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

State v Geria [2008] PGNC 295; N3868 (17 November 2008)

N3868

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1221 of 2008

THE STATE

-V-

EDMOND HOTSIA GERIA

Buka: Kandakasi, J.
2008: 12th And 17th November

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 Bougainville Constitution – Sections, 45(1).

CRIMINAL LAW –Sentence – Unlawful killing – One punch to the stomach area – Rapture already swollen spleen – Prisoner acting under provocation or in defence of child – Guilty plea – First time offender – No history of violence – No likelihood of re-offending –Genuine remorse expressed with payment of customary compensation – Noone to look after children in whose defence prisoner acted – Bougainville Constitution calling for promotion of peace and harmony through mediation, reconciliation using customary or traditional justice system - Prisons to be reserved for last resort and for the habitual, most violent or hardened criminal or an offender having the propensity to re-offend - 8 years fully suspended sentence on conditions imposed – Section 302 and 19 Criminal code – .Sections 13, 45 Bougainville Constitution

Cases cited:

The State v. Lawrence Mattau CR 960 of 2006

James Pangnan & Patrick Ponat v. The State SCRA 39 & 54 OF 2004, delivered on 30th August 2006 at Kokopo
Manu Kovi v. The State (31/05/05) SC789, per Injia DCJ., Lenalia, Lay JJ.
Sakarowa Koe v. The State(01/04/04) SC739
Anna Max Marangi v. The State 08/11/02) SC702
The State v. Robert Potou (2008) N3316
The State v. Elias Peter Wano Miva (unreported and unnumbered judgment delivered in 24/10/06)
Kama v. The State (2004) SC740
Thress Kumbamong v. The State (decision delivered on 31st October 2008)
Acting Public Prosecutor v. Don Hale (1998) SC 564
The State v Allan Nareti and Amstrong Kupe (2004) N2582
The State v Gibson Haulai (2004) N2555
The State -v- Abel Airi (2000) N2007
The State v Micky John Lausi (2001) N2073
The State v. Frank Kagi [1987] PNGLR 320
The State v. Nyama [1991] PNGLR 127

Counsel:

L. Rangan, for the State.
P. Kaluwin, for the Accused

DECISION ON SENTENCE

19th November, 2008

1. KANDAKASI J: In this case, Edmond Hotsia Geria, a father of three young children pleaded guilty to killing his wife, Marylne Pesi. That came about out of an argument over who should take one of their children who was due for his schedule clinic to the hospital. In the course of the argument, Edmond kicked Marylne and Marylne decided to take it against the child instead of Edmond. Edmond went for the defence of the child, got hold of him with one of his hands and punched Marylne with his other hand on her stomach area. That caused, Marylne's already swollen spleen to rapture and caused her death.

2. The main issue for this Court to decide is, what is an appropriate punishment for Edmond? As I noted in the decision I handed down this morning in the matter of The State v. Lawrence Mattau CR 960 of 2006, 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 with which 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?

3. Again as I observed in the Lawrence Mattau case, any special feature attending the commission of an offence could either be a factor in mitigation or aggravation. Therefore, if there is any special feature attending the commission of the offence under consideration, it would appropriately be considered within the context of the factors operating for or against the offender. Given that, it would be inappropriate to deal with the fourth issue as an issue on its own.

4. With that clarification, I now turn to a consideration of the issues outlined above. I start with, 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?

5. In the early morning hours of 20th May 2008, Edmond and his wife, Marylne argued over taking one of their three children who was due on a schedule visit to the clinic for appropriate medical treatment. The child was three months old. Marylne argued for Edmond to go with her to the hospital. On the other hand, Edmond argued for Marylne taking the child to the hospital as he wanted to go and work on his copra so he could bring in some income for the family. Edmond thought Marylne was becoming unreasonable and he became angry over her insistence. He therefore kicked her on her legs. Rather than taking it against Edmond, with whom she was arguing and the one who assaulted her, she went into the house and took it against the three months old child. She held the child upside down by his legs. On seeing what Marylne was doing, Edmond decided to act in defence of the child. He got hold of the child with one of his hands and punched Marylne in her stomach area with his other hand. The punch caused her already swollen spleen to rapture and lead to her death.
   
6. With these facts and the circumstances in which the offence was committed in mind, we now turn to a consideration of the next subsidiary issue of, what is the nature of the offence Edmond has been charged with and its sentencing trend?
   

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

7. I will repeat what this Court said in the Lawrence Mattau this morning. The State charged and Edmond pleaded guilt to a charge of manslaughter or unlawful killing under s. 302 of the Criminal Code. This section creates the offence of unlawful killing and prescribes its penalty of life imprisonment. That is, however, subject to the Court's wide sentencing discretion under s. 19 also of the Criminal Code.
   
8. 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 decision of the Supreme Court of which I was a part, in James Pangnan & Patrick Ponat v. The State[1] traces that development and ends with the decision of the Supreme Court in Manu Kovi v. The State.[2]
   
9. Until the decision in the Manu Kovi case, there were only three categories of manslaughter cases were identified, with their suggested range of sentences. The latest decision of the Supreme Court was its decision in Sakarowa Koe v. The State.[3] 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[4] in terms of increasing the suggested sentences in each category.
   
10. In my decision in The State v. Robert Potou (2008) N3316, 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.
    
11. 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-mediation 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.
    
12. I also expressed the view that, there was a serious flaw in the decision in the Manu Kovi case, in relation to the Court's 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 CR No. 448 of 2005: The State v. Elias Peter Wano Miva (unreported and unnumbered judgment delivered in 24/10/06). In that 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 Courts power to again further classify the offence.
    
13. I noted that, support for that view is provided by the decision of the Supreme Court in Simon Kama v. The State (2004) SC740 where the Supreme 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.
    
14. Recently, the Supreme Court had occasion to review the way in which the it was setting guidelines for sentencing. That was in the matter SCRA 39 of 2007, Thress Kumbamong v. The State (decision delivered on 31st October 2008). 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, 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 in each case.
    
15. 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, which amounts to the Court legislating as opposed to interpreting and applying the law. In so doing, the Court reiterated and emphasized the point that, a trial judge has and should be left with his or 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 the kind of sentence imposed.
    
16. In the case of sentencing in a manslaughter case, I took this to mean that, the National Court need not be restricted in terms of the kind of sentences 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 would serve 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.
    
17. I noted that, 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 there, 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 pretrial and post sentence custody was sufficient custodial sentence and suspended the balance of the sentence on conditions.
    
18. In Lawrence Mattau's case, he committed the offence out of a domestic setting as well. The difference however, was that, in Lawrence's case, his nephew who he helped by asking him under his roof and looked after, ended up in a sexual relationship with his wife and walked off with her. Another difference was that, in Lawrence's case, after having assisted the re-establishment of peace and normalcy on Bougainville with a return to the rule of law and formal system of justice, he turned to that system for help. None of the persons and or authorities he turned to did assist him in any way. Out of desperation, he got drunk and decided to take matters into his own hands, took a gun and went to the place where his nephew and his wife were staying and killed his nephew. Custom approved what Lawrence did and he also met the requirements of custom to make peace with his nephew's side by offers of remorse and apologies coupled with payments of cash and kind and undergoing peace ceremonies.
    
19. I noted that the Bougainville Constitution and the enabling provisions of the National Constitution stipulated an imperative for custom to play a key and leading role in the resolution of conflict and disputes in Bougainville. These highest laws of our land, also stipulate that, peace and harmonious living can only be achieved through mediation and reconciliation through the use of customary norms and practices and or system of justice that accord well with the internationally accepted principles of justice and fairness. Additionally, I noted that, these laws have stated in clear terms that, the traditional chiefs and other traditional leaders should be allowed to play an active role in resolving law and order problems and in the promotion of peace and harmonious living and avoid the use of violence.
    
20. Noting the imperatives in the National Constitution as well as the Bougainville Constitution, I expressed the view that, criminal sentence in our country should start with an inquiry as to whether there is a relevant customary form of punishment that can be adopted either in part or in whole with or without any modification. Then only if there is no relevant customary form of punishment, should there be resort to the introduced forms of punishment. I then found that the traditional form of punishment involved a genuine expression of remorse with offers of apologies coupled with a payment of some form of compensation in cash and kind was a form of punishment which was aimed at promoting peace and was procreative toward building peaceful co-existences between offenders and their victims and the respective peoples. That met with the call for use of mediation and reconciliation and the avoidance of the use of violence to resolve conflicts. In that regard, I noted that forcefully removing an offender from his society or community and locking him away against his will is a form of violence and rarely promotes any peace and harmony. It only promotes further hurt and animosities between the people affected and involved.
    
21. I went onto ultimately express the view that, combining the two systems would help achieve one of the purposes of criminal sentencing by the formal criminal justice system, namely rehabilitation of an offender. Proceeding on that basis, I started with a head sentence of 10 years and had them all suspended on conditions. One of the conditions was a requirement for performance of a customary peace ceremony called "Kuira'nang" in the local Nasioi dialect in the Keita area.
    
22. I was persuaded to arrive at that view because of a good number of mitigating factors that outweighed the factors in aggravation. The factors operating in his favour include, his guilty plead, prior good record which included the vital role he played in the restoration of peace and normalcy and the rule of law and order in Bougainville, expression of genuine remorse couple with already performing and willing to perform further customary ceremonies as a form of punishment and more importantly to promote peace and harmony in society. I also found that, Lawrence was not a violent, habitual or repeat offender or a person having the propensity to re-offend. The offence he committed was a one of incident under circumstances of provocation due to the sacredness of his marriage being attacked, only as a last resort when the formal system failed to prevent the destruction to his family. Further, there was good community support through a pre-sentence report that recommended a non custodial sentence.
    

Present Case
What are the Factors Operating Against Edmond?

23. 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 Edmond, in the case now before me, starting with those against him first.
    
24. I note there is only one factor operating against Edmond. By his conduct, he brought about his late wife's death. This came about with a punch to her stomach area. The use of such violence in the family setting to resolve disputes, conflicts or differences is becoming more prevalent with a lot of people being killed. People in our society now ought to learn how to and indeed walk away when disputes, conflicts or difference arise rather than arguing and fighting over it. That is the way of peace and harmonious living and does not cost anything, save only one's pride or ego.
    

What are the Factors in Edmond's Favour?

25. Against the only one aggravating factor, I note there are number of factors in Edmonds mitigation or in his favour. Firstly, I note that, Edmond's conviction came on his guilty plea. That saved the State the 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 difficulties. Many offenders are at large and are yet to be brought to justice. This is confirmed by the large number of people that are on bench warrants list, which at the start of this circuit was up to 139 and now it has increased to over 143. Edmond could have easily avoided being apprehended and avoid being brought to justice. Fortunately, he did not choose that path. As I said in Lawrence Mattau's case, a guilty plea in this kind of setting must be contrasted with a case in which the State would have easily arrested, called witnesses and secured a conviction. For 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 also 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.
    
26. Secondly, I note that, this is Edmond'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. He is 29 years old and until the unfortunate incident leading to his late wife's death, he was married with 3 children. He comes from Lonahan Village here on Buka Island. He has some formal education and wishes to pursue that through vocational training.
    
27. The pre-sentence report has good reference for him from paramount chief Giobun who speaks on behalf of himself and Chief Holi. The Paramount Chief is a relative of the deceased, Marylne. He says he was surprised to learn of the unfortunate incident because Edmond was not a violent person and was a very good member of the society participating and sometimes leading out in community activities. He took care of his family well although he had a problem with drinking alcohol sometime before. He, however, overcame that problem since becoming a member of the CLC Church and took on a whole new life with a marked change in his behavior all for the better.
    
28. The parents and relatives of the deceased have expressed similar views. They also say Edmond has met the demands of custom by performing the appropriate customary ceremony known as the "Paiu" to cool off tensions which included a paying over of some garden and store food items, two precious shell money and K500 cash. Their wish now is to see Edmond take care of his children now left without a mother rather than be locked away and the children being placed in the hands of others who may not be able to care and look after them as well as he could as their natural father.
    
29. Thirdly, I note that, Edmond did not use any kind of weapon or a dangerous object to commit the offence. He merely used his fist not realizing that, that would lead to the death of his wife and the mother of his children. I accept his submission through his lawyer that, the death of Marylne is a loss to him and his children and that he will live with it with much regret for the rest of his life. That in itself is a punishment.
    
30. 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 wife Marylne, whose loss as I said, will be 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. As I have already noted, there is evidence through the pre-sentence report that, Edmond has already met obligations imposed upon him by custom to immediately pay for what he did through a customary ceremony which has ensured no consequential trouble or conflicts or disputes or difference arising between Edmond and Marylne's sides. The pre-sentence report also confirms that if Edmond is able to complete the payment of some customary compensation through the appropriate ceremony, that would appease Marylne's relatives and further strengthen the peaceful co-existence of Edmond and Marylne's people. Edmond is now prepared to meet that requirement, if he is allowed to serve his punishment outside the prison system.
    
31. As I have already noted in the Lawrence Mattau case, the Bougainville Constitution mandates the recognition and strengthening of the clan structure and customary leadership of Bougainvillean communities.[5] This includes recognition of the authority, roles and responsibilities of traditional chiefs and other traditional leaders[6] as well as the family and clan units[7] and a use of "the customary system of justice in Bougainville based on the restoration of peace through restoration of harmony in relationships between people" which is to be "recognized and reinforced to the extent not contrary to Christian principles."
    
32. Further, as I again noted in the Lawrence Mattau case, the intention of the Bougainville people 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 family which is aimed at ensuring the peaceful and harmonious existence of human relationships, an integral part of the formal justice system in Bougainville.
    

What is the Appropriate Sentence for Edmond?

33. Bearing the above discussion in mind, the question then is, what is an appropriate sentence for Edmond, which is the main issue for determination in this case. A consideration of this question requires the Court to carefully consider and weigh the factors operating for and against him. I accept that Edmond has committed a very serious offence by bring about the death of his then wife, Marylne. 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.
    
34. Once again, I note as I did in the Lawrence Mattau case 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, that 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 whether with or without any modification or in combination with the introduced system of justice?
    
35. Applying the view I have just expressed, I have in the Lawrence Mattau case asked the question, is there a form of customary punishment that can be adopted with or without modification or in combination with the introduced system of justice? I had that question answered in the affirmative and the same applies here. Custom in the present case requires the performance of ceremony in which Edmond will express his remorse, offer his apology and seek the forgiveness and acceptance by Marylne's side. They are prepared and will be happy to accept such gestures and will continue to allow for and strengthen the peaceful co-existence between Edmond and Marylne's side.
    
36. I remind myself as I did in the Lawrence Mattau case 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 reiterate my 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. Any term of imprisonment hardly promotes any peaceful co-existence between offenders' and their victims' 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. The people of Bougainville realized this fact through their experiences culminating in the peaceful resolution of the 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."

37. Again as I observed in the Lawrence Mattau case, the provisions made in the National Constitution and those in the Bougainville Constitution, in my view, signal a need for us to seriously reconsider the way in which the criminal sentencing has been approached in our country. Following the lead provided by the provisions in question, I have expressed the view and I reiterate 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-existence of our culturally diverse peoples. 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 anywhere 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 capacities and the other peace loving and law abiding citizens are living in fear of criminals. 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 to promote the peaceful, lawful and orderly co-existence of our people.
    
38. Again as I noted in the Lawrence Mattau case, 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 emphasis the need for greater use of customary ways of resolving conflicts. I repeat my observation there that, this was not merely an academic exercise. 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 death 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 by offenders and the ready acceptance of such offers by the victims was the catalyst for the Peace Agreement and 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, which have else where in the country become the every day prison for the peace loving law abiding majority of our people.
    
39. Further, I repeat my observation that, given the foregoing, 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. Accordingly, I am of the view that, in the exercise of the wide discretion vested in the courts by s. 19 of the Criminal Code, this Court has the necessary power 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 hard core or harden criminal and those who are likely to re-offend and not one of offenders.
    
40. Having regard to the particular circumstance of this case as we have noted above, I consider starting with a head sentence of 6 years is appropriate. Stopping at that, would not sufficiently accommodate what we have suggested. Accordingly, we need to look at the question of suspending either the whole or part of that sentence and make provision for the application of the customary forms of restoring the relations that have been broken by Edmond's one of bad conduct. That question 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?

41. The pre-sentence report after noting the views of the members of the community recommends that, Edmond be given a suspended sentence. Going by the authority of the Supreme Court per its decision in Acting Public Prosecutor v. Don Hale (1998) SC 564, I have expressed the view in a number of cases[8] 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 when called on to exercise the sentencing discretion vested in the Courts by s. 19 of the Criminal Code. Also, going by the much earlier case authorities like that of The State v. Frank Kagi [1987] PNGLR 320 and The State v. Nyama [1991] PNGLR 127, I have repeatedly stated in a number of cases[9] that, suspending either the whole or part of a sentence is not an exercise in leniency. It is however a form of punishment aimed at serving one of the important purposes of criminal sentencing namely, rehabilitating an offender, turn 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. I am of the view that, imprisonments and the prisons should be used as a last resort. They should be used for the worse, hardened, repeat and most dangerous offenders or offenders who have a propensity to re-offend against the same or other potential victims.
    
42. I am inclined to imposing a wholly suspended sentence here because there is nothing to suggest and I do not believe that, Edmond is a hardened and most violent offender and a 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 for what he has done and is prepared to do what his society requires of him to correct the wrong he has brought upon himself and his society. Suspending Edmond's sentence is also the right thing to do in view of the children needing him in the absence of their mother. In expressing that view, I note that the center of the argument or that which caused Edmond to commit the offence was one of his children, unlike in many other cases in which people have committed offence for their own self serving reasons or for no good reason.
    
43. 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 Edmond has committed. Hence, I consider the following conditions appropriate and order that, they be the conditions on which his sentence of 6 years is wholly suspended.
    
44. Edmond shall:
    
    • (1) Immediately enter into his own recognizance, with the surety specified in term (2) below, to keep the peace and be of good behaviour for a period of 6 years from today;
    • (2) Within 6 months from today, pay into Court a sum of K300.00 as surety which shall be forfeited on breach of any of the conditions herein from (1) to (10);
    • (3) Undertake and complete the appropriate customary ceremony under which he shall pay over compensation not exceeding a total value of K1,000.00 either in cash or in kind as may be specified by the Paramount Chief Giobun in consultation with the other chiefs in Edmond and Marylne's side including chief Holi within six months from today;
    • (4) During the currency of his suspended sentence, he be home bound between the hours of 6:00pm and 6:00am;
    • (5) Avoid consumption of any form of alcohol, including any form of home brew, during the currency of his suspended sentence;
    • (6) During the currency of his suspended sentence, he shall not leave the Autonomous Region of Bougainville without first obtaining the leave of the Court;
    • (7) Render four hours free physical labour each week to a public institution be it a school or a hospital or any other public institution which shall be specified by the Probation service in consultation with the relevant chiefs;
    • (8) For the purposes of term (7), the Probation Service here in Buka shall in consultation with Edmond and Marylne's community leaders specify the kind of work or service Edmond 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 Probation Services to visit his home on a regular basis to monitor his compliance of these terms and to make such recommendations, as they consider appropriate either for a variation or an implementation of these terms;
    • (10) Enable the Probation Service to attend on him each quarter to do a comprehensive review and report to this Court of your compliance of these terms commencing with the first one by or before 19th February 2009;
    • (11) Serve the balance of his sentence in prison, if for whatever reason he breaches any of these terms;
    • (12) Shall be at liberty to apply for a review and or a variation of these terms with the necessary supporting evidence or material, provided he has faithfully complied with all of the foregoing conditions up to and at the time of making the application.
      

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

^[1] SCRA 39 & 54 OF 2004, delivered on 30^th August 2006 at Kokopo.
^[2] (31/05/05) SC789, per Injia DCJ., Lenalia, Lay JJ.
^[3] (01/04/04) SC739, per Sevua, Kandakasi and Lenalia JJ.
^[4] (08/11/02) SC702, per

^[5] Subsection 1.
^[6] Subsection 2.
^[7] Subsection 3.
^[8] See for example my decision in The State v Allan Nareti and Amstrong Kupe (2004) N2582 and The State v Gibson Haulai (2004) N2555.
^[9] See for example my decisions in The State -v- Abel Airi (2000) N2007 and The State v Micky John Lausi (2001) N2073