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

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

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

N5581

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 372 of 2010

CR 373 of 2010

THE STATE

-V-

EUGENE BANGAGU

AND

THE STATE

-V-

GLADWIN BALIK NIAKA

Kimbe: Batari J

2014: 10 March, 8 & 14 April

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.

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) SC 796

John Elipa Kalabus v The State [1988] PNGLR 195

John Kapil Tapi v. The State (2000) SC 635

Kwayawako v The State [1990] PNGLR 6.

Manu Kovi v The State (2005) SC 789

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

Simon Kama v The State (2004) SC 740

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 vs. Gena & 4 Others (2004) N2649;

Counsel

A. Bray, for the State

P. Moses/D. Kari, for the Accused

DECISION ON SENTENCE

14th April, 2014

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 client’s favour. The prisoner also elected to speak when given the opportunity to say something on sentence. I will refer to some of those matters in so far as they are relevant and important factors in mitigation.

a) Arrest and Custody

6. The prisoner was arrested and detained shortly after the killing. He has spent two years six months in pre-trial custody. That is a substantial waiting time for his trial. I will deduct that period from the head sentence.

7. In some instances such a long delay will warrant special consideration, where the prosecution of the accused person is procrastinated or frustrated by the administrative conduct of proceedings or due to procedural causes resulting in undue delay, or where the delay is directly connected with the court proceedings as in a very long delay in reaching the verdict. In those circumstances, the offender would have been genuinely aggrieved by the prolonged delay outside his own doing and contrary to his right to a fair trial within a reasonable time under s 37(3) of the Constitution.

8. In this case, the prisoner was committed to stand trial on a wilful murder charge. His present charge of murder I think resulted from plea bargaining. Had that taken place or been pursued with vigour and better understanding early, it would have resulted in early disposition of his case. He does not however gain much from this as his initial defence was general denial. On the other hand, he would have a genuine grievance from the delay in affording him his right to be tried or represented separately in his defence.

b) Plea

9. A plea of guilty will usually be reflected in the final outcome of the sentence imposed. However the consideration is more stringent in such serious cases as wilful murder, murder, violent rape or violent armed robbery where a plea of guilty by itself will not warrant any credit. Existence of such factors like good background, restitution, old age, young age, etc., remorse and contrition may added to the plea and thus a cause for some discount on sentence: John Elipa Kalabus v The State [1988] PNGLR 195.

10. How soon a plea is taken after commission of the offence or committal has long been recognised as a relevant factor in mitigation. The rationale is as I alluded to in The State v Paul Kalu (2011) N5270 in the following passage:

“The significance of an early plea is the opportunity the prisoner would have missed in having to serve the penalty early. Besides, a plea at the earliest opportunity adds to consistency of the offender’s mitigating behaviour and penitence since the commission of the offence. It has been long recognised that a guilty plea may demonstrate and support remorse and contrition. See, Public Prosecutor v Tom Ake [1978] PNGLR, 469; Kalabus v The State [1988] PNGLR 193.”

11. In this case, the prisoner’s conduct following the commission of the offence does not support remorse. His plea of guilty has nevertheless saved the court time and expenses on a trial.

c) Remorse

12. The prisoner expressed remorse through counsel. The plea of guilty tends to support that as well.

d) Personal Circumstances

13. The prisoner’s personal background is as per the Police Antecedent Report and the presentence report. Mr. Kari also made submissions on those reports. Suffice to note that at 19 years of age at the time of the offence, the prisoner was and is a first young offender. He is married with one child....