The State v Lawrence Mattau (2008) N3865

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi, J
• Judgment Date: 19 November 2008
• Citation: (2008) N3865
• Docket Number: CR NO. 920 of 2006
• Court: National Court
• Year: 2008
• Judgement Number: N3865

Full Title: CR NO. 920 of 2006; The State v Lawrence Mattau (2008) N3865

National Court: Kandakasi, J

Judgment Delivered: 19 November 2008

N3865

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 920 of 2006

THE STATE

-V-

LAWRENCE MATTAU

Buka: Kandakasi, J.

2008: 13th, 21st February

14th and 19th November

DECISION ON SENTENCE

CONSTITUTIONAL LAW – Correct court or forum to deal with criminal cases in Bougainville - National and Bougainville law as provided for by the Constitutional Laws – National Court correct forum – Customary justice system – consideration of - Criminal sentencing to start with inquire for any applicable customary form of punishment – Courts duty bound to take into and decisions to reflect relevant custom – Sections 291, 305, 306, 308 and 309 Constitution – Sections 112, 114, 126 and 241 Bougainville Constitution.

CONSTITUTIONAL LAW - Bougainville Constitution – Consideration of - Resolution of conflicts and disputes in Bougainville – Main focus - Promotion of peace and harmonious living – Use of non violent means such as mediation and reconciliation - Customary or traditional justice system – Criminal sentencing to start with inquiry on existence of a form of customary punishment - Application of – Customary practice promoting peace and peaceful co-existence – Appropriate to adopt and apply in combination with modern principles of criminal sentencing - Focus for criminal justice system should be rehabilitation through peaceful means – Imprisonment, a form of violence and should be reserved for the hardcore, repeat and offenders having propensity to re-offend -National Constitution - Sections 291, 305, 306, 308, 309, 333 - 336 Bougainville Constitution – Sections 13(3), 45(1), 112, 114, 115, 126, 241.

CRIMINAL LAW –Sentence – Unlawful killing – Use of firearm – Provocation – Deceased prisoner’s nephew raised by prisoner having sexual affairs with prisoner’s wife – Prisoner getting drunk and killing deceased only as last resort – Prisoner vital link in restoration of peace and good order in Bougainville – Prisoner helped restore law and order for post Bougainville conflict - Formal justice system not able to assist prisoner when sought - Good character and standing reports and references – Offence a one of incident – 10 years sentence wholly suspended on conditions imposed – Section 302 and 19 of the Criminal Code.

Cases cited:

The Matter of An Application By Paul Tupuru Buka (2005) N2796.

James Pangnan & Patrick Ponat v. The State (2006) SCRA 39 & 54 of 2004.

Manu Kovi v The State (2005) SC 789.

Sakarowa Koe v. The State (2004) SC739.

Anna Max Marangi v. The State (2002) SC702.

The State v. Robert Potou (2008) N3316.

The State v. Elias Peter Wano Miva (2006) CR No. 448 of 2005.

Simon Kama v. The State (2004) SC740.

Thress Kumbamong v. The State (2008) SCRA 39 of 2007.

The State v. Joe Kanau Tomitom (2008) N3301.

Kesino Apo v The State [1988] PNGLR 182.

Acting Public Prosecutor v Nitak Mangilonde Taganis of Tampitanis [1982] PNGLR 299.

The State v. Alice Wilmot (2005) N2857.

Acting Public Prosecutor v. Don Hale (1998) SC 564.

The State v Allan Nareti and Amstrong Kupe (2004) N2582.

The State v Gibson Haulai (2004) N2555.

The State v. Frank Kagi [1987] PNGLR 320.

The State v. Nyama [1991] PNGLR 127.

The State -v- Abel Airi (2000) N2007.

The State v Micky John Lausi (2001) N2073.

Counsel:

D. Mark and L. Rangan, for the State.

P. Kaluwin, for the Accused.

19th November, 2008

1. KANDAKASI J: In this case, Mr. Lawrence Mattau, a former Bougainville Revolutionary Army (BRA) strong man and an important link in the restoration of peace and normalcy on Bougainville, pleaded guilty to killing his nephew, Felix Mania. He committed the offence because Felix was having sexual affairs with his (Lawrence’s) wife Mrs. Angela Mattau. Their custom authorized Lawrence’s actions but not the formal introduced legal system, which Lawrence helped to restore after the Bougainville conflict. He resorted to taking matters into his own hands because no leader or any other lawful authority he turned to was able to help attend to his problem and help find a solution.

Issues

3. The main issue for the Court to decide is, what is an appropriate sentence for Lawrence? Before we get into a consideration and determination of that issue, there is a preliminary issue I wish to turn to and have it resolved first.

Preliminary Issue

4. The Court has received a letter dated 19th February 2008 from a lord, William Mungtaa and a lord, Blaise Iruinu of the Royal Kingdom of Me’ekamui. The letter requested this Court to transfer this case to them so that Lawrence could be dealt with under what they describe as supreme or superior law according to aged old customary system of justice. This raises the question of which law to apply and which is the correct and appropriate court or forum to deal with this matter?

5. The question thus raised, requires us to go back to our recent history.

Canning J.’s decision in The Matter of An Application By Paul Tupuru Buka (2005) N2796, gives a similar account of what I am about to outline.

1 As we all know, the period between the late 1980s to the late 1990s saw Bougainville and our country sadly witnessed our bloodiest conflict in our country’s short history. We called it the Bougainville crisis or conflict. Many lives and properties were unfortunately lost with many others displaced.

6. Fortunately, in the late 1990s, all parties involved in the conflict which included the BRA, the Papua New Guinea Defence Force, the Police Force, the National Government and the Bougainville Resistance Force entered into serious negotiations for peace. They set in motion, what in time came to be known as the peace process. In perhaps one of the world’s first, the parties reached agreement, resulting in the signing of the Bougainville Peace Agreement at Arawa on 30th August 2001. I say one of the world’s first because there are many much older and aged old conflicts in the world such as the fight for independence by Tamil Tigers in Sri Lanka, the Israeli/Palestinian conflict in the Middle East and closer to home, the fight of independence by the West Papuan people of West Papua in Indonesia and many others in the world are still raging on.

7. The Bougainville Agreement allowed for Bougainville to have significant autonomy; conduct a referendum on independence for Bougainville; mass disposal of weapons under the supervision of the United Nations Observer Mission; and ‘amnesty or pardon’ for people directly involved in the conflict. The Agreement also provided for an appropriate amendment to the most bulky constitution in the world, the Constitution of the Independent State of Papua New Guinea (National Constitution) to give effect to the Agreement.

8. In accordance, with the Agreement, the National Parliament amended the National Constitution in 2002 by passing Constitutional Amendment No 23 - Peace Building in Bougainville – Autonomous Bougainville Government and Bougainville Referendum. The Amendment added a new Part XIV (Bougainville Government and Bougainville Referendum) to the National Constitution. This law made provision for an implementation of the matters agreed to in the Agreement. This law also provides for the enactment of an Organic Law to provide for the details to implement the Agreement.

9. Also in 2002, the National Parliament passed the Organic Law on Peace-Building in Bougainville – Autonomous Bougainville Government and Bougainville Referendum, to give effect to the provisions of the new Part XIV of the National Constitution. Pursuant to the relevant Constitutional provisions, a Bougainville Constitutional Commission was established. That Commission consulted with the people of Bougainville and prepared a draft Bougainville Constitution. The Bougainville Constituent Assembly also established, under National Constitution as amended, considered and debated the draft constitution and consulted with the National Executive Council. Finally, on 12th November 2004, the Bougainville Constituent Assembly sitting at Buin adopted the Constitution of the Autonomous Region of Bougainville (the Bougainville Constitution). On 10th December 2004, the Governor-General endorsed the Bougainville Constitution. After it received gazettal in the National Gazette, it became law and came into full operation or effect after the return of the writs for the general election on 9th June 2005 after only parts were earlier brought into operation.

10. The above Constitutional Laws only govern what...