N6454
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.NOS.1184 & 1287 OF 2014

THE STATE
V
LOUIE EFI
&
JOSHUA KALUVIA
Lorengau: Kirriwom J,
2015: 25th September
2016: 19th April
CRIMINAL LAW – sentence – murder – Criminal Code   s 300 – murder of asylum seeker held at Manus Detention Centre – general riot – 2 offenders the only ones prosecuted out of a number involved in attacking deceased –some identified attackers removed from the country to prevent prosecution – court not to treat offenders as scapegoats for all attackers.
Facts
The offenders were employed at the Australian established and run Manus Detention Centre for asylum seekers. One evening the asylum seekers rioted. The following evening, apparently with the approval of centre management, the G4S security assembled at the gates in full riot gear, the power was turned off and the asylum seekers were attacked. The offenders with others attacked the deceased.
Held
1.	The Manus Island Processing Centre is on Papua new Guinea soil and the domestic laws of PNG apply, not the law of any foreign jurisdiction, at [10];

2.	In sentencing the two offenders they should not be made guinea pigs or scapegoats to bear the brunt of punishment for those not prosecuted, at [13];

3.	The Manu Kovi v The State (2005) SC789 category two which attracts sentences between 16 – 20 years imprisonment are applicable, at [15];
	
4.	Each offender sentenced to 10 years imprisonment less time spent in custody with five years suspended on terms, at [20].

Case Cited:
Manu Kovi v The State [2005] SC789
Counsel:
P Kaluwin, for the State
P Moses, for the Prisoners

JUDGMENT ON SENTENCE
19th April, 2016
1.	KIRRIWOM J.: After a trial in which both accused were given adequate opportunity to properly defend themselves including calling additional witnesses after both State and defence cases had closed and submissions were heard, the court found both not guilty of wilful murder but guilty of murder.

2.	The reason for the court reaching this decision was that there was no evidence of intention to kill the deceased but there was ample evidence of an intention to cause him grievous bodily harm.

3.	The deceased in this case was an Iranian named Reza Barati and an international refugee seeking asylum in Australia but diverted to Manus Island Refugee Processing Centre, one of two off-shore processing centres Australia has set-up in the Pacific to refer all boat-people seeking entry into Australia for a better life. One is here on Manus Island in Papua New Guinea and the other one is in Nauru. I think the court can safely take judicial notice of these facts.

4.	The deceased became a victim of an internal uprising inside the refugee processing centre by reason of some misunderstanding and also due to frustrations on the part of the asylum seekers who were not getting straight answers, from both Australia and PNG authorities running the camp, about their future.

5.	According to the evidence when they finally heard what the future held for them on 16 February, 2014, the inmates in the centre went on a riot or rampage in Mike Compound causing damage as they started throwing rocks and missiles outside. That commotion eventually ended and peace and tranquillity returned.

6.	As if by deliberate plot or design, the following day members of G4s Security Company with their local security partner employees went to work fully attired in combat gear expecting trouble. There is no clear evidence from those administering the Lombrum Refugee Processing Centre of what actually sparked off or triggered this uprising leading to death, the best story or evidence I can get is from the statement of Benham Satah, the State’s only key witness in this case. Part of Benham Satah’s statement provides some information on how and why this riot broke out and how the camp authorities dealt with it.

7.	And I will do no better than read it directly from his own statement.  And this is what he states:

7.1 “On 16th of February 2014 during our meeting with migration officials from Papua New Guinea and Australia, they told us that it will take a very long time to be processed and resettled in Papua New Guinea.  After this meeting, everyone, transferees got angry.  Transferees at the Oscar Compound climbed over the fences and they started protesting.  After that transferees at Foxtrot Compound broke the fences and came into Mike Compound.  They heard that local Papua New Guinea people cut their throats – cut the throats of three transferees at Oscar Compound.  They did not expect Papua New Guinea people to attack them and cut transferees’ throats and they were saying fuck you Papua New Guinea.  

7.2 “I saw Papua New Guinean locals and local G4S guards throw stones into Mike Compound.  Transferees then took the stones and threw the stones back at them.  Everything then cooled off after that.

7.3 “On 17February 2014, one of the Lebanese officers,a G4S expatriate told us this, ‘Tonight, PNG Locals and G4S locals want to kill you.  Be ready and stick together’.  Every day as usual, we get dinner at 6pm.  On 17 February 2014, they gave us dinner at 8pm.  When dinner ended at about 10pm, they cut off the power supply to Mike Compound intentionally.  And at that exact time, guards were ready at the gate with riot gears and local people were also ready at the seaside.  

7.4 “The local people at the seaside started throwing stones at us inside Mike Compound.  Everyone was scared and came to the yard. Transferees were trying to get from Mike Compound to Foxtrot Compound to save their lives.  My friend Reza Barati, FRT 067 went to the internet room at Mike Compound to call for help.  At that time, G4S guards, expatriates and locals together with local Papua New Guinea citizens were throwing rocks at us.  There were no rocks in Mike Compound.  They had been cleared out earlier, but the transferees threw back the rocks that were thrown at them.  This stone fight with the guards and locals took about two hours.  

7.5 “After that they started shooting at us with machine guns.  It was the PNG policemen shooting at us with machine guns.  There was rapid shooting for about 10 minutes.  There was gunfire coming from the front where the policemen were and also gunshots were coming from the direction of the houses at the end of Mike Compound.  

7.6 “When they started shooting, I saw my friend Reza Barati was trying to come back to our room.  My room door was open wide.  I was standing at the doorway of our room and I could see everything very clear.  The spotlight from the back and front of the Mike Compound was still on and there was enough light around to see things.  Everything is also painted white in Mike Compound and reflected light.  People from outside were also shining powerful torches into Mike Compound.  There was enough light to see what was going on.”

8.	And then on he goes to name those persons he saw assaulting his countryman and friend and roommate, which I have covered in my judgment on verdict.     

9.	It is apparent from this statement that the incident that took place on the night of 17 February 2014 was a deliberate set-up by those responsible for the administration of the facility at Lombrum by way of retaliation or revenge for the riot of the night of 16 February, 2014. It explains why expatriate and local G4s security guards were in the compound in full riot gear and amongst them some civilians.

10.	When the allocutus was administered and each of the prisoner was asked to address the court on his punishment, Joshua Kaluvia told the court that this problem was an international issue. The matter of Manus Island Refugee Processing Centre is indeed an international concern. But what is going on there is happening on PNG soil and PNG Government has jurisdiction over it and PNG laws apply. When a crime is committed inside that facility, domestic laws of this country come into play, not Australian law, not international law. Manus Island Processing Centre is not an extension of Australian High Commission Office in Waigani or Lae. It is not the case that anything that goes on inside those premises, PNG law does not automatically apply because it is the property of another sovereign nation and only laws of that country applies. But what goes on inside Manus Island Refugee or Transferree Processing Centre, the domestic laws of PNG apply because the facility is on PNG soil and it is all our concern.

11.	Therefore when a human being is killed in that facility regardless of the circumstances, regardless of his race, colour of skin, regardless of his ethnic origin, regardless of his religious beliefs, a law of this country is broken which must be dealt with by the courts of this country in accordance with laws of this country. This court has therefore rightly assumed jurisdiction of this murder incident and the two prisoners have been duly prosecuted and convicted by evidence that was properly tendered in accordance with the criminal trial procedure ordinarily observed and applied in all common law jurisdictions that follow an accusatorial process of criminal prosecutions and criminal justice system.

12.	My only difficulty in sentencing the two prisoners is that they are only two of the many who assaulted the deceased. Joshua Kaluvia delivered the first two blows with a four cornered timber with two nails sticking out on one end that fell the deceased but he was still breathing when others came and kicked and struck him and Louie Efi delivered the final blow with a huge stone that snuffed the life out of the deceased who stopped responding to the kicks after that heavy stone landed on his head. Amongst those who came and kicked the deceased were both expatriates and national G4s guards. None of this evidence was refuted by the camp managers.

13.	I note with dismay that despite those who were specifically named, the expatriate elements of rogue guards who were named by the witness as being involved have been removed from the Centre to avoid prosecution under our domestic laws. But that disrespect shown to our laws does not in any way denigrate nor compromise our legal process from taking its course as we have done in this case. But I bear in mind that in sentencing these two prisoners I do not make them guinea pigs or scape-goats to bear the brunt of punishment for those who are not here as they have not been prosecuted.

14.	Personal particulars of the two prisoners are as follows:

a.	Louie Efi
28 years old, from Amik Is married with 2 children, employed by Loda Security Company and subcontracted to G4s at the time of this trouble. He has 2 brothers and 2 sisters. Both parents are dead. Completed Grade 10 education. Had been in custody for 1 year 9 months and 2 weeks.

b.	Joshua Kaluvia
20 years old, Manus/WNB parentage. Employed by Salvation Army as recreational officer and working in the centre. He has 2 brothers and 2 sisters. Both parents are alive.

Completed Grade 12 at Chuave Secondary School.Doing business studies online with Divine Word University at time of arrest. Had been in custody for 1 year 7 months 3 days.

15.	Murder carries a penalty of life imprisonment subject to section 19 of the Code. Killing in this case resulted from an affray that went beyond control. Under the Manu Kovi sentencing guidelines (see Manu Kovi v The State [2005] SC789), this offence comes under category 2 which attracts sentence between 16 – 20 years imprisonment.

16.	This is a case where the two prisoners were part of the crowd that invaded Mike Compound, one of the three residential compounds for the asylum seekers that was the scene of the riot on the previous night. The assault on Mike Compound on the night of 17 February 2015 when the deceased Reza Barati was killed appears to have been sanctioned from the top management of G4s.

17.	This is obvious from the evidence of sabotage of the power supply at 10:00pm when guards took positions with their full combat gear as stones and missiles were sent into Mike Compound from outside. This version of the story is from the inside by Benham Satah and there is no rebuttal or different version from those operating or managing the processing centre.

18.	In mitigation of penalty I take into account their lack of criminal records, first offence.

19.	    By way of aggravation I bear in mind the following:
a.	A human life is lost. He is not a citizen of this country. He is not here voluntarily or by choice. He was a foreigner in our midst to whom we owed a duty of care for his safety and well being.
b.	Sent a wrong image about our country abroad as peaceful country.
c.	Neither of them expressed remorse, instead challenged their convictions.

20.	I sentence the two prisoners to ten years imprisonment. I deduct time spent in custody as follows: 
A.	Louie Efi– 1 year 9 months and 2weeks deducted
Left him with 8 years 2 months and 2 weeks.
I suspend five years in the exercise of my discretion which means that the prisoner shall serve 3 years 2 months and 2 weeks before being released on suspended sentence of five years on one condition which is to keep peace and be of good behaviour at all times.

B.	Joshua Kaluvia – 1 year 7 months and 3 days deducted
Left with 8 years 4 months 3 weeks and 4 days
I suspend five years in the exercise of my discretion which means that the prisoner shall serve 3 years 4 months 3 weeks and 3 days before being released on suspended sentence of five years on one condition only which is to keep peace and be of good behaviour at all times for those five years.

21.	   Sentenced accordingly.

Public Prosecutor: Lawyer for the State
Public Solicitor    : Lawyer for the Defence