N5581

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 372 of 2010
CR 373 of 2010

THE STATE

-V-

EUGENE BANGAGU

AND

THE STATE

-V-

GLADWIN BALIK NIAKA

Kimbe: Batari J
2014: 10 March,8 & 14 April

CRIMINAL LAW–Sentence - murder – accused attacked deceased with rock with intent to cause grievous bodily harm –unlawful killing – plea – weight to be given on a plea – murder – prevalence of – factors in mitigation – sorcery related killing – sorcery – belief – evidence of – duty of counsel – 18 years appropriate 

CRIMNAL LAW ‒ Sentence ‒ assault doing grievous bodily harm ‒ propensity to violence ‒ assault precursor to murder by another‒ plea of guilty ‒ prior conviction for armed robbery ‒ 2 years appropriate.

Facts

Eugene Bangagu pulled the female victim out from a wake gathering and punched her on the face. He was indicted with assault doing grievous bodily harm. Gladwin Balik Niaka then threw a large stone repeatedly at the woman’s stomach. She died shortly afterwards. Niaka was indicted for murder and entered a plea of guilty.

Held.

In a murder case a plea by itself will not warrant any credit, unless made soon after the offence or coupled with other factors, at [9-10];

2. To rely on sorcery there must be evidence to establish a reasonable basis for the belief, at [22];

3. It is the duty of counsel to raise issues of custom or culture to assist the court in developing our jurisprudence in this area, at [22];

4. A killing on the spur of the moment with some elements of provocation from a third party lessens the serious culpability of the offender, at [23];

5. The payment of K7,500 compensation can be taken into account in mitigation, at 24-25];

6. It is in the public interest, that those with inclination towards violence and who act in blatant disregard of the rule of law ought to be removed from the society, at [31]. 

7. The appropriate sentence for the murder is 18 years in hard labour and for the assault occasioning grievous bodily harm two years, less time spent in pre-trial custody.

PNG Cases Cited

Irai Thomas v The State (2007) SC867
John Baipu v. The State (2005) SC 796
John Elipa Kalabus v The State [1988] PNGLR 195
John Kapil Tapi v. The State (2000) SC 635
Kwayawako v The State [1990] PNGLR 6.
Manu Kovi v The State (2005) SC 789
Public Prosecutor vs. Apava Keru and Aia Moroi [1985] PNGLR 78)
Simon Kama v The State (2004) SC 740
The State v Aiaka Karavea & Anor (1983) N452
The State v Malachi Mathias and John Giamalu (2011) N4670
The State v Paul Kalu (2011) N5270
The State vs. Gena & 4 Others (2004) N2649; 

Counsel

A. Bray, for the State
P. Moses/D. Kari, for the Accused

DECISION ON SENTENCE
14th April, 2014

1.	BATARI J: The accused persons (now, prisoners) are before the Court for sentence following their respective convictions on assault occasioning bodily harm and murder charges. Their offences arose out the same set of facts. I will sentence Gladwin Niaka first for his role in the unlawful killing of one, Saina Raphael. 

Background

2.	The agreed facts leading up to the killing are these. On 11/12/09 at Sarakolok Oil Palm Settlement, Kimbe, WNB Province, the prisoner was amongst numerous others who were gathered at the residence of John Kua at Section 5, Block 929 to bury his late daughter. After the burial, John Kua’s son, Paul addressed the gathering, urging squatters on the blocks to immediately vacate and leave, inferentially accusing them of his sister’s death. Prompted by those remarks, the prisoner, Eugene Bangagu grabbed the deceased from the group sitting under the house and dragged her out to the open. He then kicked her on the face causing her to bleed heavily from the nose. Prisoner Niaka next picked up a huge rock and repeatedly threw it against the deceased’s abdomen. She collapsed and died shortly after. 

The Law

3.	The charge of murder against the prisoner is brought under s 300(1)(a) of the Criminal Code. The maximum penalty is life imprisonment. This penalty is not mandatory because of s 19 which vests in the Court, discretion to impose a term of years. In the exercise of that discretion, the Court is required to consider all relevant facts, both apparent and latent, from the whole circumstances of the offence and the offender’s personal circumstances and whether the conviction followed a trial or a plea. A decision on the appropriate sentence that the whole circumstances of the case may warrant should then follow.
 
4.	I will deal first with the mitigating factors followed by factors against the offender and conclude with the penalty to be imposed.

A.	MITIGATION

5.	Mr. Kari of counsel for the prisoner relies heavily on the Pre-sentence Report and means assessment report his colleague, Mr Moses had earlier requested from the Probation Officer. A commendably comprehensive report compiled by Mrs Christine Robe is before the Court. Counsel has urged the Court to take into account a number of factors in his client’s favour. The prisoner also elected to speak when given the opportunity to say something on sentence. I will refer to some of those matters in so far as they are relevant and important factors in mitigation.

a)	Arrest and Custody

6.	The prisoner was arrested and detained shortly after the killing. He has spent two years six months in pre-trial custody. That is a substantial waiting time for his trial. I will deduct that period from the head sentence.
 
7.	In some instances such a long delay will warrant special consideration, where the prosecution of the accused person is procrastinated or frustrated by the administrative conduct of proceedings or due to procedural causes resulting in undue delay, or where the delay is directly connected with the court proceedings as in a very long delay in reaching the verdict. In those circumstances, the offender would have been genuinely aggrieved by the prolonged delay outside his own doing and contrary to his right to a fair trial within a reasonable time under s 37(3) of the Constitution.
 
8.	In this case, the prisoner was committed to stand trial on a wilful murder charge. His present charge of murder I think resulted from plea bargaining. Had that taken place or been pursued with vigour and better understanding early, it would have resulted in early disposition of his case. He does not however gain much from this as his initial defence was general denial. On the other hand, he would have a genuine grievance from the delay in affording him his right to be tried or represented separately in his defence. 

b)	Plea

9.	A plea of guilty will usually be reflected in the final outcome of the sentence imposed. However the consideration is more stringent in such serious cases as wilful murder, murder, violent rape or violent armed robbery where a plea of guilty by itself will not  warrant any credit. Existence of such factors like good background, restitution, old age, young age, etc., remorse and contrition may added to the plea and thus a cause for some discount on sentence: John Elipa Kalabus v The State [1988] PNGLR 195.

10.	How soon a plea is taken after commission of the offence or committal has long been recognised as a relevant factor in mitigation. The rationale is as I alluded to in The State v Paul Kalu (2011) N5270 in the following passage: 

“The significance of an early plea is the opportunity the prisoner would have missed in having to serve the penalty early. Besides, a plea at the earliest opportunity adds to consistency of the offender’s mitigating behaviour and penitence since the commission of the offence. It has been long recognised that a guilty plea may demonstrate and support remorse and contrition. See, Public Prosecutor v Tom Ake [1978] PNGLR, 469; Kalabus v The State [1988] PNGLR 193.”

11.	In this case, the prisoner’s conduct following the commission of the offence does not support remorse. His plea of guilty has nevertheless saved the court time and expenses on a trial. 

c)	Remorse

12.	The prisoner expressed remorse through counsel. The plea of guilty tends to support that as well. 

d)	Personal Circumstances

13.	The prisoner’s personal background is as per the Police Antecedent Report and the presentence report. Mr. Kari also made submissions on those reports. Suffice to note that at 19 years of age at the time of the offence, the prisoner was and is a first young offender. He is married with one child. Both his parents on whom he appears to be still dependant are resident at their Sarakolok oil palm block. After completing grade 10, the prisoner attended Mora Mora Technical School where he attained a trade certificate in auto electrical. At the time of the offence, he had not sought formal employment and was residing with his parents at their block.

e)	Motive

14.	Sorcery and payback appear to be the hidden motive for the unlawful killing. Gladwin is originally from East Sepik Province. His friends are from Chimbu Province. He may have been innocently present at the funeral gathering. I think he understood his Chimbu neighbours as accusing the deceased Saina Raphael of causing the death of their relative through sorcery. He then attacked the deceased for that reason. Latent in the circumstances of the killing is the belief in sorcery.
 
15.	Neither the prisoner nor his lawyer relied on sorcery related killing as a factor on sentence. It has long been recognised in this jurisdiction that sorcery related killings fall into a different category of homicide. This is because such killing, whether instantaneous or premeditated has the incontestable element of psychological customary and cultural belief in it. That belief in the existence and effectiveness of the powers of sorcery is so entrenched in the minds of the people and so widespread no amount of persuasion can simply remove, do away with or be declared non-existent by the stroke of a pen: Kwayawako v The State [1990] PNGLR, 6.

16.	The extent of belief in sorcery is succinctly stated by Kidu CJ in, The State v Aiaka Karavea & Anor (1983) N452(M) that:

“There is no doubt that in this country the belief in sorcery is widespread and nobody really has to prove to the court that it exists. Belief in sorcery exists amongst some of the most backward of our people up in the mountains of every province and also in the urban areas, including Port Moresby. Very well-educated people believe that sorcery exists and that there is power in people who practice evil sorcery to cause the death of other persons.”

17.	In Kwayawako v The State (supra) the Supreme Court at p. 8 stated:

"It is true that over the years the National Court and the Supreme Court have treated killings of reputed sorcerers as a special class of homicides for the purposes of sentencing. The courts have also assumed as a matter of undisputed fact the widespread belief, throughout the country, in the power of sorcery."

18.	The Supreme Court in the John Baipu v. The State (2005) SC 796 gives a further and more defined guide on sentencing sorcery related killing cases where the court stated:

“A believe in the power of sorcery is a mitigating factor on sentence where that belief was submitted as being the cause of the offence.… Where the belief is raised in submissions and confirmed by the record of interview the court is duty bound to allow the defendant to properly present it to the court to be taken into account in the defendant’s favor…..”(sic)

19.	There is however a caveat where the Court then observed:

“However we are of the view that all the aspects of social change in Papua New Guinea which have permeated to even remote parts of the country mean that it can no longer be assumed that a belief in sorcery will be treated as a significant mitigating factor in every case. The degree to which a belief in sorcery will mitigate a sentence will depend upon the facts of each case. Actions taken on the spur of the moment motivated by fear and self preservation and which have parallels to but perhaps do not amount to provocation as contemplated by s16 of the Sorcery Act are likely to increase the degree of mitigation.”

20.	And in Irai Thomas v The State (2007) SC867 the Supreme Court cited the case of John Baipu v. The State (supra) with approval in stating that:

“-- plea of acting on a belief in sorcery should only entitle an offender to a factor in mitigation just like any other mitigating factors and not as a special mitigating factor, if the offender is able to establish the basis for his belief. Whether the plea should be accepted or rejected would be dependent on whether the offender is able to establish the basis for his or her belief. In that regard, the decision in John Baipu’s case would be relevant and on point.” 

21.	The prisoner may have reacted on impulse in a situation that had suddenly presented itself. The attack may have not been planned. It started from an innocent intention and ended in an unfortunate tragic consequence. There has been no explanation for the prisoner’s conduct. But latent in the circumstances of the killing was the unexpanded possibility of this being a sorcery related killing.

22.	I have expended time on this issue to reiterate the duty of counsel to explore and raise issues of custom or culture to assist the court in developing our jurisprudence in that area. For instance, to rely on sorcery, evidence must be called to establish the belief and there must be reasonable basis for the belief (see The State vs. Gena & 4 Others (2004) N2649; Public Prosecutor vs. Apava Keru and Aia Moroi [1985] PNGLR 78): The State v Malachi Mathias and John Giamalu (2011) N4670. In this case belief in sorcery was not raised despite strong indications of this being a sorcery related killing. 

23.	Nevertheless, in the context of this being a killing on the spur of the moment with some element of provocation by a third party, the serious culpability of the offender is lessened. This does not however, excused his conduct.

f)	Compensation

24.	It is submitted that compensation of K7,500.00 in cash with three pigs has been paid to the relatives of the deceased. There was a compensation demand for K30,000.00 which the relatives have other lawful recourse to pursue. For the purpose of sentence, both prisoners have offered to pay further monetary compensation.

25.	The payment of compensation under custom has long been accepted as a relevant factor on sentence. In this case the initial payment made was I think, what is commonly referred to as, ‘belkol moni’ the principal purpose for which is to ease prevailing tensions, restore and maintain the peace in the community. It is strictly not a genuine negotiated customary compensation settlement to customarily correct a wrong. I accepted however, that the initial payment may be taken into account as part of reconciliation and settlement if, that occurs. 

B.	AGGRAVATING CIRCUMSTANCES.

 Use of Weapon

26.	It is well settled that unlawful killing through the use of a weapon aggravates the offence. The use of dangerous and life threatening weapons such as a bush knife, grass knife, axes, spear, a piece of iron, bow and arrow, stones, wood or sawn timber and the like, indicates determination and total disregard for the risk of serious bodily injury and even death. Hence, a higher sentence would normally be called for. See, John Kapil Tapi v. The State (2000) SC 635; Simon Kama -v- The State (2004) SC740; Manu Kovi v The State (2005) SC789.
 
 Personal conduct

27.	The prisoner attacked an unarmed innocent victim who had been rendered helpless by the brutal attack by co-prisoner, Eugene Bangagu. When he armed himself with a heavy rock, the clear inference is at least, to threaten violence and at the most, to cause grievous bodily harm. His sudden vicious and cowardly attack is a clear indication of his violent nature. Such conduct in a public show of summary execution of a mere suspected sorcerer indicated the highest degree of potential and actual violence against which the severest possible punishment is warranted. He showed the victim no mercy and complete disregard for her life. Yet she had the same right just as every man, woman and child in this country to live her God-given life to the full.

 Nature of injury

28.	From the post mortem report and medical certificate of death, Saina died from haemorrhagic shock due to internal injuries to the spleen and pancreas from direct blows to her abdomen. She died from injuries to internal vital organs. This suggested a forceful and determined attack with the murder weapon. The deceased was literally beaten to death. In some cases such conduct may support an intention kill. 
 
 Prevalence of Offence

29.	There is no issue that murder killings have been one of the most common offences of violence in this country. West New Britain Province has its fair share of murder killings that seems to be increasing rather than decreasing. The frequency of such killings just about anywhere in urban or rural areas suggests that mission and government influences have had little impact on attitudes of individuals. People must surely know that it is unlawful as well as morally wrong to take the life of a fellow human-being and that the penalty can be severe. 

C.	DETERRENCE

30.	The prescribed maximum penalty of life imprisonment represents the seriousness of the unlawful taking of the life of another. It represents the community abhorrence and repulsion because of the sudden loss of life sometimes, in horrific and bizarre circumstances. Unlawful killing is a direct challenge to the sanctity of life that is God given and safeguarded by the Constitution. Those who commit murder will invariably expect long jail terms.

31.	Anyone who unlawfully kills shows that he or she has an attitude or propensity towards violence. No society can tolerate such potentially violent persons living freely amongst its people. It is in the public interest, that those with inclination towards violence and who act in blatant disregard of the rule of law ought to be removed from the society. 

32.	Therefore, no amount of personal consideration or persuasion can save the prisoner from the legislative intention of Parliament that murderers must be punished with imprisonment. The court is empowered to apply the law to protect the society and its citizens by punishing the murderer.

33.	In terms of deterrence, I consider that the punishment should meet both the retributive and deterrent aspects of sentencing. The prisoner has the propensity towards violence and may re-offend again. The sentence should be sufficient to drive home to him at the personal level, the serious consequences of his conduct. I consider also that the general deterrence aspect of sentencing will warn like-minded persons of the risk of indeterminate or a very long term of imprisonment if convicted.

What is the appropriate Sentence in all the circumstances?

34.	In Simon Kama v The State (2004) SC 740 the Supreme Court attempted to give some guideline for murder sentences. This was followed shortly after that by the case of Manu Kovi v The State (2005) SC 789. Although different sentencing ranges for murder were suggested, both cases are consistent in suggesting increased sentence for unlawful killings. They also consistently suggest that the range for murder killings must be higher than manslaughter but lower than the range for wilful murder.

35.	I have referred to those principles. I agree with Mr Bray for the State that prisoner’s case falls into the 16-20 years range. Allowing for the seriousness of murder killings and those factors in his favour - his plea of guilty and the extent of his culpability, the prisoner is sentenced to 18 years imprisonment IHL. His time in custody will be deducted. I do not consider it appropriate to make any further suspension order on the head sentence.

36.	For Eugene Bangagu, he will be sentenced on the lesser charge of unlawful assault occasioning bodily harm. The maximum penalty is 3 years imprisonment under s. 340 of the Criminal Code.

37.	His case falls into the worse category, deserving the maximum penalty. He initially attacked the deceased. His role may have been played down. After incapacitating the deceased with a kick to the face, his co-prisoner ‘finished her off’ with a rock. In a way, his action was directly connected with and encouraged the subsequent conduct of Gladwin Niaka. It was as if he took her out for Gladwin Niaka to stone to death. Had he not done that, Gladwin Niaka may have not attacked the deceased in the manner he did. The facts suggested the two of them acted together. He too should have been convicted of murder or manslaughter. 

38.	However, I give him the benefit of doubt because he was said to have withdrawn from the scene and that Gladwin Niaka’s actions went beyond the intention to cause bodily harm. It is possible Eugene only assaulted the deceased and was not part of Gladwin’s aggression which resulted death. Be it as it may, Eugene’s conduct is still very serious. 

39.	Eugene has a prior conviction for armed robbery. His conviction by this court also involved a crime of violence. This fact is against the prisoner. Despite the gap between the two offences, one thing is clear. He has the propensity towards violence.

40.	I have considered and taken into account his plea of guilty. He also said he was sorry. However, his conduct immediately following the incidence and his uncooperative response to the police investigation does not support genuine remorse. On compensation, I make the same remarks as above.

41.	 Having considered all other matters submitted on Eugene’s personal circumstances, I have come to the view that, he be imprisoned. I am also of the view that there is no good reason to suspend all or part of the term I will impose. He is sentenced to two years imprisonment less his time in custody. 

42.	The orders of the court are that:

1)	Gladwin Niaka on the murder conviction is sentenced to 18 years imprisonment less two years and six months pre-trial custody period. Effective term to serve is 15 years, six months IHL.

2)	Eugene Bangagu on the assault occasioning bodily harm conviction is sentenced to two years imprisonment less eight months pre-trial custody period. Effective term to serve is, one year, four months IHL

_________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused