N10713
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1017 OF 2022

THE STATE

V

KOMENG GUBAG

Waigani: Berrigan, J
2023: 24th November
2024: 11th April

CRIMINAL LAW – SENTENCE – S. 300(1)(a), Criminal Code – Murder of defenceless bystander by off-duty police officer - Strong intention to cause grievous bodily harm – 25 years of imprisonment imposed.

CRIMINAL LAW – SENTENCE – S. 299(1), Criminal Code – Wilful murder of defenceless bystander by off-duty police officer - Strong intention to kill – Consideration of maximum penalty following repeal of death penalty – 35 years of imprisonment imposed. 

The offender was an off-duty police officer when he attacked sellers at the market at the settlement at Garden Hills in Port Moresby at about 6pm on 23 October 2021. He was drunk and aggressive. He broke tables and fired several shots from a pistol. The security situation deteriorated. People threw rocks down from the settlement on to passing vehicles on the road leading up to the Garden Hills residential area. Sometime after 9 pm two private security vehicles arrived and parked at the yard next to the settlement. They fired shots towards the settlement. Police in two white ten seaters subsequently arrived. The offender was present when police fired tear gas and shots into the settlement behind the market, following which the offender deliberately went into the settlement and a short distance up the hill.  Immediately upon coming across Ivan Neson, a 50 year old resident, who had come down the hill to see what was happening, the offender shot him in the chest from a distance of a few metres.  Laki Yamo, Ivan’s 25 year old nephew, who had followed Ivan down, shouted at the offender “he got the bullet already so enough” following which the offender shot him in the head. Ivan Neson died from a collapsed lung due to gunshot wound. Laki Yamo died from a shattered skull and brain damage. The offender was convicted following trial of the murder of Ivan Neson and the wilful murder of Laki Yamo.

Held: 

(1)	The offender is sentenced to 25 years of imprisonment for the murder of Ivan Neson.
(2)	The offender is sentenced to 30 years of imprisonment for the wilful murder of Laki Yamo.
(3)	The sentences are to be served concurrently. 
(4)	Time spent in custody is deducted.

Cases Cited:

Manu Kovi v The State (2005) SC789
State v Hoffa (2022) N9918
State v Buka (No 2), (2016) N6349
State v Hariki (No 2) (2003) N2332
State v Ambane & Ors (2022) N9993
State v Kuri (No 2) (2022) N10043
State v Naime (2005) N2873
State v Berry Maliaki and Yakasing Morgan (2022) N10350
State v Graham Floyd Peter (2022) N9478
State v Eric Naks Lako and Kenneth Lais Aira (2016) N6182
The State v Daniel Javopa (2014) N5579
The State v Alois Erebebe and Taros Togot (2013) SC1228
The State v Phillip Eki Vaki (2007) N3464
Goli Golu v The State [1979] PNGLR 653
Acting Public Prosecutor v Aumane & Ors [1980] PNGLR 510
Lawrence Simbe v The State [1994] PNGLR 38
Rex Lialu v The State [1990] PNGLR 487
Regina v Peter Ivoro [1971-72] PNGLR 374
Ume v The State (2006) SC836
The State v Benedict Simanjon (2020) N8637
The State v Tony Kande & Ors (2021) N9252
The State v Nathan Manikumbu & Ors (2023) N10116
The State v James Paru (No 3) (2021) N924
Tremellan v The Queen [1973] PNGLR 116
Public Prosecutor v Kerua [1985] PNGLR 85  
The State v Tardrew [1986] PNGLR 91 

References Cited

Sections 19, 300(1)(a), 299(1) of the Criminal Code 
Section 4 of the Criminal Code (Amendment) Act 2022
Parole Act, 1991
Section 7 of the Parole (Amendment) Act, 2018 

Counsel

Ms L Jack, for the State
Mr D Dotaona, for the Offender

DECISION ON SENTENCE

11th April 2024 

1.	BERRIGAN J: The offender was convicted following trial of the murder of Ivan Neson and the wilful murder of Laki Yamo, contrary to s 300(1)(a) and s299(1) of the Criminal Code (Ch. 262) (the Criminal Code), respectively.

2.	On the evening of 23 October 2021 the offender, an off-duty police officer, attacked sellers at the market at the settlement at Garden Hills. He was drunk and aggressive. He broke tables and fired several shots from a pistol. The security situation deteriorated. People threw rocks down from the settlement on to passing vehicles on the road leading up to the Garden Hills residential area. Sometime after 9 pm two private security vehicles arrived and parked at the yard next to the settlement. They fired shots towards the settlement. Police in two white ten seaters subsequently arrived. The offender was present when police fired tear gas and shots into the settlement behind the market, following which the offender deliberately went into the settlement and a short distance up the hill behind the market.  Upon doing so he came across, Ivan Neson, a 50 year old resident of the settlement, who had come down the hill towards the market to see what was happening. His nephew, 25 year old Laki Yamo, had followed Ivan down in an effort to stop him. Ivan and Laki were standing a few metres up the hill from the offender on a relatively flat area. Upon seeing Ivan the offender removed a pistol from his shorts and shot him in the lower left chest. Ivan fell to the ground. Laki moved towards Ivan to help him. He shouted at the offender “he got the bullet already so enough”.  But the offender deliberately shot Laki Yamo to the head and he too fell to the ground.  The offender then went down the hill where he tried unsuccessfully to get hold of a rifle from one of the police officers at the road before he got into one of the police vehicles, both of which left the scene.  Ivan Neson died from a collapsed lung due to gunshot wound. Laki Yamo died from a shattered skull and brain damage.

Allocutus

3.	The offender read a written statement on allocutus, some of which is reproduced below:  

“I stand before you today overwhelmed by the tragic loss of the lives of Ivan Nason and Laki Yamo.. I cannot express enough remorse for the pain and suffering caused to the families and loved ones of the victims. It is with a heavy heart that I offer my sincerest condolences and deepest apologies. My thoughts are consumed by the grief and remorse that now fill my every waking moment. … I cannot adequately express the depth of my remorse for the loss of those two lives. I extend my heartfelt apologies to the families and loved ones of late Ivan Nason and late Laki Yamo who have been affected by this tragedy.” 

4.	The offender wished to make clear, however, that he maintains his innocence and intends to appeal to the Supreme Court as, of course, he is entitled to.

Submissions on Sentence 

5.	In considering my decision I have had regard to Manu Kovi v The State (2005) SC789 in which the Supreme Court suggested the following scale of sentences for murder and wilful murder. 

CATEGORY	WILFUL MURDER	MURDER	
CATEGORY 1	-15 – 20years	-12 – 15 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.	
CATEGORY 2	-20 – 30 years-	-16 – 20 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.
	
CATEGORY 3	-Life Imprisonment-	- 20 – 30 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.	
CATEGORY 4	- DEATH -	- 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.	

Submissions

6.	The State submits that Ivan’s murder falls between category three and four in Manu Kovi, attracting a penalty of between 20 and 30 years.  Laki’s murder falls within category three of Manu Kovi attracting the maximum of life imprisonment.  It referred to the following cases in comparison:

a.	State v Hoffa (2022) N9918, Miviri J, in which the offender was convicted of wilful murder after trial. The deceased and offender got into a fight and the offender who was in possession of a homemade gun ran at the deceased and shot him. He was sentenced to 20 years of imprisonment;
b.	State v Buka (No 2), (2016) N6349, Ipang J: the offender was a policeman who was found guilty of wilful murder of two men following trial. He was patrolling the highway near Tari airport where a crowd had gathered. The crowd became unruly and some police officers fired shots into the air to quell it. The offender deliberately shot and killed two men. He was sentenced to life imprisonment, Ipang J saying that:
“The use of State issued firearms and ammunitions by the member of the Police Force (RPNG) have been of great concern by members of the public. To such an extent that there is a serious decline in community confidence for the Police Force (RPNG). Members of the Police Force (RPNG) shooting of innocent members of the public has been a practice which has not changed and it is becoming like and culture in the Police Force which must be seriously addressed soon”;
c.	State v Hariki (No 2) (2003) N2332, Salika J, in which the offender was found guilty of two counts of wilful murder after trial. The offender was drinking when he strangled and cut the throat of the first deceased. He then killed another man who was sleeping nearby. He was sentenced to life imprisonment and death, respectively;
d.	State v Ambane & Ors (2022) N9993, Miviri J: the offenders, policemen, were convicted following trial of murder.  The deceased died from blood loss resulting from a bullet wound to the buttock. They were sentenced to 20 years of imprisonment;
e.	State v Kuri (No 2) (2022) N10043, Toliken J: the offender was a probationary constable assigned to protect and drive the Acting Provincial Police Commander of Jiwaka. A group of drunk boys hit the vehicle and swore at the offender. The offender chased the deceased first in the car and then on foot. He fired two shots at the deceased killing him. He was sentenced to 20 years of imprisonment.

7.	The State also referred to State v Naime (2005) N2873. I note the following comments by Mogish J (emphasis mine):
“In The State v Dennis Vela ... I said at p. 4 of my judgment:
"The prisoner is a policeman. He falls into a category of persons who should be familiar with the law by virtue of their training and employment. For a policeman to flout the law at the expense and to the detriment of the society that he is supposed to protect is inexcusable. When policeman commit crimes of this magnitude it brings into disrepute and ridicules the integrity of the police force. It undermines the work of the law abiding policeman and women. The community loses it’s confidence in the police force. And so when it comes to sentencing a policeman who has been convicted … the sentence should not only reflect the amount stolen but the high degree of trust ordinary citizens expect from police officers. Convicted and corrupt police officers have no place in the Constabulary. They are a disgrace to the uniform they wear and should be weeded out as soon as possible as a form of deterrence either through dismissal or imprisonment. Such stern punishment will send a strong signal to police officers to uphold the law they swore to protect. And that if they fail to live to these expectations then the consequences would be very severe. Police officers must be expected to be punished severely than ordinary citizens because of the office they hold and the greater responsibility, accountability they have."
I expressed similar views in the recent case The State v Paul Steven...:
"Your action has no doubt cast a dark image over other hard work and honest ancillary policemen and woman not only in the NCD but also throughout the country. You are a disgrace to the uniform you wear. You have been dismissed from the force and that in some way is reassuring to the public that a corrupt policeman has been weeded from it's rank and file."
The remarks I made in those cases are equally applicable to this case. Policemen and women are accountable to the laws they enforce. They are not above the law. Just like everyone else they are equally subjected to the same laws. And if they flout the law, they must be dealt with severely. The least the community expects is to have dishonest or rogue policemen enforce the law.”
8.	Defence counsel submitted that sentences of 15 years of imprisonment and 20 years of imprisonment, respectively, were appropriate, to be served concurrently, having regard to the following factors in mitigation. The offender cooperated with police. He handed himself to the police the day after the incident. He has a prior good record. He has been a good servant of the State and the Police Force for ten years as a member of the NCD Dog Unit based at Bomana. He comes from a good family. He has expressed remorse. There was no pre-planning. The killings happened within a short period of time.  

9.	He referred to the following cases in support of his submission:

a.	State v Berry Maliaki and Yakasing Morgan (2022) N10350, Polume-Kiele J, in which both offenders were found guilty of wilfully murdering the deceased in an unprovoked assault in which they chased him and killed him with bush knives, grass knives and iron rods. They were sentenced to 20 years and 18 years of imprisonment, respectively;
b.	State v Graham Floyd Peter (2022) N9478, Narakobi J, in which the prisoner was convicted of 10 counts of wilful murder. He and others broke into a shop in Lorengau, Manus, in the early hours of the morning, stole money and set the building on fire killing ten people. He was sentenced to life imprisonment; 
c.	State v Eric Naks Lako and Kenneth Lais Aira (2016) N6182, Salika J. Lako was found guilty and Aira pleaded guilty to four counts of wilful murder. They robbed a store at Koki. Aira chopped three men and one woman to death with a bush knife and Lako aided him through encouragement. Aira was sentenced to death and Lako sentenced to 30 years;
d.	The State v Daniel Javopa (2014) N5579, Toliken AJ. The prisoner was convicted of the wilful murder of his de facto partner and her seven year old son with a bush knife. He was sentenced to life on each count;
e.	The State v Alois Erebebe and Taros Togot (2013) SC1228. The offenders wilfully murdered nine people including four children. The Supreme Court regarded it as a case of the worst kind and upheld the death penalty;
f.	The State v Phillip Eki Vaki (2007) N3464. Kandakasi J sentenced the offender to 32 years of imprisonment for murder. The offender was part of an armed robbery at Nadzab airport. 

General Principles

10.	The maximum penalty for murder contrary to s 300(1)(a) of the Criminal Code is life imprisonment. 

11.	The maximum penalty for wilful murder contrary to s 299(1) of the Criminal Code is now life imprisonment without parole.

12.	This follows amendment to s 299(2) by s 4 of the Criminal Code (Amendment) Act 2022 which provides that:

“Section 299 … is amended … by repealing the words and the full stop “shall be liable to be sentenced to death.” and replacing them with the following:

“shall be liable to be sentenced to life imprisonment without parole”.  	

13.	A sentencing court should not normally consider in determining an appropriate sentence whether, and if so when, an offender might subsequently be released on parole.  A sentencing court, furthermore, does not normally have any power in relation to parole.

14.	Two things are, however, apparent on the face of the penalty now provided under s 299, Criminal Code as amended.  

15.	The first is that the penalty under s 299(2) remains subject to the broad discretion under s 19 of the Criminal Code, in particular, s 19(a) which provides that “a person liable to imprisonment for life or for any other period, may be sentenced to imprisonment for any shorter term”.

16.	The second is that the Court is expressly given power to sentence an offender to a maximum of life imprisonment without parole. Life imprisonment without the prospect of parole is clearly a far more severe penalty than life imprisonment with the possibility of parole. (At least on its face. The matter is complicated by the fact that there may be no practical difference when regard is had to s 17 of the Parole Act, 1991 as amended by s 7 of the Parole (Amendment) Act, 2018. Nevertheless, I will confine myself to the Criminal Code which on its face distinguishes between the maximum penalties available under ss 299 and 300 and gives a sentencing judge power to impose a sentence without parole, which in my view is an extreme penalty.) 

17.	It also follows that since the amendment to s 299(2) of the Criminal Code, the guideline tariff suggested under category four of Manu Kovi for wilful murder of the worst kind is life imprisonment without parole.  

18.	I remind myself that the maximum penalty is reserved for the most serious instances of the offence: Goli Golu v The State [1979] PNGLR 653.  Section 19 of the Criminal Code provides the Court with broad discretion on sentence.  Consideration must be given to protection of the community, punishment, rehabilitation and deterrence: Acting Public Prosecutor v Aumane & Ors [1980] PNGLR 510, together with denouncement. Guidelines and comparative cases are important considerations but every sentence must be determined according to its own facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38.  In a case of homicide, careful regard must be had to the circumstances of death: Rex Lialu v The State [1990] PNGLR 487. 

Consideration 

19.	The offences in this case were very serious. 

20.	The offences were committed under the influence of alcohol. They involved the use of an offensive weapon, namely a firearm. 
 
21.	There are no extenuating circumstances, that is “no particular circumstance in which the offence was committed that has the effect of reducing or diminishing the gravity of” it, or would diminish the culpability of the offender: see Regina v Peter Ivoro [1971-72] PNGLR 374; Ume v The State (2006) SC836.  

22.	The offender gave a statement at trial about being attacked by settlers earlier in the night but those claims were rejected. On the evidence it was the offender who was drunk and attacked the market at Garden Hills settlement, destroying tables and firing shots, earlier that night. It was the offender who returned to the settlement when the security situation deteriorated and he who, after police had fired tear gas and shots, deliberately and aggressively went into the settlement, armed. It was the offender who upon coming across two unarmed and defenceless men, who offered no threat at all to him, shot them one by one, even after one of them called for him to stop what he was doing.  They were bystanders to a situation of unrest that to a large extent the offender had created.

23.	The offences are seriously aggravated by the fact that they were committed by a police officer. Whilst not on duty, the offender was sworn to serve and protect the law and the community, and his conduct calls for severe sanction.   

24.	It is clear from the circumstances established at trial, and his own dock statement at trial, that the offender regarded himself as having some authority as a police officer to act above the law, at least when it came to dealing with those living in the settlement, whom he generally regarded as “petty criminals”.

25.	There can be no doubt that the offences in this case denigrate all those police men and women who serve with honour and distinction in often very challenging circumstances across the country and undermine the public confidence in the Constabulary which is so essential to maintaining the rule of law.  The Courts have made it clear that police officers must expect severe consequences when they breach the law: Naime, supra; Garry Louha v The State (2023) SC2552; The State v Benedict Simanjon (2020) N8637 at [64]; The State v Tony Kande & Ors (2021) N9252 at [62] and [67]; The State v Nathan Manikumbu & Ors (2023) N10116 at [36], amongst others.  The more serious the offence, the more severe must be the penalty. 

26.	As a result of the offender’s conduct the lives of two men have been cut short. The State have not provided victim impact statements and regrettably few details have been provided about the impact of their deaths. I do not know if either of them were married nor whether they had children. I do not know how they earned their living and how many were dependent on them for financial or emotional support.  But their lives were just as precious as anyone else’s. I can only assume that at 25 years of age, Laki had much to live for, and that at 50, Ivan was an important member of his family. I have no doubt that their families have been greatly impacted. I note from the material provided that large amounts of money have been spent on funeral expenses.   

27.	In mitigation this is the offender’s first offence.  

28.	The offender is from Wakong Village, Sukmar District, Madang Province. His father is a former member of the PNG Defence Force and the family is of good standing in the community. The offender grew up in Garden Hills in a loving and disciplined home. His parents and five brothers and sisters regard the offender as the leader and “beacon” of their family.  They were shocked by the offending.  His father is 81 years of age and is in poor health with persistent pneumonia and hypertension.  His mother is a manager with a financial company and suffers from diabetes and hypertension.  The stress of the proceedings has adversely impacted the health of both parents. His family are confident that the offender will learn from what has happened and they plead for him to be given concurrent sentences, wholly suspended.

29.	The offender is married with six children, five biological and one adopted, aged between 2 and 27 years of age. His wife provides a detailed outline of the financial and emotional hardship caused to the family as a result of his detention. She is the only breadwinner now and the family faces eviction from their home at the barracks.  Some of the children have been separated from the family and others are suffering at school. She says that the offender is an outspoken policeman who has built a good rapport with the community in Garden Hills and Murray Barracks.

30.	The offender is relatively well educated. He completed Grade 12 at Port Moresby International School. He was initially a property manager but was recruited to the Bomana Police College in 2008 from which he holds a diploma in policing, his dream job. He also holds a diploma in Business Management from Port Moresby Business College. 

31.	The offender is of prior good character. On the references provided by the Director of the National Fraud and Anti-Corruption Directorate, Chief Inspector Robert Volo, and the Officer in Charge of the Police Dog Unit, NCD, Inspector Jack Hori, the offender has a long history of dedicated service to the police force.  CI Volo notes that whilst the offender can be difficult when he does not agree with certain decisions he is otherwise a very hard worker and a dedicated assistant in the conduct of investigations, including the taskforce which successfully investigated the notorious Tommy Baker and his gang in Alotau. Insp Hori credits him as someone who stands out from his peers with potential for leadership through proper mentoring and guidance. He is energetic and works well with the community.  

32.	His good relationship with members of the Garden Hills residential community is confirmed by a letter from Marygold Bebeto, Community Youth Representative, Garden Hills, who grew up with the offender. She says that the offender has the respect and confidence of young people in the community and that the community felt safe with him around because he provided security particularly for women and girls. She pleaded for him to be released on probation.  Her letter is signed in support by eight others, five parent representatives and three church leaders.   

33.	Mr Peter Luku, a long term neighbour and friend of the Gubag family, says that Garden Hills is a hot spot of crime due to the nearby settlement. The offender was the lone policeman trying to maintain law and order in Garden Hills, which was very difficult given the number of youths in the area. He calls for the offender’s probation so that the community can support his rehabilitation. 

34.	Major David Luan of Bomana Correctional Institution has known the offender for ten years as a neighbour at Bomana Kerepia Barracks and Bomana Red Sea Barracks. He regards him as a family man and a good servant of the RPNGC and attended to many major and minor crimes in Bomana and surrounding communities as a member of the Dog Unit. 

35.	I note the comments of Insp Apollos Terry, the OIC of the Internal Affairs Unit, who says that the offender has a poor record within the police force. It is not clear what is meant by this and he does not provide evidence of any disciplinary charges.  On the evidence of those who do speak in favour of the offender, it appears that he was an officer with great potential who could sometimes be difficult to manage.  I therefore find that he was of prior good character. In doing so I have disregarded the submissions and material in the probation report about other charges which may be pending and are therefore yet to be established.    

36.	The extent of that good character is nevertheless tempered somewhat by the views obtained by Probation Services from some residents of the settlement who felt threatened and intimidated by the offender, a matter which was established at the trial. Whilst I make it clear that the offender is not being sentenced for that conduct generally and it is not a matter in aggravation it is nevertheless a relevant consideration when determining the true extent of his prior good character in the community.

37.	The offender has apologised to the victims’ families and he and his family have made genuine efforts to pay compensation to them, albeit those offers have been rejected. I accept that he regrets the deaths of Laki and Ivan but the offender has failed to show true remorse, that is a willingness to accept responsibility for his conduct and its consequences. He makes it clear both on allocutus and in his statements to Probation Services that he maintains that he is innocent of the offences proven.  

38.	He told Probation Services that he was showing his anger by destroying the market and dispersing the vendors. Garden Hills settlement was notorious for petty crime and he did not intend to kill the victims. If he did not fire the shots the settlers and perhaps the victims would have killed him and his men who were outnumbered. He deeply regrets the death of the two men and apologises to the RPNGC for tarnishing its name.  

39.	I accept that the offender presented himself to police the following day but I do not consider that of significant weight in mitigation. Cooperation with authorities, like an early guilty plea, will only be a significant factor in mitigation when it constitutes genuine contrition and remorse, or reflects a willingness to assist authorities in their investigations and facilitate the course of justice, for instance by revealing details about the crime or those who participated in it. Cooperation may also be relevant where an offender assists in the apprehension or conviction of a co-accused, with information which is full and frank, and which could significantly assist authorities: State v Richard Namaliu (2020) N8506 at [52] to [53]. 

40.	There are no matters of mitigation special to the offender. He is 39 years old and appears to be in good health. There has been no unreasonable delay, which would need to be balanced against the nature and seriousness of the offences in any event: State v Tony Kande & Ors, supra at [58]; The State v Benedict Simanjon, supra at [40]; The State v James Paru (No 3) (2021) N9248. 

41.	I have considered that his time in custody may be made more difficult because of his prior service but it is the responsibility of Correctional Services to ensure his security and welfare in accordance with its obligations under the Correctional Services Act.      

42.	Whilst I acknowledge that the sentence imposed will cause great hardship to the offender’s family, it is well established that except in very extreme circumstances, it is not ordinarily a relevant consideration on sentence:  Allan Peter Utieng v The State (2000) SCR No 15 of 2000; The Public Prosecutor v Vangu’u Ame [1983] PNGLR 424.

43.	In summary, the murder of Ivan Neson may not have been planned but it occurred in circumstances where the offender deliberately and aggressively went into the settlement, and immediately coming upon Ivan shot him, a defenceless man who offered him no threat. In doing so he showed a strong desire to cause grievous bodily harm as demonstrated by the nature of the weapon used and the fact that the offender deliberately fired at Ivan’s chest from a short distance.  It was specially aggravated by the fact that the offence was committed by a police officer. In my view this offence falls within the third category of Manu Kovi for murder.

44.	The wilful murder of Laki Yamo was particularly serious. The offender struck him down with a deliberate shot to the head, from a dangerous weapon, again at short distance, as Laki protested what the offender had done to his uncle and went to his aid.  Again, the victim was unarmed and defenceless. The offender demonstrated a strong intention to kill and the offence was specially aggravated by the fact that it was committed by a police officer. It falls between the second and third categories of Manu Kovi for wilful murder.

45.	Such offences are prevalent and call for severe personal and general deterrence.

46.	Having regard to all of the circumstances including the personal circumstances of the offender and the factors in mitigation I sentence the offender to 25 years of imprisonment for the murder of Ivan Nason. I sentence the offender to 35 years of imprisonment for the wilful murder of Laki Yamo.  

47.	It is an interesting question whether s 299(2), Criminal Code as amended provides power to a sentencing judge to set a period of non-parole even when a term of life imprisonment is not imposed.  For completeness I have considered the matter but decline to do so.

48.	There is no “all-embracing” rule as to when sentences for two or more convictions should be made concurrent.  Generally, sentences should be made concurrent where a congeries of offences is committed in the prosecution of a single purpose or the offences arise out of the same or closely related facts: Tremellan v The Queen [1973] PNGLR 116. Where the offences are different in character, or in relation to different victims, the sentences should normally be cumulative: Public Prosecutor v Kerua [1985] PNGLR 85.  

49.	The offending in this case resulted in the death of two men. I have considered whether the sentences should be made cumulative, at least in part, to reflect that fact and the particular facts of Laki’s wilful murder.  Having regard to all of the circumstances, however, including that the killings arise out of closely related facts and occurred within short proximity, it is my view that they should be served concurrently and that the effective sentence properly reflects the criminality involved. 

50.	I exercise my discretion to deduct time spent in custody to date.

51.	Defence counsel has not sought suspension. The State oppose it. Probation Services does not regard the offender as suitable.  Having regard to the nature and gravity of the offence this is not a case warranting suspension and none of the considerations are established for the reasons outlined above: The State v Tardrew [1986] PNGLR 91 applied. Only service of the sentence in custody will ensure that the offender is adequately punished for his conduct, that the Court appropriately denounces the offences, and that the offender and others are deterred from committing similar offences in the future.  

52.	I note before closing that the offender said in allocutus that he had received threats from several inmates for whom he was responsible for conviction.  He fears for his life and asks that he be held with other former policemen and persons facing similar threats.  I am not in a position to make such orders but, as above, Correctional Services is obligated to ensure his safe custody and he and his lawyer may and should raise any such concerns with the Gaol Commander. 

53.	I make the following orders:

Order

(1)	The offender is sentenced to 25 years of imprisonment for the murder of Ivan Neson. 
(2)	The offender is sentenced to 35 years of imprisonment for the wilful murder of Laki Yamo. 
(3)	The sentences shall be served concurrently.
(4)	Time spent in custody to date, 2 years, 5 months, 11 days, is deducted from time to be served.

Sentences accordingly.

_______________________________________________________________
Public Prosecutor: 	Lawyers for the State
Public Solicitor: 	Lawyers for the Offender