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State v Buka (No.2) [2016] PGNC 161; N6349 (12 July 2016)

N6349

PAUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR NO. 1388 OF 2014
CR NO. 1389 OF 2014


THE STATE


V


JEFFREY BUKA (No.2)


Tari & Mendi: Ipang, J
2016: 21st March & 12th July


CRIMINAL LAW – Sentence – charges of wilful murder – section 299 of the Criminal Code Act. Police Officer during the course of duty – shot the two (2) deceased persons dead with police issued firearm – Plea of Not Guilty – Prisoner found guilty after the trial.


CRIMINAL LAW – Policemen confronted by members of the crowd – Prisoner under pressure and panicked fired two (2) shots killing two (2) of the crowd.


CRIMINAL LAW – PRACTICE & PROCEDURE – Sentencing Practice – Maximum penalty reserved for worst type of cases – Section 299 Criminal Code Act penalty is subject to section 19 Criminal Code Act is death.


Case Cited:
Avia Ahia v. State [1982] PNGLR 92
Goli Golu v. State [1979] PNGLR 653
Manu Kovi v. State (2005) SC 789


Counsel:
W. Malo, for the State
S. Inisi, for the Prisoner


DECISION ON SENTENCE


12th July, 2016


  1. IPANG, J: This is the decision on sentence for the prisoner who was found guilty after a trial on two (2) counts of wilful murder pursuant to section 299 of the Criminal Code Act, Chapter 262 for wilfully murdering Albert Naki and Talewa Auwa.
  2. The brief facts for the purpose of sentence for the prisoner are as follows; the prisoner, a policeman at that time was based in Tari was in company of his colleagues’ policemen patrolling along the highway along Homa area beside Tari Airport. That was on the 20th of May, 2014. They approached a traffic jam caused by Tari Town Mayor Ken Arawi who had parked his vehicle in the middle of the road causing obstruction to the free flow of traffic. Members of the Police Force which included the prisoner and his colleagues approached the Town Mayor and directed him to remove his vehicle. The Mayor did not co-operate so this led to arguments and subsequently confrontations. The crowd of people who were there for the funeral feast of Late Sir Matiabe Yuwi became uneasy, rowdy and they easily got tensed. It was this situation which police were confronted with that they fired shots in to the air to disperse the crowd. During the course of firing the shots, the first shot killed the deceased Albert Naki and the second shot killed the deceased Talewa Auwa.

Antecedent Report


  1. The Antecedent Report records nil prior conviction.


Allocutus


  1. In administering his allocutus, the prisoner said he had no intention or plan to shoot and kill the two (2) deceased persons. He said the two (2) deceased persons are not his enemies. He doesn’t know their names and even know where they come from. He said sorry to the Court, the State, and the other policemen for the time and the resources spent in conducting his trial. He accepted his guilty verdict, and asked Court to have mercy on him and give him lesser penalty.

The Charge


  1. The prisoner is charged under section 299 of the Criminal Code Act which provides

s.299 Wilful murder

(1) Subject to the succeeding provisions of this code, a person who unlawfully kills another person, intending to cause his death or that of some other person, is guilty of wilful murder.

(2) A person who commits wilful murder shall be liable to be sentenced to death.


  1. The section 19(1) (a) expressly provided that a person liable to death may be sentenced to imprisonment for life or for any shorter term;
  2. The maximum prescribed penalty under section 299 of the Criminal Code Act is death. It is the sentencing practice that the maximum penalty is reserved for worse types of cases. Refer to Goli Golu v. State [1979] PNGLR 653; Avia Ahia (No.3) v. The State [1982] PNGLR 92; and Ure Hane v. The State [1984] PNGLR 105.
  3. I have during the course of this submission on sentence specifically ask both the State and the Defence Counsels to assist the Court with any past cases dealing with unlawful killings by police officer during the course of their duties. However, I have not been assisted much by both counsels.
  4. I have been asked by the Defence counsel to take into consideration the circumstances the offences were committed. In that there was no pre planning to kill; the prisoner and his colleagues policemen were on a routine patrol, the order to kill policemen came from Tari Town Mayor; situation was provoked by Mayor; Mayor did not respect the Police; police retaliated violently and were outnumbered.
  5. Mr. Inisi of Counsel for the prisoner submitted that there is a belief in Tari, when a leader ordered killing of policemen, the Tari people would listen to their leader and also do whatever the leader says, considering this knowledge and belief, the counsel submits the prisoner was under pressure, fear and panic, when he fired two (2) shots which killed two (2) deceased persons.
  6. Ms. Malo for the State submitted that this Court considers the mitigating and aggravating factors and impose a deterrent sentence. She submitted that the killing of two (2) innocent defenceless victims were brutal and warrant tougher sentences.
  7. In order to reach an appropriate sentence for the prisoner, I take into account the following factors;
  8. I took note of Affidavit filed by Mark Yangen. He was the Provincial Police Commander (PPC) for Hela at the time, the offence was committed. From paragraph 5-6, he spoke of the fact that the offence was committed during prisoner’s course of duty. He said the prisoner was under pressure and panicked at the same time.
  9. In Anton Vele Anga v. State (2003) N5381, a policeman was on duty providing security. The deceased approached the policemen and had an argument with the policemen. A scaffold ensued. The policeman went to the police vehicle and picked his gun. Deceased was killed when the rifle went off. The policeman was found guilty of manslaughter and sentenced to seven (7) years.
  10. The factual situation in Anton Vele Anga case (supra) in not similar to this instant case. Both deceased persons in this case are innocent bystanders who did not argue nor confronted the prisoner. Also in Anton Vele Anga case (supra) there was no intention to kill whereas in this instant there was intention to kill.
  11. There was another police shooting case; State-v- Jack Baria in which the offender policeman was found guilty on shooting of a female victim Naomi Pisimi in which Pitpit, J imposed a term of years on the offender.
Case/Date Decision
Offences
Sentences
Particulars
Results
Goli GOLU
V
The State
Raine Dep CJ , Kearney J & Wilson J

1979 PNGLR 653
Wilful Murder
Life imprisonment
Appellant had attended the Kwikila court house with members of his clan as a result of a riot involving the accused’s clan and that of the deceased. The appellant was not an accused in the riot case. The accused chased down and stabbed the deceased.
Court stated that life imprisonment should be reserved for the most serious instances of this type of offence.
Discussion of the effect of Sections 141 and 142 of the Corrective Institutions Regulations 1959 on persons sentenced to life imprisonment.
Appellant in his mid twenties. He was married with two young children. He was well educated and was in employment. He had no prior convictions.
Plea of not guilty (self defence and provocation)
Appeal allowed and an effective sentence of 12 years and 6 months imposed.
Avia AHIA
v
The State
Kidu CJ, Kearney Dep CJ, Grevill Smith J, Andrew J & Kapi J
1982 PNGLR 92
Wilful Murder
Life Imprisonment
The appellant was sentenced to life imprisonment for the payback killing. The deceased was charged with dangerous driving causing the death of the appellant’s husband. The deceased was attending a court view with the court trying his case when he was attacked and killed.
Discussion of the “worst case” and when life imprisonment is applicable for willful murder. Offenders who are shown not likely to reoffend should be given more leniency than those who are likely to reoffend.
Plea of guilty
Appeal dismissed
Public Prosecutor v KERU & MOROI

Kidu CJ, Bredmeyer J
& Amet J

1985 PNGLR 78
Wilful Murder
Both were sentence to 6 years imprisonment (each had presentence custody of 5 months taken into account)
In separate incidents Keru killed the son of Moroi after the son “took” Keru’s daughter and grandchild away from the village. Keru’s daughter was married to Moroi’s son and the child was his. Keru disapproved of the relationship. A day later Moroi killed Keru’s. the son did not know of the first killing.
Discussion of the sentences involved in “payback killing”
A person who commits are payback killing maybe entitled to a reduction in sentence for “de facto provocation”
Both offenders were aged about 50. Both had no prior convictions.
Pleas of guilty
State appeal allowed. Keru sentenced to 15 years. Moroi sentenced to life imprisonment
Paul Oa OAKARE
v.
The State
Amet CJ, Gavara-Nanu J & Kandakasi J
Unreported judgment of the Supreme Court

SCRA 58 of 2000
Wilful Murder
Life Imprisonment
The appellant killed his 3 years old son by slashing him with a bush knife and then hid his body. Had earlier in the day tried to drown his son. He lied for some time as to the whereabouts of the deceased.
At arraignment the appellant said he was mentally affected. A psychiatrist tendered at the trial indicated the appellant might have had a “brief” psychotic episode”. There was no defence of “insanity” under Section 28 of the Code. The sentencing court had found that the appellant had a “mentally impaired or disturbed mind” at the time of the commission of the offence as a result of his marriage break-up but did not adequately consider his below average level of intelligence.
Prior to convictions for drug offences and stealing which were described by the sentencing court as “strings of offences”
Plea of not guilty
Appeal allowed and a sentence of 20 years imprisonment substituted.
Tonny Imunu API v The State
Los, Sevua & Kandakasi JJ

29 August 2001
Wilful murder
Life imprisonment
The deceased was 14 years of age. He was walking to the shop when he was attacked. When the deceased was found he had no clothes on and he had faeces in his rectum. This was circumstantial case. The prisoner showed the police where the deceased was. The prisoner denied any knowledge of the killing.
Comments by the court regarding the imposition of the death penalty for “very serious case of unlawful killings”
Plea of not guilty
Appeal dismissed
Manu KOVI v The State
Unreported judgment of the Supreme Court SCRA no. 51 of 2003
Injia DCJ, Lenalia & Lay JJ
Murder (court considered tariff for all homicide cases)
Life imprisonment
The appellant was charged with the wilful murder of his wife. The Supreme Court dismissed the appellant’s appeal but set sentencing principles for all homicide cases.
Principle on each category for wilful murder are:
  1. Ordinary case, mitigating factors with no aggravating factors15-20 years
  2. Sentence after trial or plea, mitigating factors with aggravating factors 20-30 years.
  3. Sentence after trial or plea, “special” aggravating that reduces the weight of render insignificant any mitigating factors – life imprisonment;
  4. Sentence after trial or plea, worst case “special aggravating factors and no extenuating circumstances that reduces the weight of render insignificant any mitigating factors – Death
Prior conviction for GBH involving an attack on his wife – 18 months imprisonment
Appeal dismissed.

NOTES ON EACH CATEGORY
  1. “Ordinary case” – no weapon, little or no.
  2. Premeditation or pre-planning, minimum force used and absence of strong intent to kill.
  3. Killing types – brutal, in cold blood, innocent defenceless or harmless victim, victim young or old, dangerous or offensive weapon used accompanied by other serious offence, pre-planned or pre-meditated wit a strong desire to kill; and
  4. Worst case
Ume v. The State
Waigani : SC386 Waigani: Kapi CJ, Injia DCJ, Los, Hinchliffe & Davani JJ
Wilful murder
Life imprisonment
The appellant was convicted for wilful murder and was given death penalty.
On appeal, the court identified several errors in law. Furthermore the trial judge erred in finding that there were no mitigating factors when in fact there were relevant mitigating factors such as the Appellant’s previous good character, their first offender status, their Christian background, stable family backgrounds and rural village upbringing.
PLEA OF NOT GUILTY
Appeal allowed and sentence of death penalty substituted with life imprisonment.

  1. The two (2) deceased persons in this case were unarmed, defenceless and unprovocative on the date both met their fate. They were there just to visit the funeral of Late Sir Matiabe Yuwi. They were innocent bystanders. Both were on the higher ground near Tari Airport fence. They were not part of the crowd where there was a commotion between Tari Town Mayor Ken Arawi and the policemen. Both deceased were some distance away from the area where the confrontation took place. However, when the crowd saw Ken Arawi was punched by police they became rowdy. The offender panicked and without firing a warning shot, fired first shot killing the first deceased and subsequently fired his second shot killing the second deceased. The offender’s two (2) shots were aimed at vital body parts of the two (2) deceased thus living no chances for both deceased to survive.
  2. The use of State issued firearms and ammunitions by the member of the Police Force (RPNG) have been of a great concern by the members of the public. To such an extent that there is a serious decline in community confidence for the Police Force (RPNG). Members of the Police Force (RPNG) shooting of innocent members of the public has been a practice which has not changed and it is becoming like a culture in the Police Force which must be seriously addressed soon.
  3. In the meantime, police do not have the licence to carelessly, negligently and unjustifiably shoot any person whether he or she is a member of the crowd or be, he or she is a suspect or not. The State issued firearms to the Police Force (RPNG) must be used under strict conditions. And that means the firearm issued to police must be used only in extreme situations, circumstances or conditions of danger to life of a policeman or policewoman or other person and only after all reasonable and other possible alternatives have been exhausted. Such was not the measures taken by the offender in this instant case.
  4. The penalty under Section 299 of the Criminal Code Act, chapter 262 is death. That is the maximum penalty prescribed. In this present case I note that there was no pre-planning by the offender and that the prisoner is a first time offender with no prior convictions. With these two (2) factors in my mind, I consider it would be inappropriate and unfair to impose maximum penalty of death sentence. In this regard, I consider section 19 of the Criminal Code Act, chapter 262, in that I will impose a lesser term than the maximum penalty of death. I will impose a sentence befitting Category 3 of Manu Kovi Case (supra). In that the killings were brutal, in cold blooded, the victims were armless, defenceless and innocent and were of young ages.
    1. In the CR. No. 1388 of 2014 I sentenced the Offender to Life Imprisonment.
    2. In CR. No. 1389 of 2014 I sentenced the Offender Life Imprisonment.
    3. For both offences of wilful murder under section 299, the prisoner will serve double Life Imprisonment, however owing to the one (1) or single transaction rule, the prisoner will serve his sentence concurrently to the CR. No. 1388 of 2014. Which means, instead of serving double Life Imprisonment he will serve only one (1) life year imprisonment. A Warrant of Commitment will be issued in these terms.

Sentenced accordingly,


____________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Offender


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