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State v Penda [2019] PGNC 437; N8146 (31 October 2019)

N8146

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1354 OF 2018

THE STATE

V

THOMAS SAW PENDA

Lae: Kaumi. J
2019: 15^th March, 21^st June, 2^nd July & 31^st October

CRIMINAL LAW – Criminal Code Act 1974, Part V-Offences Against the Person and Relating to Marriage and Parental Rights and Duties, and Against the Reputation of Individuals-Division 3-Homicide: Suicide: Concealment of Death-Section 300 subsection (1) (a) Murder- Plea of Guilt-Attack on police officer-Offender used double edged knife in a stabbing frenzy in a short space of time- Police officer died from loss of blood from multiple wounds-Offender Main perpetrator-Mitigating and Aggravating Factors –First time Offender - Non-Genuine Expression of Remorse–Attacks on Police Officers Prevalent Offence-Worst Category for Offence of Murder.

CRIMINAL LAW- Usual purposes of criminal sentencing such as Deterrence, Separateness, Restitution or Rehabilitation are also relevant factors for consideration- Worst type of offence-Criminal Code Ch.262.

CRIMINAL LAW- It is incumbent on criminal sentencing courts to exercise the people's power vested in them by the Constitution to impose sentences that are in touch with the aspirations and attitudes of the people of PNG.

The offender pleaded guilty of one count of murder of a police officer. The matter was for sentence.

Cases Cited:

Golu v The State [1979] PNGLR 653
Gimble v The State [1988-89] PNGLR 271
Joe Foe Leslie Leslie v The State (1998) SC 560
Saperus Yalibakut v The State (2006) SC890
Manu Kovi v The State (2005) SC789
The State v Jackson (2004) N3237
State v Sambiago [2005] PGNC 3; N2954
Thress Kumbamong v The State (2008) SC1017
Paguari v State [2011] PGNC 159; N4438
The State v Tumaris (2016) N6391

Legislation Cited:

Constitutionof Papua New Guinea
Criminal Code 1974
Criminal Justice (Sentencing) Act 1986

Counsel

Ms. Comfort Langtry, for the State
Mr. Colman Balus Boku, for the Prisoner

SENTENCE

31^st October, 2019

1. KAUMI J: This is a decision on sentence for a man who on the 15^th March 2019 was found guilty of one count of murder contrary to Section 300 (1) (a) of the Criminal Code Act Chapter 262.
   

ISSUE

2. The relevant issue is what the appropriate sentence is in this case.
   

AGREED BRIEF FACTS

3. The agreed brief facts giving rise to the charge are as follows:
4. The deceased, Ben Melvin Jaratang, was a policeman holding the rank of Senior Constable and was attached to the Public Safety Unit at the Lae Provincial Police Head Quarters.
5. On 6^th June 2018, the deceased and other members of his unit went to Nawaeb District in response to a report of a fight at the school. Between 10:30pm and 11pm, the police car that they were in got stuck in the mud. Whilst the deceased was trying to reverse the car and free it from the mud the offender’s friend called Amon gave him the knife and they both approached the police car. The offender walked up to the driver’s side and stabbed the deceased on the chest, back and hand. After stabbing the deceased the offender ran away into the dark. The deceased became unconscious and was rushed to the hospital in Lae but died from his injuries.
6. The injuries that the deceased sustained were:

a. A stab wound, measuring 15 cm deep, on the right chest;

b. A stab wound to the right arm measuring 8cm deep;

c. A stab wound to the right inner arm;

d. Three stab wounds to the back.

7. The accused stabbed the deceased causing him to lose a lot of blood and die.
   

ANTECEDENT

8. The Antecedent Report provided to the Court by the State states that he has no prior convictions.
   

ALLOCATUS

9. When I administered allocatus to the offender i.e. allowing him the opportunity to say what matters he would like the court to take into account when contemplating what kind of punishment to give him, the following is a paraphrased summary of his response:

“I say sorry to this Court, to the State, Policemen and Correctional Service officers for bringing me to and fro for my court case. I am a villager and am a first time offender to stand before a big court like this. I ask for Probation or a Good Behaviour Bond”

OTHER MATTERS OF FACT

10. The prisoner pleaded guilty and so I will give him the benefit of the doubt on mitigating matters raised in the committal depositions, the allocatus in submission that are not contested by the prosecution: Saperus Yalibakut v. The State (2006) SC890.

SUBMISSION BY DEFENCE COUNSEL

11. The Counsel for the Offender, Mr. Boku in submitting on behalf of the offender referred to the brief facts of the matter, highlighted matters that went to his mitigation and those in his aggravation, the personal details of the offender, allocatus and the Pre-Sentence Report.
12. He urged the Court exercise its unfettered discretion in sentencing matters considering the mitigating factors whilst also noting that a very senior Police Officer serving Morobe Province and PNG in whole was murdered by the Prisoner.
13. He further submitted that this case was the worst type of offences and calls for the maximum penalty of life imprisonment but subject to Section 19 of the Criminal Code Act and this creates the avenue for the Courts to deviate from that and decide alternate sentences and this analogy was approved by Thress Kumbamong v The State (2008) SC1017
14. He submitted that this case fell under Category “b” of the Sentencing Guidelines for murder cases in Paguari v State [2011] PGNC 159; N4438 (7 October 2011)., thus the appropriate sentence range is 17 to 30 years because of his early guilty plea, no firearms were used and the offence was not committed while attempting to or committing another offence.
15. He submitted for a lenient sentence but suggest a sentence between the range of 17 to 30 years and life imprisonment considering the circumstances of mitigation as highlighted in State v Paguari (supra).
16. With respect to the principles of sentencing he referred to the cases of Goli Golu v The State [1979] PNGLR 653, Gimble v The State [1988-1989] PNGLR 271, Thress Kumbamong v The State (supra), State v Sambiago [2005] PGNC 3; N2954 and State v Paugari (supra).
17. He submitted that the PSR compiled by the CBC Office does not make recommendation for probation but asked the court to use its sentencing discretion.
    

SUBMISSION BY THE STATE

18. Ms. Langtry in submitting on sentence highlighted inter alia the most serious aggravating factor which was that the deceased was a policeman and that he was killed in the course of his duty.
19. She submitted that the maximum sentence is life imprisonment. It is trite law that the maximum penalty should be reserved for the most serious instances of an offence: Goli Golu v The State (supra). She said that this case did not fall into the category of worst cases. However, it was serious.
20. She further submitted that the present case had elements of category 2 and category 3 of the Murder tariffs in Kovi (supra) and therefore attracted a penalty falling between the upper range category 2 and the lower range of category 3.
21. She cited four case authorities relating to other offences but involving policemen acting in the line of duty, The State v Jackson (2004) N3237 per Kandakasi J which was a plea to the offence of Murder; The State v Tumaris (2016) N6391) per Kangwia. J in which the accused was found guilty after trial of wilful murder of a policeman and which she submitted was a more serious than the present as it concerns an intention to kill but in these matters it parallels the present, such as the offence being pre-planned and vicious and the offender inflicting numerous injuries on the victim; Joe Foe Leslie Leslie v The State (1998) SC 560 per Amet CJ, Kapi DCJ, Los J in which the Supreme Court dismissed an appeal against a sentence of life imprisonment for the offence of attempted murder of a policeman in the line of duty and Peter Naibiri and Kutoi Soti Apia v The State (1978) SC137 per Prentice CJ, Saldahna & Andrew JJ. The two appellants attacked three policemen who had pursued them through the streets of Port Moresby after they had stolen a vehicle and stabbed the remaining policeman. He managed to drive off to seek help before collapsing. The prisoners pleaded guilty to a charge of attempted murder and were sentenced to life imprisonment.
22. In conclusion she submitted that the Courts had dealt severely with offenders who committed acts of violence against policemen or women and urged the Court to adopt the view that the actions of the offender as an offence against the law itself. Since the offender was educated and to that extent sophisticated persons he should have known that his actions were criminal. Furthermore, he knew that the deceased was a policeman, sworn to protect the community, who had gone to Nawaeb to uphold the law but couldn’t do so because of an unforeseen circumstance. Instead of helping the police personnel the offender committed a senseless act of violence. To personally deter the offender and other like-minded individuals from committing similar offences against policemen or women and other administrators of justice she submitted that a term of imprisonment within the range of 20 years to 30 years was appropriate.

WHAT IS THE MAXIMUM PENALTY?

300. MURDER.

(1) Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder:–

(a) if the offender intended to do grievous bodily harm to the person killed or to some other person;

Penalty: Subject to Section 19, imprisonment for life.’

23. Section 19 of the Criminal Code Act allows for the discretion of the Court in sentencing the prisoner.
    

WHAT IS THE STARTING POINT?

24. Going by the sentencing range in The State v Jackson (supra), The State v Tumaris (supra), Joe Foe Leslie Leslie v The State (supra), Peter Naibiri and Kutoi Soti Apia v The State (supra) and what the Supreme Court said in Ure Hane v The State (supra) the proper starting point in this case is life imprisonment.

WHAT SENTENCES HAVE BEEN IMPOSED FOR EQUIVALENT OFFENCES?

25. I will now consider the sentencing trends.
26. The State v Jackson (2004) N3237 Kandakasi. J (as he then was)-This was a plea to Murder of the deceased who was a Village Court magistrate. The offender believed that the deceased had caused the death of the offender’s brother by Sorcery and would also kill the offender. The offender and his accomplice were each armed with a bush knife and cut the deceased twice on his neck area. The examination revealed that the deceased had suffered two large lacerations exposing severed left jugular vein and carotid artery below the left ear and left neck. The wounds measured 7cm x 1cm, 1cm x 6cm, 1cm x 1cm respectively. A salient feature of the crime that the Court alluded to was that the deceased was a village court magistrate. He represented the law in the village and so the attack was seen as an attack on the law itself. The Court sentenced the offender to 24 years imprisonment.
27. Joe Foe Leslie Leslie v The State (1998) SC 560 per Amet CJ, Kapi DCJ, and LosJ- the Supreme Court dismissed an appeal against a sentence of life imprisonment for the offence of attempted murder of a policeman in the line of duty. Life imprisonment was imposed.
28. Peter Naibiri and Kutoi Soti Apia v The State (1978) SC137 per Prentice CJ, Saldahna& Andrew JJ- The two appellants attacked three policemen who had pursued them through the streets of Port Moresby after they had stolen a vehicle and stabbed the remaining policeman. He managed to drive off to seek help before collapsing. The prisoners pleaded guilty to a charge of attempted murder and were sentenced to life imprisonment. Outbreaks of violence on police and on people in custody appear to be significantly on the increase-to such an extent as to produce in some members of the community the impression that law and order has all but broken down. The Courts must therefore do their duty to try to assist the preservation of orderly life and to convince police that they will be assisted and protected in carrying out their duties by the sanction that will be involved against anyone who attacks them. The Supreme Court then upheld the sentence of life imprisonment.
    
29. The State v Tumaris (2016) N6391) per Kangwia. J- The accused was found guilty after trial of wilful murder of a policeman. The accused was a wanted person who was on the run. The victim and other men surrounded the house in which the offender was and asked him to accompany them to the main village to deal with the allegations against him. On the way, the offender who was walking immediately behind the victim swung his bush knife and chopped the deceased a number of times. The deceased died instantly from massive blood loss. A post-mortem revealed that the deceased sustained multiple knife wounds to several parts of the body including a severed spinal vertebra. The Court noted that the law places wilful murder of policemen in the line of duty in the worst category of wilful murder attracting the maximum penalty and that the case was a coldblooded and cowardly killing. It therefore sentenced the offender to life imprisonment.
30. In The State v Mark Poroli [2004] PNGLR 9, the accused pleaded guilty to wilful murder contrary to s.299 (1) of the Criminal Code Act. It was the wilful murder of a policeman in the execution of his lawful duties. The prisoner told the deceased to say his last prayers and upon the former saying ‘Amen’ the latter shot him mercilessly in the face with a single shot killing him instantly.
31. The above cases all demonstrate that the Supreme and National Courts view homicide offences very seriously particularly where law enforcement officers are the victims and who are killed in the course of carrying out their Constitutional duties and responsibilities and I adopt what the Courts said in the following relevant cases.
32. Kandakasi J (as he then was) made the following comments in the case of The State v Jackson (supra):

‘It is well accepted law now that a person who attacks any law enforcement agencies such as a policeman and a policewoman, judges, magistrates and village courts officials should be dealt with severely because the offence is against the law itself. This was made clear by the Supreme Court in Peter Naibiri and Kutoi Aspia v The State, Ure Hane v The State and Joe Foe Leslie Leslie v The State ’.

33. Lenalia. J in State v Poroli (supra) stated:
    

“...the killing of the policeman was totally unwarranted. The accused in the instant case had shown complete disrespect and contempt for the law. It is the duty of this Court to protect policemen, policewomen, warders and wardress in the execution of their lawful duties. All law enforcement agencies such as police, CIS officers and the Courts deserve the full protection of the law. In this manner, the stern approach by this Court in relation to sentencing on people who takes lives of others in the most inhuman, cruel and gruesome killings of law enforcement agencies and other people for that matter, ought to be consistent”.

34. The trial judge in The State v Joe Foe Leslie Leslie’s case said:

“I adopt these statements in the present case and I want to reiterate my own belief that where a policeman is attacked in the course of his lawful duty, the attackers must be severely punished. It is my view that an attack on a law enforcement agency, is a very serious matter. I consider that an attack on any of the law enforcement agency, be it a police officer, Judge, Magistrate or CIS officer, is a very serious matter. I consider that an attack on any of the law enforcement agency is tantamount to an attack on the fundamental democratic institutions we have under our Constitution. The attack on the police officer in the present case, in my view, is tantamount to an attack on the function of the Police Force under s.196 of the Constitution. Neither the Courts nor the community at large should condone or tolerate violence against police officers who are going about their lawful and constitutional duties.’

WHAT IS THE HEAD SENTENCE?

35. In order to arrive at a head sentence I have to consider the particular circumstances in which the prisoner has committed the offence and the result of which will come the factors in his aggravation as well as those in his mitigation.
36. I have taken into consideration the guilty plea of the offender, his lack of prior convictions, his co-operation with police in their investigations and his comments in allocatus.
37. Against him I have considered the aggravating factors which are as follows, the offence is a prevalent offence, the offence was pre-meditated, the offender used a dangerous weapon in the assault, he was acting in concert with another person,the victim sustained multiple injuries, the offender used such force with the knife, the victim was acting in the course of his duties that time, the victim was with other police personnel so there was therefore an increased risk and probability of violence being occasioned on these personnel as well, the victim was a senior police officer with years of experience under his belt. He is a great loss to the police force, the victim was at the wheel of the vehicle and attempting to free it and unsuspecting of the impending attack.The offender was the principal perpetrator and ran away after the fact and made no attempt to mitigate the effect of the attack by offering in any aid or help and he educated and to that extent he was sophisticated person who should have known that the law deems his actions unlawful.
38. The killing of a policeman or woman must be condemned in the strongest terms and met with the stiffest punishment available by law. And there are valid reasons for this proposition as stated and reiterated by the highest courts of the land as I have already alluded to.
39. Having alluded to these sentiments stated by the Courts I am acutely aware that that the lives of police officers are not intrinsically worth more than anyone else’s. However in my view the demarcation line between the life of a police officer and that of a non-police officer is the murder of a police officer in the course of his or her duty. Police officers are more vulnerable. Police officers are made vulnerable by the nature of their work; they have to confront and control potentially dangerous people and, as such, are conspicuous targets. We ask them to keep us safe by confronting and stopping violent criminals, patrolling our neighbourhoods and villages 24 hours 7 days a week, stop tribal fights, guard major investment locations such as mines etc. and in doing so take risks we don’t have to. Police officers are often targeted because of what they represent. And therefore in my view violent attacks on police officers are an attack on the fundamental basis of our society.
40. In the instant matter, the offender knew that the deceased was a policeman and other police officers who in the course of their duty had gone to Nawaeb to investigate a report of a disturbance there by drunkards between 10.30 pm and 11pm. Due to the prevailing conditions of darkness at the time he had mistakenly entered the wrong premises and upon realizing his mistake was attempting to reverse out of the yard when the police vehicle he was driving became bogged in the quagmire and remained bogged for another two hours before the confrontation started.
41. What I find disturbing about this matter is that the deceased and his comrades which included two female police officers and a male one tried to raise their colleagues by police radio but were unable to do so for some reason and further the vehicle’s ‘four wheel gears were not working. By this time the noise of the revving engine of the police vehicle had attracted drunkard men to the scene who gathered around the vehicle. Initially this group of men assisted by trying to push the vehicle out of the mud but later these good Samaritans turned bad and started intimidating and hurling abuse and threats at the police officers. For all and sundry for two hours the police officers had become literally ‘sitting ducks’ in the darkness in a strange place surrounded by a large group of menacing men. Instead of helping the police personnel the offender committed a senseless act of violence.
42. I note the police officer died from multiple wounds to the top torso of his body that were occasioned on him in a short space of time in what can only be best described as a stabbing frenzy.
43. The offender has not given a plausible reason why he attacked the police officer in such a manner and the explanation he gave to police in the record of interview as being given the knife and told to attack the deceased with it by a ‘Amon’ I find this to be a pathetic attempt to portion some of the blame on someone who is supposed to be at large.
44. I find that the positions of wounds occasioned on the deceased consistent firstly, with being attacked from his back and to the top of his torso as he sat in the police vehicle concentrating on trying to negotiate it out of the quagmire and secondly, consistent with what I can only describe as a spineless, brutal and cold blooded attack on him by the offender.
45. If I may add if you were so pent up with some misplaced grievance against the deceased at that time the least you could have done was to invite him to step out of the police vehicle for a ‘one on one’ ‘fair fist fight’ instead of attacking him from behind with the knife.
46. Today Papua New Guinea has witnessed the proliferation of brutal and fatal attacks on police officers with the use of knives, guns and explosives. Police officers both male and female alike are being attacked and wounded or killed ‘in the course of duty’ at such a rate that it is fast becoming the norm rather than the exception. Only two weeks ago in this country saw the brutal gunning down of yet another police officer and a little over a week later saw the chopping of the head of another. What is going on here I ask? Long gone are the days when a single policeman in the blue uniform could keep two warring tribes apart and stop a tribal fight. Indeed the occupation of a police officer in Papua New Guinea today is fast becoming a hazardous and perilous one and so it is incumbent upon the Courts to rise up to the occasion and give perpetrators of crimes of this nature the just dessert they truly deserve. Police officers empowered by the law, (namely s.196 of the Constitution) and the duties lawfully vested upon them by the Police Force Act, (Ch. No. 65) and so must perform their sworn task to protect life and property with the full knowledge and assurance that their lives and property will also be protected by the full force of the law enforced by the Courts.
    
47. The head sentence is life imprisonment.
    

SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED?

48. Section 3 (2) of the Criminal Justice (Sentences) Act 1986 provides that:

There may be deducted from the length or any term of imprisonment imposed of any court any period before the sentence was imposed during which the offender was in custody in connection with the offence for which the sentence was imposed.

49. This provision allows the court discretion to decide whether or not to deduct the period an offender has spent in custody in remand awaiting trial. It is not an automatic right of the offender to have this period deducted.
50. In the exercise of my judicial discretion I have decided not to deduct the period the offender spent in custody in remand awaiting trial.
    

SHOULD ALL OR PART OF THE SENTENCE BE SUSPENDED?

51. The Pre-Sentence Report does not recommend suspension of any kind and I should add quite wisely as blatant attacks of this nature on police officers do not deserve discounts of any kind in terms of reduction of sentence and persons responsible for such attacks should be given the unqualified loss of all freedom that comes with a whole life order.
52. In this matter the notions of sentencing of retribution, separateness and deterrence in my view clearly hold sway over that of rehabilitation.
53. No suspension of any sort is granted.
    

SENTENCE

54. The orders of the Court are as follows:

a. The offender Thomas Saw Penda is sentenced to life imprisonment.

b. Orders to this effect shall issue forthwith.

c. Sentence accordingly.
____________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner