N6364
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 644 OF 2014 and CR NO. 1540 OF 2015

THE STATE

V

JOE NGOTNGOT

	AND	

EREMAS MUTIUL

Kokopo:   Anis AJ
          2016: 5 & 29 July

CRIMINAL LAW – SENTENCING - two prisoners found guilty of grievous bodily harm under section 319 of the Criminal Code Act Chapter No. 262 - prisoners policemen - serious assaults on a civilian - each prisoner sentenced to 5 years imprisonment - victim wants two prisoners to pay compensation and not go to jail - 5 years imprisonment each suspended - K6,000 compensation awarded against each prisoners plus 200 fathoms or shell money - other imposed conditions applied including an order that compensation be paid forthwith within 6 months
	
PRACTICE AND PROCEDURE – Police Force's role and duties under the Constitution and the Police Act 1998 discussed

PRACTICE AND PROCEDURE – Court's powers to award compensations under the Criminal Law (Compensation) Act 1991 and the Probation Act Chapter No. 381 discussed

Facts

The two prisoners were policemen.  The State charged both men with grievous bodily harm with intent, on a civilian.  They were convicted on the alternative charge of grievous bodily harm.  The Court found that the two accused had seriously assaulted and wounded a civilian Miriam Papakat with a softball bat and a fanbelt.  After their trial on sentence, the Court reserved its decision.

Held

1.	A starting point of four (4) years imprisonment should be imposed on members of the disciplinary forces that are found guilty of committing grievous bodily harm to a civilian or to the public.

2.	The two prisoners represent the Police Force or the Royal Papua New Guinea Constabulary as it is called under the Police Act 1998.  Their actions for which they were found guilty of were far from preserving peace, good order or from maintaining or enforcing the law, as stated under section 197(1) of the Constitution.

3.	The Court should not ignore a victim's request or plea in a sentence hearing.  In my opinion, before the Court decides for example not to award compensation contrary to the request of the victim, it should firstly rule out all reasonable considerations or possibilities on the subject matter.  These include, in my opinion, considering:

(i)	whether the victim's request for compensation is a fitting one for the type of offence committed;

(ii)	whether the victim's request for compensation is reasonable or fair; 

(iii)	whether the victim's request for compensation would greatly benefit or assist the victim on matters or issues that have arisen as a direct result of the offence been committed on the victim; and

(iv)	whether the prisoner is capable of paying the compensation that is being sought.

4.	Courts have exercised their powers in cases where more than one prisoner is sentenced and have awarded compensation at K5,000 or less per prisoner to the same victim and the total compensation would exceed K5,000 [see cases:  State v. Anos Naime Maraga (2002) N2433; State v Angaun Kakas, KakaliaTulu, Sukulin Passomb and Kalain Kula (1994) N1219].

5.	Apart from the Criminal Law (Compensation) Act, the National Court also has powers under section 18(1)(b) and (e) of the Probation Act Chapter No. 381 to award compensation beyond K5,000 [Cases followed: State v. Balthazar Basan (2012) N4896; State v. James Dar (2015) N6106].

6.	The victim Miriam Papakat did not want the two prisoners imprisoned but wants them to pay her compensation for the injuries she had sustained.

7.	The Court has duly noted and given effect to the victim's request in that the Court has imposed non-custodial sentences of five (5) years imprisonments against each prisoner with imposed conditions, which included compensation payments of K6, 000 cash plus 200 fathoms of Tolai shell monies to be paid by each prisoner to the victim within six (6) months.

Cases Cited:

State v. Angaun Kakas, Kakalia Tulu, Sukulin Passomb and Kalain Kula (1994) N1219
State v. Anos Naime Maraga (2002) N2433
State v. Balthazar Basan (2012) N4896
State v. Daniel Kapen (2013) N5133
State v. Danny Makao (2005) N2996
State v. James Dar (2015) N6106
State v. Nelson Maip (2015) N6091

Counsel:

Ms Aihi, for the State
Mr Kaluwin, for the two Prisoners

SENTENCE

29 July 2016

1.	ANIS AJ:   On 30 May 2016, I convicted the two prisoners Joe Ngotngot and Eremas Matiul (the two prisoners) each for the alternative offence of grievous bodily harm under section 319 of the Criminal Code Act Chapter 262 (Criminal Code).  

2.	This is my ruling on sentence.

BRIEF FACTS

4.	This Court found that on 14 December 2013 between 10am - 10:30am, the two prisoners with other policemen went to Kabakada village, Rabaul, East New Britain Province.  They went there to attend to a complaint of a disturbance that had occurred the previous night.  At Kabakada village, the Court found that prisoner Eremas Matiul used a softball bat and assaulted the complainant Miriam Papakat (Miriam).  The Court also found that prisoner Joe Ngotngot used a rubber fanbelt to assault Miriam.  The Court found that the two prisoners with others brought Miriam and another suspect to the main road to wait for the police vehicle to arrive.  The Court found that at the roadside the two prisoners continued to assault Miriam some more using the same softball bat and the fanbelt.  The Court found that Miriam cried out in pain and begged the two prisoners to stop but the two prisoners kept on assaulting her with the two weapons they each had.  The Court found that the police vehicle arrived and Miriam was taken to the Rabaul Police Station where she was arrested and charged.  The Court found that despite Miriam's serious injuries, which included a swollen dislocated right leg, she was kept at the police cell for two days before she was granted bail and released.

ISSUES

5.	The issues are:

(i)	What would be the fitting punishments for the two prisoners?

(ii)	Should this Court impose custodial sentences on the two prisoners?

(iii)	If not, what type of punishments should be imposed on the two prisoners?

PERSONAL DETAILS & ALLOCATUS

(i)  Prisoner Joe Ngotngot

6.	The prisoner has no prior convictions.

7.	He is 44 years old and comes from Tavui No. 3 in Rabaul, East New Britain Province.  The prisoner's highest education attained is grade 10 at Boisen High School in Rabaul.  He joined the police after that.  He worked as a policeman for 24 years.  He is currently married to Joylyn June and has two (2) sons.  They both attend schools.  The prisoner had previously been married.  From his earlier marriage, he had three (3) children.  Presently, the prisoner looks after all his children except his daughter from his earlier marriage who is being looked after by his former wife Angela Raubi who is based in Lae.  

8.	The prisoner's parents are alive.  The prisoner presently takes care of his father who is said to be suffering from TB.  He has six (6) siblings, two (2) brothers and four (4) sisters.  The prisoner is the fourth born in the family.  None of his siblings are employed.

9.	The prisoner had these to say at allocatus:

•	he said sorry to the Court
•	he said he was executing his duty when he encountered the incident
•	he asks the Court for mercy

(ii)  Prisoner Eremas Matiul

10.	The prisoner has no prior convictions.

11.	He is 26 years old and comes from Raburua village in Gazelle, East New Britain Province.  The prisoner's highest education attained is grade 12 at Kambubu High School in Gazelle, East New Britain Province.  He worked as a policeman for four (4) years.  The prisoner is married and has one (1) adopted child and two dependants whom he looks after.

12.	The prisoner has five (5) siblings.  He is the lastborn.  The prisoner's mother passed on in 2002.  His father remarried and moved on with his life.  The prisoner and his second lastborn sister Pauline Eremas were adopted and looked after by their uncle Nelson Tokiel.  Their uncle is alive and still cares for them.

13.	The prisoner had these to say at allocatus:

•	he said sorry to the Court
•	he said he thought he was performing his duty but encountered the incident
•	he asks the Court for mercy

MITIGATING & AGGRAVATING FACTORS

14.	I note and take into account the submissions by the parties on mitigating and aggravating factors.  Let me firstly list what I have considered as mitigating factors for the two prisoners:

•	both were first time offenders
•	evidence of possible provocation in the non-legal sense

15.	Secondly, I list the aggravating factors herein:

•	the two prisoners were policemen who were supposed to uphold the law but instead chose to break it
•	use of offensive weapons, that is, a softball bat and a fanbelt in the assault
•	the offence was repeated at various locations
•	the victim suffered injuries to all parts of her body including a suspected broken right ankle
•	police brutality is prevalent in Papua New Guinea

PENALTY

16.	The maximum penalty for the offence of grievous bodily harm is seven (7) years or less.  This is set out under section 319 of the Criminal Code.  

COMPARATIVE CASES

17.	I note the cases submitted by the parties herein.

18.	I have also considered the cases with similar type offences in this jurisdiction.  For this purpose, I have identified and will discuss two cases to assist me decide appropriate sentences for each prisoner herein.  The first is the case of State v Nelson Maip (2015) N6091.  The prisoner was policeman.  He shot the victim with a handgun three (3) times on the victim's left leg.  The prisoner pleaded guilty to the offence of grievous bodily harm under section 319 of the Criminal Code.  The victim refused to accept any compensation from the prisoner and expressed the desire that the offender be imprisoned.  The prisoner was sentenced to four (4) years imprisonment.  The Court wholly suspended the said prison term and imposed conditions.

19.	I note two significant distinctions between the case State v Nelson Maip (supra) and present case.  Firstly, in the case of State v Nelson Maip (supra), the prisoner had pleaded guilty to the charge of grievous bodily harm.  In the present case, both prisoners pleaded not guilty and a full trial was conducted where the Court had found them guilty of the offence of grievous bodily harm.  The second distinction is that the victim in the case of State v Nelson Maip (supra) did not want compensation and want the prisoner sentenced to jail.  In the present case and based on the two pre-sentence reports, the victim Miriam Papakat does not want the two prisoners to go to jail but wants compensation.

20.	The second case is State v Daniel Kapen (2013) N5133.  The prisoner was a policeman.  The prisoner approached youths who were drunk and fired one shot from his gun into the feet of one of the youths.  The injury was serious and permanent.  The prisoner claimed self-defence.  After the trial, the Court found the prisoner guilty of grievous bodily harm.  The prisoner was sentenced to five (5) years imprisonment.  Time served in custody was suspended.  The Court suspended two (2) more years for two reasons.  Firstly, due to the prisoner's good pre-sentence report, and secondly, the Court noted evidence of the prisoner's prior long and distinguished service in the police force.  The Court sentenced the prisoner to serve two (2) years, 11 months, 3 weeks and 5 days.

21.	The only significant difference I note is that the injuries suffered in the present case appear slightly less serious compared to the physical injuries suffered in the case of State v Daniel Kapen (supra).  

SUBMISSIONS

22.	This Court notes the submissions on sentences presented by the parties.  For the defence, it submits a prison term of one (1) year 6 months for prisoner Joe Ngotngot and two (2) years for prisoner Eremas Matiul.  The defence submits that in view of the favourable pre-sentence reports on the two prisoners, the Court should impose non-custodial sentences with conditions.

23.	The prosecution submits that this Court should impose a head sentence of prison terms ranging between three (3) to five (5) years for each prisoner herein.  The prosecution submits the pre-sentence times served by the two prisoners should be deducted from the imposed sentences.  The prosecution also submits that if the Court is minded to impose suspended sentences on the two prisoners that strict conditions are imposed together with.

FINDINGS

24.	The Court notes that the two prisoners had used different weapons together to commit the offence of grievous bodily harm.  Prisoner Joe Ngotngot used a fanbelt while prisoner Eremas Matiul used a softball bat.  This Court had held that the two prisoners aided and abated each other to commit the offences of grievous bodily harm under section 7 of the Criminal Code.  Because the Court had found the two prisoners also guilty under section 7 of the Criminal Code, I have decided to and will impose similar or the same head sentences on both prisoners herein.

25.	I will impose four (4) years imprisonment on both prisoners as starting points.  In my opinion, four (4) years imprisonment should be imposed as the starting point on members of the disciplinary forces that are found guilty of committing grievous bodily harm to civilians or to the public.  The two prisoners were not ordinary men who have committed the offence of grievous bodily harm.  They are policemen who have sworn oaths to uphold the law as prescribed by the Constitution and the Police Act 1998 (Police Act).  Let me set out some of the relevant provisions prescribed by these two legislations.  In relation to the Constitution, I refer to section 197(1).  

26.	It states and I read:

197.	Functions of the Police Force.

(1)	The primary functions of the Police Force are, in accordance with the Constitutional Laws and Acts of the Parliament—
(a)	to preserve peace and good order in the country; and
(b)	to maintain and, as necessary, enforce the law in an impartial and objective manner
(Underlining is mine)

27.	The two prisoners represent the Police force or the Royal Papua New Guinea Constabulary as it is called under the Police Act.  The two prisoners' actions for which they were found guilty of were far from preserving peace, good order or from maintaining or enforcing the law, as stated under section 197(1) of the Constitution.

28.	I also note that each policeman and woman is required to swear an oath before joining the force.  Under Schedule A of the Police Act, there are various oaths and affirmations.  Let me quote from two oaths therein as examples:

SCHEDULE 1.
Sec. 4

OATH AND AFFIRMATION OF OFFICE OF MEMBERS OF REGULAR CONSTABULARY.

Oath.

I, . . . , do swear that I will well and truly serve the Independent State of Papua New Guinea and its People in the office of member of the Royal Papua New Guinea Constabulary without favour or affection, malice or ill-will, from this day until I am discharged from that office, and that I will seek and cause the peace to be kept and preserved, and will prevent, to the best of my power, all offences against the peace, and that, while I continue to hold that office, I will, to the best of my skill and knowledge, discharge all the duties of it faithfully according to law.

So help me God!

OATH AND AFFIRMATION OF SPECIAL CONSTABLES.

Oath.

I, . . . , do swear that I will well and truly serve the Independent State of Papua New Guinea and its people in the office of Special Constable of the Royal Papua New Guinea Constabulary without favour or affection, malice or ill-will, from this day until I am discharged from that office, and that I will seek and cause the peace to be kept and preserved, and that I will prevent, to the best of my power, all offences against the peace whilst I am acting in that office, and that, while I continue to hold that office, I will to the best of my skill and knowledge, discharge all the duties of it faithfully according to law.

So help me God!

(Underlining is mine)

29.	In the Court's view, the two prisoners did not demonstrate the qualities as highlighted above when they assaulted the victim Miriam Papakat.  I will describe their behaviours as both criminal and inhuman.  They used a softball bat and a fanbelt, to cause grievous bodily harm to an unarmed civilian who happens to be a woman.  The victim was of slim built.  She was a mother and grandmother.  Her husband and family watched helplessly in shock at the time of the incident.  The victim begged the two prisoners to stop but they did not listen to her.  The two prisoners also humiliated the victim by swearing at her in front of her families and her community.

30.	I think it is fair to say that police brutality continues to be a common occurrence in this country.  In the Court's opinion, the situation (i.e., police brutality) at present is already very critical.  And I mean every word when I say "already very critical".  There has and continues to be strong public outcry for such brutalities by policemen and women in Papua New Guinea over its citizens or civilians to stop.  This Court will respond appropriately and impose higher sentences as well as set strict conditions against such law enforcers turn lawbreakers.

31.	The Court notes it has set four (4) years imprisonment as the starting point to determine appropriate sentences for the two prisoners.  The Court also notes that this case is suitable for deterrent sentences to be imposed.  The four (4) years imprisonment starting point seems to be high but necessary in the Court's view as a deterrent measure.  I note in the present case that the aggravating factors far outweigh the mitigating factors.  I particularly take into account the fact that the two prisoners were policemen who have failed to uphold the law, which was required and expected of them under the Constitution.  Secondly, I particularly take into account the type of weapons used and manner of assaults the two prisoners had used and had inflicted upon the victim herein.  This Court will therefore add an additional year to the sentences of four (4) years.  The Court therefore sentences the two prisoners each to serve five (5) years imprisonment with hard labour.

32.	Should the Court consider suspended sentences for the two prisoners?  This option is discretionary.  In my opinion, the Court should not shut out the option completely.  This Court has a duty to consider each case on its merit. 

33.	The Court's first view is that the two prisoners should not be given non-custodial sentences, that is, this Court should not suspend the sentences imposed on the two prisoners.  I think the two prisoners should serve the full five (5) years prison terms each with deductions from the time they had served in custody.  I am saying these despite the two good pre-sentence reports presented by the Community Based Corrections on the two prisoners.  The reports are not binding to the Court in the exercise of its powers in sentencing the two prisoners.  Also the two prisoners should have thought about all those things, obligations, or their loved ones as stated in their respective pre-sentence reports, before they committed the offence.  Such considerations are irrelevant and I think His Honour Justice Kandakasi has summarised that well in the case of State v Danny Makao (2005) N2996.  His Honour held and I read:

I note your personal and family backgrounds as put to the Court both by yourself in your own address in sentence, the pre-sentence report and in your lawyer’s submission on your behalf. These factors are however, of no consequence (h) as any adverse impact your sentence might have against your family, is the very consequence of your own actions.   As I noted in a number of cases already as in The State v. Raphael Kimba Aki (No.2) (28/03/01) N2082, the Supreme Court in Allan Peter Utieng v. The State (Unreported judgment delivered in Wewak on 23/11/00) SCR 15 of 2000 observed that an offender should consider his background first before committing any offence.  Implicit in that is the fact that, it is a little too late to talk about an offender’s personal background including the needs of his family once proven guilty according to law.  His background and concerns should have little or no weight against the need to impose a sentence or punishment that best befits an offence he has committed in the particular circumstances in which the offence was committed.

34.	Now, having said all that, there is one point mentioned in the two pre-sentence reports, which has persuaded this Court to reconsider the option for non-custodial sentences against the two prisoners.  I must emphasise that that is the only reason, which has convinced this Court against imposing the full five (5) years imprisonment sentences on the two prisoners.  Now, what is that point?  I refer to victim Miriam Papakat's views in the two pre-sentence reports.  When Miriam was asked whether she preferred that the two prisoners should be imprisoned, she said and I read from the Pre-sentence Report of prisoner Joe Ngotngot herein:

"She told the writer that she want(s) the offender to pay compensation rather than sentencing them to jail.  She requested K5, 000 compensation with Tolai shell money be paid.  This compensation will help her with her medical expenses and also pursue civil case against the state for damages."

35.	Miriam said the same thing in the Pre-sentence Report of prisoner Eremas Matiul.

36.	Despite the Court's earlier view, I note that the victim has spoken.  And I think I should give due consideration to the victim's wishes or requests when considering appropriate sentences for the two prisoners.  The Court should not ignore a victim's request or plea at sentence hearings.  In my opinion, before the Court decides for example not to award compensation contrary to the request of the victim, it should firstly rule out all reasonable considerations or possibilities on the subject matter.  These include, in my opinion, considering:

(i)	whether the victim's request for compensation is a fitting one for the type of offence committed;
(ii)	whether the victim's request for compensation is reasonable or fair; 
(iii)	whether the victim's request for compensation would greatly benefit or assist the victim on matters or issues that have arisen as a direct result of the offence been committed on the victim; and
(iv)	whether the prisoner is capable of paying the compensation that is being sought.

37.	The victim Miriam has stated that compensation, if awarded, would assist her to, amongst other things, seek proper medical attention.  This Court notes from the reports that Miriam still has physical and mental scars of the incident.  Miriam said the attack on her still haunts her to this day and she said she would live with that for the rest of her life.  According to the two pre-sentence reports, the probation officer observed that Miriam looked sick and weak.  She informed the probation officer she could only do light labour work.  The probation officer also observed that Miriam complains of pains to her head and heart.

38.	I turn now to the second sets of reports prepared by the Community Based Corrections, that is, the means assessment reports of the two prisoners.  In summary, the reports state that both prisoners have the capacities to make compensation payments to the victim.  Because both prisoners have capacities to pay compensation, this Court believes that justice would be better served if it also orders compensation herein.  I rule now that this is a case where an order for compensation is also appropriate under the circumstances. 

39.	The Court finds that:

•	the victim's request for compensation is a fitting one for the offence committed;
•	the victim's request for compensation appears reasonable; 
•	compensation awarded would greatly assist the victim who clearly appears to continue to suffer from her injuries;
•	an order for compensation is practically achievable given evidence of the capacities of the two prisoners to pay.

40.	The defence submits that if compensation is considered, the maximum compensation award should be K5, 000 for both prisoners.  The defence submits that K5, 000 is the maximum provided for under the Criminal Law (Compensation) Act 1991.  The defence further submits that the K5, 000 should be apportioned between the two prisoners should the Court make orders for compensation payments.  I take issue with these submissions on two basis.  Firstly, I note and acknowledge that the maximum compensation that is payable under the Criminal Law (Compensation) Act is K5, 000 [i.e., under the section 5(3) (b)].  But the question I have is this:  Whether the K5, 000 is payable per prisoner.  I note that the Criminal Law (Compensation) Act is silent or not clear on this point.  But when I turn to the case law, I see that courts have exercised their powers under the Criminal Law (Compensation) Act and have awarded compensation at K5, 000 or less per prisoner to the same victim.  In the end, the total compensation paid under the Criminal Law (Compensation) Act would exceed K5, 000 [see cases:  State v. Anos Naime Maraga (2002) N2433; State v Angaun Kakas, KakaliaTulu, Sukulin Passomb and Kalain Kula (1994) N1219].  Secondly, I note that apart from the Criminal Law (Compensation) Act, this Court also has powers under section 18 of the Probation Act Chapter No. 381 (the Probation Act) to award compensation beyond K5,000 [see cases: State v. Balthazar Basan (2012) N4896; State v. James Dar (2015) N6106]. 

41.	For the present case, this Court will not confine itself under the maximum compensation limit set by the Criminal Law (Compensation) Act.  This Court will invoke its powers under section 18(1) (b) and (e) of the Probation Act.  It states and I read:

18.	Additional conditions.

(1)	In addition to the conditions set out in Section 17(1), the court may impose all or any of the following conditions:—

...

(b)	that a probationer shall pay, within such period and by such instalments as the court determines, damages for injury, or compensation for loss, suffered by any person by virtue of the offence for which the probationer is convicted or shall carry out work in restitution for such injury, compensation or loss; and

...

(e)	that a probationer shall pay, within such period and by such instalments as the court determines, compensation according to custom to any person or persons.
...

42.	In line with my discussions above in my judgment on imposition of deterrent measures, I will add K1, 000 to the K5, 000 the victim has requested from each of the two prisoners herein.  I will also, pursuant to section 18(1)(e) of the Probation Act, award 200 fathoms of Tolai shell monies or the equivalent of K1,000, to be paid by each prisoner, to the victim.  I will also impose strict conditions as part of the sentences herein.

SENTENCE

43.	This Court notes that it has already sentenced the two prisoners to serve five (5) years imprisonment each with hard labour that is, five (5) years imprisonment for prisoner Joe Ngotngot and five (5) years imprisonment for prisoner Eremas Matiul.  

44.	This Court further notes that had it not been for the wishes of the victim herein, this Court would have sentenced the two prisoners to serve their full five (5) years prison terms less the times they had spent in custody.  These would have been the Court's final orders.

45.	For this case however, this Court will give due regard to the victim's requests.  The victim Miriam Papakat has requested the Court to award compensation against the two prisoners instead of sending them away to jail.  Of course, this Court is not obliged to listen to and give effect to a victim's request.  But I have exercised my discretion to do so because I think that it is in the best interest of justice and I have already provided the reasons above in my judgment.  I will therefore proceed on that basis.  But before I do so, I note that this Court has exercised its discretion differently to what the Court in the case of State v Nelson Maip (supra) had done.  In the case of State v Nelson Maip (supra), the Court refused to grant the victim's wish and instead imposed non-custodial sentence on the prisoner.  The Court therein took into account the pre-sentence report, which was favourable to the prisoner.  In the present case, this Court notes that both pre-sentence reports and the victim's requests were all favourable towards non-custodial sentences.  

46.	Coming back herein to address sentence, I firstly fully suspend the five (5) years imprisonment sentence this Court has imposed on prisoner Joe Ngotngot.  Similarly, I fully suspend the five (5) years imprisonment sentence this Court has imposed on prisoner Eremas Matiul.  I have not deducted the times the two prisoners had served in custody from their suspended sentences.  I note that the Court's power to make such deductions is discretionary under section 3(2) of the Criminal Justice (Sentences) Act 1986.  I refuse to exercise my discretion to make the deductions under section 3(2) of the Criminal Justice (Sentences) Act herein.

47.	Pursuant to section 16(2) of the Probation Act, the Court orders that prisoners Joe Ngotngot and Eremas Matiul be released on probation for a period of six (6) months.

48.	The Court orders that prisoner Joe Ngotngot shall pay compensation in cash in the sum of K6, 000 to the victim Miriam Papakat within six (6) months from the date of the order of the Court.  This Court also orders that prisoner Eremas Matiul shall pay compensation in cash in the sum of K6, 000 to the victim Miriam Papakat within six (6) months from the date of the order of the Court.  The Court further orders that the two prisoners shall each pay the victim 200 fathoms of Tolai shell monies which shall be the equivalent of K1, 000 each.

49.	This Court orders the probation officer responsible within the Community Based Corrections, to take charge and administer the compensation ceremony, which is to be held at the victim's area at Kabakada village in Rabaul, East New Britain Province.  The probation officer shall set a date within the six (6) months period as ordered by this Court, and the probation officer or his or her delegate shall attend or be present to witness the event.  The probation officer shall thereafter file in a further report on the matter with the National Court.

50.	This Court will also impose conditions that are set out under section 17 of the Probation Act herein.

SUMMARY 

51.	I refer to the issues.  In response to the first issue that is, What would be the fitting punishments for the two prisoners? my answer is "a non-custodial sentence of five (5) years imprisonment for each prisoner with compensation and other imposed conditions."  In response to the second issue that is, Should this Court impose custodial sentences on the two prisoners? my answer is "no".  And in response to the final issue which is If not, what type of punishments should be imposed on the two prisoners? my answer is "same answer as my answer to the first issue".

ORDERS OF THE COURT

I make the following orders:

1.	Prisoner Joe Ngotngot

(i)	The prisoner shall serve a non-custodial sentence of five (5) years imprisonment with imposed conditions.

(ii)	The prisoner is released on probation for a period of six (6) months.  Immediately upon being released herein, the prisoner shall report to the probation officer and he shall continue to do the same on the first Mondays of each month anytime between the hours from 8am to 4:06pm, for six (6) months.

(iii)	The prisoner shall make a compensation payment in cash of K6, 000 plus 200 fathoms Tolai shell monies to the victim Miriam Papakat.

(iv)	The compensation payments must be made within six (6) months from the date of the order of this Court and it must be held on a set date at Kabakada village in Rabaul, East New Britain Province.

(v)	The probation officer responsible shall furnish a report to the National Court regarding the ceremony and compliances thereafter, and the matter shall be listed for mention by the Assistant Registrar on a date in February 2017.  The prisoner shall appear on the date set and shall be further dealt with by the Court regarding compliance with conditions set herein.

(vi)	The prisoner shall retain his current address namely Tavui No. 3 in Rabaul, East New Britain Province, and shall co-operate fully with the probation officer at all times within the six (6) months period.  During this time, the prisoner must reside at that address and nowhere else except with the written approval of the National Court.

(vii)	The prisoner must not leave East New Britain Province without the written approval of the National Court.

(viii)	The prisoner must, during the six (6) months probation period, attend his local Church every weekend for service and worship and submit to counselling.

(ix)	The prisoner must not during the six (6) months probation period, consume alcohol or drugs.

(x)	The prisoner must, during the six (6) months probation period, keep the peace and be of good behaviour and must not cause any trouble for, or harass, the victim and her family.

(xi)	If the prisoner fails to pay the full compensation as ordered by the Court or breaches anyone of the imposed conditions herein, he shall be called upon and be brought back to the National Court to show cause why he should not receive his full sentence.

2.	Prisoner Eremas Matiul

(i)	The prisoner is imposed with a non-custodial sentence of five (5) years imprisonment with conditions.

(ii)	The prisoner is released on probation for a period of six (6) months.  Immediately upon being released herein, the prisoner shall report to the probation officer and he shall continue to do the same on the first Mondays of each month anytime between the hours from 8am to 4:06pm, for six (6) months.

(iii)	The prisoner shall make a compensation payment in cash of K6,000 plus 200 fathoms Tolai shell monies to the victim Miriam Papakat.

(iv)	The compensation payments must be made within six (6) months from the date of the order of this Court and it must be held on a set date at Kabakada village in Rabaul, East New Britain Province.

(v)	The probation officer responsible shall furnish a report to the National Court regarding the ceremony and compliances thereafter, and the matter shall be listed for mention by the Assistant Registrar on a date in February 2017.  The prisoner shall appear on the date set and shall be further dealt with by the Court regarding compliance with the imposed conditions set herein.

(vi)	The prisoner shall retain his current address namely Raburua, Gazelle, East New Britain Province and shall co-operate fully with the probation officer at all times within the six (6) months period.  During this time, the prisoner must reside at that address and nowhere else except with the written approval of the National Court.  

(vii)	The prisoner must not leave East New Britain Province without the written approval of the National Court.

(viii)	The prisoner must, during the six (6) months probation period, attend his local Church every weekend for service and worship and submit to counselling.

(ix)	The prisoner must not during the six (6) months probation period, consume alcohol or drugs.

(x)	The prisoner must, during the six (6) months probation period, keep the peace and be of good behaviour and must not cause any trouble for, or harass, the victim and her family.

(xi)	If the prisoner fails to pay the full compensation as ordered by the Court or breaches anyone of the imposed conditions herein, he shall be called upon and be brought back to the National Court to show cause why he should not receive his full sentence.

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Office of the Public Prosecutor:		Lawyer for the State
Office of the Public Solicitor:		Lawyer for the two prisoners