The State v Mek Keroa Nentepa, Dokta Kewa and Wat Pena (1990) N878

• Jurisdiction: Papua New Guinea
• Judge: Amet J
• Judgment Date: 18 April 1990
• Court: National Court
• Citation: (1990) N878
• Year: 1990
• Judgement Number: N878

Full Title: The State v Mek Keroa Nentepa, Dokta Kewa and Wat Pena (1990) N878

National Court: Amet J

Judgment Delivered: 18 April 1990

N878

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

STATE

V

MEK KEROA NENTEPA, DOKTA KEWA AND WAT PENA

Waigani

Amet J

3 April 1990

18 April 1990

CRIMINAL LAW- Sentencing principles — Manslaughter in commission of robbery — Range of sentences — Aggravating and mitigating factors — Punitive and deterrent purposes.

The prisoners with others robbed a motor vehicle from the deceased's premises and whilst escaping in the vehicle one of the accomplices shot the deceased.

Held:

(1) Sentences for manslaughter should generally be higher than, for rape and robbery, offences against the person but where no death occurs — approved and applied State v Polin Pochalon Lopai N680; State v Rex Lilu.

(2) Sentences for manslaughter and robbery though committed in the one transaction of robbery, should be cumulative as being two separate serious offences in character.

Applied Acting Public Prosecutor v Konis Haha [1981] PNGLR 205.

(3) The most prominent purpose for sentence in this kind of case is punitive and public deterrance.

Cases Cited:

The following cases are cited in the judgment:

The State v Polin Pochalon Lopai N680.

The State v Rex Lilu (unnumbered judgment).

Acting Public Prosecutor v Konis Haha [1981] PNGLR 205.

followed in Public Prosecutor v Kerua [1985] PNGLR 85.

Sentence:

On a plea of guilty to charges of manslaughter, armed robbery and unlawful use of motor vehicle the following reasons for sentence were delievered.

Counsel:

S L Soi and N H Mirou, for the State.

E Kariko, H Gene, and F Pitpit, for the accuseds.

AMET J: The three prisoners pleaded guilty to three charges that on 30 June 1989 in Mount Hagen they:

1. Unlawfully killed one Malipu Balakau.

2. Stole a Toyota Landcruiser Motor Vehicle with violence from Malipu Balakau.

3. Unlawfully used said motor vehicle without the consent of the owner Malipu Balakau.

The State handed up the following statement of facts agreed upon for the purposes of arraignment:

1. In the evening of 30 June 1989, the accused with 2 others went to the house of the deceased, Malipu Balakau, situated at Section 1, Lot 9, Newtown, Mount Hagen.

2. At the time, one of their companions, Dokta Kera, was armed with a shotgun.

3. They went to the house of the deceased intending to steal a motor vehicle.

4. They held up the occupants of the house, and obtained the keys to a Toyota Landcruiser belonging to the deceased.

5. They got on the vehicle, Registration No AFZ 586, and as they moved out, Dokta Kera who was still on the ground, shot the deceased once with the shotgun. This he did on his own accord.

6. As a result of that shot, the deceased was killed.

7. The State alleges that since they should have known that some violence might be used to overcome possible resistance to the robbery, the accused are liable for manslaughter — contrary to S 302 of the Criminial Code.

8. The vehicle was driven away by the accused and later ditched when it became bogged in the mud.

9. The State alleges that this was not an authorised use of the vehicle by the owner. This contravenes S 422 of the Criminal Code.

10. The vehicle the State alleges was stolen by threats. This vehicle contained a briefcase belonging to the deceased, which in turn, contained the properties listed in the indictment. This is contrary to s 386 (2) of the Criminal Code.

To complete the factual circumstances from the depositions consistent with the agreed facts are the following:

1. The prisoners were drinking with others at Ongas Club at Keta in the Muglamp area, from about 10 o'clock in the morning on the day in question.

2. They decided to go into Mount Hagen town and steal a motor vehicle to steal some money.

3. They held up two motor vehicles to get into town by.

4. They obtained a shotgun to effect their robbery.

5. They got off the vehicle they held up and took a ride into town on at the Baiyer Road junction and walked into town, in the early evening.

6. They walked to the Newtown area looking for a likely motor vehicle to steal.

7. They came upon the home belonging to the deceased Malipu Balakau at Section 1 Lot 9 and saw two motor vehicles parked in the driveway and decided to steal one of them.

Several other facts surrounding this case which received much national and some international prominence need to be stated clearly at the outset. They are these:

1. The deceased, Malipu Balakau was the Regional Member of the National Parliament for Enga Province.

2. He was the State Minister for Communications.

3. There is no evidence, and the State prosecution has not alleged, that the prisoners and the others went to the deceased's house knowing it to be the house belonging to Malipu Balakau, the Regional Member of the National Parliament for Enga and Minister for Communications.

4. There is absolutely no evidence, and the State prosecution has not alleged, that the prisoners planned and intended to rob Malipu Balakau as a Member of Parliament for Enga and Minister of the State.

5. There is similarly no evidence that there was any plan to attack to kill Malipu Balakau as the Regional Member of the National Parliament for Enga and a Minister of the State.

6. The State has accepted that another man, not yet apprehended, one Dokta Kera, was responsible for the fatal shooting of the deceased.

7. Dokta Kera shot Malipu Balakau of his own accord and not in concert with these prisoners.

On these bases, the prisoners have pleaded guilty to unlawful killing simpliciter by association in the commission of the offence of robbery involving the possession and use of a shotgun to effect the same.

It must be stated unequivocally at the outset before I proceed to refer to principles of sentencing and other circumstances that are to be taken into account that, because of the foregoing, these prisoners must be treated like any other offender in similar circumstances. The facts I have stated of the deceased being a National Member of Parliament and a State Minister cannot, in law, be factors that should aggravate the offences by these prisoners. They are not factors that I should take into account to make their sentences high for the simple reason that there is no evidence that they robbed and shot the deceased knowing he was a Member of the National Parliament and a Minister, and because of them. The prisoners must therefore be treated the same as other offenders as if the deceased were an ordinary citizen. This, of course, does not make the offences against the deceased any less serious, nor...