N3865

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 920 of 2006

THE STATE

v

LAWRENCE MATTAU

Buka: Kandakasi, J.
2008: 13th, 21st February
14th and 19th November

DECISION ON SENTENCE

CONSTITUTIONAL LAW – Correct court or forum to deal with criminal cases in Bougainville - National and Bougainville law as provided for by the Constitutional Laws – National Court correct forum – Customary justice system – consideration of - Criminal sentencing to start with inquire for any applicable customary form of punishment – Courts duty bound to take into and decisions to reflect relevant custom – Sections 291, 305, 306, 308 and 309 Constitution – Sections 112, 114, 126 and 241 Bougainville Constitution. 

 CONSTITUTIONAL LAW - Bougainville Constitution – Consideration of - Resolution of conflicts and disputes in Bougainville – Main focus - Promotion of peace and harmonious living – Use of non violent means such as mediation and reconciliation - Customary or traditional justice system – Criminal sentencing to start with inquiry on existence of a form of customary punishment - Application of – Customary practice promoting peace and peaceful co-existence – Appropriate to adopt and apply in combination with modern principles of criminal sentencing - Focus for criminal justice system should be rehabilitation through peaceful means – Imprisonment, a form of violence and should be reserved for the hardcore, repeat and offenders having propensity to re-offend -National Constitution - Sections 291, 305, 306, 308, 309, 333 - 336 Bougainville Constitution – Sections 13(3), 45(1), 112, 114, 115, 126, 241. 
 
CRIMINAL LAW –Sentence – Unlawful killing – Use of firearm – Provocation – Deceased prisoner''s nephew raised by prisoner having sexual affairs with prisoner''s wife – Prisoner getting drunk and killing deceased only as last resort – Prisoner vital link in restoration of peace and good order in Bougainville – Prisoner helped restore law and order for post Bougainville conflict - Formal justice system not able to assist prisoner when sought - Good character and standing reports and references – Offence a one of incident – 10 years sentence wholly suspended on conditions imposed – Section 302 and 19 of the Criminal Code. 

Cases cited:

The Matter of An Application By Paul Tupuru Buka (2005) N2796.
James Pangnan & Patrick Ponat v. The State (2006) SCRA 39 & 54 of 2004.
Manu Kovi v The State (2005) SC789.
Sakarowa Koe v. The State (2004) SC739.
Anna Max Marangi v. The State (2002) SC702.
The State v. Robert Potou (2008) N3316.
The State v. Elias Peter Wano Miva (2006) CR No. 448 of 2005.
Simon Kama v. The State (2004) SC740.
Thress Kumbamong v. The State (2008) SCRA 39 of 2007.
The State v. Joe Kanau Tomitom (2008) N3301.
Kesino Apo v The State [1988] PNGLR 182.
Acting Public Prosecutor v Nitak Mangilonde Taganis of Tampitanis [1982] PNGLR 299.
The State v. Alice Wilmot (2005) N2857.
Acting Public Prosecutor v. Don Hale (1998) SC564.
The State v Allan Nareti and Amstrong Kupe (2004) N2582.
The State v Gibson Haulai (2004) N2555.
The State v. Frank Kagi [1987] PNGLR 320.
The State v. Nyama [1991] PNGLR 127.
The State -v- Abel Airi (2000) N2007.
The State v Micky John Lausi (2001) N2073.

Counsel:

D. Mark and L. Rangan, for the State.
P. Kaluwin, for the Accused.

19th November, 2008

1. KANDAKASI J: In this case, Mr. Lawrence Mattau, a former Bougainville Revolutionary Army (BRA) strong man and an important link in the restoration of peace and normalcy on Bougainville, pleaded guilty to killing his nephew, Felix Mania. He committed the offence because Felix was having sexual affairs with his (Lawrence''s) wife Mrs. Angela Mattau. Their custom authorized Lawrence''s actions but not the formal introduced legal system, which Lawrence helped to restore after the Bougainville conflict. He resorted to taking matters into his own hands because no leader or any other lawful authority he turned to was able to help attend to his problem and help find a solution. 

Issues

3.	The main issue for the Court to decide is, what is an appropriate sentence for Lawrence? Before we get into a consideration and determination of that issue, there is a preliminary issue I wish to turn to and have it resolved first. 

Preliminary Issue

4.	The Court has received a letter dated 19th February 2008 from a lord, William Mungtaa and a lord, Blaise Iruinu of the Royal Kingdom of Me''ekamui. The letter requested this Court to transfer this case to them so that Lawrence could be dealt with under what they describe as supreme or superior law according to aged old customary system of justice. This raises the question of which law to apply and which is the correct and appropriate court or forum to deal with this matter?

5.	The question thus raised, requires us to go back to our recent history. As we all know, the period between the late 1980s to the late 1990s saw Bougainville and our country sadly witnessed our bloodiest conflict in our country''s short history. We called it the Bougainville crisis or conflict. Many lives and properties were unfortunately lost with many others displaced. 

6.	Fortunately, in the late 1990s, all parties involved in the conflict which included the BRA, the Papua New Guinea Defence Force, the Police Force, the National Government and the Bougainville Resistance Force entered into serious negotiations for peace. They set in motion, what in time came to be known as the peace process. In perhaps one of the world''s first, the parties reached agreement, resulting in the signing of the Bougainville Peace Agreement at Arawa on 30th August 2001. I say one of the world''s first because there are many much older and aged old conflicts in the world such as the fight for independence by Tamil Tigers in Sri Lanka, the Israeli/Palestinian conflict in the Middle East and closer to home, the fight of independence by the West Papuan people of West Papua in Indonesia and many others in the world are still raging on. 

7.	The Bougainville Agreement allowed for Bougainville to have significant autonomy; conduct a referendum on independence for Bougainville; mass disposal of weapons under the supervision of the United Nations Observer Mission; and ''amnesty or pardon'' for people directly involved in the conflict. The Agreement also provided for an appropriate amendment to the most bulky constitution in the world, the Constitution of the Independent State of Papua New Guinea (National Constitution) to give effect to the Agreement.

8.	In accordance, with the Agreement, the National Parliament amended the National Constitution in 2002 by passing Constitutional Amendment No 23 - Peace Building in Bougainville – Autonomous Bougainville Government and Bougainville Referendum. The Amendment added a new Part XIV (Bougainville Government and Bougainville Referendum) to the National Constitution. This law made provision for an implementation of the matters agreed to in the Agreement. This law also provides for the enactment of an Organic Law to provide for the details to implement the Agreement.

9.	Also in 2002, the National Parliament passed the Organic Law on Peace-Building in Bougainville – Autonomous Bougainville Government and Bougainville Referendum, to give effect to the provisions of the new Part XIV of the National Constitution. Pursuant to the relevant Constitutional provisions, a Bougainville Constitutional Commission was established. That Commission consulted with the people of Bougainville and prepared a draft Bougainville Constitution. The Bougainville Constituent Assembly also established, under National Constitution as amended, considered and debated the draft constitution and consulted with the National Executive Council. Finally, on 12th November 2004, the Bougainville Constituent Assembly sitting at Buin adopted the Constitution of the Autonomous Region of Bougainville (the Bougainville Constitution). On 10th December 2004, the Governor-General endorsed the Bougainville Constitution. After it received gazettal in the National Gazette, it became law and came into full operation or effect after the return of the writs for the general election on 9th June 2005 after only parts were earlier brought into operation.

10.	The above Constitutional Laws only govern what happens during what we might call, the current transitional period pending a referendum or vote when the Bougainvilleans go to the polls to decide either for independence from the rest of Papua New Guinea or continue to remain an integral part of the country. In so far as is relevant, Subdivision D of Part XIV of the National Constitution provides for the administration of justice in Bougainville. Section 305 says the PNG National Judicial System is to continue to carry out its responsibilities in Bougainville, in accordance with the provisions made in Part XIV. Section 306 states that the Bougainville Constitution may make provision for the establishment of courts and tribunals with their powers and functions in Bougainville which may function wholly or partially with the courts and tribunals established under the National Judicial System. Section 308 (6) goes on to provide for an Organic Law to make provision for the kind of relationship the Bougainville courts and other courts in the National Judicial System should have and how powers in the National Judicial System could be transferred to those in Bougainville. Finally, section 309 provides for the appointment of judges for Bougainville and their terms and conditions. It goes on to provide amongst others that, a Judge of the National Court may hold an appointment as a Bougainville Judge concurrently with his tenure of appointment as a Judge of the National Court and vise versa. 

11.	The only Organic Law thus far enacted for or concerning Bougainville following the Peace Agreement is the Organic Law for Autonomous Bougainville. In so far as is relevant s. 7 of that law provides for Constitutional Regulations which may provide for transitional arrangements that are necessary with respect amongst others as to the establishment of Bougainville Courts and consequential changes within the PNG National Judicial System; co-operation between the administration of the National and Bougainville courts; and the development and implementation of plans for restoring courts in Bougainville, including courts at the village level. As far as I am aware, no Constitutional Regulation has been enacted.

12.	The Bougainville Constitution in s. 112 provides for Bougainville Courts. They consist of the Bougainville High Court, other Courts established under s. 126 of the Bougainville Constitution, the Supreme Court of Papua New Guinea and the PNG National Court. Under s. 114 of the Bougainville Constitution, the Bougainville Courts are vested with the judicial power of the Autonomous Bougainville Region. Up to this date, although provision has been made for the establishment of the Bougainville High Court and other Courts, there is no functional Bougainville High Court or a system of Bougainville courts as yet. In its place the National Judicial System is fully functional with the National Court performing its duties and responsibilities. Section 241 of the Bougainville Constitution authorizes this until at such times, Bougainville is able to have amongst others, her own Court system up and running.

13.	With regards to the application of the Criminal Code of PNG, s. 291 of the National Constitution provides for the Code to apply in full until Bougainville is able to adopt the Code with any amendments thereto. It therefore falls within the jurisdiction of the National Court to deal with people caught committing offences under the Criminal Code. For all indictable offences such as murder or manslaughter, the National Court is the correct and only forum or Court after the District Court has committed a person to stand trial. There is no provision made in any of the Constitutional Laws or any Act of the National Parliament or that of the Parliament of the Autonomous Region of Bougainville that allows for the National Court to either share, derogate from or otherwise move away from exercising its judicial powers and functions in relation to all matters coming properly within its jurisdiction. Hence there is no mandate, power or privilege for this Court to send this matter to their lordships, William Mungtaa and Blaise Iruinu of Me''ekamui or any other person. Accordingly, I declined to grant their request or application.

14.	In arriving at the above decision, I have not overlooked their lordships reference to the important issue of traditional customs and traditional systems of justice that has been in existence and applied from time immemorial on Bougainville, as has been the case for rest of the country. Under the National Constitution, the courts are charged with the duty to take into account any relevant custom. As it might become apparent in the course of this judgment, the Bougainville Constitution and the National Constitution emphasis the importance of custom. I will therefore address the issue and try and accommodate it in this judgment. 

Main Issue

15.	I now return to the main issue of what is an appropriate sentence for Lawrence? This is usually the main issue in all cases of criminal sentencing. In order to determine that issue, the Courts often have to address the following subsidiary issues:

(1)	What are the relevant facts or the particular circumstances in which the offence was committed? 
(2)	What is the nature of the offence the offender has been charged with and its relevant sentencing trend?
(3)	What are the factors in aggravation and mitigation of the offender? 
(4)	Are there any special features attending the commission of the offence?
(5)	After carefully considering all of the relevant factors, what should be the appropriate sentence? and
(6)	Whether the whole or any part of the sentence should be suspended and if so on what terms?

16.	Any special feature attending the commission of an offence could either be a factor in mitigation or aggravation. Accordingly, if there is any special feature attending the commission of the offence in this case, I will have that appropriately considered when considering the factors for and against Lawrence. Thus, I will not address the fourth issue separately?

17.	Turning then to the issues, we start with a consideration of the first issue of, ""what are the relevant facts or the particular circumstances in which the offence was committed""? 

What are the Relevant Facts or Circumstances in which the offence was Committed? 

18.	 Long before the commission of the offence, Felix (now deceased) was in need of care and attention as a young growing man. Lawrence, his uncle took him in as a close relative and provided all that Felix needed. As time went by, Felix developed a sexual relationship with his uncle, Lawrences'' wife, Angela Mattau. On discovering what his wife and his nephew were up to, Lawrence went to his village and or community leaders and all the other leaders at the local as well as the regional levels with pleas for them to stop what was happening and salvage his marriage from collapsing. Unfortunately, no one was able to help him. All his pleas fell on deaf ears or on leaders who were not able to do anything.

19.	The lack of positive response from the leaders was heart breaking for Lawrence. Prior to what was happening to his family, Lawrence was an influential member of the BRA, which was involved in the civil war that claimed many lives here on Bougainville. Using his position in the BRA, Lawrence played a very key role in the discussions and the steps that were taken toward resolving the Bougainville conflict peacefully. The part that he played eventually led to the peace accords that were signed, which facilitated a return to peace and normalcy with the rule of law being re-established on Bougainville. It was thus heart breaking for Mr. Mattau because he helped restore the rule of law and the system of law and order presently applying, and yet the system he helped to restore did not come to his aid when he needed the most. It appeared to Lawrence that, all that he had set out to do for the cause of peaceful resolution of conflicts were in vain.

20.	Out of frustration and as a last resort, Lawrence decided to help himself on 31st December 2005. He got drunk and armed himself with a gun and went early that day to the place where Felix and Angela were staying. He arranged for another person to bring Felix out of his house. When Felix, came out, Lawrence shot him with the gun and caused his death. Shortly after the shooting of Felix, Angela tried to escape out of the house by climbing out of a window and ran into a coca patch. Lawrence shot at her twice. One of the shots got her but fortunately, only managed to injure her. After she was injured, Lawrence took her to the hospital. Following appropriate medical treatment, Angela recovered.

21.	This leads us to consider the next subsidiary issue of, ""what is the nature of the offence Lawrence has been charged with and its sentencing trend""?

What is the Nature of the Offence and its Sentencing Trend?

22.	 Section 302 of the Criminal Code, being the provision under which the State charged Lawrence, creates the offence of unlawful killing and prescribes its penalty of life imprisonment. But this is subject to the Court''s wide sentencing discretion under s. 19 also of the Criminal Code. In the exercise of that discretion, the Courts have imposed varying sentences. 

23.	Notwithstanding offenders being caught and dealt with accordingly to law, there are still too many killings. Given the prevalence of the offence, the Supreme Court has revisited some of its age old sentencing guidelines and have come up with new sentencing guidelines with increased ranges of sentences for offenders. The Supreme Court decision, of which I was a part, in James Pangnan & Patrick Ponat v. The State traces that development and ended up with the decision of the Supreme Court in Manu Kovi v. The State. 

24.	Prior to the decision in the Manu Kovi case, there were only three categories of manslaughter cases identified, with their suggested range of sentences. The then latest decision of the Supreme Court was its decision in Sakarowa Koe v. The State. There, the court reviewed the categorization of unlawful killing cases and varied the Supreme Court''s earlier decision in Anna Max Marangi v. The State in terms of increasing the suggested sentences in each category. 

25.	In The State v. Robert Potou a case out of here in Buka, I reviewed the sentencing trend in manslaughter cases and concluded that, the decisions of the Supreme and National Courts show an increase in the kind of sentences imposed in manslaughter cases. I then observed that, the decision of the Supreme Court in the Manu Kovi case endorsed this trend and suggested four categories of manslaughter and recommended an increased range of sentences. 

26.	I then noted that, the first category is at the lower end of the scale for simple cases of manslaughter which does not involve any weapons, brutality or viciousness, pre-meditation and or planning and the offender pleads guilty. That should attract sentences between 8 to 12 years. The second category is for cases which involve an offensive weapon, some planning, viciousness or brutality and an intention to do harm. This category attracts sentences between 13 to 16 years, whether or not the offender pleads guilty. The third category is for cases which involve offensive weapons such as guns and axes, some planning, viciousness or brutality and an intention to do harm. This attracts sentences between 17 to 25 years, whether or not the offender pleads guilty. The fourth and final category is cases in which all of the aggravating elements missing under the first category and the other categories exist. This attracts life imprisonment, whether or not the offender pleads guilty.

27.	At the same time, I expressed the view that, there was a serious flaw in the decision in the Manu Kovi case, in relation to the Courts further categorization of manslaughter cases, particularly in relation to the third and fourth categories. I gave some reasons for that view in a number of cases for example my decision in The State v. Elias Peter Wano Miva. In those cases, I made the point that, Parliament had already provided for categories of homicide cases depending on the intention of the offender with their penalty prescribed and it was not within the Court''s power to again further classify the offence. That was in due recognition of the principles calling for the separation of powers between the judiciary and the legislature. 

28.	I noted that, support for that view is provided by the decision of the Supreme Court in Simon Kama v. The State where the Court took a close look at the basis for the Court''s further categorization of homicide cases and confirmed the view that, the Court should not further categorize homicide cases, for to do so would be entering into the sphere of legislating and hence usurp the powers of Parliament. The decision in Manu Kovi''s case did not give any meaningful consideration to its earlier decision in the Simon Kama case, although it referred to that decision. 

29.	Recently, the Supreme Court had occasion to review the way in which the Supreme Court was setting guidelines for sentencing. That was in the matter, Thress Kumbamong v. The State. The Court carefully considered the issue in detail. It then concluded that, since Parliament has not provided for any fettering of the discretion vested in a trial judge except to exercise it judicially in accordance with the law, the Courts should be careful not to prescribe or regiment the way in which a sentencing judge should exercise his or her sentencing discretion in the particular circumstances of a case before him or her. It reasoned that, prescribing the way in which a sentencing judge should exercise his or her discretion would have the effect of usurping the powers and functions of Parliament. Further, the Court reasoned that, leaving the exercise of sentencing discretion to a sentencing judge recognizes the need to determine a case on its own merits and that criminal sentencing is not a matter of mathematics or precise science but logic and commonsense and what is considered fair and reasonable. By reason of that, there may well be differences of opinions and the kinds of sentences imposed. 

30.	At the same time, the Supreme Court said it was within the power of the Supreme Court to provide guidelines as to what sort of factors a sentencing judge should take into account. Also the Court made it clear that, the Supreme Court cannot set sentencing ranges or tariffs with minimums as ""starting points"" and maximums within the maximums already prescribed by Parliament. To do so would amount to the Court legislating as opposed to interpreting and applying the law. The Court reiterated and emphasized the point that, a trial judge has and should be left with his or her wide discretion to impose such a sentence or penalty as he or she considers appropriate in the particular circumstances of the case before him or her. That discretion cannot be curtailed, restricted or interfered with except for very good reason say for example, where there is a total improper exercise of the discretion and going against any sense of logic and commonsense and perceptions of justice and fairness. It further emphasized the point that, a trial judge should be at liberty to impose a sentence which might as well turn out to be either a ""quantum leap"" or ""too crushing"" for an offender which the circumstances in which the offence was committed and the factors for and against the offender might well warrant and dictate. 

31.	In the context of sentencing in a manslaughter case, I take this to mean that, the National Court need not be restricted in terms of the kind of sentence the Court can impose. Instead, it should be at liberty to impose any sentence between zero and life imprisonment as long as the sentence proposed to be imposed is aimed at serving one of the recognized purposes of criminal sentencing. The actual sentence should be dictated by the particular circumstances in which the offence was committed, the factors in aggravation and mitigation and the kind of sentences imposed in similar cases for consistency sake but to the exclusion of any so called sentencing range under some Court suggested category. 

32.	Taking into account the views it expressed and the particular circumstances in which the Appellant in the Thress Kumbamong case, committed the offence, the Supreme Court partially upheld her appeal against a sentence of 9 years. The Court decided a period of a little over 2 years she had already spent in pre-trial and post sentence custody was sufficient custodial sentence and suspended the balance of the sentence on conditions.

33.	The facts in that case are similar, though not on all fours, to the case now before me. There, Thress killed her husband''s second wife or girlfriend. On entering to the relationship with the deceased, the husband abandoned Thress and her children who were left with no money, food, electricity and other support they needed for their survival. Rather than immediately go on an attack mode, Thress approached the deceased with a suggestion for the deceased to go and live with her and her children so her husband could look after all of them. The deceased did not give any consideration to what Thress was suggesting. Instead, she went into verbal abuse, insult and provocation of Thress, armed herself with a knife and tried to attack Thress. Thress managed to overpower the deceased, took the knife off from her and stabbed her several times all over her body which led to her death. The Supreme Court was of the view that, there was real provocation and went on to express the view that a person acting in circumstances similar to Thress'' should have the defence of provocation applying in their favour. The Court reasoned that, such people act unconsciously because of a perceived threat to their survival, which is part of our animal instinct (being considered animals ourselves) to so act. 

Present Case

What are the Factors Operating Against Lawrence? 

34.	Allowing myself to be guided by the foregoing discussion on the offence and its sentencing trend as well as the relevant facts, I now proceed to give consideration to the factors operating for and against Lawrence, in the case now before me, starting firstly with those against him. 

35.	 I note firstly that, Lawrence used a fire arm to kill the deceased. The Courts have repeatedly said that, the use of such a weapon is a serious aggravating factor. It follows therefore that, the involvement of a firearm to commit the offence here is a serious aggravating factor. Secondly, in addition to killing the deceased, Lawrence used the same firearm to shot at and injure his wife. Thirdly, I note that a human life has been abruptly taken away with another injured. These are serious factors operating against Lawrence. 

What are the Factors in Lawrence''s Favour?

36.	Against the above aggravating factors, I note there are number of factors in Lawrence''s favour. Firstly, whilst I note that intoxication is not an excuse and therefore cannot be taken into account in favour of an offender, Lawrence was acting under the influence of alcohol. This adds to the discussion in the Thress Kumbamong''s case, especially in relation to unconscious acting in the kind of setting in which Lawrence committed the offence. I find that, his intoxicated state and the fact that his wife was taken away by his own nephew whom he had cared for under his own roof deprived him of any rational thinking. He merely acted on his animal instinct to act in furtherance of his claim of his rights if not, his interest over his wife. This is demonstrated in the fact that, once he shot at and injured his wife, he did not take further steps to end her life but did take steps to get her to the hospital for appropriate treatment so she could survive. 

37.	Secondly, following on from what I have just said, I note that marriage is often said to be sacred. This is so because, marriage is the place where families, clans, tribes, societies or nations are built. In marriage, are there appropriate training and discipline, cultures and traditions and dos and don''ts in life taught, strengthened and passed on. Logically, it follows therefore that, if the sacredness of marriages are not protected, there is the serious risks of a whole society or nation failing. Accordingly, it does not take much to arrive at the suggestion that, a person who shows disrespect and tries to or does in fact takes steps to break that sacredness, that person ought to be dealt with severely. Almost in all traditional societies the world over, death has always been meted out as the ultimate penalty to a man or woman stealing another man or woman''s wife or husband. Indeed, there is material before me of that being the custom here in Bougainville. In the local dialect of the ""Nasioi"" in the Kieta area of Bougainville, describes in accordance with their custom, the cause of Felix''s death as ""mantangkunai"". This custom is not peculiar to Bougainville but is from the little that I know, common throughout most of our country, if not the whole world. The material before me in the present case, goes even further to suggest that, it is customarily acceptable for an uncle to kill or seriously injure a nephew or niece caught in committing any offence or becoming a menace in society. 

38.	The formal legal system that we have adopted and apply every day does not provide for any serious penalty against people who offend against the sacredness of marriage. The formal legal system does provide for one to act in defence of his or another''s property. Unfortunately, I am not aware of the law including in its definition of property marriages because the definition of property is qualified by that which is ""capable of being the subject of ownership"". I note at the same time that, the law does allow of the protection of ideas or concepts by copyrights under the whole new area of law called ""intellectual property"" and yet there is a lack of sufficient and efficient protection against one of the most sacred things in life, marriages. This lack in protection, in my view, has allowed for a ready break down in marriages with a large number of children raised out of the marriage circles with its discipline and good culture and training for them to become better and useful members of our society is seriously lacking. This is not welcomed and good news for any society but it is rather a danger signal. I am of the view that, a Court dealing with a person acting in protection of his marriage should always take this into account and have it appropriately and sufficiently reflected in his or her sentence. 

39.	In this regard, I note with interest that, in Bougainville, the Bougainville Constitution in s. 13 (3) provides for the recognition of families and clans ""as the natural and basic units of Bougainville society."" The next subsections then goes on to provide for the restoration of peace and harmony through customary means that are aimed at restoring harmony in relationships between people. 

40.	Thirdly, I note that Lawrence''s conviction came on his guilty plea. That saved the State much time and money it could have spent on running a trial. I note in particular that, it is very difficult for the State to ensure the attendance of all witnesses in nearly all of the case in this Region because of logistical and other difficulties. Mr. Samuel Kaono, the former supreme commander of the BRA says through the pre-sentence report that, many people in all factions, BRA, Me''ekamui, Bougainville Freedom Fighters and others have and are continuing to kill and are still out there at large. Lawrence could have done likewise but he has voluntarily surrendered to our system of justice even though that system failed him. In my view, his guilty plea in this setting must be contrasted with a case in which the State would have easily arrested, called witnesses and secured a conviction. 

41.	No doubt, a guilty plea in a case where the State has difficulty arresting and bringing offenders to justice, in my view, amounts to a serious help to the State and hence the society. It reflects, in my view, an offender''s genuine admission of guilt and taking of responsibility for his or her actions. This is in addition to saving the Court much time and effort hearing and coming to a decision on an offender''s guilt or innocence. Accordingly, I am of the view that, the sentence must sufficiently reflect this fact.

42.	Fourthly, I note that, this is Lawrence''s first ever conviction. That means, until the commission of the offence for which he is in Court, he has been a good law abiding citizen. Indeed, there are number of references from a number of leaders of this Region. They all speak highly of Lawrence and the part he played in bringing about the peace and normalcy most parts of Bougainville is now enjoying. He was previously but now a former BRA who has come out and worked hard and is still continuing to work hard with all who were and are involved in the peace process. He was and still is a vital link between the BRA, the Autonomous Bougainville Government, the National Government and the ongoing peace building efforts here in Bougainville. All of the leaders say that, if it were not for the part Lawrence played, the peace process would not have been that successful. 

43.	Fifthly, following on from the fourth factor, I note that, Lawrence helped restore the rule of law and the formal legal system in Bougainville under which this Court is functioning. When the problem of his nephew having sexual relationships with his wife became apparent, he went to a number of leaders and authorities and tried to get them to look into his problem and help stop the destruction that was taking place in his family. Unfortunately, no one was able to attend to his pleas in any manner or form. He became desperate and came to the conclusion that the system he helped restore and become functional was not able to help him. Consequently, he got drunk on the day of the offence, decided to go for self help, take matters into his own hands and committed the offence. 

44.	I note with regret that, the system that failed to attend to Lawrence''s needs and hence, in my view, contributed to what he did, has now kicked into full gear and has become fully operational against him. As far as he is concerned, he has a genuine feeling of being hard done and most unfairly treated. Thus treating his case like any other manslaughter case and locking him away in prison would add to that unfairness. It is therefore necessary to ensure that the sentence which the Court eventually decides to arrive at must adequately allow for and reflect this fact. That should be in addition to and independent of the other factors I have already outlined above.

45.	 Finally, I note and take into account the fact that, appreciating what he did was wrong, Lawrence said sorry in his allocatus. He also expressed his remorse for the loss of his nephew, Felix, whose loss is a stigma he will live with for the rest of his life. This, I note is not something he just said in his allocutus as do some other offenders, merely to argue for a lenient sentence. There is evidence before the Court from Felix''s side, in the form of a memorandum of understanding dated 14th September 2006, signed by three Chiefs. They state that Lawrence has met obligations imposed by custom to immediately pay for what he did by paying over a pig worth K400.00, five chickens worth K25.00, two rolls of traditional shell money, traditional mats and taro and kaukau having a total estimated value of K2,000.00. This has enabled peace to prevail and as far as the people in the community are concerned, this kind of attitude and action on the part of an offender satisfactorily resolves problems or conflicts created by the commission of an offence. Through the pre-sentence report, Lawrence is now prepared do more in terms of facilitating a customary ceremony known as a ""Kuira''nang"" in the local Nasioi dialect in the Keita area in Bougainville within three months from today. This is another peace ceremony marked with payment of more cash and kind at a larger scale. It is aimed at putting what he has done behind him and Felix''s side and continue to live in peace.

46.	As I have already noted, s. 13 of the Bougainville Constitution mandates the recognition and strengthening of the clan structure and customary leadership of Bougainvillean communities. This includes recognition of the authority, roles and responsibilities of traditional chiefs and other traditional leaders as well as the family and clan units. But more importantly, subsection 4 mandates that:

""The customary system of justice in Bougainville based on the restoration of peace through restoration of harmony in relationships between people shall be recognized and reinforced to the extent not contrary to Christian principles.""

47.	Then specifically for Bougainville''s criminal justice system, s. 45(1) of the Bougainville Constitution calls on the Autonomous Bougainville Government to develop a criminal law policy. In developing that policy, the Bougainville Constitution requires the Bougainville Government to:

""incorporate customary practices and norms into the development and implementation of criminal law in Bougainville.""

48.	Subsection (2) of the same provision then calls on the Autonomous Bougainville Government and the National Government to ""establish a joint commission to examine and report on the issues involved in giving the Autonomous Bougainville Government power to make laws permitting courts or Council of Elders to require clan-groups, to which persons convicted of criminal offences belong, to meet customary non-custodial obligations"". Once established, such a commission is required to have regard for:

""(a)	the aspiration of Bougainvilleans for the integration of custom and the introduced law;
(b)	the national human rights regime;
(c)	the justice system in Bougainville and in Papua New Guinea as a whole;
(d)	the international human rights system and other relevant aspects of international law.""

49.	In my view, the intention of the people of Bougainville through their Constitution is very clear. They made a deliberate decision to make their customary system of justice, which is based on the family, clan and traditional chieftain and other system of traditional leadership and the peoples'' relationships within these structures or units is to be an integral part of the formal introduced justice system. This intention is clearly expressed elsewhere in the Bougainville Constitution as in s. 115 which provides for a Bougainville law providing for the resolution of disputes through alternative dispute resolutions such as arbitration and reconciliation which is to utilize and draw from customary dispute resolution and reconciliation practices and the role of traditional chiefs and other traditional leaders. Indeed, I note that, peaceful and or non violent or forceful means of resolving conflicts through mediation or reconciliation is the preferred means of resolving any conflict between the National Government and the Autonomous Bougainville Government. Provision for this is in sections 333 to 336 of the National Constitution. 

What is the Appropriate Sentence for Lawrence?

50.	Bearing the above discussion in mind, I now turn to a consideration of the next issue of, after carefully considering all of the relevant factors, what should be the appropriate sentence for Lawrence? This ultimately requires the Court to carefully consider and weigh the factors operating for and against him. I accept that Lawrence has committed a very serious offence using a firearm and has ended the life of his nephew, Felix. However, I find that, the factors leading to or contributing to the commission of the offence and other mitigating factors as I outlined above, substantially mitigates the severity of the offence he has committed.
 
51.	I note that a criminal law policy is yet to be developed in accordance with the requirements of s. 45 (1) and (2) of the Bougainville Constitution. Notwithstanding that, I am of the view that, there is sufficient pronouncement by the people of Bougainville that, their traditional justice system based on their customs that are not inconsistent with internationally accepted norms of human rights, fairness and justice should drive such a policy. Similarly, I find that, there is sufficient expression of the will of the Bougainville people through their Constitution that, their traditional system of justice should be the main guiding principle for the resolution of conflicts or disputes in Bougainville. Accordingly, I am of the view that, a critically first inquiry should be, is there a form of customary punishment that can be adopted and applied either on its own with or without any modification or in combination with the introduced system of justice. 

52.	Applying the view I have just expressed, the question here is, is there a form of customary punishment that can be adopted with or without modification or in combination with the introduced system of justice? The answer to that question is obviously a yes or in the affirmative. Custom in the present case requires the performance of a ""Kuira''nang"", which is a form of compensation coupled with expressions of remorse and apologies by the offender and his side and an acceptance of the same by the victim''s side. 

53.	I do appreciate that, most of the National case law makes the point that the payment of customary compensation is only a mitigating factor and not a total exoneration of criminal responsibility, for fear of offender''s paying their way out of criminal responsibility for those who can afford it and those who cannot face imprisonment. I am, however, of the view that, an appropriately packaged sentence can take care of that concern and also allow for a customary form of punishment to fully apply because more importantly, a customary form of punishment looks at restoring broken human relations and enables offenders and their people with victims and their people to live in peace rather than in animosity. I note for the purposes of s. 13 (4) and s. 45 (2) of the Bougainville Constitution, peace is the universal language of all religion and governments world wide but at much variance with real intends and the way and means of promoting and achieving real peace.

54.	Any term of imprisonment hardly promotes any peaceful co-existence between offenders and victims and their respective people. The reason for this is simple; imprisonment is undoubtedly a form of violence because it forcefully removes an offender from society and locks him or her away from his or her family and community or society. No offender and his or her people readily accept such an outcome while the victims might claim justice and victory. These are however divided views where as the customary reconciliatory process caters for the interest of both sides. I firmly believe that, the people of Bougainville realized this fact through their experiences culminating in the peaceful resolution of more than a decade''s conflict. Based on their useful experience, they have deliberately stipulated in s. 15 of the Bougainville Constitution that:

""(1)	In order to achieve and maintain peace at all times, mediation, reconciliation and harmony shall at all times be pursued as means of resolving disputes, and the use of violence shall be avoided.
(2)	There shall be established and encouraged institutions and procedures for the promotion of mediation, reconciliation and harmony and the avoidance and resolution of conflicts."" 

(Underlining mine)

55.	I am of the view that, the provisions made in the National Constitution and those in the Bougainville Constitution, signal a need for us to seriously reconsider the way in which the criminal sentencing has been approached in Bougainville as well as the whole of our country. Following the lead provided by the provisions in question, I am of the view that, of all of the purposes of criminal sentencing, rehabilitation should be the main aim and focus of criminal sentencing, if we are to rid our communities of criminal activities and promote peaceful co-existences of our many peoples, clans, tribes and nations. Indeed, I note that, our traditional societies did not have a police force, a correction service and a court system removed from the direct involvement of the community affected by an offence. Apart from immediate retribution that were often meted out to offenders failing any compensation, there were no law and order and social problems coming any where near the levels we as a nation along with the rest of the world are experiencing today. Our police force is stretched to their ultimate limits with our prisons being filled way beyond their limits and the other peace loving and law abiding citizens are living in fear of criminals in their own everyday mini prisons within their own homes. As the Supreme Court noted in the Thress Kumbamong case, this is the result of the State using the force of law to deal with social problems rather than finding ways and means of using positive and peaceful means which are powerful agents for peace to deal with our criminal problems and to promote peaceful, lawful and orderly co-existence of our peoples.

56.	Section 19 of the Criminal Code already vests the Courts with a wider discretion to deal with offenders as recently re-affirmed by the Supreme Court decision in the Thress Kumbamong case. In the case of criminal sentencing in Bougainville, the Bougainville Constitution as we have just noted, emphasized the need for greater use of customary ways of resolving conflicts. This was not merely an academic exercise. As we have already observed, it was the good customary principles and practices that formed the foundation to restore peace and good order on Bougainville and hence lead to the Peace Agreement and the eventual return to peace and normalcy in Bougainville. The Bougainville peoples'' (which, in my view, is representative of most of Melanesia), ability to overcome unlawful killings and other atrocities committed during the Bougainville conflict through offers of genuine expression of remorse and apologies accompanied with compensation as a physical sign of such expressions and the ready acceptance of such offers by the victims was the catalyst for the Peace Agreement and the actual return to peace on Bougainville. The experience on the ground now is commendable. Although there are areas in Bougainville that are yet to see a full return to peace and normalcy, most of Bougainville, unlike most other places in the country, has all the hallmarks of peace. A very good example is the fact that, nearly all houses and properties on Bougainville have no high rise corrugated iron fences, such is the case elsewhere in our beautiful country which, again as I mentioned, have become the everyday mini prisons within their own homes for the vast majority of our people. 

57.	 I am therefore of the respectful view that, the Bougainville experience is a good lesson not only for the rest of our country but the world over and should form the foundation for a review and reform of our criminal justice system and sentencing. In our jurisdiction, a very good starting point is s. 19 of the Criminal Code. Under this provision, I am of the view that, the Court has the necessary power and or the discretion to choose the way of peace to promote peace, rather than a ready resort to imprisonment. Imprisonment should be reserved as a last resort and for the hardcore or hardened, repeat offenders and those who are likely to re-offend. Except in cases where rehabilitation is not possible, the prison should not be for first time offenders.

58.	Duly noting all of the foregoing discussions and having regard to the particular circumstance of this case as we have noted above, I consider starting with a head sentence of 10 years is appropriate. Stopping at that, would not sufficiently accommodate what we have suggested. Accordingly, we need to look at doing something more that would accommodate all that we have suggested. I am of the view that, suspending either the whole or part of the sentence and making provision for the application of the customary forms of restoring the relations that have been broken by Lawrence''s offence could be what is needed. The question of suspending either the whole or part of the sentence is the subject of the last and remaining issues for this Court to resolve. Accordingly, I turn to a consideration of that issue now. 

Whether the whole or part of the Sentence should be Suspended?

59.	We have a pre-sentence report from the Probation Service here, which after noting the views of the members of the community recommends that, Lawrence be given a suspended sentence. Going by the authority of the Supreme Court decision in Acting Public Prosecutor v. Don Hale, I have expressed the view in a number of cases already that, criminal sentencing is a community responsibility. Therefore the Courts must seriously take into account the views of the community expressed through a pre-sentence report. This, the Court must do when called on to exercise the sentencing discretion vested in the Courts by s. 19 of the Criminal Code. 

60.	 Also, going by the much earlier case authorities like that of The State v. Frank Kagi and The State v. Nyama, I have repeatedly stated in a number of cases that, suspending either the whole or part of a sentence is not an exercise in leniency. Instead, it is a form of punishment aimed at serving one of the important purposes of criminal sentencing namely, rehabilitating an offender and turning him or her into a useful peace loving and law abiding member of the community, which a prison sentence might not be able to deliver. As I already intimated, the prisons should be reserved for repeat, hardened or hardcore criminals and offenders who have a propensity to re-offend. 
 
61.	Giving due consideration to all of the forgoing discussions, I am inclined to imposing a wholly suspended sentence here. I have come to that decision because I do not believe that, Lawrence is a habitual offender and danger to society warranting his imprisonment for the safety of the community. Given his position in society, the kinds of people and number of people who have vouched for his good character, the likelihood of him re-offending is minimal. I am firmly of the view that, he has learned his lesson well and I accept that he has voluntarily accepted responsibility and is prepared to do what his society requires of him to correct the wrong he has brought upon himself and his society. Further, I believe that suspending his sentence is necessary to enable a combination of the formal criminal justice system and the traditional justice system as we have discussed above to function with a view to achieving last peace and harmony between Lawrences and Felix''s people. 

62.	The suspension must however be on strict terms to convey the message that this is not an easy let off but a form of punishment for the serious offence Lawrence has committed. Hence, I consider the following conditions appropriate and order that, they be the conditions on which his sentence of 10 years be wholly suspended. Lawrence shall:

(1)	Immediately enter into his recognizance, with the surety specified in term (2) below, to keep the peace and be of good behaviour for the whole of his suspended sentence which commences today;
(2)	Within 7 days from today, pay into Court a sum of K1,000.00 as surety which shall be forfeited on breach of any of the conditions from (1) to (10) herein;
(3)	Within three months from today, undertake and complete the customary ceremony called ""Kuira''nang in his language, the total value of which shall be anywhere up to but not exceeding K2,000.00 in cash and kind with customary mediation and reconciliation in consultation with the traditional chiefs or other leaders in his community in the witness of the Probation Officer here in Buka;
(4)	During the period of his suspended sentence, be home bound between the hours of 6:00pm and 6:00am;
(5)	Not to consume any form of alcohol including any form of home brew during the currency of his suspended sentence;
(6)	Not to leave the Autonomous Region of Bougainville without first obtaining the leave of the Court;
(7)	Render four hours free community service each week to a public institution, be it a school or a hospital or any other public institution;
(8)	For the purposes of term (7), ensure that, the Probation Service here in Buka in consultation with the community in Buka and Keita specify the kind of work or service he shall undertake and furnish a work schedule to the Court for the Court''s endorsement within 7 days from today;
(9)	Allow for and permit the Probation Services here to visit his home on a regular basis to monitor his compliance of these terms and to make such recommendations, as he may consider appropriate either for a variation or an implementation of these terms;
(10)	Enable the Probation Service Officer to attend on him each quarter to do a comprehensive review and report to this Court of his compliance of these terms commencing with the first one by or before 19th February 2009;
(11)	Serve the remaining term of his suspended sentence, if for whatever reason he breaches any of these terms from the date of any such breach; and
(12)	Be at liberty to apply for a review and or variation of any of these terms with the support of appropriate evidence or material conditional on faithfully compliance of all of the foregoing conditions.

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