[1973] PNGLR 278

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

REGINA

V

BULDA MELIN, AND OTHERS

Port Moresby
Minogue CJ Clarkson Kelly JJ

27-28 June 1972
17 July 1972

CRIMINAL LAW - Sentence - Murder - Payback killing - “Extenuating circumstances” such that death penalty not inflicted - Criminal Code (Queensland, adopted) s. 305 (2)[cccxxi]1.

M. and nine others pleaded guilty to wilful murder. The killing was a payback, which occurred in a remote part of the country. The trial judge, taking into account the fact that M. and his associates were primitive and simple tribesmen, passed sentences of imprisonment ranging from two years and eight months to three years and four months.

On appeal by the Secretary for Law against the inadequacy of the sentences:

Held

(1)      In considering the question whether “extenuating circumstances” exist within the meaning of s. 305 (2) of the Criminal Code such that it would not be just to inflict the punishment of death the duty is cast upon the Court considering these circumstances and there is no onus upon either the prosecution or the defence. In the fulfilment of its duty the Court may, in an appropriate case, direct further inquiries to be made and information to be furnished.

(2)      The sentence imposed in each case was in the circumstances inadequate, and greater sentences should be imposed.

Appeal

The respondents pleaded guilty to charges of the wilful murder of Buru Ongomun, and the trial judge imposed sentences of imprisonment ranging from two years and eight months to three years and four months. The Secretary for Law appealed pursuant to s. 29 (1) of the Supreme Court (Full Court) Ordinance 1968 against the sentence imposed in each case upon the ground that the sentences were inadequate and insufficient. Further facts and circumstances are fully set out in the judgment of the Full Court.

Counsel

L. W. Roberts-Smith, for the appellant.
P. Hoath, for the respondent.
Cur. adv. vult.

MINOGUE CJ CLARKSON KELLY JJ: This is an appeal by the Secretary for Law pursuant to s. 29 (1) of the Supreme Court (Full Court) Ordinance 1968 against the sentences imposed on the ten respondents. The grounds of appeal are that the sentence in each case is in the circumstances inadequate and insufficient.

The respondents each pleaded guilty to the wilful murder of Buru Ongomun. The learned trial judge was satisfied that he should accept the pleas of guilty and the respondents were thereupon each convicted of wilful murder. The sentence imposed in the cases of Koim Komble and Kewa Atep was imprisonment with hard labour for three years and four months, in the cases of Bulda Melin, Talda Reia, Neringa Koi, Wai Wandake, Thomas Konga and Norun Moguwa imprisonment with hard labour for three years, and in the cases of Neng Wam and Maima Kuli imprisonment with hard labour for two years and eight months.

The killing was a payback. The deceased was ambushed while walking with another man and attacked with axes, a spear or arrow, and a stone. From the depositions of Galia Konga, the man who accompanied the deceased, it appears that Koim Komble and Kewa Atep were the fight leaders and this was the view taken by the trial judge.

In his judgment on sentence the trial judge made no specific finding in terms of s. 305 (2) of the Criminal Code (Queensland, adopted) that there existed extenuating circumstances such that it would not be just to inflict the punishment of death. However, from a consideration of the matters to which the learned judge referred in dealing with sentence it appears to us to be implicit that his Honour found that extenuating circumstances did exist even although he did not expressly say so. We would not quarrel with a finding of extenuating circumstances and so we shall proceed to deal with the matter on the basis that extenuating circumstances did exist.

However, before so proceeding we should deal with a submission upon which counsel for the Secretary for Law placed a great deal of reliance. As he put it the Criminal Code provides that sentence of death is the “automatic and mandatory” penalty for wilful murder and his strong submission was that where an accused person is convicted of this crime the onus is upon him to take himself “out of the ambit of the death sentence”. This we think is to misconstrue the relevant provisions of the Code. True it is that the Code provides for sentence of death to be pronounced if guilt is found. But it also provides that if the court finds that a person committed the crime of wilful murder it shall thereupon consider whether there existed extenuating circumstances such that it would not be just to inflict the punishment of death, and if it finds that those circumstances existed it may impose a sentence of imprisonment for life or for such lesser term as the court thinks just. Provision is also made that the questions of whether extenuating circumstances exist and if so what weight is to be given to them are questions to be decided in the light of the facts of and circumstances of and surrounding each individual case. The duty is cast upon the court of considering these circumstances and it is not to the point to talk of there being an onus upon one side or the other. The prosecution carries the onus of satisfying the tribunal beyond reasonable doubt of guilt of the offence charged. Except where specifically provided, in circumstances not relevant to this appeal, the Code knows of no other onus. After conviction the court expects that any consideration affecting either the public good or the interests of the person convicted will be put to it by the prosecution. It expects, too, that counsel for the defence will put before it all proper considerations in mitigation of sentence. But the responsibility is the court’s to decide whether extenuating circumstances exist and if they do what is the proper sentence to impose. In the fulfilment of its duty it may well direct further inquiries to be made and information to be furnished. We mention purely by way of example that the court may, and in appropriate cases should, seek information as to local custom or as to the mental state of the prisoner.

The trial judge described the respondents as primitive and as simple tribesmen and he says that they are quite unsophisticated. In a report to the Full Court pursuant to rule 22A (a) of the Supreme Court (Full Court Appeal) Rules, his Honour referred to the appearance of the respondents and their demeanor in court in these words:

“In fact a number of them were in native dress, namely a ‘sporran’ and tanget leaves. So far as their demeanour was concerned it was quite apparent to me that they were bewildered by the proceedings. They were quite unusually docile, and although I do not think they were frightened, I did gain the strong impression that they were both puzzled and concerned.”

The antecedent reports show that the respondents’ village is nine hours’ walk from Mount Hagen and 3 1/2 hours from the nearest Administration station and that the area is often patrolled. One of them, Thomas Konga, had received some education and reached standard 6, which he failed. The records of interview would indicate that the respondents speak Pidgin. It does appear that some further material other than that contained in the depositions and antecedent reports was before the trial judge as, for instance, he refers to the fact that the line of the respondents was only a small line of twenty men of whom two are old, but no reference to this is to be found elsewhere in the appeal book. His Honour also had the undoubted advantage which a judge of first instance possesses over an appellate court, even in the case of a plea of guilty, in that he had the opportunity of observing the respondents themselves. Bearing all these matters in mind, we would think that whilst it was no doubt correct to describe the respondents in the terms used by the learned trial judge their degree of primitiveness should not be regarded as comparable, for example, with that of people from very remote areas with only minimal contact with Administration officers.

In this instance applying the principles set out in The Queen v. Andrew Pia-Afu[cccxxii]2 we are clearly satisfied that the sentence imposed in each case was inadequate and should be altered. Having regard to the nature of the offence and the circumstances in which it was committed, the maximum punishment which may be imposed and the various considerations affecting the respondents set out by the learned trial judge, we consider that the proper sentence to impose in the cases of Koim Komble and Kewa Atep is imprisonment with hard labour for ten years. In the case of the remaining respondents there are several considerations which lead us to the view that a lesser punishment is warranted than that which should be imposed upon the two respondents who took the leading role in the commission of the crime. Whilst by reason of their acts all the respondents are guilty of the crime of which they have been convicted, the learned trial judge formed the view that those other than Koim Komble and Kewa Atep played a subordinate role in the killing and we see no reason to disagree with him. In addition we think that it is proper from the community point of view to have regard to the fact that the respondents all belong to the same small line the effective strength of which in able-bodied men is going to be drastically reduced for a number of years in consequence of the imprisonment of the respondents. In the particular circumstances of this case we consider that the proper sentence in the case of the remaining eight respondents is imprisonment with hard labour for six years.

We therefore allow the appeal and order that the following sentences be substituted for those imposed by the trial judge:

Koim Komble and Kewa Atep—Each imprisonment with hard labour for ten years.

Bulda Melin, Talda Reia, Neringa Koi, Wai Wandake, Neng Wam, Maima Kuli, Thomas Konga and Norun Moguwa—Each imprisonment with hard labour for six years.

Orders accordingly.

Solicitor for the appellant: P. J. Clay, Crown Solicitor.
Solicitor for the respondents: W. A. Lalor, Public Solicitor.

[cccxxi]Section 305 (2) of the Criminal Code (Queensland, adopted) provides:

(2)        If a court finds that a person committed the crime of wilful murder it shall thereupon consider whether there existed extenuating circumstances such that it would not be just to inflict the punishment of death and if it finds that those circumstances existed the court may impose a sentence of imprisonment for life or for such lesser term as the court thinks just.

[cccxxii] [1971-72] PNGLR. 393.