N10043

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1328 OF 2018

BETWEEN
THE STATE

AND
ALEX KURI
(No 2)

Mt Hagen:  Toliken, J
2022: 18th August, 15th September, 15th November

CRIMINAL LAW – sentence after trial – murder – police shooting – prisoner  pursued, shot and killed deceased – Deceased defenseless and posed no imminent danger  to prisoner – Strong intention  to cause grievous bodily harm – Mitigating factors including substantial destruction to prisoner’s properties and payment substantial compensation considered -  Aggravating factors including use of State-issued firearm considered – Appropriate sentence – 20 years less period in pre- and post-conviction custody – Nil  suspension- Criminal Code Ch. 262, ss 299 (1).  

Cases Cited

Lawrence Simbe v The State [1994] PNGLR 38
Avia Aihi v The State (No.3) [1983] PNGLR 92 
Golu v The State [1979] PNGLR 653 
Thress Kumbamong v The State (2008) SC1017
Manu Kovi v The State (2005) SC789
Simon Kama v The State (2004) SC740 
The State v Alex Kuri (2022) N9565 (30 March 2022) 
The State v Buka (No.2) (2016) N6349 
The State v. Anton Vele Aga (No.2) (2013) N5381 
The State v David Tavolla; CR No. 1042 of 2014 (No.2) (Unreported and unnumbered judgment of 2017)
David Tavolla v The State; SCRA  27 of 2019 (Unreported and unnumbered judgment of 20 February 2020) 
The State v Darryl Yakali; CR NO. 847 of 2021 (30 August 2022) 

Counsel

E Thomas, for the State.
D Pepson, for the accused

JUDGMENT ON SENTENCE

15th November 2022

1.	TOLIKEN J:	The prisoner Alex Kuri was originally indicted on 13th July 2021 for the wilful murder of one Mond Brown pursuant to Section 299 (1)(a) of the Criminal Code (the Code). On 30th March 2022, I, however, returned an alternative verdict for murder instead after trial. This is my judgment on sentence.

FACTS

2.	At the trial I found the following relevant facts which will now form the basis for sentencing the prisoner; the prisoner was at the relevant time a Probationary Constable. He was assigned to the then Acting Provincial Police Commander (a/PPC) of Jiwaka Chief Inspector Piamia Horim as his Close Protection Officer (CPO) and driver at the Jiwaka Provincial Police Headquarters at Banz.

3.	On Monday 13th August 2018, Chief Inspector Horim received a request for a security escort for then Minister for National Planning, Honourable Richard Maru and his delegation from Kagamuga Airport (WHP) to Banz (Jiwaka).

4.	Chief Inspector Horim left Banz for Kagamuga with the prisoner around 9.30a.m that morning. At Kagamuga he was advised by the organizers of the Minister’s program that they had hired two vehicles and they needed someone to drive one of these. Chief Inspector Horim instructed the prisoner to drive one of the vehicles, a white 5 Door Land Cruiser Registration No. LBM:830. He also handed over a Korean-made 5.56 mm caliber K2C rifle, bearing the Serial No. 003070 to the prisoner, which the latter had earlier signed out from the Police Armoury at Minj Police Station on instructions from Chief Inspector Horim.

5.	Only the Minister’s First Secretary arrived on the mid-day flight while his Press Officer and CPO were to arrive on the 4 o’clock flight. Chief Inspector Horim therefore left for Jiwaka, leaving the prisoner behind with the others to wait for these two.

6.	 The Officers arrived at 4.00p.m. and the entourage left Kagamuga between 4.45p.m and 5.00p.m. After a brief stop in the city, they headed for Banz arriving at the Jiwaka Mission Resort, where the delegates were to be accommodated sometime between 6.00p.m and 6.30p.m. The Resort is about a kilometer from Banz Town.

7.	The prisoner dropped off his passengers and then drove into town to pick up his wife. He picked up his wife from Waghi Klos and took her to the Police Station to pick up their vehicle which he had parked there earlier in the morning. They then drove back in separate vehicles to Waghi Klos. They stopped outside Waghi Klos to buy betelnut from the street vendors. The prisoner’s wife got out of her vehicle and went over to State Witness Genga Herman’s stall (market table) and bought some betelnut and smoke. She then returned and gave the betelnut and smoke to the prisoner and then drove into the Waghi Klos premises. 

8.	It so happened that while his wife was away three drunken boys came along and hit the vehicle he was driving as well as his wife’s while swearing at the same time. When his wife returned, he told her that it was getting dark, and she needed to go home and prepare dinner for them while he returned to the Jiwaka Mission Resort.

9.	In the meantime, the boys turned around and realizing that he was a policeman hurled abuses at him and continued towards Wara Mombol. Two crossed to the other side of the road while the deceased continued on. 

10.	After his wife drove off, the prisoner drove after the deceased, intending to block him off. Realizing that he was being pursued the deceased ran for his life towards St. Anslem Primary School. The prisoner stopped his vehicle and pursued the deceased on foot with his gun. He fired two shots at the fleeing boy. One shot hit the deceased on the back killing him. 

11.	After shooting the deceased the prisoner returned to the vehicle brandishing his gun at the angry crowd who had gathered. He then drove off to the Mission Resort where he told State witness Du Maine that he felt that he shot a boy in town. 

12.	Later Du Maine assisted the prisoner to get back to Waghi Klos. From there he (prisoner) later made his way to the Banz Police Station. By that time the angry mob had set his private vehicle on fire already. The prisoner was locked up that night and later charged for the wilful murder of Mond Brown. (See The State v Alex Kuri (2022) N9565 (30 March 2022) for judgment on verdict) 

THE ISSUE

13.	The issue for my determination is what would be an appropriate sentence for the prisoner. 

THE LAW

The Offence

14.	Section 300(1)(a) of the Criminal Code Act provides for the offence of murder in the following terms:

300.	Murder.
(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; or
…
Penalty:	Subject to Section 19, imprisonment for life.”

15.	Section 19 (1)(a) of the Code relevantly provides:

19.	Construction of provisions of Code as to punishments.

(1)	In the construction of this Code, it is to be taken that, except when it is otherwise expressly provided -

(a)	a person liable to imprisonment for life or for any other period, may be sentenced to imprisonment for any shorter term;
…

Sentencing Principles

16.	In sentencing offenders, it is trite that the maximum penalty is usually reserved for the worst instances of offending and that each case must be decided according to its own factual circumstances so that the sentence fits the crime. The task of sentencing is essentially an exercise of discretion except when that discretion is removed or curtailed by the Legislature. Discretion must, however, be exercised within the parameters of the prescribed penalty, guided by settled principles and where appropriate tempered with a lesser sentence by virtue of section 19 of the Code. (Golu v The State [1979] PNGLR 653; Avia Aihi v The State (No.3) [1983] PNGLR 92; Lawrence Simbe v The State [1994] PNGLR 38) 

17.	As Kapi DCJ (as he then was) said in Rex Lialu v The State [1990] PNGLR 487:

“The exercise of the sentencing discretion must be guided by proper principles. These include the characteristics of the offence or the offender which may aggravate or mitigate the seriousness of the crime taken together with all other relevant considerations. In this regard, it is desirable that the courts must be consistent in the application of these principles. These principles of sentence do not necessarily resolve the difficult task of fixing a particular term of sentence for any particular case. The reason is clear and it has been pointed out in previous cases that there is mathematical or scientific formula for arriving at a particular specific sentence from the general principles.”

18.	Regarding sentences for the crime of murder it is also instructive to heed the words of the Supreme Court in Lawrence Simbe v The State (supra). At p. 40 the court (Woods, Konilio and Sevua JJ) said:

“Each case must be decided on a case-by-case basis, but always remembering that the sentence laid down by s. 300 is life imprisonment and the term of years is by virtue of s 19.” (Underlining mine)

19.	That the sentencing court is cautioned not to lose sight of the maximum penalty of life imprisonment for the crime of murder is not without reason. The taking of life, whether intentionally or otherwise, is the most serious of offences principally out of respect for the sanctity of life. And that is why, until very recently, wilful murder carried the ultimate penalty of death while the lesser offences of murder and manslaughter still both attract life imprisonment.   

Sentencing Guidelines

20.	Over the years the Supreme Court has provided sentencing guidelines for the crime of murder. See Simon Kama v The State (2004) SC740 for instance. The most recent is, however, Manu Kovi v The State (2005) SC789, where, for the crime of murder the court formulated the following guidelines:

CATEGORY	CIRCUMSTANCES & SENTENCING RANGE	
1.	Plea or trial, Ordinary cases where there are mitigating factors but no aggravating factors	no weapons are used, little or no pre-planning, minimum use of force and absence of a strong intent to do grievous bodily harm – 12 – 15 years.	
2.	Plea or trial. Where there are mitigating and aggravating factors.	no strong intention to cause grievous bodily harm, use of a weapon, some planning and some element of pre-planning – 16 – 20 years	
3.	Plea or trial, where are special aggravating factors, mitigating factors are reduced in weight or rendered insignificant by the gravity of the offence, 	pre-planning, vicious attack, strong desire to do grievous bodily harm, use of a dangerous or offensive weapon such as a knife or an axe and where other offence of violence are committed – 20 – 30 years.	
4.	Trial or Plea where there special aggravating factors, no extenuating circumstances, no mitigating factors or mitigating factors are rendered completely insignificant by gravity of offence,	pre-meditated attack, killing is brutal and cold-blooded, killing in course of committing another offence and complete disregard for life – Life imprisonment.	

21.	While these guidelines are helpful in that they promote consistency as opposed to uniformity, another bench of the court in Thress Kumbamong v The State (2008) SC1017 (Salika J, Kandakasi (as they then were) and Yagi J) cautioned that a sentencing court should not feel compelled to rigidly follow Manu Kovi, but where appropriate exercise its discretion under section 19 of the Code and impose a lesser or alternative sentence.  The court further said that sentencing guidelines that prescribe minimum and maximum ranges within set maximum penalties amount to legislating and restricting the sentencing court’s discretion. What is implicit in this is that a sentencing court’s discretion may only be curtailed or proscribed by the Legislature. Be that as it may, Manu Kovi provides a useful guideline to the difficult task of sentencing as long as they are not seen as removing or restricting the court’s discretion. 

ANTECEDENTS

22.	The prisoner is 28 years old and comes from Kurumulg Village, Mul/Baiyer District, Western Highlands Province. He is the first of 7 siblings. Both his parents are still alive and live a subsistence life. He is a member of the Seventh Day Adventist faith. He is married with 2 wives. The first wife is from Jiwaka with whom he has 5 children. The second wife is from Kum Kopi, Central Hagen, Western Highlands Province.  The prisoner has a child with her. 

23.	The prisoner completed Grade 12 at Mt. Hagen Secondary School in 2013. He then joined the Royal Papua New Guinea Constabulary. At the time of the offence, he was a Probationary Constable assigned to the then Acting Provincial Police Commander for Jiwaka as his Close Protection Officer (CPO) and driver.
 
24.	He has no prior convictions and has been in custody for a period of 1 year 6 months and 18 days prior to his conviction on 30th March 2022. After conviction he has been in custody for a further period of 6 months and 21 days. In total he has been in pre- and post-conviction custody for a period of 2 years, 3 months, and 4 days.

ALLOCUTUS
 
25.	The prisoner gave a long and passionate address to the Court on allocutus. He accepted the Court’s verdict and apologized to God for taking a life and for taking up the Court’s time. He also apologized to the immediate family of the deceased. He said he did not intend to shoot or kill anyone at all. He was attending to his duties as tasked by his PPC to provide escort duties to the Minister for Planning, the Honourable Richard Maru, and his delegate. The commotion he said happened late in the afternoon. He said he was a lone police officer and so he jumped out of the vehicle and opened fire to scare the boys and crowd away for his own safety and the safety of the hired vehicle he was driving. He just fired one shot to scare the crowd away and did not realize that one of them was hit by the bullet.
 
26.	He drove all the way to the Jiwaka Mission Resort. Twenty minutes later they got a call from Kasel Coffee Factory advising them that a man had been shot in town and so they drove back to confirm this. They found out that it was alleged that the man was killed by his bullet and so he surrendered himself and the firearm to the PPC. He was immediately taken into custody.

27.	He pleaded for mercy because of the following:

•	He suffers from chronic back ache and asthma for which he said he was still being treated. (Provides medical report).
•	He is the only breadwinner for his young family, parents and his 4 siblings.
•	In retaliation his permanent house at Banz was burnt to the ground, and his Toyota Landcruiser 79 Model truck was set on fire on that same evening of the killing.
•	He had paid K23,000.00 in cash, 16 pigs, 3 goats and a cow as compensation to the relatives of the deceased.
•	His disabled father will not be able to care for his wife and children over and above his mother and siblings.

28.	In his own words he said:

“I lost everything – my family, my job, my house, and my vehicle. I will go to prison. I accept the verdict, but this will be a huge burden on my wife and kids and my parents. I beg for the Court’s mercy to consider all these and be lenient on me and give me a suspended sentence and have mercy on me. Finally, my final apology to the deceased family. I accept the Court’s decision.” 

SUBMISSIONS

State 

29.	Mr. Done, standing in for Mr. Thomas submitted on behalf of the State, that the circumstances of the case bring it under category 4 of the Manu Kovi guidelines, thus justifying a sentence of life imprisonment – the maximum penalty for murder which is reserved for the worst instances of the crime.

30.	Counsel submitted that a strong deterrent sentence is called for. The prisoner was not in any imminent danger. He acted recklessly with no regard for human life or the rule of law. The Court, counsel submitted must send a strong message to deter other police officers who are abusing their positions thereby trampling on the Constitutional rights of innocent citizens. And irrespective of the compensation paid, counsel submitted further that this was a deliberate and cold-blooded killing of a young man and is a clear abuse of power by the prisoner.

Defence

31.	Mr. Pepson submitted on behalf of the prisoner that the circumstances of this case fell within the higher end of category 1 and the lower end of category 2 of the Manu Kovi guidelines. Thus, the prisoner ought to receive a sentence between 12 and 16 years. However, considering the prisoner’s mitigating factors, extenuating circumstances, aggravating factors and the views expressed in the presentence report, an appropriate sentence ought to be 7 – 10 years.
 
32.	The prisoner’s presentence report (PSR) was balanced but the author recommended a custodial sentence.

MITIGATING/AGGRAVATING FACTORS

33.	I find the following mitigating factors in favour of the prisoner:

•	The prisoner is a first-time offender.
•	He had prior good character.
•	There was no preplanning or premeditation involved. Rather the killing was spontaneous.
•	Substantial amount of compensation comprising of K23,000.00 in cash, 16 pigs, 3 goats and a cow was paid to the relatives of the deceased.
•	The prisoner lost properties of substantial value such as his family home at Banz and Toyota Landcruiser 79 Series when the deceased’s relatives retaliated against the prisoner.
•	He appears remorseful but I place little weight on this after the prisoner unnecessarily forced a trial, which he of course has the right to do, but when the evidence was overwhelming against him, I see no utility at all in defending the indefensible.
•	He was provoked in the non-legal sense.
•	It appears from the medical report that he is suffering from chronic back pain and is an asthmatic as well.
•	The prisoner has waited for his sentence for quite some time and thus may have been affected emotionally or psychologically as result.

34.	Against him are the following aggravating factors:

•	The offence of murder (and homicides generally) is very prevalent, not only by the general populace but increasingly by members of the Police Force.
•	The deceased was a young man who was still in secondary school whose young life was cut off unlawfully by the prisoner.
•	The deceased was unarmed and defenseless.
•	The prisoner is a policeman. 

COMPARATIVE CASES

35.	There is a plethora of cases of homicide offences, and quite a good number of these unfortunately involve police officers that have and continue to come before the courts. I do not intend to belabour us by citing too many of these save to cite a few which are like the case at hand – that is cases involving police officers.

36.	A case in point is The State v Buka (No.2) (2016) N6349 (per Ipang J). The offender was convicted after trial for two counts of wilful murder. There the prisoner and his colleague policemen were patrolling the highway around Tari Town. They came upon a traffic jam caused by the Town Mayor who had parked his vehicle right across the road. They directed the mayor to remove his vehicle, but the mayor refused, and this led to a confrontation that eventually involved a crowd who were attending a funeral feast. The crowd became rowdy, and the police fired warning shots into the air to disperse the crowd killing the two deceased. It appears that the two deceased were totally defenseless and innocent bystanders. They were on higher ground and were not part of the rowdy crowd and were some distance away from where the confrontation took place. The crowd became rowdy when one of the policemen punched a member of the crowd. The offender panicked and without firing any warning shots, fired two shots, the first killing the first victim and the second shot killing the other. The court there viewed the killings as brutal and cold blooded of two harmless and innocent young men, and despite being a first-time offender, he was sentenced to life imprisonment for each count which it ordered to be served concurrently.

37.	In sentencing the offender his Honour relevantly said:

“18.  The use of State issued firearms and ammunitions by the member of the Police Force (RPNGC) have been of great concern by the members of the public. To such an extent that there is a serious decline in community confidence for the police Force. (RPNGC). Members of the Police Force (RPNGC) shooting of innocent members of the public has been a practice which has not changed and it is becoming a culture in the Police Force which must be addressed soon.

19. In the meantime, police do not have the license to carelessly, negligently and unjustifiably shoot any person whether he or she is a member of the crowd or be, he or she is a suspect or not. The State issued firearms to the Police Force (RPNGC) must be used under strict conditions. And that means the firearm issued to police must be used only extreme situations, circumstances or conditions of danger to life of a policeman or woman or other person and only after all reasonable and other possible alternative have been exhausted. Such was not the measure taken by the offender in this case.”

38.	The State v. Anton Vele Aga (No.2) (2013) N5381 (Geita AJ., as he then was).  The Offender was tried for wilful murder but was found guilty and convicted of manslaughter instead. He was a policeman on duty with others who were providing security at a dance at Wewak Yacht Club. The deceased, who was drunk, approached the offender and an argument erupted. The offender retreated to the Police Vehicle and got a SLR Assault rifle with the intention of warding off the deceased. But the deceased followed and scuffled with the offender. During the scuffle the rifle went off, wounding the deceased in the left rib. He was rushed to the hospital but died on arrival. The offender was sentenced to 7 years imprisonment which was wholly suspended.

39.	The State v David Tavolla; CR No. 1042 of 2014 (Unreported and unnumbered judgment of 2017): The offender there was convicted after trial for the wilful murder of a young man in circumstances which were quite like those in the current case except that the shooting happened in the night. Like the victim in the current case the victim there was also a student. He was attending a vocational center in Alotau. He was on his way to a choir practice at a church across the road from his school when they were sighted by the offender (a policeman) and his colleagues who were attending to a complaint over an attempted carjacking in the vicinity of the school. On seeing the victim and his school mate, the offender and his colleagues initially fired warning shots into the air. The victim and his friend turned and ran back to their school in fear. The offender then fired directly at the fleeing boys from a distance of about 5 – 10 meters. One of the bullets hit the victim in the skull killing him instantly, while others also injured his friend who fortunately survived. After killing the victim, the offender – a seasoned police detective - staged a scene to give the impression that the boy was armed by placing a defective gun which he had gone back to the station to pick up, and an empty cartridge shell casing beside the deceased.

40.	The offender had an impeccable service record, but I sentenced him to 25 years imprisonment. I acknowledged that policemen and women do take great risks every time they put on their unform and go out on duty and that they will sometimes be required to use their guns when their own lives or the lives of others are in imminent danger. There, the lives of the offender and his colleagues were not in any danger at all. The boys were totally unarmed and turned to run back to their school when they heard warning shots from the offender and his colleagues when the offender directly shot at them.
 
41.	Of police shootings and police brutality on citizens generally I there said:

“Police shootings (and brutality generally) resulting in fatalities are on the rise and citizens, particularly law-abiding citizens, are rightly concerned about their safety when in contact with the police. No longer does the ordinary man on the street, or in the village see policemen as their protectors and custodians of the rule of law. Rather, as some have commented elsewhere, citizens now fear police officers more than they do criminals.

Cases of police brutality, particularly those resulting in the death of innocent citizens such as the current case, must be met with appropriately stiff penalties for the sake of punishing individual offenders and for personal as well as general deterrence. Errant police officers ought to be appropriately punished so that the ordinary man on the street or in the village who does not have the means nor the power to defend himself, can once again have confidence in the policemen and policewomen who have sworn to protect him and his property. The fact that police officers must carry loaded arms when enforcing the law is, however, no license to break the law or become the law unto themselves and shoot to kill in every instance or in the slightest provocation. 

Every policeman knows that he or she is only allowed by law to use lethal force only when one’s life’s is in imminent danger. That said, it must be acknowledged that our police officers expose themselves to grave danger every time they put on that blue uniform and go on duty. This is especially true during this time when criminals and their associates are not only well organized, but also well-armed. Police officers are, however, fortunate in that the state arms them to protect lives and property and themselves in the course of their duty – a necessity which unfortunately the ordinary man does not have.”

42.	The offender appealed against his conviction to the Supreme Court. His appeal was dismissed by the Supreme Court (Mogish, Kariko, Murray JJ) on 20 February 2020. (See David Tavolla v The State; SCRA  27 of 2019 (Unreported and unnumbered judgment of 20 February 2020) 

43.	The State v Darryl Yakali; CR NO. 847 of 2021 (30 August 2022 per Mogish J): The offender was convicted after trial for the wilful murder of the deceased. The relevant facts are on the afternoon of 25th June 2020, the offender, a policeman in the company of other policemen went searching the deceased at Section 15 here in Kimbe town in a White 10-seater vehicle. They came across the deceased’s father and the offender told him to bring his son (deceased) with K500.00 to the Police Station the next day. The deceased’s father informed his son when he arrived home. However, some 30 or so minutes later, gun shots were heard around the Section 15 area. The deceased was shot and injured and was taken to the hospital. He died around 10 pm from hypovolemic shock due to serious gunshot injuries to his body according to the post-mortem report. The report revealed the deceased sustained fracture to his left and right tibia and right distal femur. Both the right and left artery had been severed.

44.	The offender admitted to shooting the deceased but raised the defense of self-defense. He did not give sworn oral evidence but relied on his answers in his record of interview with the police. From his own admissions, he shot the deceased once because he believed he was armed with a weapon. He discharged several shots after the deceased tried to wrestle the firearm off him. The trial judge found there was no credible evidence to support his belief, no such weapon was retrieved from the deceased body after he was shot, and his Honour concluded the offender’s suspicions were without any basis whatsoever.

45.	In sentencing the offender His Honour expressed the following:

This Court has a duty to impose sentence that are not only punitive and have a deterrent effect on the offender alone but also to other offenders and other police officers of like mind who plan on taking the law into their own hands. The Constitution guarantees everyone the inalienable and God give right to life. Killing another person is a constitutional crime unless excused by law. There are too many wanton killings as if life is a cheap and or a replaceable commodity that can bought from a shop. Killings involving police officers are becoming more daring and prevalent without fear and with no respect for the sanctity of life.

46.	His Honour was of the view that the circumstances of the case placed it between categories 1 and 2 of the Manu Kovi guidelines thus warranting a sentence between 20 to 30 years.  His Honour was of the view a sentence of 25 years was warranted but after balancing all the relevant factors, imposed a sentence of 20 years.

CURRENT CASE

47.	What then should be an appropriate sentence for the prisoner here?
 
48.	I am of the view that when viewed objectively, the circumstances of this case place it under category 3 of Manu Kovi thus attracting a sentence between 20 – 30 years. There was a strong desire to cause grievous bodily harm and there was use of dangerous weapon – a gun.

49.	I accept that the prisoner does have significant mitigating factors. However, the killing of the young man was totally unnecessary. While the prisoner was provoked in the non-legal sense, he was never in any imminent danger, at least not before he shot the deceased which then provoked the crowd. If he was ever in danger at all, he placed himself in that situation when he got off from the safety of his vehicle and pursued the fleeing young man on foot.  There was absolutely no reason for him to pursue the deceased who was unarmed, defenseless and running away from him, lesser still shoot him. By firing at the fleeing young man, the prisoner displayed a strong intention to cause him grievous bodily harm.
 
50.	The upsurge in killings of citizens by agents of the State such as policemen brings to mind what Baron de Montesquieu and the third President of the United States of America (and author of its Constitution) Thomas Jefferson famously said in respect of abuse of State power. Montesquieu said:

“There is no crueler tyranny than that which is perpetuated under the shield of law and in the name of justice.” (www.quoteslyfe.com)
 
51.	And Jefferson pointedly said:

“The two enemies of the people are criminals and government, so let us tie the second down with the chains of the Constitution so that it will not become the legalized version of the first.” (www.azquotes.com)

52.	How true these words are! History has shown us that when State agencies act outside the law and trample upon the rights and freedoms of citizens, liberty suffers, and misery is wrought upon the lives of citizens.

53.	The prisoner here abused his powers delegated to him by the people. He acted like a common criminal and prematurely took away the life of a young man who was in the prime of his youth. The prisoner was, however, not a common, trigger-happy criminal. Rather, he was a policeman who swore an oath to the Constitution to protect lives and property of citizens and aliens alike who happen to be living in this country. 

54.	For that he must be “put to chains” as it were, by having his liberty removed through a long custodial sentence. This is not only to punish him personally, but also to deter him personally as well as those members of our disciplinary forces out there who think that their “best friends” - their State issued unforms and firearms – give them a license to kill citizens with impunity. 

55.	Just like Mogish J held in The State v Darryl Yakai (supra) this case also calls for a sentence around 25 years. However, I consider that the prisoner’s mitigating factors are quite significant. He suffered quite heavily through destruction of his personal properties – a house and vehicle – and paid bel kol to the deceased’s people. For these and other factors cited above, I would think that an appropriate head sentence ought to be 20 years. 

SENTENCE & ORDERS

56.	I therefore sentence the prisoner to 20 years imprisonment less the time he spent in pre- and post-conviction custody. None of the resultant sentence shall be suspended.  He will serve his sentence at Baisu Corrective Institution. And he has the right to appeal to the Supreme Court within 40 days should he be aggrieved by his conviction and sentence.

Ordered accordingly.

________________________________________________________________
P Kaluwin, Public Prosecutor: Lawyer for the State
L B Mamu, Public Solicitor: Lawyer for the Accused