The State v Eugene Bangagu and The State v Gladwin Balik Niaka

• Jurisdiction: Papua New Guinea
• Court: National Court
• Date: 14 April 2014
• Citation: (2014) N5581
• Docket Number: CR 372 of 2010, CR 373 of 2010
• Year: 2014

Full Title: CR 372 of 2010, CR 373 of 2010; The State v Eugene Bangagu and The State v Gladwin Balik Niaka

National Court: Batari J

Judgment Delivered: 14 April 2014

CRIMINAL LAW—Sentence - murder—accused attacked deceased with rock with intent to cause grievous bodily harm—unlawful killing—plea—weight to be given on a plea—murder—prevalence of—factors in mitigation—sorcery related killing—sorcery—belief—evidence of—duty of counsel—18 years appropriate

CRIMNAL LAW – Sentence – assault doing grievous bodily harm – propensity to violence – assault precursor to murder by another – plea of guilty – prior conviction for armed robbery – 2 years appropriate.

Facts

Eugene Bangagu pulled the female victim out from a wake gathering and punched her on the face. He was indicted with assault doing grievous bodily harm. Gladwin Balik Niaka then threw a large stone repeatedly at the woman’s stomach. She died shortly afterwards. Niaka was indicted for murder and entered a plea of guilty.

Held.

1. In a murder case a plea by itself will not warrant any credit, unless made soon after the offence or coupled with other factors, at [9-10];

2. To rely on sorcery there must be evidence to establish a reasonable basis for the belief, at [22];

3. It is the duty of counsel to raise issues of custom or culture to assist the court in developing our jurisprudence in this area, at [22];

4. A killing on the spur of the moment with some elements of provocation from a third party lessens the serious culpability of the offender, at [23];

5. The payment of K7,500 compensation can be taken into account in mitigation, at 24-25];

6. It is in the public interest, that those with inclination towards violence and who act in blatant disregard of the rule of law ought to be removed from the society, at [31].

7. The appropriate sentence for the murder is 18 years in hard labour and for the assault occasioning grievous bodily harm two years, less time spent in pre-trial custody.

PNG Cases Cited

Irai Thomas v The State (2007) SC867

John Baipu v. The State (2005) SC796

John Elipa Kalabus v The State [1988] PNGLR 195

John Kapil Tapi v. The State (2000) SC635

Kwayawako v The State [1990] PNGLR 6.

Manu Kovi v The State (2005) SC789

Public Prosecutor vs. Apava Keru and Aia Moroi [1985] PNGLR 78)

Simon Kama v The State (2004) SC740

The State v Aiaka Karavea & Anor (1983) N452

The State v Malachi Mathias and John Giamalu (2011) N4670

The State v Paul Kalu (2011) N5270

The State v Gena & 4 Others (2004) N2649;

DECISION ON SENTENCE

1. BATARI J: The accused persons (now, prisoners) are before the Court for sentence following their respective convictions on assault occasioning bodily harm and murder charges. Their offences arose out the same set of facts. I will sentence Gladwin Niaka first for his role in the unlawful killing of one, Saina Raphael.

Background

2. The agreed facts leading up to the killing are these. On 11/12/09 at Sarakolok Oil Palm Settlement, Kimbe, WNB Province, the prisoner was amongst numerous others who were gathered at the residence of John Kua at Section 5, Block 929 to bury his late daughter. After the burial, John Kua’s son, Paul addressed the gathering, urging squatters on the blocks to immediately vacate and leave, inferentially accusing them of his sister’s death. Prompted by those remarks, the prisoner, Eugene Bangagu grabbed the deceased from the group sitting under the house and dragged her out to the open. He then kicked her on the face causing her to bleed heavily from the nose. Prisoner Niaka next picked up a huge rock and repeatedly threw it against the deceased’s abdomen. She collapsed and died shortly after.

The Law

3. The charge of murder against the prisoner is brought under s 300(1)(a) of the Criminal Code. The maximum penalty is life imprisonment. This penalty is not mandatory because of s 19 which vests in the Court, discretion to impose a term of years. In the exercise of that discretion, the Court is required to consider all relevant facts, both apparent and latent, from the whole circumstances of the offence and the offender’s personal circumstances and whether the conviction followed a trial or a plea. A decision on the appropriate sentence that the whole circumstances of the case may warrant should then follow.

4. I will deal first with the mitigating factors followed by factors against the offender and conclude with the penalty to be imposed.

A. MITIGATION

5. Mr. Kari of counsel for the prisoner relies heavily on the Pre-sentence Report and means assessment report his colleague, Mr Moses had earlier requested from the Probation Officer. A commendably comprehensive report compiled by Mrs Christine Robe is before the Court. Counsel has urged the Court to take into account a number of factors in his...