N4545

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 94 of 2011

THE STATE

V

HENRY GENDARI

Goroka: Yagi J
2011: 20th & 21st June

CRIMINAL LAW – Sentence – particular offence –failing to report a killing – Criminal Code Act, s. 309(1)(c) – guilty plea – first-time offender –no local reported case precedent – purpose of the offence – to encourage social responsibility and impose moral and legal duty – relevant factors considered – sentence of 10 months appropriate – pre-trial custody more than 10 months – sentenced to rising of the court

Cases Cited:
Nil

Counsel:
V. Mauta, for the State
R. Kasito, for the Prisoner

SENTENCE

21st June, 2010

1. YAGI J: The accused pleaded guilty to an offence under s. 309(1)(c) of the Criminal Code Act.

2. Criminal Code Act, s. 309(1)(c) states:

"309. Failure to report killing or intended killing.

(1) Subject to Subsections (3) and (4), a person who—

(a) ……………….
(b) ……………….
(c) knowing that a person has killed another person,

fails to take reasonable steps to report the matter as soon as practicable to a magistrate, a member of the Police Force or some other person in authority is guilty of an offence.

3.  The accused is an educated person of some standing in the community. He is married with two wives and comes from Halongali village, Tari, Southern Highlands Province. Both of his wives have two children each. He is aged 45 years and has considerable background. 

4.  He attended and completed his course of training at Popondetta Agriculture College from 1978 to 1980. Following that he worked with the government and various private companies as follows –

•	He worked for the Department of Primary Industry for 4 years
•	He worked as a Lecturer at Karai Vocational Centre in Tari for 3 years. 
•	He worked for Missionary Aviation Fellowship (MAF) for 4 years. 
•	He worked as the Branch Manager for Airlines PNG in Tari for 3 years.
•	He worked as a Metal Fabricator with Pogera Joint Venture for 4 years

5. In addition he held a number of positions with the community, sporting and social organisations. He has served as Board Chairman of Waledege Primary School in Tari for 10 years; Station Manager, Evangelical Lutheran Church of PNG at Halongali in Tari; Coordinator of Sports at Tagali Constituency in Tari; Interim Chairman of Hela Wig Men Rugby League Team from 2009 – 2010. At the time of the offence he was serving as the President of Tari Rugby League. 

6.  He is a member of the Evangelical Lutheran Church of PNG.

7.  The relevant facts are that the accused was travelling in a motor vehicle along the Highlands (Okuk) Highway from Mt Hagen to Lae. There were a number of other people in the motor vehicle with him during the trip. At a spot before the Henganofi Station in the Eastern Highland Province, the vehicle stopped and two men were dropped off because they were arguing. The vehicle then drove off with the accused leaving the two men behind. A short while later the vehicle returned to the spot where the two men were dropped off. There the accused became aware of the fact that one of the two men was dead. The local villagers at the scene told the accused and his companions to go to Henganofi police station to report the death. However, the accused and his companions failed to report to the police either at Henganofi or Kainantu Police Stations.

8.  The penalty for the offence under s. 309(1)(c) of the Code where conviction is entered upon an indictment is imprisonment for a term not exceeding two years. This is the situation in this case.

9.  The defence submitted that a suspended sentence is appropriate in this case and urged the court to exercise its discretion under s. 19 of the Code. The prosecution urged the Court to ensure that the sentence reflect the aggravating circumstance of failure to report a killing.

10. The accused as the President of the Rugby League Team was to travel to Lae to purchase sporting hardware. A motor vehicle was hired for that purpose. He carried in his possession a large sum of cash money for that business trip. He did not drive the vehicle; it was driven by another person. Other people who jumped into the vehicle for the trip had other reasons to travel. It seems a couple of ladies were also picked up as female escorts for the trip. Cartons of beer was purchased and consumed during the trip. He was in charge of the motor vehicle during this trip. He has the final or ultimate authority and responsibility in respect to the movement of the vehicle.

11. When the accused returned to check on the two men at the drop off spot in Henganofi, he became aware of the fact that one of the two men was killed and his body was surrounded by local villagers. At that stage, the identity of the killer was not known. However, he did not report the killing to Henganofi and Kainantu Police Stations.

12. I have not been referred to any previous decisions in respect to offences under this provision of the Code or other similar offences. My limited search has not produced any result. I assume therefore that there are no reported cases in this jurisdiction.

13. In my view the purpose of this offence, and indeed many offences of similar kind, is to encourage public social responsibility and promote and protect peace and security within the community. The sanctity of human life is a fundamental principle in our contemporary society and indeed many other societies the world over. The principle is manifested in many aspects of life in our society such as in religion, customs and culture, etc. It is based on God's law that it is wrong to take away a human life. Our National Constitution, s. 35(1) also guarantees every person a fundamental right to life. For these reasons, I believe, s. 309 of the Code seeks to impose a legal, as well as reinforcing and harnessing the moral obligation, duty and responsibility in everyone in the community to bring to the attention of the authorities the potentiality of an act or omission that may lead to endangering life so that the risk could be averted or where an eventuality has occurred and a life has been lost that the authorities are notified without unreasonable delay.

14. I consider that in respect to an offence under s. 309(1)(c), the important consideration is the moral and legal duty to report the killing "as soon as practicable". For the purposes of considering sentence in this case I consider the following factors as relevant:

•	The period of the delay. The longer the delay, the serious the matter becomes.
•	The reason(s) for the delay. Where there is no reasonable excuse, this would be deemed as an aggravating factor.
•	Where the delay in intentional or deliberate, this would also be an aggravating factor.
•	The position of the accused in society. For example, the conduct of a senior government official or senior business executive should be regarded as more serious than an ordinary villager.
•	The accused's level of education, sophistication or familiarity to the government and legal systems. 
•	The religious or customary belief of the accused would also be a factor. 

15. In this case, the accused is an educated person. He has worked for a government department and many other private companies. He has held a number of high positions in the community including the sporting organisations and church bodies. He is familiar with the government and legal systems. He is also a member of a main stream Church group that professes and practices strong Christian beliefs that has high regard and respect for human life. Therefore, in my view, he should be or ought to be aware of the moral and legal responsibility in terms of the need to uphold and respect the rule of law. For a man of his standing, educational qualification, experience and exposure, there is no excuse for him to plead ignorance of the law. I therefore accept the prosecution submission that these factors operate against the accused.

16. In allocutus he said that he was with the village people when the police arrested him. He was not sure of the cause of death and was thinking of doing his own investigation when he was apprehended by police. The evidence in file is that the accused knew about the death when he was in the vehicle that travelled to Henganofi. Although he was in charge of the vehicle, another man who appeared to be drunk in the vehicle influenced the decision not to report to Henganofi Police Station. There is no evidence that he was drinking or drunk at that time. In my view as the controller of the vehicle it is his duty and responsibility to order or direct the driver to stop at the Henganofi Police Station. There is no evidence as to why he decided to accede to the direction of a drunken man in the vehicle. His lack of assertiveness in authority and control of the vehicle suggest complicity and in my view only compounds the factors that operate against him. I will hold this factor against the accused. 

17. A similar situation occurred at Kainantu. The accused travelled to Kainantu Lodge from Henganofi. He did not report the matter at Kainantu police. There is no evidence as to why he did not report to police in Kainantu. The evidence is that they went to Kainantu Lodge to discuss the matter with the owner of the hired vehicle. This was the second opportunity which went bagging. Again he was in control of the movement of the vehicle and did not appear to issue an appropriate direction/order to go to the Kainantu Police Station and report the killing. I will also take this factor against the accused.

18.  As regards the period of delay, according to the evidence the delay was quite minimal. It appears he was arrested within a matter of about 5/6 hours on the same day when he returned to carry out his private investigation at the location of the killing. I therefore do not regard this factor to be significant.

19. There is no clear evidence that the failure to report was deliberate because the accused did return to the scene to establish for himself the actual cause of death. If he wanted to abscond, it would most probably be unlikely that he would return to the scene. He had the money bag to move places and avoid capture.

20. The mitigating factors in favour of the accused are that:

•	He pleaded guilty.
•	He is a first-time offender.
•	He cooperated with the police. I note that in the record of interview was candid in answering the questions.
•	He did not try to evade the law.

21. The aggravating factors are:

•	He had no good reason or excuse not to report to Henganofi and Kainantu police.

22. Clearly the mitigating factors outweigh the aggravating factors.

23. I bear in mind the principle that the maximum penalty should be reserved for the worst type. In my view, this case does not fall into the worst type category. There is no local precedent to go by. I have not been able to find any foreign cases to assist me determine the kind of sentences that might be appropriate. Nevertheless I will do my best to determine an appropriate sentence in this case. The lack of reported cases, however, indicates that such offence is a rarity and therefore a deterrent and punitive approach to sentencing may not be appropriate.

24. I consider that as a start the sentence should be between 6 – 12 months for cases that are not very serious. As I said this case is not the worst type but it is sufficiently serious. Taking into account the favourable mitigating factors I consider that the appropriate sentence in this case should be 10 months imprisonment. However, the accused having already spent that term in custody awaiting trial, accordingly, I sentence the accused to the rising of the court.

Sentenced accordingly
____________________________________________________
Acting Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyer for the Accused