State v Yangi [2012] PGNC 361; N4628 (11 April 2012)

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CRIMINAL LAW – sentencing – Criminal Code, Section 300(1) (murder) – trial – three offences – police officer on duty shot and killed three suspects – whether sentences should be served concurrently or cumulatively – totality principle

The offender, a police officer, shot and killed three men in two incidents arising from the police signalling a vehicle in which the deceased were passengers to stop on the roadside. The offender was convicted of three counts of murder. This is the judgment on sentence.

Acting Public Prosecutor v Konis Haha [1981] PNGLR 205
John Kule v The State (2011) SC1138
Manu Kovi v The State (2005) SC789
Mase v The State [1991] PNGLR 88
Public Prosecutor v Kerua [1985] PNGLR 85
The State v Abaya Ulas (2010) N4009
The State v Mathias Yangi (2012) N4573
Triga Kakarabo v The State, SCR No 23 of 2001, 03.10.02

1. CANNINGS J: This is a decision on sentence for Mathias Yangi who was convicted after trial of three counts of murder. He was a police officer on duty, a member of a motorised patrol, on the highway at Bogia Station, Madang Province. On the night of Tuesday 15 February 2011 at the White Sands Market at Boikulu, he waved down a 10-seater Toyota Landcruiser which contained seven men. He spoke to the driver and smelt marijuana in the vehicle and became suspicious and ordered the seven occupants out of the vehicle. During two incidents that followed, the first at the roadside and the second, shortly afterwards, at Bogia Police Station, he shot all seven of them. Three died and the offender was convicted of their murders. All of the deceased were from the Mumeng area of Morobe Province and were aged in their 20s. The remaining four (three from Mumeng and one from Madang) survived. The offender has been charged with their attempted murder and committed for trial but they are separate matters and the offender has not yet been asked to plead to them.

2. The court found that there was in fact a substantial quantity (50 kg) of marijuana in the vehicle and that when he looked into the vehicle the offender saw what he thought was a pistol. He was armed with a police-issued AR 15 assault rifle. When he ordered the occupants out of the vehicle, they co-operated. He ordered them to lie face-down on the sand. They did as they were told and were unarmed and unthreatening. The offender, however, shot four of them, including Titus Osi and Abobo Sarus. He shot Titus Osi in the area of the left iliac crest, part of the pelvis, and left abdomen, the wound also perforating the bowel. This led to haemorrhagic shock (severe loss of circulating blood) which was the cause of death. He shot Abobo Sarus twice in the right medial thigh, which led to haemorrhagic shock, which was the cause of death. Both Titus Osi and Abobo Sarus died within two hours after they were shot.

3. After the incident at the market the offender and other police personnel took the seven men, who were all suspected of involvement in drug trafficking, to Bogia Police Station, where they were again ordered to lie on the ground. They again co-operated and did not attempt to escape. The offender, however, shot three of them, including Andrew Conney Menzi. He shot him in the right medial thigh and femoral artery, which led to haemorrhagic shock, which was the primary cause of death. Andrew Conney Menzi also suffered sepsis (serious infection) and he died at Modilon General Hospital four days later.

4. Further details of the circumstances of the offences are in the judgment on verdict: The State v Mathias Yangi (2012) N4573.

I thank the Court and the State lawyers and the Public Solicitor's lawyers for the time and effort spent on my case. I accept being guilty of three counts of murder as the law stipulates though I honestly had no intention of killing anyone. I am just a poor servant of the State trying my very best to prevent crime and make a safe environment for every one of us to live in. However in the course of executing my duties I made a mistake and killed three of my brothers. I would like to extend my sorrow to the deceased and their families but if my brothers had not been involved in drug trafficking there would not be any problem. It is also very bad that a huge amount of drugs was able to be transported from Morobe to Bogia, which shows that police intelligence failed badly. I am also upset about the way that I was treated as a common criminal after my arrest.

It is said in the Bible, Ecclesiastes 7.20, that 'there is no one on Earth who does what is right all the time and never makes a mistake'. I confess I am not a perfect person. I made a mistake. Sighting the toy pistol in the vehicle made me behave in such a way that I intended to wound my brothers. I pray before this honourable Court and God that I am very sorry and I will be a better policeman in future. I have learnt from my mistakes. I am just a servant of the State doing my best to execute my duties and to prevent crime. I ask for the mercy of the court and for leniency so that I may serve my term on probation and get back to work.

7. A pre-sentence report prepared by the Madang branch of the Community-Based Corrections and Rehabilitation Service shows that Mathias Yangi is 35 years old and married with one child. He comes from Bosmun village, Bogia District. His parents, who are schoolteachers, are alive and he has seven brothers and sisters. His father, Simon Yangi, made a statement strongly supporting his son, who he regards as humble and obedient and dedicated to his job as a police officer; the father is willing to assist in payment of compensation of up to K3,000.00 to the families of each of the deceased. Mathias Yangi has a grade 12 education and joined the Police Force in 2001. He supplements his salary by selling cash crops such as cocoa and coconut. He is a member of the Revival Centre Church. His health is sound. There is no information available as to the attitude of the deceaseds' relatives as they were not interviewed. He is considered suitable for probation.

8. Mrs Meten submitted that it was significant that the offender was a police officer who committed the offences in the course of executing his duties. The deceased were all reasonably suspected of involvement in drug smuggling. The offender did not resist arrest, despite being treated badly by the arresting officers, and co-operated throughout the police investigation and did not deny that he had shot the three deceased. He has shown genuine remorse by admitting that he made mistakes. Those mitigating factors bring the case within the second category of murder cases recognised by the Supreme Court in Manu Kovi v The State (2005) SC789, so an appropriate sentence would be 16 to 20 years imprisonment for each offence, which should be served concurrently due to the close connection between the offences. The offender has no criminal record and had been committed to his job and maintained law and order for ten years prior to the incidents that led to his conviction. The pre-sentence report shows that he is suitable for probation. Mrs Meten submitted that the court should exercise its discretion to order that some part of the sentence be suspended subject to payment of compensation.

9. Mr Tamate highlighted that none of the deceased was attempting to escape or resisting arrest or armed. The offender acted recklessly, shooting each of them at close range, showing a complete disregard for human life. There was no need to shoot any of them. Mr Tamate did not agree that the offences fell within the second category of the Kovi guidelines. He submitted that they are category 3 or category 4 offences, so the appropriate sentence is 20 to 30 years or even life imprisonment for each offence. He agreed, however, that the sentences should be served concurrently.

10. To determine the appropriate penalty I will adopt the following decision making process:

11. Section 300 of the Criminal Code provides that the maximum penalty for murder is life imprisonment. However the court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code.

12. I will apply the sentencing guidelines for murder in the leading Supreme Court case of Manu Kovi v The State (2005) SC789, which are set out in the following table.

SENTENCING GUIDELINES FOR MURDER
FROM SUPREME COURT'S DECISION IN MANU KOVI'S CASE

No	Description	Details	Tariff
1	Plea – ordinary cases – mitigating factors – no aggravating factors.	No weapons used – little or no pre-planning – minimum force used – absence of strong intent to do grievous bodily harm.	12-15 years
2	Trial or plea – mitigating factors with aggravating factors.	No strong intent to do grievous bodily harm – weapons used – some pre-planning – some element of viciousness.	16-20 years
3	Trial or plea – special aggravating factors – mitigating factors reduced in weight or rendered insignificant by gravity of offence.	Pre-planned – vicious attack – strong desire to do grievous bodily harm – dangerous or offensive weapons used, eg gun, axe – other offences of violence committed.	20-30 years
4	Worst case – trial or plea – special aggravating factors – no extenuating circumstances – no mitigating factors, or mitigating factors rendered completely insignificant by gravity of offences.	Premeditated attack – brutal killing, in cold blood – killing of innocent, harmless person – killing in the course of committing another serious offence – complete disregard for human life.	Life imprisonment

13. I accept the defence submission as to the offences committed at the market. The offender rightly suspected that the occupants of the vehicle were involved in criminal activity and he had just seen what he thought was a real pistol in the vehicle. It transpired that the pistol was a toy but he did not know that at the time. The situation was very tense and I consider that he had no strong intent to do grievous bodily harm to the two deceased, Titus Osi and Abobo Sarus. Those are mitigating factors that bring the first two offences within category 2.

14. The third offence, committed at the police station, was much more serious. By this stage the offender had realised that the pistol that he saw in the vehicle was a toy. No one was attempting to escape and all of the men lying on the ground were unarmed, yet the offender opened fire. His shooting of the third deceased, Andrew Conney Menzi, in these circumstances must be categorised as a vicious attack, showing a strong desire to do grievous bodily harm. The mitigating factors are rendered insignificant by the gravity of this offence. I do not consider that the shooting of the deceased was premeditated or that the death can be labelled as a cold blooded killing or that any other aspects of the killing of the deceased bring the case within the worst case category. Although it comes very close to being regarded as a category 4 offence, I conclude that the third offence falls into category 3.

15. The starting point ranges are therefore 16 to 20 years for the first two offences and 20 to 30 years for the third offence.

16. Three cases involving police officers sentenced for murder are worthy of mention. In Triga Kakarabo v The State, SCR No 23 of 2001, 03.10.02 the Supreme Court dismissed an appeal by the offender who had been sentenced to 18 years imprisonment for the shooting death of a schoolboy that occurred in a tribal fighting area.

17. In the Madang case of The State v Abaya Ulas (2010) N4009 the offender was not on official police duty but went to a village where the deceased was staying and with the help of others, raided the house the deceased was staying in and fired at least two shots from a police-issued firearm that he was carrying. The deceased died soon afterwards from haemorrhagic shock caused by a bullet wound to the leg. The offender was convicted after trial. It was dealt with as a category 2 case under the Kovi guidelines and there were a number of mitigating factors warranting a sentence at the low end of the starting point range: 16 years imprisonment.

18. In the recent case of John Kule v The State (2011) SC1138 the Supreme Court upheld an appeal against sentence (of 16 years) by a reserve constable who had been convicted of the murder of a criminal suspect who was shot in the back while attempting to escape from custody. The Supreme Court decided that it was a category 2 case according to the Kovi guidelines, but because of the mitigating circumstances in which the offence was committed, the appropriate sentence was 13 years imprisonment.

19. The circumstances in which the three deceased were killed were not the same. Therefore for the purpose of allocating a notional sentence for each offence, each offence must be considered separately.
The first offence: deceased Titus Osi

21. I do not accept that the offender was treated badly by the arresting officers. There is no evidence of that; as the offender did not plead guilty it is not something on which he should be given the benefit of the doubt.

23. Comparing the circumstances of this offence with those in the cases referred to earlier I consider that it is more serious than either Kule (where the deceased was attempting to escape) or Ulas (where the deceased was not co-operating with the offender) and of equivalent seriousness to Kakarabo. The appropriate sentence is in the centre of the starting point range: 18 years imprisonment.

24. This offence was committed in the same incident as the first offence, at the roadside market. The circumstances are in one sense more serious in that the offender shot this deceased twice, whereas he shot the first deceased once. But in another sense they are less serious in that the deceased was shot in the leg (the right medial thigh) rather than in the area of the pelvis; though the right medial thigh is a vulnerable part of the body as it contains the major blood vessels and nerves of the leg, it seems that the offender was aiming at a lower part of the body. These factors balance each other out so the sentence will be the same as for the first offence: 18 years imprisonment.

25. The circumstances of this offence are much more serious than the other two as by this stage, at the police station, four of the seven occupants of the vehicle that the offender had waved down had been shot and wounded, they were all lying on the ground at the front of the police station, none of them attempted to escape and they were well and truly under police control. The offender had realised by then that the pistol he had seen was a toy. His shooting of Andrew Conney Menzi in these circumstances was brutal, vindictive and senseless. The appropriate sentence is at the top of the starting point range: 30 years imprisonment.

18 years (count 1) + 18 years (count 2) + 30 years (count 3) =
66 years imprisonment

26. The general rule is that if two or more offences are committed in the course of a single transaction all sentences in respect of the offences should be concurrent unless there are different victims (Public Prosecutor v Kerua [1985] PNGLR 85; Mase v The State [1991] PNGLR 88). Here, there were two incidents and three victims. I was surprised by the State's concession that the sentences should be served concurrently. I do not think that approach reflects the gravity of the offences or the fact that three lives were lost. Not even the first two sentences should be served concurrently. All sentences must be served cumulatively.

27. It is now necessary to look at the total sentence that the offender is potentially facing to see if it is just and appropriate having regard to the totality of the criminal behaviour involved. This is called the totality principle. The court must guard against imposing crushing sentences, those that are over the top or manifestly excessive (Acting Public Prosecutor v Konis Haha [1981] PNGLR 205).

28. Sentencing a middle-aged man to a 66-year sentence may well condemn him to life, and death, in prison. I am not convinced that he does not deserve such a sentence. However I consider that in all the circumstances it would be a crushing sentence so the total sentence will be 50 years imprisonment, apportioned as 15 years each for the first two offences and 20 years for the third offence.

29. Yes. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment, the whole of the pre-sentence period which is 1 year, 1 month, 3 weeks.

30. There is nothing in the pre-sentence report to warrant suspension of the sentence, there being no evidence of reconciliation with the relatives of the deceased or forgiveness or any attempt on the part of the offender's relatives or anyone else to contact them. The recommendation in the pre-sentence report for probation is unwarranted and unrealistic. I decline to suspend any part of the sentence.

31. Mathias Yangi, having been convicted of three counts of murder under Section 300(1)(a) of the Criminal Code, is sentenced as follows:

Length of sentence imposed	50 years imprisonment
Pre-sentence period to be deducted	1 year, 1 month, 3 weeks
Resultant length of sentence to be served	48 years, 10 months, 1 week
Amount of sentence suspended	Nil
Time to be served in custody	48 years, 10 months, 1 week
Place of custody	Beon Correctional Institution

Sentenced accordingly.
___________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Offender

National Court of Papua New Guinea

State v Yangi [2012] PGNC 361; N4628 (11 April 2012)