The State v John Wanimba, Paul Gabi and Blasius Bana (2005) N2863

• Jurisdiction: Papua New Guinea
• Judge: Jalina J
• Judgment Date: 23 June 2005
• Court: National Court
• Citation: (2005) N2863
• Docket Number: CR No 34, 35, 36 of 2004
• Year: 2005
• Judgement Number: N2863

Full Title: CR No 34, 35, 36 of 2004; The State v John Wanimba, Paul Gabi and Blasius Bana (2005) N2863

National Court: Jalina, J

Judgment Delivered: 23 June 2005

N2863

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE AT WEWAK]

CR NO. 34, 35 & 36 of 2004

STATE

-vs-

JOHN WANIMBA

PAUL GABI

BLASIUS BANA

Wewak : Jalina, J

2005 : 21st and 23rd June

Criminal Law – Particular offences – Murder – Sentence – Conviction following trial – Death from assaults by policemen after arrest – Prevalence of violent crimes – Abuse of police powers – Deterrent sentence necessary to protect members of the public from police brutality – Criminal Code 300(1).

Cases Cited:

1 State vs Laura (No. 2) [1988-89] PNGLR 98

2 Lawrence Simbe vs The State [1994] PNGLR 38

3 State vs Steven Hino, an unreported National Court judgment, N2218 and dated 18th April, 2002

4 State vs Kore Ase, an unreported National Court judgment , N2220 dated 22nd June, 2001

5 State vs Nickson Sambura and Trophimus Smbura, an unreported National Court judgment, N2219 dated 18th April, 2002

6 The State vs Kepa Wanega, unreported National Court Judgment in CR242 of 2001 and dated 9th April, 2003

7 Pauline Painuk vs The State (SCRA 54 of 2000) un-numbered judgment dated 2001

8 Max Java vs The State SC701, unreported judgment dated 20th December, 2002

9 Mary Bomai Michael vs The State (2004) SC737, unreported judgment dated 1st April, 2004

10 The State vs Damien Magawi, N2419, 13th June, 2003

COUNSEL:

M Zurenuoc for the State

N Kari for the Prisoners

SENTENCE

21st June, 2005

JALINA, J: These three (3) prisoners were convicted of the murder of one Kennedy Balamus following a trial which lasted four (4) days here in Wewak.

As has become apparent in the trial, the deceased was arrested by the prisoners at Boram Hospital Compound at about 7 pm on 6th August, 2001 and taken to the police vehicle and assaulted. The prisoner John Wanimba used a piece of stick to hit the deceased on the head followed by kicks by the three (3) of them to various parts of the deceased’s body including the head. He was then taken to the Wewak Police Station where the three (3) prisoners again assaulted him in the same manner after he was thrown down from the police vehicle to the grass. After the assault he was locked up in the police cells but the next day (7th August, 2001), his condition worsened and was taken to Wewak General Hospital where he died the next day (8th August, 2001) from injuries to the head. The deceased’s condition upon arrival at the hospital on 7th August, 2001, and the nature and extent of those injuries are specified in the two medical reports which I need not repeat as they are set out in my judgment on verdict.

As has been correctly pointed out by both counsel, the maximum penalty for murder is life imprisonment pursuant to s.300(1) of the Criminal Code Act subject to the Court’s discretionary power to impose a lesser sentence under s.19 of the Code.

Prescription of a sentence of life imprisonment in homicide offences such as murder and manslaughter reflects no doubt how serious Parliament viewed those crimes. Such a penalty, also reflects no doubt, Parliament’s intention to protect the sanctity of human life because a human life, once lost, cannot be restored so that fellow human beings can realize that utmost care should be taken when dealing with human life particularly of another person.

Sentences for murder have increased over the years from 8 or so years suggested in The State vs Laura (No. 2) [1988-89] PNGLR 98. For instance, in Lawrence Simbe vs The State [1994] PNGLR 38 a sentence of 14 years was imposed on the prisoner who killed the deceased by cutting open the (deceased’s) rib-cage after he caught the deceased trying to entice his wife to have sexual relation with her. In The State vs Steven Hino, an unreported National Court Judgment, N2218 and dated 18th April, 2002, a sentence of 15 years was imposed on the prisoner who killed the deceased by stabbing him in the chest area with a grass knife.

In The State vs Kore Ase, an unreported National Court Judgment , N2220 dated 22nd June, 2001, the prisoner was sentenced to 15 years imprisonment for killing the deceased upon hearing news of the deceased killing his first cousin and he hunting the deceased down and inflicting severe injuries on the deceased’s body some of which parts were completely severed. In The State vs Nickson Sambura and Trophimus Sambura, an unreported National Court Judgment, N2219 dated 18th April, 2002, two brothers were sentenced to 18 and 20 years respectively for shooting an old man with a gun in an ambush which was in retaliation for the death of their father from sorcery allegedly performed by the deceased.

In The State vs Kepa Wanega, unreported National Court Judgment in CR242 of 2001 and dated 9th April, 2003, the prisoner was sentenced to 20 years imprisonment for the murder of the deceased by cutting him on the head with an axe during an argument over a piece of land, the ownership of which was disputed between them. That sentence I believe has been confirmed by the Supreme Court last year in Mt Hagen . There have also been a number of high sentences for murder which the Supreme Court has upheld. For instance in Pauline Painuk vs The State (SCRA 54 of 2000) un-numbered judgment dated 2001, an 18 year sentence on the female appellant who murdered a young school girl by stabbing her twice following an argument was upheld by the Supreme Court on appeal. In dismissing the appellant’s appeal and confirming the 18 year sentence, the Supreme Court said that the sentence “was well within the range if not somewhat lenient.”

In Max Java vs The State SC701, unreported judgment dated 20th December, 2002, the Supreme Court confirmed a sentence of 20 years which was imposed by the trial judge after a plea of guilty to murder. In dismissing the appeal the Supreme Court said at the bottom of page 3 to top of page 4 of its judgment that “having regard to the prevalence of violent offences in the community, we cannot conclude that the sentence is manifestly excessive.”

Recently in Mary Bomai Michael vs The State (2004) SC737, unreported judgment dated 1st April, 2004, the Supreme Court in dismissing an appeal against a sentence of 12 years for murder by stabbing her husband with a knife, severely criticized the Public Prosecutor for failing to file an appeal against such a sentence which appeared to be too lenient for such a serious crime.

Apart from the case of Mary Bomai Michael (supra) which was after conviction following a trial, the other murder sentences were imposed following a guilty plea by the offender. It follows therefore that a sentence for murder on conviction following a trial would warrant a higher sentence. In other words, sentences for murder after conviction following a trial can quite justifiably attract a sentence in excess of 20 years and where circumstances warrant it, even a life sentence would be in order.

The three (3) prisoners have served a total of 50 years between them; thirty (30) years in the case of John Wanimba and 10 years each in the case of Blasius Bana and Paul Gabi; all with an unblemished record but moreso in the case of John Wanimba who served in different parts of the country yet kept his unblemished record intact. The East Sepik Provincial Police Commander, Superintendent Leo Kabilo, has filed an affidvit deposing to their respective good character and to the fact that they have carried out their duties as policemen without complaint.

Their lawyer Mr Kari has submitted that I take those factors into account together with their expression of remorse. He also submitted relying on Lawrence Simbe vs The State [1994] PNGLR 38 that each case should be considered in the light of its own facts and circumstances.

Before I proceed further, let me say something about their expression of remorse. Their expression of remorse for what they had done appeared to me to be rather shallow. I would consider someone saying sorry after a plea of guilty to be expressing it from deep down from his heart. If someone says sorry after he is convicted following a long, hotly contested trial, it raises the question as to whether or not he would say sorry if he was found not guilty. I do not think that these prisoners would have said sorry had they been acquitted.

With regard to their respective antecedents as well as their respective good character specified by the Provincial Police Commander in his affidavit which I have taken into account together with...