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State v Ambane [2022] PGNC 451; N9993 (22 September 2022)

N9993

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 408, 409, 410, 411, & 412 OF 2019

THE STATE

V

HUGO AMBANE &
TELIS TUI & GRAHAM HANGUAI & MARCUS NIMIHEAU &TONY KERUA.

Wewak: Miviri J
2022: 16^th June ;14^th & 22^nd September

CRIMINAL LAW – PRACTICE AND PROCEDURE – Murder S300 (1)(a) CCA – Trial – Severe Gunshot Wound Left Buttocks – Loss of Blood Death Resulting – Protection of Life – Policemen Subject to Rule of Law – Prevalent Offence – First Offenders – Strong Deterrent & Punitive Sentence – 20 Years IHL

Facts
Five Accused were policeman who discharged a gun that hit the deceased in the buttock area from which he bled to his death. They aided and abetted each other causing him Grievous Bodily Harm from which he died.

Held
Protection of Life.
Policemen bound by Rule of Law.
Aiding abetting Accused Section 7 CCA.
First Offenders.
Strong Deterrent Punitive Sentence
20 years IHL x5.

Cases Cited:
Avia Aihi v The State (No 3) [1982] PNGLR 92
Kovi v The State [2005] PGSC 34; SC789
State v Martin [2008] PGNC 29; N3312
Nimagi v State [2004] PGSC 31; SC741
Wani v The State [1979] PNGLR 593
Acting Public Prosecutor v Uname Aumane [1980] PNGLR 510
State v Wanimba [2005] PGNC 108; N2863
State v Karl [2018] PGNC 405; N7516
State v Jackson [2006] PGNC 154; N3237
State v Raphael [2018] PGNC 140; N7240
The State v Terence Houinei Cr 175 of 2021(12 July 2021).
State v Hagei [2005] PGNC 60; N2913
Mai and Avi, The State v [1988-89] PNGLR 56
Enn v The State [2004] PGSC 36; SC738

Counsel:

F.K. Popeu, for the State
A. Kana, for G. Hanguai
J. Javapro, for Rest of the Defendants

SENTENCE

22^nd September, 2022

1. MIVIRI J: This is the sentence of the five prisoners all who have been convicted of murder pursuant to section 300 (1)(a) of the Criminal Code Act.
   
2. The State has invoked section 7 of the Criminal Code against all accused in that they aided and abetted each other in the commission of the murder of Gabriel Kumasi on that day 26^th August 2018. And relevantly the allegation is that all five Prisoners individually and severely on the evening of the 26^th of August 2018 at about 6.00pm were in a vehicle, a white Toyota Landcruiser Utility belonging to a logging company. And they were travelling along the Yawasoro Police Barracks near the vocational School and passed a group of youths who were sitting on the side of the road. They turned the vehicle around and went to check the youth. For a suspect, one Nathan of wounding a relative of Marcus Nimiheau if he might be amongst the group. As they came back, they called out Police, Police, do not run. But the youths got up and ran. The deceased Gabriel Kumasi was one of the Youths, as they ran one Graham Hanguai discharged three shots from the Police issued weapon. One of the shots hit the deceased in the thigh and he fell down. He was taken to the hospital but died due to loss of blood that night. A medical examination showed deceased suffered severe gunshot injuries and loss of blood. He died as a result of the shot by Graham Hanguai who was aided and abetted by the others. And section 7 covered them because they all acted together with the intent to cause grievous bodily harm when he was shot.
   
3. Section 300 (1) (a) which section is in the following:
   
   • (1) Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder:–
     

(a) if the offender intended to do grievous bodily harm to the person killed or to some other person;

(b) if death was caused by means of an act–

(i) done in the prosecution of an unlawful purpose; and

(ii) of such a nature as to be likely to endanger human life;

(c) if the offender intended to do grievous bodily harm to some person for the purpose of facilitating–

(i) the commission of a crime other than a crime specified by a law (including this Code) to be a crime for which a person may only be arrested by virtue of a warrant; or

(ii) the flight of an offender who has committed or attempted to commit an offence referred to in Subparagraph (i);

(d) if death was caused by administering any stupefying or overpowering thing for a purpose specified in Paragraph (c);

(e) if death was caused by wilfully stopping the breath of a person for a purpose specified in Paragraph (c).

Penalty: Subject to Section 19, imprisonment for life.

(2) In a case to which Subsection (1) (a) applies, it is immaterial that the offender did not intend to hurt the particular person who was killed.

(3) In a case to which Subsection (1) (b) applies, it is immaterial that the offender did not intend to hurt any person.

(4) In a case to which Subsection (1) (c), (d) or (e) applies, it is immaterial that the offender–

(a) did not intend to cause death; or

(b) did not know that death was likely to result.”

4. The prisoners are liable subject to section 19 to be imprisoned for life years for the offence. That is the maximum penalty prescribed under that provision. Here it would not be the maximum sentence prescribed as the facts and circumstances do not warrant, but a determinate term will be imposed for the offence committed, Avia Aihi v The State (No 3) [1982] PNGLR 92. And it would be a determinate sentence befitting the facts and circumstances that have been depicted here. And relevant in this regard are the guidelines set out by Kovi v The State [2005] PGSC 34; SC789 (31 May 2005) that can be imposed in each offence set out. In the case here murder by the facts and circumstances would not be category three, 20 to 30 years imprisonment here. Yes, there is viciousness demonstrated in the attack, with the use of a powerful and lethal weapon a police issued gun, but there is no strong intent to do grievous bodily harm because that is not borne out by the evidence. In my view it would be more the upper end of category two because there was no strong intent to do grievous bodily harm, and a powerful and lethal weapon a gun was used. Though there was no preplanning, but some element of viciousness drawing 16 to 20 years IHL, Kovi (supra). And viciousness draws very stern and punitive sentences State v Martin [2008] PGNC 29; N3312 (12 March 2008) even though a guilty plea 24, 22, and 16 years were imposed respectively upon the prisoners for the crime of murder. It was a planned offence to kill an alleged sorcerer.
   
5. There may have been strong desire to detain and apprehend the suspect Nathan who was being sought out. And that is evident in the way two shots are fired in succession from the back tray of the white Toyota land cruiser on which were the prisoners. Followed by a third shot at the deceased Gabriel Kumasi also from there. Given these analysis all prisoners are looking at a starting point of 16 years to a maximum of 20 years imprisonment for the crime. This is because the evidence does not detail out who fired the shots from the back on that tray of that white Toyota Landcruiser open back single cabin all prisoners will not be distinguished in the sentence that is passed upon all. But the fact remains that all aided and abetted each other therefore the sentence will be the same for all. There will be no distinction made. They are equally to blame for his death. There is no difference between one or the other in the sentence that will be passed upon them. They are not likened to Nimagi v State [2004] PGSC 31; SC741 (1 April 2004), because they were all actively involved as in Wani v The State [1979] PNGLR 593. One of them fired the gun from the back tray of that white Toyota land cruiser open back where they all were. They did not withdraw or disassociate themselves from that purpose. So, the sentence will be the same against all prisoners named.
   
6. And this fact is confirmed and detailed out by the medical report dated the 12^th September 2018 under hand of Doctor Jimmy Kambo, exhibit P1. It confirms the identification of the body as that of Gabriel Kumasi whose examination he conducted 16 days after his death. And the Doctor stated that the cause of death was gunshot. And the date or time of death was 27^th August 2018. The cause of death was severe Gun Shot injury. And that externally he was a 35-year-old Melanesian with a gunshot wound noted on the left buttock of which there was no exit wound noted and there were also no other injuries noted. And internally the gunshot entry was diagonal with the direction of the left thigh. The left iliac bone fractured into small fragments. And doctor was unable to locate the gunshot pallet. The left buttock muscle was shattered from the pallet. And the conclusion was that death occurred due to severe gunshot injury and loss of blood.
   
7. It is overt given these facts that there was intent to cause grievous bodily harm as the injury was life threatening and indeed caused the death of the deceased. And in this regard, it would also fall into the top end of the second category of murder cases. That means the range of sentences due the prisoners for the crime of murder would be 16 to 20 years imprisonment. It is also important to consider that each case is determined by its own facts and circumstances, Acting Public Prosecutor v Uname Aumane [1980] PNGLR 510. Sentence must be proportionate and fit the crime according to law. It will not be dictated by custom or practises in life, nor is it a mathematical formula. Like offenders must be treated alike except for the facts and the circumstances.
   
8. In allocutus Hugo Ambane stated he was from Kundiawa, Chimbu Province. He had come to Wewak in 2011 and had served for 10 years. Which service included many good things. He was attached with Task Force and moved almost everywhere within the East Sepik Province. And had worked to face big problems which included taking many defendants to Court. One such instance was at Mangar. And he was one of those who went in and settled the matter including the bomb threat outside the Court and the roadblock set up. I have a family, first born is 5 years old. Second born is 2 years old and the third born is a baby 3 months old. And along the way this trouble happened and Court has found me guilty I ask for the mercy of the Court.
   
9. Telis Tui in allocutus said he was from Southern Highlands Province. He joined the police in 2015 and transferred here working up to now. He worked in the traffic section serving plenty of accidents from which he brought many to Court for the accidents. He also did many other duties within. I am married with two children. The first is a boy 3 years old. The second is a girl 1 year old. I am sorry for what happened. As a Policeman I attended to a complaint. We went to the scene and was surprised when this incident occurred. The Court found me guilty. I am a first offender. I ask for the mercy of the Court.
   
10. Graham Hanguai was 32 years old from Tari Hela Province. In 2016 I passed out and came here and have served this people up today. For the incident I am sorry for what occurred at Wariman. I am sorry for prolonging the Courts time. I helped many sections of Police, CID, Task Force currently. I went with Policemen we stopped the burning of the house of the Complainants. I am married and have my sick father with me now. I ask for mercy of this Court.
    
11. Marcus Nimiheau is 31 years old married with two children. The first is 5 years old and the second is 3 years old. In 2014 he passed out as a policeman. I served 3 years in Mt Hagen. And 5 years in East Sepik Province. I am sorry for my father and mother. And family of the late deceased. I worked with Police and the incident happened. I am attached as a CID officer. In the five years I served Sepik is a very hard Place. And where the incident arose, we were working and it happened. I say sorry to the Court. And I ask for the mercy of the Court.
    
12. Tony Kerua said I am from Chimbu. In 2014 I passed out and came to the East Sepik Province. And I have served my career here. Currently I am a CID officer looking after Wosera Gawi District. There are many forms of allegation. Personally, I have never been in court or officially. This is my first time in Court. My presence at scene discharging my duties. Participation only God knows. Allegation got me and now I am guilty. God witnessed it I will accept the will of God. God help my life. I am sorry to family of the deceased. How you feel when your loved one is lost, I feel the same. I am sorry to the Court for taking up time. I ask for mercy of the Court.
    
13. There is no doubt that each of the prisoners served well and truthfully until this day 26^th August 2018 when one amongst them shot twice and then the third hitting the deceased killing him from the bleeding associated. All were first offenders with no prior convictions known to the law. All were remorseful for what they had done. They expressed remorse to the deceased and his immediate relatives. All were serving members of the Royal Papua New Guinea Constabulary when the incident arose.
    
14. But it was aggravated by the loss of life where a police issued gun was used with death resulting. The evidence detailed that there was really no need for the use of the gun in the manner it was used. There was no resistance nor were the deceased and the other boys with him armed and threatening the policemen, the prisoners. It was not a case of the life of the prisoners and so the way they acted. Here it was a case of a negligent and unlawful discharge that landed in the death of the deceased. And which consequence tied all prisoners to the offence. It was a reckless discharge of the police issued weapon.
    
15. What is proved beyond all reasonable doubt by the evidence called set out above is that Gabriel Kumasi died as a result of gunshot injury to the left buttock from which he bled to his death. He suffered that injury from a gunshot that was fired from the Toyota Land cruiser white in colour on which were the five accused who were picked up by Zackary Hakaure on the 26^th of August 2018. One of the Prisoners, Policeman Michael Nimiheau alias Marcus Nimiheau was in the cabin with the driver. The rest were at the back of the open back white Toyota Landcruiser. These were the four prisoner, policemen who were on the back tray. Amongst them were three guns, one was brought from the logging camp by Marcus Nimiheau. The other two were brought by the four prisoners, policemen who had got on the vehicle at Yawasoro Police Barracks. And the gun discharged was one or more of those police issued weapon in their possession by one of them from the back tray. Those were the only guns in the vicinity of the shooting of the deceased Gabriel Kumasi. And were discharged from where the four prisoners were at the back open tray of that vehicle Toyota Land Cruiser open back utility. And they were the only persons who had motive to discharge the guns in their possession because they were after a suspect Nathan who was being pursued by them. Because as soon as they shot Gabriel Kumasi, they jumped off the vehicle went and assaulted them. As they did the prisoner Marcus Nimiheau was identified by Jethro Singut as he was on the ground assaulted. He saw his face at close quarters.
    
16. Police shooting or assault by police leading to murder is not the first here in Wewak, State v Wanimba [2005] PGNC 108; N2863 (23 June 2005) was a 25 years’ imprisonment imposed upon the prisoners, policemen who had taken the deceased to vehicle for an allegation at the Wewak Boram Hospital Compound. He was taken to the Police vehicle assaulted and taken to the Wewak Police Station where the assaults continued leading to his death the next morning despite attempts to save him at the Boram Hospital.
    
17. In Kimbe in State v Karl [2018] PGNC 405; N7516 (20 September 2018) 18 years was imposed upon a policeman who continuously hit the deceased on his head with a piece of timber leading to internal bleeding that led to his death. He was charged with manslaughter pursuant to plea bargaining. It was held that just as a policeman is protected by the law, State v Raphael [2018] PGNC 140; N7240 (27 April 2018) life imprisonment was imposed for the crime of murder upon the prisoners who had stabbed a reserve policeman in the chest through his heart from which he died as he was trying to carry out his police duties to stop a fight. In the same way a citizen is entitled to be protected from Policemen who use their powers illegally and as here take the life of a fellow citizen. Because the sentence must ensure that policemen work within the bounds of the law in their duties. They do not exceed the authority given by the people to them under the Constitution section 197. They are not the law unto themselves and will never be so.
    
18. There is no preplanning of this offence the prisoners were intent on securing detention and apprehension of a suspect one Nathan. It was not to shoot the deceased Gabriel Kumasi. It would appear that this was a mistaken identification of the deceased for Nathan, but there was no formal and humane process followed to effect the detention. Two shots were discharged and then a third that fatally injured the deceased causing massive bleeding from which he succumbed. In this sense their case is not likened to the 24 years imprisonment imposed in State v Jackson [2006] PGNC 154; N3237 (24 October 2006) where there was planning to surprise the deceased a village court magistrate as he woke up in Petoe in Kerema allegedly because he was sorcerer responsible for the death of the brother of the prisoner and who was going to kill the prisoner in the same way. Bush knife was used to cut up the unsuspecting deceased unaware of the gruesome intent on the prisoner who cut him as he was unsuspecting baby-sitting his grandchild.
    
19. In The State v Terence Houinei Cr 175 of 2021(12 July 2021) in Kavieng 18 years was imposed upon the prisoner a policeman who had shot the deceased with a police issued firearm automatic weapon KIA rifle with 5.56mm live bullets for manslaughter in the back of the head killing him. Prisoner was drunk tied the deceased hands at the back with a cable. As the deceased was running away prisoner discharged that weapon at him at the back injuring him grievously from which he died. The conviction was for Manslaughter and the sentence imposed was 18 years imprisonment in hard labour. Like the prisoners here that prisoner was also by his duties involved in a lot of very good police work and had a very good record prior to his conviction. But a life lost will not be returned and therefore the penalty sentence imposed must reflect the sanctity of life and the provision of section 35 of the Constitution. Police must always be role models to uphold law and the rule of law. They are the face of the law in everyday life and cannot succumb to uprooting the law its rule and replacing it with anarchy, chaos, disorder, and unlawfulness. That is the reason why section 197 is implanted in the Constitution the highest and supreme law of the land. And it is for that reason that they are always referred to the as a disciplined force. By that fact discipline must be portrayed at the highest order. Because Policeman or former policeman have become leaders of this Country in many fields of Government because of that fact.
    
20. Here I find no extenuating circumstances as in State v Hagei [2005] PGNC 60; N2913 (21 September 2005) to deviate what is called for by the law due all prisoners. Their personal circumstances including their background and their unblemished service as members of the Royal Papua New Guinea Constabulary is commended and considered in the sentence due each of them individually and severely. There is nothing in this respect that will devour the fact that a fellow human being lost his life no fault of his at the hands of the prisoners in a group aiding and abetting each other on that day. A gun a police issued weapon is always by the side of policemen in their duties. It is part of the uniform of a policeman. And its use is always the subject of intrinsic and delicate training meticulous at the Police College. There is always refresher and code of conduct issued with its use. Because policeman must always ensure he is safe and is accountable to the law and follows the law in the discharge of his duties. Illegal discharge and obtaining for example has seen the law in favour of the accused Mai and Avi, The State v [1988-89] PNGLR 56.
    
21. This training and expertise is not to torment and terrorize innocent citizens who are also like the policemen prisoners, born of a woman and protected by the same Constitution that has been the heart of this nation now for 47 years recently celebrated. It will not be defied further into mud and grime by illegality and unlawfulness from a few in the Constabulary who chose to exercise discretion to fortify lies deceit and unlawfulness. Independent and objective exercise without fear or favour must be the order of the day in the lives of every policemen and any public servant in similar. As no man is above the law given by God that; Thou Shall not Kill and that the wages of sin is death. In Enn v The State [2004] PGSC 36; SC738 (1 April 2004) on the morning of 17^th June 2000, the appellant left his village for Togel village to attend a reconciliation meeting with the aim to resolve an outstanding dispute. In the course of that meeting, the victim, Mathew Wamina and Margaret Daka had an argument and they then fought. Thomas Gend, one of their clansmen stopped the two from fighting. After they were stopped, the deceased walked back to where he was, to sit down. The appellant armed with a long bush knife walked up behind the deceased and struck the deceased with the bush knife on the left side of the neck. The impact of the knife blow was such that, the head was totally severed from the body.
    
22. The medical report made on the deceased on 30^th May that same year showed that the deceased sustained a severed neck from a sharp object applied with great force. Upon arraignment the appellant pleaded guilty and was sentenced to 20 years imprisonment. Appeal against was dismissed the appeal confirming the sentence of 20 years IHL.
    
23. It does not pay to discharge the duties of a citizen called as an officer of the law, a policemen in the way you all have done on this occasion on the 26^th August 2018 when you all aided and abetted each other in the commission of the murder of Gabriel Kumasi, when you shot him in the thigh from which he died from loss of blood that night. A medical examination showed deceased suffered severe gunshot injuries and loss of blood.
    
24. For that crime pursuant to section 300 (1) (a) of the Criminal Code Act you are all individually and severely sentenced to 20 years IHL. Time on remand will be deducted forthwith. You all will spend the remainder in custody forthwith.
    

Ordered Accordingly.

Public Prosecutor: Lawyer for the State

Public Solicitor : Lawyer for G. Hanguai

JPJ Lawyers : Lawyer for four Defendants