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State v Boka (No 2) [2024] PGNC 227; N10893 (6 July 2024)

N10893

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR N0 1051 & 1053 & 1054 OF 2019

THE STATE

V
RODRICK BOKA, PHIL SIMON UNDABA, ROBIN OKONO
(No 2)

Popondetta: Batari, J
2024: 13^th June, 6^th July

CRIMINAL LAW– Sentence – unlawfully causing grievous bodily harm with – offenders attacked victim in police operation and caused victim facial injuries and fracture of leg – use of weapon – victim assaulted with dried coconut and axe handle – offence – seriousness of unwarranted violence by police in course of duty – prevalence of – mitigation – personal circumstances – effect of sentence on community – relevance of.

CRIMINAL LAW–Practice and procedure – sentencing options – whether “tariff sentence” or individual measures – principles applied – payment of compensation – s. 3 Criminal Law (Compensation) Act – sentence – 10 years suspended on probation orders and orders for compensation and community works orders appropriate.

Cases Cited

No cases cited
Text Referred

Principles of Sentencing, DA Thomas, 2^nd Edition

Counsel

Ms M Tamate, for the State
Mr F Kuvi, for the Accused

SENTENCE

6^th July 2024

1. BATARI J: Following a lengthy multiple trial of eight accused persons, the Court found three namely, Rodrick Boka, Phil Simon Undaba and Robin Okono not guilty of attempted murder but guilty and convicted of unlawfully causing grievous bodily harm with intent. This is their sentence pursuant to s.315 of the Criminal Code. The maximum penalty is life imprisonment.
   
2. The facts supporting the convictions are in the body of my decision on the guilty verdict. In brief and for the purpose of penalty, the three prisoners together with four other policemen and a civilian entered Katuna Village by dinghy on directives from then Oro Provincial Police Commander (PPC) Chief Inspector Lincoln Gerari to apprehend two alleged sorcerers (victims). The PPC had suspected the men from his same village of Katuna of using sorcery on him.
   
3. The victims, Reginal Berugari and Nichomed Guka were detained and severely beaten up. Upon admission to Popondetta General Hospital the same night of the incident, Reginal Berugari died. Nichomed Guka survived and recovered fully from his facial and leg injuries.
   
4. Nichomed Guka is in his mid to late 60s. He was the first accosted at his son Frank Weston’s place. Robin Okono assaulted him, and he sustained two broken teeth. He next forced Nichomed into his house to collect his sorcery stuff and when found nothing, Okono attacked him several times with dried coconut. The policeman next tried to chop him with an axe, but the axe dislodged from its handle. He used the black palm axe handle on Nichomed and broke his right leg.
   
5. Nichomed was able to identify at close range, the three policemen now before the Court. Robin Okono was the principal aggressor. Roderick Boka was present. He joined Okono and others in assaulting him.
   
6. Phil Simon Undaba oversighted the operation and witnessed his men assaulting the two victims. He detained the deceased and in all probability, joined the others in assaulting the victims. His actual participation is affirmed in the evidence of him shooting and injuring Reginal Berugari with a gun. In any case, his complicity in the commission of the crime is evident in his presence and his complacency in failing to stop the unlawful acts of his policemen when he had the power and authority to save the situation.
   
7. The police atrocities and beatings continued in the dinghy. The same three policemen were the main instigators. Roderick Boka and Robin Okono used the axe handle and possibly a paddle to assault the victims. Phil Simon Undaba used a gun on Reginal. At Kikiri beach, the victims were kept in the rain. Medical attention was also delayed. The victims were denied early medical intervention and Reginal died from his injuries shortly after admission to the hospital.
   
8. The other accused persons have escaped punishment largely due to lack of evidence on identification of presence and/or participation. Too, the evidence suggested withdrawal and disassociation by some of the other accused persons.
   
9. The conduct of policemen in this case clearly epitomises serious decline in proper adherences to disciplinary etiquettes in police duties. From the outset, the PPC act smacked of suspicions and bias. The deployment of a police squad to arrest suspected sorcerers was without legitimate basis. The directives were flawed and tainted with self-serving predispositions. The ambiguity of criminal element in sorcery practice has no justification for police arrest without a warrant. The act was clearly an abuse of office and authority for personal gain.
   
10. So, when the handpicked policemen set out to apprehend alleged sorcerers, they lacked lawful authority to make the arrests. This was exacerbated by the heavy-handed tactics and breaches of human rights that followed.
    
11. Police brutality in the beatings of civilians at time of arrest is outrageous and deplorable. The serious breaches of police discipline is synonymous with taking the law into one’s own hands. Such conduct brings bad name, disrepute and disgrace to the majority law-abiding and disciplined members of the Royal PNG Constabulary. The violence against two elderly defenceless victims whose only faults were, sorcery suspects, was totally unnecessary and shameful.
    
12. The offence was sorcery related. So, the potential for reprisal was high. Experiences have shown, the widespread belief in sorcery has been the common cause for retaliations against alleged sorcerers. The sorcery belief in sorcery-related killing is a mitigating factor. The weight is, in my view, lessened by the elevation of sorcery-killing to a death penalty crime. Although the death penalty provisions have reverted to life imprisonment in the recent amendments to s. 299A of the Criminal Code, the intention that, killers of suspected sorcerers will meet with severe punishment, remains the same.
    
13. Similarly, persons convicted of assaulting suspected sorcerers with intention to cause grievous bodily harm will meet with the heavy penalty.
    
14. In this case, there was strong intention to cause grievous bodily harm seen in the continuous beatings and the nature of injuries sustained. This type of offence involving police beatings and brutality on civilians is quite prevalent. The prevalence factor adds to the gravity of the offenders’ conduct. This calls for the harsh penalty.
    
15. Rodrick Boka Katuna is aged 61 years. He comes from Katuna, Oro Province, married with eight children, the youngest is 17 years. The older children have moved on. Rodrick completed Grade 10 education in 1982 and has been with the RPNGC for 27 years as Police Reservist. This is his first offence.
    
16. He had given one pig and garden food to relatives of the deceased. He also gave K600 to the victim. He does not have steady means of income, relying largely on allowances from call-out duties. On compensation, Probation Officer Ms Robyn Surute Angavia suggested, Boka would provide garden food and a pig to the value of K2000 with support from his relatives and will require 12 months.
    
17. The pre-sentence reports concluded; the offender is a suitable candidate for probation supervision. There is really nothing remarkable on his background and personal circumstances that would warrant special treatment.
    
18. Phil Simon Undaba is 51 years old of Koje Village, Tufi, Oro Province. He is married with 9 children, 7 from previous marriage and 2 from current marriage. The older children are attending school elsewhere outside Popondetta. The younger ones are with their mother in his absence. He completed grade 10 in 1989 before enlisting with the RPNGC Force in 1991. He has been with the Police Force for 27 years at the time of the offence. This is his first offence.
    
19. The pre-sentence report attached two character references, one from Popondetta Urban LLG Ward 3 Councillor Hon Ali Pukari and the other from Mr Steven Awoda, Provincial Tourism Officer. Both spoke of the prisoner being a responsible and friendly member of their community. The PSR concluded; the offender is not a threat to the community and is a suitable candidate for probation supervision.
    
20. Robin Okono is 61 years old of Laudari Village, Sohe, Oro Province. He is married with seven children, the youngest is 17 years old. He completed grade 8 in 1986. Okono is a Police Reservist attached to the Vudal University of Natural Resources, Popondetta Campus. He is also a qualified mechanic, fixing vehicles part-time with the help of his children. This is his first conviction.
    
21. The pre-sentence report included a character reference from his Four Square Church where he is an Elder. Ps David Itari speaks well of the prisoner as a caring and supportive member of the Four Square LivingWater Church in Popondetta. The PSR concluded; the prisoner is not a threat to the community and is a suitable candidate for probation supervision.
    
22. I have considered the pre-sentence reports together with the means assessment reports from the CBC Office. The reports are flawed in several respects: (i) under the subheading, “Attitude”, each prisoner expressed regret. That is contradicted when the prisoners commonly denied involvement and shifted the blame to villagers under the subheading, “Circumstances of the offence”. This means the prisoner is not sorry about his involvement. (ii) the reports lacked sufficient information on community attitude and views on alternatives to imprisonment. (iii) the reports did not touch on community work orders. (iv) the reports do not have input from the employer, the RPNGC. (v) the victim was not interviewed on his attitude on compensation.
    
23. Those deficiencies in the reports makes it difficult to fully rely on the recommendations for probation supervision. Nevertheless, the recommended options for a release on probation and payment of compensation has not been seriously contested by the State.
    
24. The only apparent factor from the personal circumstances of each prisoner of significance is the record of no prior conviction which translates into and supports good background. Each of prisoner has served in the Police Force for many years individually and collectively. That itself speaks of good character and personal background. Two prisoners are Police Reservists. Their long services speak of exceptional loyalty and dedication to upholding the rule of law, sometimes under very difficult situations. One of them, Rodrick Boka was not on regular pay. He no doubt made a lot of personal sacrifices to act the Police Reservist role and at the same time maintain a fairly large family.
    
25. Each of them has expressed concerns over difficulties, their families will face with their incarceration. But that is the natural result of not thinking about the family welfare when setting out in an evil enterprise as in this case.
    
26. From the offence, I consider these latent facts, relevant: (i) the belief in sorcery is a mitigating factor. On its own, it will carry less weight bearing in mind, Parliament’s stand against killings and mistreatments of suspected sorcerers; (ii) the offence was precipitated by directives from within the Police Force rank and file control and command. The prisoners merely responded to rank-and-file directives where a choice not to follow may result in disciplinary action. The nature of the directives could be misunderstood to incite reprisal as happened in this case. The PPC sowed the evil seed. (iii) the prisoners should not be made a scapegoat for the wrongs of others where they merely followed unlawful orders. They should not be made scapegoats for other members of the team not convicted and villagers who may have seized the moment to assault the victims. (iv) the lack of medical evidence do not support version of continuous severe beatings. (v) prisoners showed kindness and responsibility in seeking medical attention for the victims. (vi) expressions of remorse were not genuine but the offer to pay compensation recognises the wrong and constitutional breaches done to the victims. Payment of compensation is also acknowledgement and acceptance of wrongdoing.
    
27. There are other matters personal to each accused that ought to be deliberated in deciding whether alternatives to imprisonment is appropriate: (i) The offer of compensation is a positive indicator of accepting and correcting a wrong. (ii) If payment of compensation is considered justified in the circumstances of the case, then opportunity should be given for the offenders to comply with the orders. (iii) Community work orders is an effective form of punishment, for if community work is ordered, it serves both the good of the community and the purpose of punishment.
    
28. The Criminal Law (Compensation) Act, 1991 authorizes the court when deciding punishment, to consider whether compensation should also be awarded as part of the penalty. So, if compensation is ordered, it will serve the justice of the case. It will also have a restorative effect in that an adequate compensation will restore to some extent, the suffering the victim endured at the hands of his/her assailants.
    
29. In a civil suit for damages or constitutional breaches of human rights, the extent of the victim’s injuries, the hardship, and inconveniences caused to the victim may call for an award of more than K5,000 allowed under the Act, inclusive of any assessment for continuing disabilities or loss of enjoyment. The guidelines to follow assessing compensation are set out in s. 3 of the Act as:
    
    • (a) The nature and seriousness of the offence;
    • (b) The degree and nature of any personal injury suffered by the victim;
    • (c) Any other factors regarding the commission of the offence or the offender’s attitude which may be considered in mitigation or aggravation of punishment;
    • (d) Any relevant custom regarding compensation;
    • (e) A report on “means”;
    • (f) Other relevant matters.
      
30. I have considered each offender’s case in the light of those considerations.
    
31. The victim’s view on compensation is not known. I suspect he would be amenable to payment of compensation. Each prisoner has expressed the desire to pay compensation and serve his sentence outside jail. I will award a nominal amount commensurate with the nature and seriousness of the offence as part of the punishment, I will shortly make out.
    
32. The option to order compensation does not necessarily endorse the notion that those with the means can simply “buy” their way out of court. It will appear that way when it is not viewed in the light of the primary legislative structure under s. 19 of the Criminal Code. Section 19 creates two distinct systems of sentencing to reflect the different penal objectives governed by different principles. The options are to impose a term of imprisonment or to take an individual approach. The learned author of, Principles of Sentencing, DA Thomas, 2^nd Edition explained the two penal objectives in this way at p 8:
    

“The options are to impose a sentence that may be loosely termed as “tariff sentence” or impose a sentence based on the needs of an offender as an individual”.

33. As to which of these two objectives should prevail over the other will be determined by the circumstances of each case before the Court. Whatever the circumstances, the court will apply the appropriate body of principles to determine the form of the sentence or measure to be adopted.
    
34. In this case, the circumstance of the case considering, the gravity of the offence and the personal circumstances of the offender, the individual measure approach is in my view, appropriate. So, the punishment should include an order for payment of compensation.
    
35. The next issue is what term of imprisonment is appropriate. I have considered both lawyers submissions. The common sentencing trend is a term of years from 4 to 16 years. Your case in my view falls within mid-range.
    
36. You have spent some days awaiting sentence in custody. That would have been sufficient experience to show you that beating up civilians is not a good thing, it is against the law and that you are not immune from punishment when you break the law. I do not propose to send you back to jail as I have decided to award compensation as part of the punishment and further that you can be usefully punished by the community.
    
37. You are sentenced as follows:
    
    1. You are each convicted and sentenced to 10 years imprisonment IHL.
       
    2. The whole term is suspended, and you are to be released forthwith on probation for a period of five years.
       
    3. The conditions of suspended sentence are that you:
       
       1. Shall within 48 hours, report to the Probation Officer after release from custody;
       2. Shall pay K3,500.00 compensation in cash to the victim within three months from today or by 6 October 2024;
       100. Shall reside at a place approved by the National Court;
       4. Shall not leave your place of abode within Popondetta or Oro Province without written approval of the National Court;
       5. Shall perform 1,500 hours of unpaid community work at a worksite nominated by Probation Officer and approved by the National Court;
       6. Shall attend church every weekend for service and worship and submit to counselling;
       7. Shall keep the peace and be of good behaviour;
       8. Shall have a satisfactory probation report submitted to the National Court Registry as required;
       9. Shall appear before the National Court as and when required for assessment of your progress on probation.
          
    4. On the award of K3,500.00 compensation under s. 6 of the Criminal Law (Compensation) Act, I make further orders that:
       • (a) You are each to pay K3,500.00 cash to Nichomed Guka in compensation for his injuries, pain and sufferings;
       • (b) Your cash bail conditions of K2,300.00 each shall be refunded forthwith to form part of the compensation orders;
       • (c) The first payment of K2,500.00 in cash shall be paid within one month or by 6 August 2024,
       • (d) The balance of K1,000.00 shall be paid on or by 6^th October 2024,
       • (e) The whole amount shall be paid on or before 6/10/2024 by arrangement through the CBC Officer Mrs Robyn Surute Angavia;
       • (f) The total compensation amount of K3,500.00 is payable direct to Nichomed Guka and witnessed by the Police and CBC Officer;
       • (g) Evidence of the payments shall be filed by the CBC Officer at the National Court Registry, in default six months imprisonment,
         • (h) This compensation amount shall be deducted from any civil suit settlement pursued by Nichomed Guka.
           
    5. The Probation Officer shall file the first report after one month or by 6 August 2024 and thereafter, six monthly reports on the performance and progress of the probationer on probation.
       
    6. Probationer shall appear at the Call-Over of the National Court Sittings in August 2024 for review of Probation Orders.
       
    7. If these conditions are not complied with, then your probation will be breached, and you will be arrested and brought to court to explain why you should not be imprisoned for 10 years in hard labour.
       

Sentenced accordingly
_________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused