The State v Mark Bongede (2012) N4683

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 17 May 2012
• Docket Number: CR NO 1456 OF 2009
• Citation: (2012) N4683
• Court: National Court
• Year: 2012
• Judgement Number: N4683

Full Title: CR NO 1456 OF 2009; The State v Mark Bongede (2012) N4683

National Court: Cannings J

Judgment Delivered: 17 May 2012

N4683

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1456 OF 2009

THE STATE

V

MARK BONGEDE

Madang: Cannings J

2011: 19 December,

2012: 5 April, 17 May

CRIMINAL LAW – sentencing – Criminal Code, Section 299 (wilful murder) – conviction after trial – offender killed man in village altercation: deceased and his friends were drunk and being a nuisance – bushknife attack, multiple wounds – sentence of 24 years.

The offender was convicted after trial of wilful murder. The offender was in his village, entertaining a visiting dignitary. The deceased and his friends were drunk and being a nuisance. The accused became frustrated and angry with them, fought with them, then attacked the deceased with a bushknife, inflicting multiple wounds, from which the deceased died due to excessive blood loss. This is the judgment on sentence.

Held:

(1) The starting point for sentencing for this sort of wilful murder (trial, some mitigating factors, weapon used, strong desire to kill) is 20 to 30 years imprisonment.

(2) Mitigating factors: spontaneous incident, not premeditated, attack on deceased caused by conduct of deceased and friends; offender acted alone; offender and his family have suffered significantly in reprisals by deceased’s relatives; payment of substantial compensation; no prior conviction, good community record, high degree of co-operation with the court.

(3) Aggravating factors: use of lethal weapon, multiple and deep wounds, indicating a ferocious attack.

(4) The mitigating factors are strong and warrant a sentence below the middle of the range: 24 years. The pre-sentence period in custody was deducted but no part of sentence suspended as there was no evidence of reconciliation with the deceased’s family.

Cases cited

The following cases are cited in the judgment:

Manu Kovi v The State (2005) SC789

Steven Ume, Charles Kaona & Greg Kavoa v The State (2006) SC836

The State v Lotivi Mal, Moses Mal, Emmanuel Ong & Kathrine Mal (2012) N4561

The State v Mark Bongede (2011) N4470

SENTENCE

This was a judgment on sentence for wilful murder.

Counsel

S Collins for the State

R Otto for the offender

17 May, 2012

1. CANNINGS J: This is a decision on sentence for Mark Bongede who was convicted after trial of the wilful murder of a young man, Gary Dembi. The offence was committed at Chungribu village in the Middle Ramu district of Madang Province in the early hours of Thursday 1 January 2009. Both the offender and the deceased were from Chungribu. The offender arrived in the village on New Year’s Eve with a delegation of visiting dignitaries including the local member of Parliament, who were staying at the offender’s house. After a late evening meal the dignitaries retired for the night but then there was a disturbance nearby involving the deceased and his friends, who were drunk. The offender tried to quieten them down, became frustrated and angry with them, fought with them, then attacked the deceased with a bushknife, inflicting multiple wounds. The medical evidence showed that the deceased died from excessive loss of blood through three open wound sites, having sustained injuries to:

Ø the head (scalp: 12 cm wide x 3 cm deep; skull: 4 cm wide x 0.5 cm depth);

Ø the right hand (thumb hanging on skin, pointer finger chopped off); and

Ø the right leg (8 cm long x 4 cm deep, extending into the tibia).

2. The offender’s defence that it was not him but his nephew who killed the deceased was rejected. There was no lawful justification or excuse for his killing of the deceased and he was found to have acted with the intention of causing his death. Hence the conviction for wilful murder. Further details of the circumstances of the offence are in the judgment on verdict, The State v Mark Bongede (2011) N4470.

ANTECEDENTS

3. The offender has no prior convictions.

ALLOCUTUS

4. The offender made the following address to the court:

I thank the court for the time that has been spent on my case. The incident in which I was involved occurred when I brought to the village a visiting delegation including a State Minister, Hon Ben Semri MP. I am a community leader and I considered that protocol required that I look after the Minister by trying to stop the noise caused by the drunken youths near my area. Unfortunately I became involved in the fight and cut the deceased youth. The court has convicted me so I say sorry to the family of the deceased and ask God for forgiveness. I am married with seven children. After the incident the police took me to the district office but as soon as I left, the deceased’s relatives burned down my three houses, destroyed or stole my personal items and cut down my betel nut, coconut and fruit trees, killed 50 chickens, two dogs and two cats. Soon after the incident the deceased’s relatives were paid K15,600.00 compensation. I was on bail for two years and three months and I complied with all my bail conditions. I am very concerned about the welfare of my wife and children. I ask the court to consider all these things. I ask for probation so that I can return to the village.

PRE-SENTENCE REPORT

5. Mark Bongede is 47 years old and married with seven children. His parents are deceased. He has a grade 10 education. He has lived in the village for most of his life and earns an income from the sale of cash crops. He was until 2008 the President of Arabaka Local-level Government. He is still highly regarded in the community. His wife Eileen Bongede is strongly supportive of him and made a written statement recording the properties that the family lost at the hands of the deceased’s relatives. This has caused immense hardship to her and her children. Character references were provided by Terence Baera, youth leader from Chungribu (who says that Mark Bongede is a true leader and greatly admired in the local community and that this was the first time he had been involved in such an incident) and by Edmund Ombeba, Middle Ramu District Administrator (who says that Mark Bongede is a very mature, honourable and respectful person and that the case against him is surprising but is something that could have happened to anyone in the circumstances). The report verifies that K15,600.00 cash compensation was paid to the deceased’s relatives, however they were not able to be contacted for purposes of the report so it is unknown what their present attitude is to the offender. The report concludes that the offender is suitable for probation.

SUBMISSIONS BY DEFENCE COUNSEL

6. Mr Otto submitted that there are substantial mitigating factors – the offence was committed after substantial de facto provocation, it was a spontaneous incident, he was seeking to protect the visiting Minister and was forced to act in defence of his property and his reputation – which bring the case within the second category of cases recognised by the Supreme Court in Manu Kovi v The State (2005) SC789. The special circumstances in which the offence was committed warranted a sentence as low as 17 years.

SUBMISSIONS BY THE STATE

7. Mr Collins agreed that this was a category 2 case according to the Kovi guidelines and did not take issue with the mitigating factors highlighted by the defence counsel. However, there was a conviction for wilful murder, which means that the State proved an intention to kill, highlighted by the fact that the offender brought a knife to a fight. A sentence of 25 years is warranted.

DECISION MAKING PROCESS

8. To determine the appropriate penalty I will adopt the following decision making process:

· step 1: what is the maximum penalty?

· step 2: what is a proper starting point?

· step 3: what sentences have been imposed for similar offences?

· step 4: what should the head sentence be?

· step 5: should the pre-sentence period in custody be deducted?

· step 6: should any part of the sentence be suspended?

STEP 1: WHAT IS THE MAXIMUM PENALTY?

9. The maximum penalty for wilful murder under Section 299 of the Criminal Code is death. The court has a discretion whether to impose the maximum by virtue of Section 19(1)(aa) of the Criminal Code, which states:

In the construction of this Code, it is to be taken that, except when it is otherwise expressly provided … a person liable to death may be sentenced to imprisonment for life or for any shorter term.

STEP 2: WHAT IS A PROPER STARTING POINT?

10. The Supreme Court has in two recent cases given sentencing guidelines for wilful murder: Manu Kovi v The State (2005) SC789 (Injia DCJ, Lenalia J and Lay J) and Steven Ume, Charles Kaona & Greg Kavoa v The State (2006) SC836 (Kapi CJ, Injia DCJ, Los J, Hinchliffe J and Davani J).

The Ume guidelines

11. In Ume the Supreme Court suggested that a number of different scenarios may warrant the death penalty, eg (1) killing of a child, a young or old person, or a person under some disability needing...