PNG Law Reports 1993
[1993] PNGLR 330
N1167
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
THE STATE
V
EMP MEK
Mount Hagen
Woods J
15 June 1993
CRIMINAL LAW - Sentence - Manslaughter - Customary compensation - Matter settled within the family - Considerations on sentence.
CONFLICT OF LAWS - Custom and legislation.
CUSTOMARY LAW - Inconsistency with Constitution.
Facts
The deceased and accused, who were clan brothers, were involved in an argument which developed into a fight. In the escalation of the fight, the accused struck the deceased on the head with a coffee stick. The deceased died a few days later from the head injury. The accused was charged for manslaughter under s 302 of the Criminal Code.
The relatives of the deceased and accused came to court and gave evidence of a traditional settlement.
Held
1.       Custom should be taken into account when determining penalty, following Acting Public Prosecutor v Aumane [1980] PNGLR 510.
2.       Section 7(e) of the Native Customs (Recognition) Act does not enlarge the power of the Court under ss 19 and 309 of the Criminal Code. Section 7(e) may only operate within the range provided under ss 19 and 309 of the Code.
3.       The trial judge erred when he imposed a traditional settlement (sentence) as a matter of law.
Cases Cited
Acting Public Prosecutor v Aumane [1980] PNGLR 510.
State v Pokolou (1983) unreported N404.
Counsel
S Carter, for the State.
K Kot, for the defendant.
15 June 1993
WOODS J: The accused, Emp Mek, has pleaded guilty to the unlawful killing of Wayeng Kapal at Karape Village in the Western Highlands Province on 20 January 1993. This is manslaughter under Criminal Code s 302.
On that day, there had apparently been an adultery matter before the Village Court involving the accused and the deceased, and apparently there was an argument which developed into a fight. Some punches were used and, in the escalation of the fight, the accused struck the deceased on the head with a coffee stick.
The deceased fell to the ground. He was taken to hospital where he died a few days later from head injuries.
The evidence before the court on sentence is that the deceased and the accused were clan brothers, and this was a fight that got out of control. The accused has expressed his remorse at what happened saying, "We fought and I am very sorry for my brother. We are one blood. I did not mean to kill my brother".
The relatives of the victim and accused have come to court to plead for leniency, saying that all matters have been settled in the village and compensation has been paid. The State concedes that there should be some leniency in view of the traditional settlement of the matter.
For many years now, the Court has been asked to consider the place of customary punishment to be imposed as punishment. The clearest statement and analysis of the place of customary punishment in criminal offences has been in Acting Public Prosecutor v Aumane [1980] PNGLR 510, Kapi J at p 541 refers to the Native Customs (Recognition) Act s 7, which says that custom shall be taken into account when determining the penalty. He says that this means customary punishment assists the court in deciding whether the offender ought to receive less or more punishment. His Honour says at p 542:
"Under s 7(e) of the Native Customs (Recognition) Act a court may have regard to these matters in arriving at the appropriate sentence. This means that a judge may increase or decrease the sentence depending on whether custom mitigates or aggravates the offence and may impose the appropriate sentence within the range given by law. In this case the trial judge had only power to impose punishment within the range given by ss 19 and 309 of the Code. While the trial judge did not err in referring to the willingness of the respondents to pay compensation in terms of pigs, in accordance with custom, he fell into error when he imposed that sentence as a matter of law.
Section 7(e) of the Act does not enlarge the power of the court under ss 19 and 309 of the Code. Section 7(e) may only operate within the range provided under ss 19 and 309 of the Code."
It appears from this reasoning that a person may only be convicted of an offence which is defined, and the penalty for which is described, by a written law: (s 7(2) of the Constitution). In the instant case, the Criminal Code defines wilful murder and prescribes the penalty. As a matter of law, a court can only impose the penalty provided under the Code. This Court has no power to impose any customary punishment. I have not overlooked Sch 2.1(1) of the Constitution, which adopts custom, which shall be applied and enforced. However, adoption of custom is subject, amongst other things, to Sch 2.1(3)(b), which says that an Act of the Parliament may regulate the manner in which, or the purposes for which, custom may be recognised, applied and enforced. Such an Act is the Native Customs (Recognition) Act. Under s 7(e) of this Act, custom may be taken into account in punishment. As I have pointed out earlier, custom here may only mitigate or aggravate the sentence to be imposed. However, ultimately, the penalty to be imposed is as provided for under the Code, and there is no power in the court to impose customary punishment.
In The State v Pokolou (1983) unreported N404, Kidu CJ endorsed the above principles when he accepted evidence of a customary pardon to reduce the punishment in a stealing case.
In recent years, there have been more and more statements that the courts should be giving more consideration to customary solutions, that gaols are inappropriate and alien to PNG society, that alternatives to punishment should be considered. If one was really able to analyse the many sentences that are handed down every year by the National Court, there is no doubt that the courts have been considering the above matters, including the relevance of customary compensation. Whilst with respect to property crimes, these matters should be considered, yet be within the range or provision under the Criminal Code, when one deals with unlawful killings there are wider considerations. In popular theory in the customary situation, one death may often lead to another "payback" death, although perhaps at the end of the day there may then be a customary settlement or peacemaking by compensation. So where can the modern courts start in considering the appropriate punishment for a killing. In a murder or manslaughter, there is no victim who can forgive or who can concur with any customary settlement. The killing itself evidences an attitude or a likelihood to violence, even where the surrounding facts suggest an accident. No society can tolerate any likelihood or possibility of violence, and anyone who shows any such inclination must be removed from the society or secured in the society for the safety of that society. 
Therefore, no matter how far the lines or the relatives have agreed that everything has been settled, the courts must - and the country as a whole must be able to rely on the courts to - apply the law, as propounded by the Parliament, that a person who is responsible for a death must be imprisoned.
The brutal ambush or slaying of an innocent passer-by must indicate the highest degree of potential and actual violence which must warrant the extreme limit of punishment provided for by the law. However, the accidental going too far in a family argument, whilst indicating a likelihood to violence in provocative circumstances, can be dealt with leniently by the court. And where the offender has to live forever with the fact that he has caused the death of a close relative or clan brother, then a very low punishment can be considered if the society supports such. The fact is that such an offender will be punished in his society and family for the rest of his life. In any society, it is a most heinous crime to kill a brother.
In the case before me now, the relatives and lines have agreed and sought a very lenient penalty, and I will concede to that. I sentence you, Emp Mek, to two years imprisonment with hard labour. You have spent four months in remand custody, so you have one year and eight months to serve.
Lawyer for the State: Public Prosecutor.
Lawyer for the Defendant: Public Solicitor.