State v Benny [2013] PGNC 264; N5556 (25 November 2013)

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CRIMINAL LAW – Guilty Plea – Wilful Murder reduced to Manslaughter, Dangerous weapon used – Correctional Service issued Assault rifle - Section 302(1) of the Criminal Code – Decision on sentence.

CRIMINAL LAW Coroners Act – Recommendation for prosecution by Wewak Coronial Court after Inquisition - Evidence from Coronial court depositions - Whether action willed or an accident -

CRIMINAL LAW – Committal proceedings –Indictment presented for Wilful Murder – Plea bargaining – Lesser charge of manslaughter opted for.

CRIMINAL LAW – Sentence – 10 years wholly suspended with conditions. Put on 3 years Probation-Reasonable compensation or "bel kol" to form part of order.

The State v Frank Kagai [197] PNGLR 320
Manu Kovi v The State (2005) SC785
The State v Abaya Ulas [2010] N4009

25th November, 2013
1. GEITA AJ: The prisoner Theo Benny pleaded guilty to a lesser charge of manslaughter for the death of a prison escapee pursuant to Section 302 of the Criminal Code. He was initially charged for wilful murder of the deceased, however the charged reduced due to a successful plea bargaining.

2. The offence comes under Section 302 of the Criminal Code and attracts a life term imprisonment. However subject to Section 19 of the Criminal Code a lesser sentence may be imposed by the Court. S. 302

"A person who unlawfully kills another under such circumstances as not to constitute wilful murder, murder or infanticide is guilty of manslaughter.

Introduction
3. The Coroners Act provides for two procedures upon which persons may be referred to the National Court for trial and or sentence. First is the Coronial inquisition and person(s) charged with the offence of wilful murder, murder, manslaughter or arson appearing before that court and the Coroner reading the charge(s) to him in a language he or she understands...committing him to stand trial before the Nation Courts, whichever is the case (Section 19); Secondly upon receiving evidence through an inquest the Coroner than makes recommendation to the appropriate authorities for further criminal prosecution etc. (Section 23 (4) (a) (b).) This case has the distinctiveness of coming to this court via the second option available to the Coroner.

4. Upon the recommendations of Wewak District Court Coroner, Senior Magistrate David Susame, the prisoner was referred to Wewak Police Homicide Squad for criminal prosecutions in relation to the death of a convicted prison escapee on 14 July 2009. (Section 23 (1) (2) (3) (4) Coroners Act). Such inquisition was commenced on the eve of "time bar" on 14 July 2010. (Section 7 (3) Coroners Act: "An inquest shall not be held after the expiration of 12 months from the date of a death, or after the expiration of 12 months from the date of finding a dead body, whichever is the later, unless the Principal Legal Adviser otherwise orders".

5. I have attempted to clarify the processes available under The Coroners Act with the hope that District Court Magistrates who exercise such coronial jurisdiction on a regular basis be assisted with the view to fast tracking indictable offences.

Brief Facts
6. The facts as found by the Coroner during a coronial inquest and handed up by the prosecution and defence for the plea of guilty are these. That the deceased was amongst 26 prisoners who dashed for freedom on Saturday 14th August 2010 at Boram Corrective Institution Service. Immediately an operation to recapture the escapees was mounted with searches and road blocks along the Sepik Highway. The deceased John Beata's attempt to get away from Wewak was short lived when the PMV he was travelling in came to a roadblock near Koiken village around 1 pm that day. The deceased quickly alighted from the PMV and dashed downhills along the road. Correctional Service warders led by the prisoner gave chase and shot the victim on the back of his head with a five round pump action shot gun, killing him instantly

The Law
7. The offence comes under Section 302 of the Criminal Code and attracts a life term imprisonment. However subject to Section 19 of the Criminal Code a lesser sentence may be imposed by the Court.

Undisputed Facts
8. There is no dispute that the deceased John Beata was shot dead with a gun as he attempted to get away from a road block near Koiken village.

Extenuating circumstances
11. The following are the prisoner's extenuating circumstances:

Defence submissions
13. Mr Tekwie referred me to several National Court cases however I did not consider their relevance of any significance to this case save for the case of The State v Frank Kagai [197] PNGLR 320 and Manu Kovi v The State (2005) SC785 – 31 May 2005. Manu Kovi appears to be the lead authority in this jurisdiction with clear guidelines for sentencing tariffs in relations to homicide offences including manslaughter. The Frank Kagai case outlines some key considerations when suspended sentences are considered by Courts. These two judgments are more appropriate in this case before me and I will resort to them shortly.

14. Defence Lawyer submitted that although a life has been lost the general mitigating circumstances of the case and extenuating circumstances far outweigh the aggravating factors. The prisoners' guilty plea obviously adds weight to mitigating his case in light of monetary and resource savings to the State and all other persons concerned although Courts have downplayed this consideration for obvious reasons. Mr Tekwie however submitted that court compare and distinguish the case of The State v Abaya Ulas [2010] N4009 to his clients case. In that case His Honour Cannings J sentenced an off duty policeman with the murder of a villager using his State issued firearm to 16 years, citing that the case fell within the lower end of the category 2 range in the Manu Kovi case. Mr Tekwie submitted that the prisoner's case was unique for the following reasons: The prisoner was on duty with orders to recapture 26 prison escapees, one of whom was the deceased; was issued with a state issued firearm to carry out that task; the killing was not intentional; only one shot was fired.

15. Mr. Tekwie submitted that the appropriate sentence for the prisoner should be less than 16 years be at the top end of Category 1 and lower end of Category 2 in Manu Kovi case.

State submissions
16. Ms Gore for the State conceded with Defence submissions on mitigating and aggravating factors favouring the prisoner however differed with aggravating factors in that a life had been lost. In view of no "bel kol" or compensation being paid to the relatives of the deceased. Ms. Gore invited the court to mark that against the prisoner. No case authority was referred to the court. This court was mindful of her predicaments and lack of preparedness as she has just been rushed to Wewak from Goroka last night where she is based to relieve his Deputy State Solicitor Mr Timothy Ai who left earlier for Port Moresby. Nonetheless she conceded with Mr. Tekwie that this case was a "very rare case" and invited the court to consider a suitable sentence befitting the crime.

Pre Sentence Report
17. The tremendous work of Wewak Probation Officer Ms Kutan Poniou is acknowledged. I make these comments in view of her unfailing commitment to the Court in producing detailed and quality information which I have found to be of great assistance and value. Furthermore her commitment and dedication to persons who find themselves on the wrong end of the law. The prisoner's personal details are noted hereunder:

Age	41 years
Marital status	Married with three children (11,9,6)
Education	Grade 6 at Kreer Primary School 1983. Pabrabuh High School 1991
Work History	Correctional Services for almost 21 years of which 18 years spent in Boram.
Health	Excellent health
Future plans	Realises the risks in his job and plans to resign after the court case.
Origin	Mixed Torembi village and Moem village in Wewak
Family concerns	Family life affected as a result of the court case- Changes in his behaviour noticeable eg.irritable over trivial matters, arguments with wife. Both wife and husband feel alienated
Community concerns	Well like by his colleagues and loves his job, former member of PNG Bible Church, liked by Perigo community, suitable for probation.

Remarks
18. Both Lawyers have remarked that this was a "very rare case". Could this mean than that such occurrences are very rare in a sense that the killing resulted from the act or omission of a State officer in the exercise of his lawful duties using a State issue firearm? Or the case is unique in a sense that it has found its way into the criminal justice system as a result of a Coronial inquest with recommendation for prosecution? Or due to the rarity of these types of case very little by way of case precedents has been collected? One thing is certain in that for the moment according to Mr Tekwie little or no cases with similar factual situations were located.

Sentence in your case:
19. I consider it necessary to apply the sentencing guidelines for manslaughter in the leading Supreme Court case of Manu Kovi v The State [2005] PGSC 34; SC789 (31 May 2005):

CATEGORY	WILFUL MURDER	MURDER	MANSLAUGHTER
CATEGORY 1	-15 – 20years	-12 – 15 years	-8 – 12 years
Plea. -Ordinary cases. -Mitigating factors with no aggravating factors.	-No weapons used. -Little or no pre-meditation or pre-planning. -Minimum force used. -Absence of strong intent to kill.	-No weapons used. -Little or no pre-planning. -Minimum force used. -Absence of strong intent to do GBH.	-No weapon used. -Victim emotional under stress and de facto provocation e.g. killings in domestic setting. -Killing follows immediately after argument. -Little or no preparation. - Minimal force used. -Victim with pre-existing diseases which caused or accelerated death e.g. enlarged spleen cases.

20. I agree with Mr Tekwie's submissions that this is a category 1 case in view of overwhelming mitigating and extenuating circumstances in the prisoner's favour coupled with the rare nature of this crime. A starting point range of 8 to 12 years is considered appropriate under the circumstances. Your pre sentence report and all affected persons interviewed spoke very highly of your character and your unblemished carrier of 21 years of which 18 years was served here in Boram Goal, Wewak.

Is your case a suitable one for all or parts of your sentence to be suspended?

21. I first look at the crime committed and am satisfied that it is a very serious offence. I next look all the circumstances surrounding this crime and take that into consideration. I next look at your guilty plea, your years of service serving the State as a Correctional Officer. The crime was committed during the course of your duties and that you were following your superiors instructions on that fatal day. I also look at the effect this crime has on you, more particularly on your wife and children. Your pre sentence report highlights the near breakdown of your marriage as a result of the long awaited outcome of this case. Furthermore your are no threat to the community at large as reported.

"Suspension of sentence of imprisonment is not an exercise in leniency but an order made in the community interest and designed to prevent re-offending which a prison sentence standing alone seldom does. Persons charged with serious offences may be dealt with by way of suspended sentence by reason of good character and where the court is of the view that there will be no reoffending and or that the particular individual will be positively damaged by incarceration." (The State v Frank Kagai [1987] PNGLR 320-Hinchliffe J, 12 October 1987.

22. I adopt and applying the above consideration in this case. To this end I find that an appropriate sentence favouring you is a non custodial sentence. I wish to reiterate here that I am not downplaying the seriousness of the crime committed. I acknowledge that a precious life has been lost and a family denied of their loved one. In acknowledging their loss I say here that ours is a Melanesian community and the loss of loved ones despite the circumstances under which they occurred matters little. Heightened anger and calls for revenge are usually quelled by some form of compensation or what is now commonly referred to as "bel kol".
Under the circumstances I consider it appropriate to exercise my discretion and order that a reasonable amount of compensation be paid to the decade's relatives.

23. In the exercise of my discretion under Section 19 of the Criminal Code Act I order that an appropriate sentence under the circumstances to be 10 years. I further order that the whole of the sentence will be suspended with conditions as follows:

Orders accordingly.
_______________________________________
Public Prosecutor: Lawyer for the State
M. S. Wagambie Lawyers: Lawyer for the prisoner

National Court of Papua New Guinea

State v Benny [2013] PGNC 264; N5556 (25 November 2013)