The State v Komeng Gubag

• Jurisdiction: Papua New Guinea
• Judge: Berrigan, J
• Judgment Date: 11 April 2024
• Neutral Citation: N10713
• Citation: N10713, 2024-04-11
• Counsel: Ms L Jack, for the State,Mr D Dotaona, for the Offender
• Docket Number: CR 1017 OF 2022
• Hearing Date: 24 November 2023,11 April 2024
• Court: National Court

N10713

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 1017 OF 2022

The State

v.

Komeng Gubag

Waigani: Berrigan, J

2023: 24^th November

2024: 11^th April

CRIMINAL LAW — SENTENCE — S. 300(1)(a), Criminal Code — Murder of defenceless bystander by off-duty police officer — Strong intention to cause grievous bodily harm — 25 years of imprisonment imposed.

CRIMINAL LAW — SENTENCE — S. 299(1), Criminal Code — Wilful murder of defenceless bystander by off-duty police officer — Strong intention to kill — Consideration of maximum penalty following repeal of death penalty — 35 years of imprisonment imposed.

The offender was an off-duty police officer when he attacked sellers at the market at the settlement at Garden Hills in Port Moresby at about 6pm on 23 October 2021. He was drunk and aggressive. He broke tables and fired several shots from a pistol. The security situation deteriorated. People threw rocks down from the settlement on to passing vehicles on the road leading up to the Garden Hills residential area. Sometime after 9 pm two private security vehicles arrived and parked at the yard next to the settlement. They fired shots towards the settlement. Police in two white ten seaters subsequently arrived. The offender was present when police fired tear gas and shots into the settlement behind the market, following which the offender deliberately went into the settlement and a short distance up the hill. Immediately upon coming across Ivan Neson, a 50 year old resident, who had come down the hill to see what was happening, the offender shot him in the chest from a distance of a few metres. Laki Yamo, Ivan's 25 year old nephew, who had followed Ivan down, shouted at the offender “he got the bullet already so enough” following which the offender shot him in the head. Ivan Neson died from a collapsed lung due to gunshot wound. Laki Yamo died from a shattered skull and brain damage. The offender was convicted following trial of the murder of Ivan Neson and the wilful murder of Laki Yamo.

Held:

(1) The offender is sentenced to 25 years of imprisonment for the murder of Ivan Neson.

(2) The offender is sentenced to 30 years of imprisonment for the wilful murder of Laki Yamo.

(3) The sentences are to be served concurrently.

(4) Time spent in custody is deducted.

Cases Cited:

Manu Kovi v The State (2005) SC789

State v Hoffa (2022) N9918

State v Buka (No 2), (2016) N6349

State v Hariki (No 2) (2003) N2332

State v Ambane & Ors (2022) N9993

State v Kuri (No 2) (2022) N10043

State v Naime (2005) N2873

State v Berry Maliaki and Yakasing Morgan (2022) N10350

State v Graham Floyd Peter (2022) N9478

State v Eric Naks Lako and Kenneth Lais Aira (2016) N6182

The State v Daniel Javopa (2014) N5579

The State v Alois Erebebe and Taros Togot (2013) SC1228

The State v Phillip Eki Vaki (2007) N3464

Goli Golu v The State [1979] PNGLR 653

Acting Public Prosecutor v Aumane & Ors [1980] PNGLR 510

Lawrence Simbe v The State [1994] PNGLR 38

Rex Lialu v The State [1990] PNGLR 487

Regina v Peter Ivoro [1971–72] PNGLR 374

Ume v The State (2006) SC836

The State v Benedict Simanjon (2020) N8637

The State v Tony Kande & Ors (2021) N9252

The State v Nathan Manikumbu & Ors (2023) N10116

The State v James Paru (No 3) (2021) N924

Tremellan v The Queen [1973] PNGLR 116

Public Prosecutor v Kerua [1985] PNGLR 85

The State v Tardrew [1986] PNGLR 91

References Cited

Sections 19, 300(1)(a), 299(1) of the Criminal Code

Section 4 of the Criminal Code (Amendment) Act 2022

Parole Act, 1991

Section 7 of the Parole (Amendment) Act, 2018

Counsel

Ms L Jack, for the State

Mr D Dotaona, for the Offender

Public Prosecutor: Lawyers for the State

Public Solicitor: Lawyers for the Offender

DECISION ON SENTENCE

11^th April 2024

1. Berrigan J: The offender was convicted following trial of the murder of Ivan Neson and the wilful murder of Laki Yamo, contrary to s 300(1)(a) and s299(1) of the Criminal Code (Ch. 262) (the Criminal Code), respectively.

2. On the evening of 23 October 2021 the offender, an off-duty police officer, attacked sellers at the market at the settlement at Garden Hills. He was drunk and aggressive. He broke tables and fired several shots from a pistol. The security situation deteriorated. People threw rocks down from the settlement on to passing vehicles on the road leading up to the Garden Hills residential area. Sometime after 9 pm two private security vehicles arrived and parked at the yard next to the settlement. They fired shots towards the settlement. Police in two white ten seaters subsequently arrived. The offender was present when police fired tear gas and shots into the settlement behind the market, following which the offender deliberately went into the settlement and a short distance up the hill behind the market. Upon doing so he came across, Ivan Neson, a 50 year old resident of the settlement, who had come down the hill towards the market to see what was happening. His nephew, 25 year old Laki Yamo, had followed Ivan down in an effort to stop him. Ivan and Laki were standing a few metres up the hill from the offender on a relatively flat area. Upon seeing Ivan the offender removed a pistol from his shorts and shot him in the lower left chest. Ivan fell to the ground. Laki moved towards Ivan to help him. He shouted at the offender “he got the bullet already so enough”. But the offender deliberately shot Laki Yamo to the head and he too fell to the ground. The offender then went down the hill where he tried unsuccessfully to get hold of a rifle from one of the police officers at the road before he got into one of the police vehicles, both of which left the scene. Ivan Neson died from a collapsed lung due to gunshot wound. Laki Yamo died from a shattered skull and brain damage.

Allocutus

3. The offender read a written statement on allocutus, some of which is reproduced below:

“I stand before you today overwhelmed by the tragic loss of the lives of Ivan Nason and Laki Yamo.. I cannot express enough remorse for the pain and suffering caused to the families and loved ones of the victims. It is with a heavy heart that I offer my sincerest condolences and deepest apologies. My thoughts are consumed by the grief and remorse that now fill my every waking moment. … I cannot adequately express the depth of my remorse for the loss of those two lives. I extend my heartfelt apologies to the families and loved ones of late Ivan Nason and late Laki Yamo who have been affected by this tragedy.”

4. The offender wished to make clear, however, that he maintains his innocence and intends to appeal to the Supreme Court as, of course, he is entitled to.

Submissions on Sentence

5. In considering my decision I have had regard to Manu Kovi v The State (2005) SC789 in which the Supreme Court suggested the following scale of sentences for murder and wilful murder.

CATEGORY	WILFUL MURDER	MURDER
CATEGORY 1	-15 – 20years	-12 – 15 years
Plea. -Ordinary cases. -Mitigating factors with no aggravating factors.	-No weapons used. -Little or no pre-meditation or pre-planning. -Minimum force used. -Absence of strong intent to kill.	-No weapons used. -Little or no pre-planning. -Minimum force used. -Absence of strong intent to do GBH.
CATEGORY 2	-20 – 30 years-	-16 – 20 years
Trial or Plea. -Mitigating factors with aggravating factors.	-Pre-planned. Vicious attack. -Weapons used. -Strong desire to kill.	-No strong intent to do GBH. -Weapons used. -Some pre-planning -Some element of viciousness.
CATEGORY 3	-Life Imprisonment-	-20 – 30 years-
Trial or plea -Special Aggravating factors. -Mitigating factors reduced in weight or rendered insignificant by gravity of offence.	-Brutal killing. Killing in cold blood -Killing of innocent, defenceless or harmless person. -Dangerous or offensive weapons used. -Killing accompanied by other serious offence. Victim young or old. -Pre-planned and pre-meditated. -Strong desire to kill.	-Pre-planned. Vicious attack. -Strong desire to do GBH. -Dangerous or offensive weapons used e.g. gun or axe. -Other offences of violence committed.
CATEGORY 4	- DEATH -	- LIFE IMPRISONMENT -
WORST CASE – Trial or Plea -Special aggravating factors. -No extenuating circumstances. -No mitigating factors or mitigating factors rendered completely insignificant by gravity of offence.	-Pre-meditated attack. -Brutal killing, in cold blood. -Killing of innocent, harmless person. -Killing in the course of committing another serious offence. -Complete disregard for human life.

Submissions

6. The State submits that Ivan's murder falls between category three and four in Manu Kovi, attracting a penalty of between 20 and 30 years. Laki's murder falls within category three of Manu Kovi attracting the maximum of life imprisonment. It referred to the following cases in comparison:

a. State v Hoffa (2022) N9918, Miviri J, in which the offender was convicted of wilful murder after trial. The deceased and offender got into a fight and the offender who was in possession of a homemade gun ran at the deceased and shot him. He was sentenced to 20 years of imprisonment;

b. State v Buka (No 2), (2016) N6349, Ipang J: the offender was a policeman who was found guilty of wilful murder of two men following trial. He was patrolling the highway near Tari airport where a crowd had gathered. The crowd became unruly and some police officers fired shots into the air to quell it. The offender deliberately shot and killed two men. He was sentenced to life imprisonment, Ipang J saying that:

“The use of State issued firearms and ammunitions by the member of the Police Force (RPNG) have been of great concern by members of the public. To such an extent that there is a serious decline in community confidence for the Police Force (RPNG). Members of the Police Force (RPNG) shooting of innocent members of the public has been a practice which has not changed and it is becoming like and culture in the Police Force which must be seriously addressed soon”;

c. ...