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State v Osara [2024] PGNC 65; N10722 (9 April 2024)

N10722

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR N0 582 OF 2021

THE STATE

V

RYAN OSARA

Lae: Kangwia J.

2024: 14^th March & 9^th April

CRIMINAL LAW – Unlawful Killing by policeman – First time offender – offence committed in the course of duty - dispersing crowd - two instances of throwing objects at deceased – reckless conduct - strong intention to do bodily harm. Sentenced to 10 years imprisonment with deduction of time in custody.

Cases cited:
Manu Kovi v the State (2005) SC789
State v Lati (No 2) (2009) N3740
State v Wambun (2002) N2311
Kesino Apo v the State [1988] PNGLR 182
Goli Golu v the State [1976] PNGLR 96

Counsel:
S. Wusik, for the State
P. Sawanga, for the Defence

9^th April 2024

1. KANGWIA J: Ryan Osara appears as a prisoner for sentencing after this Court convicted him on one count of manslaughter pursuant to s 302 of the Criminal Code.

2. The facts leading to the conviction is that on 28 April 2020 the prisoner with colleague policemen who were on motorised patrol in the 2mile area of Lae city drove to 7block.

3. When they approached a gathering, the prisoner went out of the vehicle to disperse the crowd. In the process he picked up a 20-litre container nearby and struck the victim with it.

4. Thereafter he grabbed an iron rod nearby and hit the victim again on the back. The victim fell and vomited. He was taken to the hospital but died.

5. On his allocutus the prisoner said, “I say sorry to the family of the deceased and Court. I never thought I would be found guilty. I acted on orders from the state to control public gatherings were not done because of covid. I have a child of 19 months with a wife who is unemployed and have been away for a long time. I am the only bread winner. I wish to do compensation to the family of the deceased. I have just started my career and still have a long way to go. A life is lost and my life should not be prematurely terminated. I am willing to do customary compensation. I ask for a second chance”.

6. On his behalf Ms Sawanga submits that a non-custodial sentence with probation orders should be imposed given the following considerations. He was a first-time offender with a simple background who expressed remorse and was willing to pay compensation. He created no problems while under CIS custody and had potential for rehabilitation. He had only been with the police force for nine months.

7. There was no intention on the part of prisoner to cause the death because he was on duty on covid emergency operations. The deceased was in breach of the Covid rules when the incident occurred. He also had a prior medical condition that aggravated the death. The case fell into the first category of the Manu Kovi v the State (2005) SC789 guidelines which suggested 8 to 12 years. However, the pre-sentence report recommended a non-custodial sentence as it was a genuine case for a non-custodial sentence. One life was lost, and another should not be removed because the prisoner was young and had a long life ahead.

8. For the State Mr Wusik submits that death should be natural, and no one should take the life of another person. After citing a number of comparable cases, the Court was urged to weigh out the mitigating and aggravating factors to arrive at a decision. While the comparable cases were plea matters a trial was conducted for the present case and the prisoner was convicted hence a higher sentence than the comparable cases should be imposed.

9. The sentence imposed should be both deterrent and punitive to reflect the peculiar nature of the case where police brutality was exposed; killing the very people they swore to protect.

10. While conceding that he was a first-time offender it was submitted that it has no weight in homicide cases and should be given less weight as Courts have disregarded it as a mitigating factor. While also conceding that there was no intention to kill it was submitted that the Court be reminded of the most aggravating feature in any homicide is the loss of life. He referred to the cases of State v Lati (No 2) (2009) N3740 and State v Wambun (2002) N2311 as supporting that proposition.

11. While referring to the case of Manu Kovi Mr Wusik submits that the strong aggravating factors outweighed those in mitigation and the appropriate sentence should fall within the range of 13 to 16 years imprisonment. Payment of compensation cannot bring back a lost life.
12. The offence of manslaughter under s 302 prescribes life imprisonment as the maximum penalty. It is now the ultimate penalty for any homicide upon the repeal of the death penalty. Sentencing for manslaughter in this country is varied. The cases cited by Mr. Wusik in submissions attest to the varying sentences the Courts are imposing. Rarely is a suspended sentence imposed for a homicide because homicides involve the loss of life. Life of a human being is what the law safeguards most. Courts have time and again placed great importance on the sanctity of life and the need to impose adequate sentences on those offenders who cause a death or are in any way involved in the loss of a life.

13. In the case of Kesino Apo v the State [1988] PNGLR 182 the Supreme Court held that imprisonment should be the starting point owing to the sanctity of life, a consideration which parliament intended.
Other cases have stated that the most aggravating feature in any homicide is the loss of life. (See State v Lati (No 2) (2009) N3740 and State v Wambun (2002) N2311).

14. Sentencing is also an exercise of discretion, and it augurs well to reserve the maximum prescribed penalty for the worst category of each case. (See Goli Golu v the State (1976) PNGLR 96)

15. The present case is not one of those cases where an ordinary person lost control or was engulfed in a fury. It is an incident where a serving member of the police force discharging his mandated duties to protect lives and property. It is what is colloquially referred to as a police brutality case.

16. The offender was in a motorised patrol enforcing covid restrictions. In the course of dispersing a crowd he threw two objects at the victim hitting him two times. He acted alone. There is no evidence that other members of his group did similar acts. The victim succumbed to the impact of what the offender threw at him.

17. The circumstances of the present case do not make it fall into the worst category of manslaughter. However, there is present an element of strong intention to do bodily harm by the reckless behaviour of the prisoner. It may be attributed to his recent passing out from police training nine months earlier.

18. There is no evidence that the prisoner was emotionally under stress however, some element of de facto provocation was present when the now deceased victim either refused or was slow to disperse from the gathering as ordered by police.

19. Even though no weapons per se were used, the two objects used by the offender became weapons when they were flung at the now deceased. There was a lack of restraint. That should not be allowed to be repeated.

20. According to the son, the victim was old but a healthy person. There is no evidence of the victim’s prior medical condition of enlarged spleen.

21. However, it is accepted that the victim was an elderly person, and it was likely that his body could not sustain the blunt force applied to his body when objects were flung at his back causing his spleen to rupture.

22. There was no proper supervision by any superior officer at the time of the motorised patrol. It seems he took it upon himself to disperse the crowd the way he thought proper and not what his superiors told him. A sentence to reflect the recklessness involved shall be imposed.

23. As to an appropriate sentence both counsels have led the Court to the renowned case of Manu Kovi as the best guide for sentencing in manslaughter cases. Ms Sawanga submits that this case falls into category one of manslaughter in that case which suggests 8 to 12 years imprisonment. Mr. Wusik argues the contrary and submits that the case fell into category 2 which suggests a sentence of 13 to 16 years.

24. In my view the present case overlaps between the first and second category of the Manu Kovi suggestions for manslaughter. There was a deliberate intention to do harm with multiple attacks. The present case was no ordinary case. It was not from a domestic setting. The offender was a serving member of the Police Force who acted contrary to the oath he swore to protect lives and property. A deterrent sentence must follow. For a sentence to have the deterrent effect it must not be compromised by probation or compensation orders. Therefore, the plea for compensation orders and the recommendation by the probation services are denied.

25. In view of the determination that the present case overlapped between category one and two for manslaughter in the Manu Kovi suggestions which range from 8 to 16 years the appropriate head sentence should be 12 years imprisonment. Any discount available to an offender who pleaded guilty early is not available to the prisoner. Despite that, a discount of two years should be given the offender as a first-time offender who acted without proper supervision. His superiors failed proper supervision after having passed out of police college 9 months earlier. His aggregate sentence shall be 10 years imprisonment.

26. He is also entitled to a deduction for the time he spent in custody awaiting trial even though the offender was kept in custody after being arrested on a bench warrant.

27. It is believed he has been in custody for nearly two years. That period shall be deducted from the 10 - year sentence. The prisoner shall serve the balance at CIS Buimo.
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Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Defence