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State v Raphael [2018] PGNC 140; N7240 (27 April 2018)

N7240

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 353 & 354 & 359 OF 2018

THE STATE

V

MICAH RAPHAEL & JOE RAPHAEL & BOKOMO MANLEM

Kandrian: Miviri AJ
2018: 12, 19 & 25 April

CRIMINAL LAW – PRACTICE AND PROCEDURE – Murder S300 – plea –Two stoned deceased on head – third stabbed him in chest– section 7 & 8 principle offenders CCA–parity in sentence – convicted escapee aiding abetting – deceased security & reserve policeman – killed in course of duty – medical report penetrating injury of heart –no self defence – no provocation – PSR MAR – recommendation favourable to two – violent prevalent offence– sanctity of life – deterrent & punitive sentence.

Facts
Deceased security guard and reserve policeman was trying to stop a fight involving the defendants. He grabbed one of the defendants. The other two defendants assisted this defendant and hit deceased on the head with stones he let go of this defendant who turned around and stabbed him in the heart with a knife killing him. They intended to cause grievous bodily harm.

Held
Plea
Policeman killed in course of duty
Medical report confirmed stabbing of heart killing him
No respect for law and order.
No provocation
No self defence
Worst case
Imprisonment to life

Cases:

Acting Public Prosecutor v Mailai [1981] PGSC 7; [1981] PNGLR 258

State v Mongi [2007] PGNC 135; N3259

State v Yokum [2002] PGNC 24; N2337

The State v Apia [1978] PGSC 1; SC137

The State v Angitai [1983] PNGLR 185.

The State v Avia Aihi (No 3) [1982] PNGLR 92

The State v Gimble [1988-89] PNGLR 271

The State v Hagei [2005] PGNC 60; N2913

The State v Kovi [2005] PGSC 34; SC789

The State v Kwapena [1978] PNGLR 316

The State v Leslie [1998] PGSC 22; SC 560

The State v Martin [2008] PGNC 29; N3312

The State v Nimagi [2004] PGSC 31; SC741

The State v Porewa Wani [1979] PNGLR 593

The State v Rapola, [1988] PGNC 89[1988-89] PNGLR 487

The State v Sanawi [2010] PGSC 31; SC1076

The State v Ure Hane [1984] PNGLR 105

The State v. Ume [2006] PGSC 9 SC 836

Counsel:
A. Bray, for the State
R. Bellie, for the Defendant

SENTENCE
27^th April, 2018

1. MIVIRI AJ: This is the sentence of three men who pleaded guilty, firstly two on 12^th April 2018 in Kandrian and the third on 25^th April 2018 in Kimbe to the murder of a police reservist who was stopping a fight involving them. Matter was adjourned to 19^th April 2018 for presentence and means assessment reports to be furnished to the court, and for submission on sentence. That did not happen the reason now the subject of separate proceedings for contempt against Public Solicitors counsel representing the prisoners.
   
2. At the closure of the circuit in Kandrian the matter was adjourned to the 25^th April 2018 in Kimbe for the presentence and means assessment reports in each case. I now have the benefit of those reports for all prisoners which have been adopted by all as the facts and circumstances are similar and arise out of the same case. All are from the same village Paon in Kandrian. For purposes of determining sentence these reports will be considered in each case of the prisoners before the court. For prisoner Joe Raphael no presentence report has been applied for including a means assessment report. He is also a principle in the offence but could not be brought to Kandrian to stand trial as he was sick at the time. Upon recalling the matter in Kimbe he instructed to plead guilty and that was done in court with the other two prisoners.
   

Background

3. George Misang came upon the prisoners at night who were fighting. He called out, “Stop inap lo pait” interpreted, “Stop fighting that’s enough”. Then he grabbed hold of one of them Joe Raphael who retaliated and fought him. The deceased held onto him and both Micah Raphael and Bokomo Manlem picked up stones each which they used to hit the head of the deceased with. He let go of Joe Raphael who turned around and stabbed him in the chest with a bayonet shaped knife into the heart killing him. They had intended to cause him grievous bodily harm. But he died.
   

Murder s 300 (1) (a) CCA

4. All were charged pursuant to Section 300 (1) (a) of the Code prescribing the maximum of life imprisonment for the crime, discretionary depended on whether the case was the worst of its kind, otherwise it was a determinate term of years: Avia Aihi v The State (No 3) [1982] PNGLR 92).
   
5. The evidence disclosed that there was no self-defence as in Kwapena v The State [1978] PNGLR 316 or provocation as in Angitai v The State [1983] PNGLR 185. The prisoners were Joe Raphael 18 years old, Micah Raphael 19 years old who are biological brothers and Bokomo Manlem 26 years old against the deceased who was 54 years old unarmed. Micah Raphael and Bokomo Manlem were armed with a stone each and Joe Raphael was armed with a sharp knife.
   
6. Doctor Lawrence Warangi of the Kimbe General Hospital swore an affidavit dated the 14^th September 2017 attaching a medical report on the deceased George Misang that death occurred 10 days before the examination. The cause of death was Anoxia from penetrating injury to the heart. Penetrating wound to the pericardium by a sharp object. Including right and left ventricles causing cardiac arrest thus no blood supply to rest of the body resulting in Anoxia. He was 180 centimetres tall and 90 kilogram in weight aged 54 years old. The entry wound was 5 cm over the sternum towards lower part of the anterior chest wall injuring the pericardium and right and left ventricles with 50 mls of clotted blood as haemapericardium.
   
7. Quite evidently he stood no chance of survival from the injuries that were inflicted. It was the most venerable organ of the human body that was stabbed and would not have been so if both prisoners had not stoned him on the head which is yet again another venerable part of the body. They made it possible for Joe Raphael to deliver the fatal blow that killed him. Their roles are equal to Joe Raphael who stabbed him. It is as if they had stabbed him. They are not likened to Porewa Wani v The State [1979] PNGLR 593 where he called out, “Alaia alaia” interpreted, “Kill him Kill him” and Avia Aihi stabbed Morris Modeda, which bore out in the sentence that he received of seven years. But they facilitated and encouraged the commission of the offence they took active participation:
   

“In my opinion, to constitute an aider and abettor some active steps must be taken by word, or action, with the intent to instigate the principal, or principals. Encouragement does not of necessity amount to aiding and abetting, it may be intentional or unintentional, a man may unwittingly encourage another in fact by his presence, by misinterpreted words, or gestures, or by his silence, or non-interference, or he may encourage intentionally by expressions, gestures, or actions intended to signify approval. In the latter case he aids and abets, in the former he does not:”( Porewa Wani (supra).

8. All prisoners fit the scope of this definition by their active participation and present facts set out above. They are not likened to Nimagi v The State [ 2004] PGSC 31; SC741 where David Bawai and Tom Gurua were given distinct sentences from Joseph Nimagi. He was watching over Mrs Aihi at the time that David and Tom decided to abduct the daughter of the headmaster who retaliated to prevent and was shot by one of them in the process, so the court imposed 50 years against both for their lead and 20 years for Joseph Nimagi. Imposing a blanket sentence of 50 years would have meant that Joseph Nimagi would have been caught in that tidal and his role smothered without proper and proportionate accountability in law. See also State v Yokum [2002] PGNC 24; N2337.
   
9. All prisoners were at the same place same time and two hit the deceased on a venerable part of the body the head with the stones that each had. They aided and abetted each other and Joe Raphael who stabbed, “The general rule is that all active participants in the crime shall be sentenced on the same basis. The court does not normally stop to consider whether a particular prisoner actually held up the victim, or held the gun, or the iron bar, or was a watchman outside, or was the driver of the getaway vehicle. All are equally guilty because without each playing his part the crime could not be perpetrated.” Gimble v The State [1988-89] PNGLR 271 at 273. That is the case here and accordingly I apply that in respect of the prisoners. All will be sentenced as having played equal parts in the murder of the deceased.
   
10. Additional to Bokomo Manlem is that he was an escapee convicted by this court here on the 26^th May 2016 warrant of commitment of that date referenced CR153 of 2012 where he was convicted of one count of armed robbery and two counts of unlawful Grievous bodily harm. The court imposed 4 years IHL for the first count of grievous bodily Harm and 6 years for the second count to be served concurrently with the robbery term of 15 years IHL. He escaped and was at large when he committed this offence. In my view this is clear calculated defiance of the law, not only was he convicted of very serious offences, but by that fact he showed total contempt for the law and on this day did not respect that the deceased was a reserve policeman an officer of the law. That did not deter him to hit him with the stone on the head with his co-prisoner. All prisoners were equally to blame. By their conduct in the offence they encouraged each other and aided and abetted each other. I am fortified by Sanawi v The State [2010] PGSC 31; SC1076 authoritatively stating:
    

“A consideration of all these authorities shows that a court can impose a sentence that is in disparity with a sentence received by an offenders co-accused. That can only happen if there are good reasons such as prior conviction, conviction after trial, and playing a more active or leading role in the commission of an offence. Such factors need not exist in the one case at the same time. There could be one such factor, or there could be a combination of them.”

It is my view based on the evidence that the seriousness of the offence outweighs any disparity in the sentence upon all three. Bokomo Manlem has prior convictions and sentences that he was serving when he escaped and got himself involved here. Both Raphael Brothers are first offenders.

11. Their cases are similar to the case of Leslie v The State [1998] PGSC 22; SC 560 where the appellant was an escapee from prison convicted of wilful murder serving time in prison. Police were alerted to where he was at Siraka and surrounded the house. Lawrence Torres, a policeman involved in the operation then proceeded up the steps of the house where the appellant was and called out if there was anyone in the house. There was no response so he pushed the door open and found the appellant lying on the floor with a sawn-off shotgun. The appellant fired and shot Mr Torres injuring him on the right shoulder. Mr Torres ran out of the house and he was taken to the hospital to be treated. He suffered a ten percent loss of the efficient use of his right shoulder and this is a permanent disability. The doctor also reported that the victim suffers from constant arthritic pain in his right shoulder. The court imposed life imprisonment at first instance confirmed on appeal. It adopted and made these remarks in so holding:
    

“Outbreaks of violence...appear to be on the increase...The Courts must therefore do their duty to try to assist the preservation of orderly life and to convince police that they will be assisted and protected in carrying out their duties by the sanction that will be involved against anyone who attacks them.” And further, “The courts must protect the police, as they carry out their duties, by stern punishments on anyone who attacks them.” And further, “A policeman carrying out his duty deserves the full protection of the law. If he is trying to arrest an escapee, for example, he should be able to do so by virtue of the authority which attaches to his position without fear of attack. He should be able to arrest an escapee, although outnumbered by the escapee’s wantoks.”

12. I consider this applicable and endorse in full that ratio decidendi; Kandrian is remote, including many parts of the Country. A reserve policeman as here remote as he was, unarmed not backed up by a mobile squad or response unit and good radio communication was intent on serving his people without fear or favour. George Misang was prepared to give his life the pinnacle of his oath, the ultimate sacrifice for love of country and Constitution. He never looked back or stumbled or hesitated to enforce law and order on this occasion. The law is the same country wide for Policemen and women who despite the odds must be protected fully and this court has that duty to protect officers of the law as here by imposing strong and deterrent sentences. They are the physical presence, flesh and blood of law and order. To not protect them is to discard the fundamental pillar of law,order and justice in society imbedded in our Constitution our Supreme Law.

13. This court with the Supreme court have time and again stressed by very strong stern and punitive sentences to impose, imbed the supremacy of the Constitution, in Apia v The State [1978] PGSC 1; SC137 holding,

“that, where a policeman is attacked in the course of his lawful duty, the attacker must be severely punished. It is my view that an attack on a law enforcement agency, be it a police officer, Judge, Magistrate or CIS officer, is a very serious matter. I consider that an attack on any of the law enforcement agency is tantamount to an attack on the fundamental democratic institutions we have under our Constitution. The attack on the police officer in the present case, in my view, is tantamount to attack on the function of the Police Force under s. 197 of the Constitution. Neither the Courts nor the community at large should condone or tolerate violence against police officers who are going about their lawful and constitutional duties.”

14. Had they not acted as they did the deceased would not have been placed in a vulnerable and perilous condition where he did not have any defence from the knife used to stab him by Joe Raphael. That is one of the worst cases described by Justice Bremeyer in Ure Hane v The State [1984] PNGLR 105 at 107 the wilful murder of a policeman in the course of his duty.

15. Here in my view it is the worst case of murder because the actions of the prisoners are no different from Apia v The State (supra) where the prisoners were convicted of attempted murder of Policemen and were each sentenced to life imprisonment. The appellants had broken entered and stolen including the vehicle they were in when stopped by the police. A high speed chase ensued around Port Moresby. And when police finally corned them they leaped out of their vehicle to attack the three policemen who were following them. In a determined attack they drove off the two policemen with knives and returned to the vehicle for the police driver who they stabbed in his chest and back almost piercing the liver and lung. Almost collapsing the policeman drove his vehicle for help before collapsing. It was argued that they were youthful offenders and were first offenders and that the offence was not the most serious or worst of its kind and the sentence of life given was excessive. The court rejected that argument holding that:

“it found difficulty in these days in accepting pleas of youthfulness to serious crime; and this must be so particularly in regard to violent crime of the most serious categories. No figures were put before the Court on this appeal, but it is well known that a high proportion of urban crime is perpetuated by youth. In Papua New Guinea society it is to our observation the fact, that youths of 17 and 19 are frequently men accepting adult responsibility in society’s affairs. Certainly these appellants did not behave like immature youths in carrying their attack with determination to the persons of the police officers.”

16. I make similar observations here and adopt fully all these ratio decidendi as relevant to the facts and circumstances of the present offence against the prisoners. Joe Raphael is 18 years old, Micah Raphael is 19 years old at the time of the offence, Bokomo Manlem is 26 years old, Nimagi v The State (supra) reaffirms that youthfulness is no longer a relevant consideration in serious violent offences. I determine that to be so here the senseless and brutal killing outweighs the plea to youthfulness because to so accede would be to act contrary to section 55 equality of all citizens, section 59 of the Constitution natural justice to act fairly and, in principle, to be seen to act fairly. The rights of the prisoners are not superior to that of the deceased. Justice is blind and these observations are in the light of the fact that whether it was the prisoners or the deceased all had a right to life under section 35 of the Constitution. One was not inferior and the other superior all are equal one and the same.

17. Joe Raphael and Bokomo Manlem have admitted to consumption of homebrewed alcohol which is not a defence as it is voluntary, the death penalty was imposed upon a prisoner who had consumed marijuana and then killed a 7 year old girl, digitally penetrated her vagina, sodomized her and hid the body in a cave, State v Mongi [2007] PGNC 135; N3259. The prisoners self induced status of intoxication does not impair the dictate of the law against them:

“I adopt the principles stated in Goli Golu [1979] PNGLR 653; Avia Aihi v The State (No. 3) [1982] PNGLR 92 and Ure Hane’s cases and apply them to the circumstances of the instant case and I must say that the killing in the present case falls into the "worst type" category. The killing of the policeman was totally unwarranted. The accused in the instant case had shown complete disrespect and contempt for the process of the law. It is the duty of this Court to protect policemen, policewomen, warders and wardress in the execution of their lawful duties. All law enforcement agencies such as police, CIS officers and the Courts deserve the full protection of the law. In this manner, the stern approach by this Court in relation to sentencing on people who take lives of others in the most inhuman, cruel and gruesome killings of law enforcement agencies and other people for that matter ought to be consistent. State v Poroli [2004] PGNC 113; N2655 (25 August 2004) the death penalty was imposed for wilful murder of a policeman shot in the head like sheep to slaughter.

18. It is just punishment that like offenders be treated alike and there are no facts or reason or basis in law to deviate from the range and tariff of like offences some of which I have set out above. Further the Community must be protected from criminals exerting violence as here. There is no evidence of reformation or rehabilitation which has been drawn to the court in respect of each prisoner including formal education or employment or other material upon which sentence can be swayed in that regard, for all prisoners Acting Public Prosecutor v Mailai [1981] PGSC 7; [1981] PNGLR 258. The impact of the crime I have set out above outweighed viewed. There are no special or mitigating factors upon which will deviate the impact of the law upon each of the prisoners including any extenuating circumstances.

Presentence Report

19. Through Counsel prisoners applied for presentence report which was granted. Matter was adjourned to Thursday 19^th April and then 25^th April 2018 for that report to be furnished to court. It is not favourable to the release of Bokomo Manlem on probation a risk and threat to the community by that report. For Micah Raphael probation is favourable but would not be comparable with the gravity of the offence: State v Yokum [2002] PGNC 24; N2337; Rapola [1988] PGNC 89[1988-89] PNGLR 487. I take due consideration of the report in the case against the Prisoners. Of particular concern are that acceding to a non-custodial term would be disproportionate to the gravity of the offence.

Allocutus

12. All have expressed remorse for the offence and asked for the mercy of the court in the sentence upon them.
    
13. I have thoroughly considered their pleas for mercy and consider that to accede to their plea would under value the gravity of the offence they have committed. And would be inconsistent with the view of this court and the Supreme Court which I set out above that killing a policeman or even attempting to kill a policeman in the course of his duties is a very serious matter and this court has imposed the maximum penalty in each case. Both courts have viewed it as the worst case of its kind imposing the maximum penalty in each case.
    
14. I take due regard that the facts and circumstances of this case falls under category 4 of Kovi v The State [2005] PGSC34; SC 789. Because here is a case of a murder of a police reservist unarmed intent on quelling a fight in which the prisoners and another were involved. He stepped in to be hit on the head with stones each by the prisoner and to be stabbed by the person he had restraint from further fighting, what the prisoners did place him in a perilous position where he because of that fact could not defend himself from the knife that was lunged at his chest and into his heart killing him instantly. That level of violence was not called for three persons against one deceased firstly hit on the head by two with stones and then stabbed by another. There was viciousness in the attack. It was a brutal killing in cold blood George Misang was in no way a threat to the life of Joe Raphael when he stabbed him. He was harmless a police reservist intent on stopping a fight. There was complete disregard for human life especially when he plunged the knife and then pressed it down again a second time deep into depicting the injuries set out by the medical report in the heart. The two others did nothing to stop this happening. These draw parallel consistency with category 4 of Manu Kovi (supra.)
    
15. There are no apparent or identifiable evidence of extenuating circumstances here to deviate from the tariff and range category 4 in Kovi’s case (supra). Their guilty pleas are not extenuating circumstances nor do they diminish or tilt the scale to a determinate term of years. This court and the Supreme court has in similar cases laid out the path in sentencing for such criminality and the tariff and range reinforced by Manu Kovi reinforce this fact. It would be disproportionate given to go otherwise than down that path trodden.
    
16. Accordingly it is the judgement of the court that for the crime of the murder of police reservist George Misang you Joe Raphael, Micah Raphael and Bokomo Manlem are hereby sentenced to Life imprisonment in jail. No orders are made in respect of the terms for the earlier offences against Bokomo Manlem. No utility will be served in view of the effect of the present sentence.
    
17. The sentence of the court is Life imprisonment for all three prisoners.
    

Orders accordingly,

Public Prosecutor: Lawyer for the State
Public Solicitor : Lawyer for the Defendant