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State v Amalakwin (No 2) [1996] PGNC 63; N1508 (23 December 1996)

Unreported National Court Decisions

N1508

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR NO 1721 OF 1995
THE STATE
v
JESSIE AMALAKWIN (No 2)

Mount Hagen

Lenalia AJ
23 December 1996

CRIMINAL LAW - Murder - Sentencing guidelines - Policeman acted in concert and aided in the killing within the definition of S. 7 (1) (c) of the Criminal Code.

Cases Cited:

The following cases are cited in the judgement:

The State v John Badi Woli & Pengas Rakam [1978] PNGLR 51

The State v Anguan Kakas & 3 Ors [1994] PNGLR 20

Omowe Yirihim v The State [1976] PNGLR 188

The State v Laura (No 2) [1988-89] PNGLR 98

Lawrance Simb v The State [1992] SCA No 48

Counsel:

S Carter for the State

A Yerr for the Accused

SENTENCE

23 December 1996

LENALIA AJ: The Prisoner was found guilty of murder under S. 300 within the definition of S. 7 (1) (c) of the Criminal Code. The State established beyond reasonable doubt that you aided and acted in concert with 7-8 other policemen in the brutal killing of the deceased Jerry Yakamp Puk on the 16 of May 1995. I do not wish to restate what I said in my judgement suffice if to say that the offence that you had committed is very serious for which you could be imprisoned for life. The law gives this Court power to impose a lesser term than what is prescribed in S. 300 by virtue of S. 19 of the Code.

The evidence of your case shows that on the date of this offence, you aided, abetted or acted in concert in the beating of a group of 30-40 Kindeng villagers that resulted in 24 of them receiving injuries of various magnitude with the deceased receiving severe brain injuries that resulted in his death. The evidence of your case shows that, you were one of 7-8 possibly more policemen who were engaged in this offence. I found from both the State and Defence evidence that the prisoner was present at the scene of the crime. He was not only present but aided, abetted and participated in the bashing up of that crowd. From the attack that you and other policemen committed on these people resulted in the deceased’s death. I found from the evidence that you yourself held a stick and you yourself beat that group of people.

I discussed in my judgement the concept of parties to offences and the current position of the law in relation to S. 7 (1) (c) of the Code. It is well established that where two or more persons being present together attack another at the same time using similar weapons and direct similar blows with common intention to injure and that person dies as the result of injuries so inflicted each of those attackers may be guilty of wilful murder, murder or manslaughter because each of those several persons aided or acted in concert with the other at the same time, each action constituted the offence of aiding under S. 7 (1) (c) of the Code: The State v John Badi Woli and Pengas Rakam [1978] PNGLR 51, see also The State v Anguan Kakas & 3 Ors [1994] PNGLR 20.

What is obvious is that you are a policeman. The law allows a policemen to execute his duties fairly and in accordance with law. It is commonly known that it is part of the obligation and duties of a policeman is to take all necessary steps appearing to him to be reasonable and to keep the peace and prevent crime. It is their duty to protect life and property and to bring offenders to justice. Where a situation calls for the use of force to present the commission of a crime, the force used must be reasonable in the circumstances that he or she is faced with.

There was evidence before the Court that a Simbu Provincial Government vehicle was stolen by some people in the Kindeng village. The offence with which you are charged was committed at Papene Community School a distance away from Kindeng village although their generally referred to as Kindeng. There was no evidence to suggest to me that the group of men were violent. They were not aggressive. Police were not even threatened with any actual violence. There is no evidence to suggest if the group of men even resisted arrest. In fact there is not a slightest indication as to whether any of the group of men that you and your colleagues beat up was responsible for stealing the vehicle prior to the commission of this crime. The action taken by police that time was irresponsible and cannot be excused and anyone found committing similar offences cannot seek refuge under S. 32 of the Code.

The second factor established by the evidence is that, you committed this offence while acting in concert with another 7 or 8 policemen. You aided those other to beat the deceased. Your lawyer submitted that how can you be alone responsible for this offence when the evidence is abundantly clear that there were other policemen involved. My view is that the State has a discretion to instigate proceedings against those responsible if not yet tried. In other words, he says that you alone cannot be made a scapegoat of the action done by a group of 7-8 policemen of which you were one. I have cited sufficient case law on parties to offences which say that where two or more persons acted in concert of participated or aided in a crime each is responsible for the act of the other: Omowo Yirihim v The State [1976] PNGLR 188.

It was submitted on your behalf that you have been a policeman for the last nine (9) years two of which you have been an instructor with the Kerowagi Mobile Squad. It was also submitted that you have maintained a clean record with police. The Commander of the Highlands Mobile Unit is said to have spoken highly about you and your previous performances. I accept all that has been said about you in mitigation.

The sentences that have been imposed in murder cases have fluctuated considerably depending on the circumstances of each case. In the case of Lawrence Simber v The State [1992] SC N. 48 it was stated that murder cases should not be decided on the basis of the tariff principle but that each case must be decided upon its own facts. It was stated in The State v Laura (No 2) PNGLR 98 that a murder charge with no specific mitigating factors and where an accused pleads guilty should attract a sentence of less than 6 years imprisonment. Youthfulness and advanced age have been suggested to be some of those factors. It was suggested there that in contested cases the sentence should be 12 to 15 years or more where aggravating factors are shown by the evidence in each case.

The crime of murder is one of the most serous crime defined by our penalty Code. The maximum penalty is life imprisonment subject to S. 19 of the Code. The maximum of life imprisonment shows how serious this crime is regarded by legislature and the people of Papua New Guinea. I have carefully covered all the evidence of your case in my judgement read on the 13th of this month. Aggravating factors in this includes the fact that, the killing was unprovoked and carried out in the name of the law. There is no evidence whatsoever to show that the victims did anything to provoke the policemen non the scene. The action was a reckless disregard to the inherent dignity of the human person and quite inconsistent with the right to life guaranteed by the Constitution. The deceased was a completely innocent person. He was unarmed and he did not resist in anyway. There is no slightest evidence that this group of people were responsible for stealing the vehicle that police was trying to retrieve.

What the police did was you came upon this group of people who were gathering for the purpose of finding out amongst themselves who was responsible for stealing the vehicle then you beat them. This was a violation of the Constitutional right to life itself and the protection of law provided for under SS. 35 & 37 of the Constitution. I have considered all that was said in mitigation in favour of you and the aggravating factors I have alluded to. I consider that an appropriate sentence is 7 years imprisonment in hard labour. To be deducted from this a term of one week spent in custody awaiting sentence. The sentence be served in Barawagi Corrective Institution, Simbu Province.

Lawyer for the State: The Public Prosecutor

Lawyer for the Accused: Mr Alphonse Yerr