable, trustworthy and holds great leadership ability. His elder brother says that the family was shocked to hear what happened because the offender is kind and helpful in the family and the community. The family is committed to making compensation if allowed and pleaded for the offender to serve his sentence outside custody with his young family.
26. In mitigation this is the offender’s first offence in each case.
27. It is also significant that the offenders cooperated with police and admitted the offence. They pleaded guilty before the National Court. I take this into account as reflecting their remorse, which they expressed on allocutus and their willingness to make compensation, supported by their families, which I accept is genuine. I also take their guilty plea into account on the basis that it has saved the State and its witnesses the cost and inconvenience of a trial.
28. Each of the offenders are of prior good standing. At the time of the offence, Garry Katamog had been a regular constable of the police force for some eight years. Nathan Manikumbu and Aiden Posong had been reserve constables for about two years.
29. In addition to the personal references referred to above, the former Airport Police Station Commander, Detective Inspector Robert Wane, under whom the officers previously served, and who is also a pastor and community leader, says that each of the offenders are honest and reliable officers, who have proven themselves to be committed, loyal and dedicated to the service whilst always maintaining high levels of professionalism in the conduct in any circumstances whilst performing their duties. He says that since the offence was committed in 2019 the offenders’ behaviour has improved and they have been performing well. He asks that the offenders be allowed to serve their sentence outside of prison in community service, where he can monitor and mentor them.
30. This case has had and will continue to have a significant impact on each of the offenders themselves. I assume that they will lose their positions with the Constabulary. The impact on their families will also be great. Each of them have very young families who depend on them financially and emotionally. Each are concerned about the impact their incarceration will have in particular on their children. These matters are serious but all of them are the regrettable but unavoidable consequences of the offending. It is also well established that except in very extreme circumstances, the impact on family is not ordinarily a relevant consideration on sentence: Allan Peter Utieng v The State (2000) SCR No 15 of 2000; The Public Prosecutor v Vangu’u Ame [1983] PNGLR 424.
31. I reject the submission that the offences were caused by the failure of the victims to stop when directed to do so by the officers. Of course the victims should have followed the lawful direction.
32. But there was no justification for the firing of the tear gas into the vehicle, which destroyed the rear windscreen of the vehicle and endangered not only the lives of the driver and his passengers but anyone else who happened to be on the road that night. There was also no need to smash the car window once the vehicle came to a stop. For obvious reasons the victims were keen to escape the vehicle filled with choking gas.
33. As for the violence that followed it was a shocking case of police brutality. The offence is aggravated by the fact that it was committed in company, by officers on duty, over a sustained period of time, using multiple weapons. The offenders had the victims in custody and suffering from exposure to tear gas. The frustration the offenders felt at having to pursue the victims pales into insignificance in all of the circumstances. Every person is entitled to be treated with dignity and to expect lawful treatment at the hands of police. The offenders showed a lack of basic respect for the human rights of the victims.
34. The impact of the offences on the immediate victims will be significant and enduring, as reflected by the comments made by two of the victims, Storick Simon and Max Lari, who were interviewed by Probation Services.
35. Nelson Lari died a few months after the offence. The State did not seek to rely on in this in aggravation. It appears his death was caused by tuberculosis but the death certificate referred to the history of police physical assault as a contributing factor. The State did not refer to this in the brief facts. Whilst it might seem reasonable to assume that the assault did hasten his death, it is a contentious matter and the medical evidence is limited and cannot be regarded as unequivocal. In the circumstances I will give the offenders the benefit of doubt on this matter and not take it into account in aggravation: Yalibakut v The State (2006) SC890.
36. Offences like these are prevalent. The Courts have repeatedly expressed their condemnation of police brutality. The community is exhausted by it. The Royal Papua New Guinea Constabulary exists to serve and protect the people of Papua New Guinea. That the very persons sworn to uphold and enforce the law, and to serve and protect the community, abuse their authority with such violence is seriously aggravating. Their actions threaten to bring all those who serve with honour and distinction into disrepute and seriously undermine confidence in the police service.
37. The Courts have said these things many times but they are not merely words. The danger of these offences should not be underestimated. They have the potential to threaten the rule of law and the safety and security of the community at large. To the credit of the RPNGC the offences were fully investigated and prosecuted.
38. I have taken into account the offenders’ personal circumstances, and the factors in mitigation, including their prior good character, service to the force, cooperation with police, and guilty plea. These factors must be balanced against the nature of the harm, the circumstances in which it was inflicted, including the sustained use of weapons by several persons, and in particular by the fact those persons were on-duty police officers, or reserve officers.
39. It appears from the comparative cases that a sentence of four years or more is usually reserved for those cases involving gunshot or knife injuries. Whilst not present in this case, the totality of the circumstances warrant a sentence of between four and six years.
40. It is also necessary to consider the principles governing parity, which were clarified in Sanawi v The State (2010) SC1076 applying Mario Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295; and recent affirmed in David Kaya and Philip Kuman v The State (2020) SC2026: (emphasis mine):

"The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be alike but that, if there are relevant differences, due allowances must be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However the parity principle, as identified and expounded in Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to 'a justifiable sense of grievance'. ..

Discrepancy or disparity is not simply a question of imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their degrees of criminality..."

41. There are no great differences between the offenders’ personal circumstances. They are about the same age and each have young children whom are dependent on them.
    
42. As for the offending, they are of the same rank and none are particularly senior. Garry Katamog, however, is both a regular member of the force and the most experienced officer. He was the acting supervisor at the time of the offence. The depositions show that all actively participated in the violence and whilst there should be no marked disparity between the sentences imposed, I do intend to reflect that the culpability of Garry Katamog is greater having regard to his level of experience and service as a regular member of the RPNGC.
    
43. Having regard to the above, I sentence Nathan Manikumbu and Aiden Posong to one year of imprisonment for wilful damage. On each of the charges of grievous bodily harm I sentence Nathan Manikumbu and Aiden Posong to four years of imprisonment. To reflect his greater culpability, I sentence Garry Katamog to one a half years for wilful damage, and four and a half years for each offence of grievous bodily harm. I make it clear that significant weight has been given to the offenders’ cooperation and guilty plea.
    
44. All offences form part of the one transaction and will be served concurrently. To date no time has been spent in custody.
    
45. In The State v Tardrew [1986] PNGLR 91 the Supreme Court set out three broad, but not exhaustive, categories in which it may be appropriate to suspend a sentence, namely: where it will promote the general deterrence or rehabilitation of the offender; where it will promote the repayment or restitution of stolen money or goods; or where imprisonment would cause an excessive degree of suffering to the particular offender, for example because of bad physical or mental health.
    
46. Suspension is not appropriate in the circumstances of this case. Restitution is not relevant here. I am not satisfied that the offenders would suffer excessively in prison. Concerns have not been raised about their incarceration on the basis that they are former police officers or reserve officers. It is in any event the responsibility of Correctional Services to ensure their security and welfare in accordance with its obligations under the Correctional Services Act. For obvious reasons, it would be wrong as a matter of principle for an offender to escape custody on the basis that he or she is a police officer: State v Kande & 2 Ors (2021) N9252 at [76].
    
47. In conclusion, a custodial term is not only appropriate but required to deter other police officers from committing similar offences and to maintain public confidence in the police service which is so essential to maintaining the rule of law.
    
48. I make the following orders:
    

Orders

(1) Nathan Manikumbu is sentenced to:

1. On the charge of wilful damage in Count 1 of the indictment, one year of imprisonment;
2. On each of the charges of grievous bodily harm in Counts 2 to 6 of the indictment, four years of imprisonment, to be served concurrently with each other and Count 1.
   

(2) Aiden Posong is sentenced to:

1. On the charge of wilful damage in Count 1 of the indictment, one year of imprisonment;
2. On each of the charges of grievous bodily harm in Counts 2 to 6 of the indictment, four years of imprisonment, to be served concurrently with each other and Count 1.
   

(3) Garry Katamog is sentenced to:

1. On the charge of wilful damage in Count 1 of the indictment, one year of imprisonment;
2. On each of the charges of grievous bodily harm in Counts 2 to 6 of the indictment, four and a half years of imprisonment, to be served concurrently with each other and Count 1.
   

(4) Any deposited bail monies are to be refunded.

Sentences accordingly.

________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Offenders