N9825

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 168 OF 2021

BETWEEN:
THE STATE

AND
ANDREW BAI

Waigani:     Salika CJ
2022:    24th June, 5th & 12th April, 1st August

Criminal Law – Practice and Procedure – Charge of Murder – s. 300 (1) of the Criminal Code Act – Use of a piece of timber with a protruding nail to assault deceased.

Criminal Law – Practice and Procedure – Prisoner a member of the Defence Force – s. 203 of Constitution – Defence Force and members of Defence Force not immune from prosecution.

Cases Cited:

Manu Kovi v The State (2005) SC789 
State v Paina (2015) N5867
State v David Solomon Lingen CR No. 1292 of 2009
State v Korken (2021) N8973
Simbe v The State [1994] PNGLR 38
State v Murray Oa (2021) N9385
State v Dege and Others (2002) 10 December N2333
State v Enuma & Others (1997) N1723.
State v Ugunnie and Others [1988-89] PNGLR 101

Counsel:

Mr J Gubon, for the State.
Mr M Sumbuk, for the Accused.

SENTENCE

1st August, 2022

1.	SALIKA CJ: INTRODUCTION: The accused was convicted of one count of murder under Section 300 (1) of the Criminal Code Act (CCA).

Brief Facts

2.       “On the early hours of 16th September 2019, at about 1.30 am, Andrew Bai, a serving soldier of the PNG Defence Force Air Transport Wing, was seen under the influence of alcohol at the ATS 1st Block, 9 Mile in NCD.  The deceased, a civilian, was also there at ATS Barracks with some of his friends having beer.

As they were drinking in the Barracks area, Andrew Bai became rowdy and started arguing with the deceased and chased him out of the Barracks.  The accused further started harassing and intimidating civilians who were selling their betelnuts at the betel nut market area for no good reason.  He then went into the Army Barracks and came out again with three (3) of his comrades.  They were seen armed with a bush knife and timber planks.  The accused began assaulting the deceased with the timber for no good reason.

The prisoner was armed with a timber plank that had a protruding nail on it.  The prisoner hit the deceased several times on his head using the timber.  The nail on the timber penetrated the deceased’s head and caused him serious injuries.

The deceased was rushed to the hospital where he received treatment for his injuries.  He was admitted and remained under medication until his death a month later on the 17th of October 2019, as a result of severe head injuries he sustained from the assaults by the prisoner.

The Court found that the prisoner’s conduct demonstrated an intention to cause grievous bodily harm to the deceased when he used the timber with nail to hit the deceased multiple times on the head, thereby contravening Section 300 (1) of the CCA.”

ISSUES

3. The only issue for the Court is to decide on the appropriate sentence to impose on the prisoner.

THE LAW
 
4. The maximum penalty under s. 300 (1) (a) of the Criminal Code Act is life imprisonment subject to s. 19 of the Criminal Code Act.  Section 19 gives wide powers and discretion to impose a lighter sentence than the maximum penalty prescribed under s. 300 (1) of the Criminal Code Act.

CASE PRECEDENTS 

5. The Supreme Court authority of Manu Kovi v The State (2005) SC789 puts this case into the second category and attracts 16 to 20 years.  I am reminded by the Defence counsel that Manu Kovi’s case is only a guide.   I agree it is a guide but the Supreme Court authority is binding on the National Court which I am now sitting as.

6. The Manu Kovi sentencing guide for murder are:

CATEGORY	WILFUL MURDER	MURDER	MANSLAUGHTER	
CATEGORY 1	-15 – 20years	-12 – 15 years	-8 – 12 years	
Plea.
-Ordinary cases.
-Mitigating factors with no aggravating factors.	-No weapons used.
-Little or no pre-meditation or pre-planning.
-Minimum force used. -Absence of strong intent to kill.	-No weapons used. -Little or no pre-planning.
-Minimum force used.
-Absence of strong intent to do GBH.	-No weapon used.
-Victim emotional under stress and de facto provocation e.g. killings in domestic setting.
-Killing follows immediately after argument.
-Little or no preparation.
- Minimal force used.
-Victim with pre-existing diseases which caused or accelerated death e.g. enlarged spleen cases.	
CATEGORY 2	-20 – 30 years-	-16 – 20 years	-13 – 16 years	
Trial or Plea.
-Mitigating factors with aggravating factors.	-Pre-planned. Vicious attack.
- Weapons used.
-Strong desire to kill.	-No strong intent to do GBH.
-Weapons used.
-Some pre-planning
-Some element of viciousness.
	-Using offensive weapon, such as knife on vulnerable parts of body.
-Vicious attack.
-Multiple injuries.
-Some deliberate intention to harm.
-Pre-planning.	
CATEGORY 3	-Life Imprisonment-	- 20 – 30 years-	-17 – 25 years	
Trial or plea
-Special Aggravating
factors.
-Mitigating factors reduced in weight or rendered insignificant by gravity of offence.	-Brutal killing. Killing in cold blood
-Killing of innocent, defenceless or harmless person.
-Dangerous or offensive weapons used.
-Killing accompanied by other serious offence.
Victim young or old.
-Pre-planned and pre-meditated.
-Strong desire to kill.	-Pre-planned. Vicious attack.
-Strong desire to do GBH.
-Dangerous or offensive weapons used e.g. gun or axe.
-Other offences of violence committed.	-Dangerous weapons used e.g. gun or axe.
-Vicious and planned attack.
-Deliberate intention to harm.
-Little or no regard for safety of human life.	
CATEGORY 4	- DEATH -	- LIFE IMPRISONMENT-	-LIFE IMPRISONMENT-	
WORST CASE – Trial or Plea
-Special aggravating factors.
-No extenuating circumstances.
-No mitigating factors or mitigating factors rendered completely insignificant by gravity of offence.		-Pre-meditated 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.	-Some element of viciousness and brutality.
-Some pre-planning and pre-meditation.
-Killing of innocent, harmless person.
-Complete disregard for human life.	

7.    This case falls into the second category described above.  The penalty recommended there is 16 to 20 years.  Even with that binding authority of the Supreme Court, this Court still has discretion by law, s. 19 of the CCA to impose a sentence lesser than the maximum prescribed by the Supreme Court.

8.     The following National Court case precedents were cited by State counsel to help the Court:

(a)	The State v  Paina (2015) N5867.
(b)	The State v David Solomon Lingen CR No. 1292 of  2009.

THE PRESENT CASE

9.     On top of the Constitution provisions, Section 15 of the Criminal Code states:

“15.	Defence Force

Officers and men of the Defence Force are, while on duty or in uniform, subject to the special laws relating to that Force, but are not exempt from the provisions of this Code.”

10. The prisoner here was a serving soldier at the time of the commission of this offence.  Section 203 (1) of the Constitution states:

“203.  Application of general rule.

Since it is necessary that the Defence Force and the members of the Defence Force have no special position under the law except to such extent as is required by the nature of the Force as a disciplined force and its peculiar functions, duties and responsibilities, it is hereby declared that, except as is specifically provided by  a Constitutional Law or an Act of the Parliament, the Defence Force  and the members  of the Defence Force are subject to all laws in the same way as other bodies and persons.”

11.      The Constitution and the CCA are clear on the application of the general laws, including the application of CCA on members of the Defence Force.

ALLOCATUS STATEMENT

12.  The prisoner is regretful of his action and asked for mercy and leniency.   His regret is telling on him.  He wants to make peace with the deceased’s family and relatives.

PERSONAL PARTICULARS

13.    Andrew Bai is from Kurumul village, Jiwaka Province.  He is married and has a child.  He has been a soldier since 2012.  He lived at the Air Transport Wing at the north side of the Jacksons Airport, Port Moresby.  He was educated at the Jimi Provincial High School and the Minj Technical Vocational School. 

MITIGATING FACTORS 

14.    The only mitigating factor is that he is a first time offender and this offence was not premeditated and only occurred from being intoxicated with alcohol.

AGGRAVATING FACTORS

15.   The following aggravating factors are noted and taken into account in sentencing:

a)	He is a member of a disciplinary force;
b)	He used a piece of wood with a protruding nail to assault the deceased;
c)	He chased other people with a bush knife.

CONSIDERATIONS IN SENTENCING

16.     This Court made the following remarks in the State v Korken (2021) N8973 in Minj:

“Murder is a serious crime of violence.  It involves taking the life of a human being.  Human lives are and should be spared at all and any cost.  I have dealt with a number of murder cases in the course of this circuit and some of the murders are gruesome and carelessly done.   There does not appear to be any respect shown for the sanctity of life.  It is almost like as if people have licence to kill whatever the circumstances.”

17.     I repeat those remarks in this case although the circumstances of that case are different to the circumstances in this case.  I am reminded by the Supreme Court in Simbe v The State (1994) PNGLR 38 that a sentence of a prisoner must be determined on its own set of facts and circumstances.  With respect, I agree with the Supreme Court statement and apply that principle in this case.

18.   The offender here was a serving soldier.  This means he was serving in a disciplined force.  See s. 203 of the Constitution.   In the State v Murray Oa (2021) N9385, this Court said:

“The Defence Force is a disciplinary force.  The prisoner is expected to have discipline in his veins, blood and head before he takes any actions.  He would have been trained to be disciplined in all aspects of life, and to have more self-control.”

19.   I repeat those in this case.  Discipline in the 1970’s was at its peak at the PNG Defence Force.  It began to decline in the 1980’s and 1990’s.  Now, there is very little left.  I do not make those observations lightly.  I refer to the matter of the State v Dege and Others (2002) N2333, where the Code of Military Discipline was thrown out the window by serving soldiers at the Moem Military Barracks.  Before that in 1997 in State v Enuma & Others (1997) N1723.  Even before that in 1989 in the State v Ugunnie and Others (1988-89) PNGLR 101, where the Code of Military Discipline was trampled on by soldiers who marched to Parliament.  Even more recently in 2021 (last year), is the Murray Oa (supra) example.  Again, discipline found wanting in that case.  With respect, discipline in the PNG Defence Force since those events have further deteriorated.  Command, control and discipline need to be restored.  All soldiers live by a Code of Military Discipline.  The Code provides the soldiers with a set of rules to live their lives in and out of the barracks.  Discipline helps to train a person’s mind and character.  It builds a sense of self control and practice obedience.  Discipline guides practices and social undertakings and self control.

20. Section 203 of the Constitution says:

“Section 203.  Application of general rule.

Since it is necessary that the Defence Force and the members of the Defence Force have no special position under the law except to such extent as is required by the nature of the Force as a disciplined force and its peculiar functions, duties and responsibilities, it is hereby declared that, except as is specifically provided by  a Constitutional Law or an Act of the Parliament, the Defence Force  and the members  of the Defence Force are subject to all laws in the same way as other bodies and persons.”

21. The above quoted law is clear that the Defence Force and its members are subject to all the laws and are not immune.

22.   I take into account the pre-sentence report and character references by a number of referees.  I do not necessarily accept their views of the prisoner.  They are entitled to their opinions of the character of the prisoner.  My opinion of the prisoner from the facts of this case is that he is not disciplined enough.   I take into account the drunken state of the mind of the prisoner at the time, although it cannot be an excuse.  See s. 29 (2) of the Criminal Code Act.  He did not control his drunken state.  I note the bel kol money that has been paid.  That was to appease the deceased’s relatives and to maintain peace.

23.   Considering all those factors noted above and the circumstances of the case, I sentence Andrew Bai to 13 years imprisonment.  He has been in custody for 2 years 9 months, awaiting trial and sentence.  Those are taken off from the 13 years.  The balance to serve is 10 years 3 months in hard labour.

______________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner