N571

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THE STATE

V

WAK MOND

Mount Hagen
Wilson J
11-12 December 1986

CRIMINAL LAW - Sentence - Payback killing - Categorisation as, not determinative of sentencing policy - Regard to particular circumstances - Parents killed in presence of accused - Sentence of five years.

CRIMINAL LAW - Sentence - Mitigation - Relevant considerations - Emotional stress may be relevant - Payback killing - Parents killed in presence of accused - Sentence of five years.

An accused pleaded guilty to a charge of unlawfully killing. The unlawful killing was a "payback" killing which occurred after the accused who was locking his village house, prior to setting out to garden with his parents, saw a motor vehicle collide with his mother and father on the side of nearby road killing both of them. The accused seeing his mother and father dead collected his axe from his house, pursued the driver and killed him with three blows of the axe. In his record of interview the accused stated:

"my two parents both died and I lost my temper so I killed the driver .... We are all born from parents. They looked after us when we were small and they pay for our brideprices. With that feeling when you see a man or a vehicle kill them in your presence what do you think you would do. You run out of patience and kill whoever is responsible for the death of the parents. That is exactly what happened to me and I went and killed the driver of the vehicle, and now I am being charged. That is all."

Held

(1) The nominal categorisation of a killing as a "payback killing" is not of itself determinative of which sentencing theory or philosophy should apply to the particular case.

(2) The fact of emotional stress which explains criminal conduct is a relevant consideration in mitigation of punishment and the court was entitled to have regard to the severe and acute emotional stress to which the accused was exposed.

Neal v The Queen (1982) 56 ALJR 848 at 856; 42 ALR 609 at 624-625, per Brennan J, adopted and applied.

(3) In all the circumstances the accused should be sentenced to five (5) years in hard labour with four months in custody awaiting trial to be taken into account.

Cases Cited

Acting Public Solicitor v Uname Aumane [1980] PNGLR 510.
Neal v The Queen (1982) 149 CLR 305; 56 ALJR 848; 42 ALR 609.
Public Prosecutor v Apava Keru and Aia Moroi [1985] PNGLR 78.
State, The v Donald Robin (Unreported, National Court judgment of Wilson J, 23 May 1980).
Veen v The Queen (1979) 143 CLR 458; 53 ALJR 305.

Sentence

The accused pleaded guilty to a charge of unlawful killing arising out of a "payback killing" following a motor vehicle accident.

Counsel

J M Teine, for the State.
D Poka, for the defendant.
Cur adv vult

12 December 1986

WILSON J: The prisoner, Wak Mond, has pleaded guilty to the charge of unlawfully killing Joseph Bepi. He now awaits his sentence.

On 18 August 1986 at Kawi, near Minj, Wak Mond, was locking his village house in the morning and was going to meet his parents who were sitting near the road so that they could all proceed as they normally did to their daily task of gardening. While locking the door he saw a white motor vehicle come along and collide with the people on the side on the road. The vehicle went on and ran into a ditch. The driver, Joseph Bepi alighted and fled. As did the passengers in the vehicle.

Wak Mond went to the scene. He saw that his mother and father had been killed in the collision. He went immediately to his house which is very close by, took his axe and chased Joseph Bepi. He caught up with him very quickly as Bepi had stumbled in a ditch. Wak Mond struck him on the forehead and he became unconscious. He then delivered three blows to the neck of Joseph Bepi, almost severing the head from the body. He went back to the place where his parents lay and waited for the police.

ARRAIGNMENT

As is the usual and accepted practice, on the basis that the defendant would be pleading guilty to the charge, I examined the depositions of the committal proceedings in the District Court.

In court the State Prosecutor handed me an indictment charging Wak Mond with the offence of wilful murder. I declined to arraign the defendant on that charge.
I then indicated to the State Prosecutor and Counsel for the Public Solicitor that they should examine the charge in the light of ss 266, 267 and 303 of the Criminal Code (Ch No 262) which are in the following terms:

266. Provocation

(1) Subject to this section, "provocation" used with reference to an offence of which an assault is an element, means a wrongful act or insult of such a nature as to be likely, when done:

(a) to an ordinary person; or

(b) in the presence of an ordinary person to another person:

(i) who is under his immediate care; or

(ii) to whom he stands:

(A) in a conjugal, parental, filial or fraternal relationship; or

(B) in the relation of master or servant,

to deprive him of the power of self control, and to induce him to assault the person by whom the act or insult is done or offered.

(2) When an act or insult referred to in Subsection (1) is done or offered by one person to another, or in the presence of another to a person who is under the immediate care of that other or to whom the latter stands in a relation referred to in Subsection (1) the former is said to give to the latter provocation for an assault.

(3) A lawful act is not provocation to any person for an assault.

(4) An act that a person does in consequence of incitement given by another person in order to induce him to do the act, and thus to furnish an excuse for committing an assault, is not provocation to that other person for an assault.

(5) An arrest that is unlawful is not necessarily provocation for an assault, but may be evidence of provocation to a person who knows of the illegality.

267. Defence of Provocation

(1) A person is not criminally responsible for an assault committed on a person who gives him provocation for the assault, if he:

(a) is deprived by the provocation of the power of self-control; and

(b) acts on it on the sudden and before there is time for his passion to cool,

if the force used is not disproportionate to the provocation, and is not intended to cause, and is not likely to cause, death or grievous bodily harm.

(2) Any question, whether or not:

(a) any particular act or insult is likely to deprive an ordinary person of the power of self-control and to induce him to assault the person by whom the act or insults is done or offered; or

(b) in any particular case, the person provoked was actually deprived by the provocation of the power of self-control; or

(c) any force used is disproportionate to the provocation,

is a question of fact.

303. Killing on Provocation

Where a person who unlawfully kills another under circumstances that, but for this section, would constitute wilful murder or murder, does the act that causes death in the heat of passion caused by sudden provocation within the meaning of Section 266 and before there is time for his passion to cool, he is guilty of manslaughter only."

These provisions were, I consider, most relevant to the charge in view of the uncontested version of events most clearly and dramatically set out in the defendants record of interview, the pertinent sections of which I now set out in full (from the English translation):

"Q: What village do you come from?
A: I come from Kawi village.

Q: Are you married?
A: I have two wives and three children.

Q: What is the name of your father?
A: Mond Waiku.

Q: What is the name of your mother?
A: Kopung Agua.

Q: On Monday the 18th August 1986, around 7.30, where were you?
A: I was at Kawi.

Q: Whom were you with?
A: I was with my father and mother.

Q: What were you doing?
A: We were just sitting.

Q: Were you inside or outside the house?
A: The two people were outside and I was inside the house.

Q: Did anything happen at that time?
A: We the villagers usually plant coffee and every men in the village had all gone to plant coffee and the two parents were sitting outside and I pulled the door just to close it and I left my axe outside and got the lock to about to lock it when I heard the engine of the vehicle coming from Kunjip towards Hagen. I watched as the white Mazda truck came to the opposite side on the right side and ran over the two parents and then he ran into the ditches of the Kainantu garden, and got stuck. I ran to the two parents laying on the ground and I found that the two had died instantly. I realised that I left my axe at the door of my house and came back and saw the driver of the vehicle running towards a house. I saw him and ran after him and if fell to a ditch and as he turned around to see I threw the axe to his forehead and then cut his neck until he died and I left him and took the axe to the road and the policemen came and I told them that I have killed the driver and I directed them to the spot where he laid. That is all.

Q: What are your parents names who died?
A: Father is Mond and mother is Kopung.

Q: Are the first born in the family?
A: I am the first born and there are five others two males and three females.

Q: How many times did you throw the axe at the driver’s neck?
A: Three times.

Q: Three times on which part of the body?
A: On his neck.

Q: I put to you that you threw another on his forehead?
A: Yes that is correct. I threw the axe onto his forehead and that made him go unconscious and fell and I cut his throat three times.

Q: What did you have in mind when you chopped him?
A: I saw the parents died and that provoked me and I killed him, but if they were breathing then I would think twice.

Q: Why did not you wait until police came and charged the driver for killing the two people in the accident?
A: My two parents both died and I lost my temper so I killed the driver.

Q: What do you think, what you did is right or wrong?
A: The two people died in my eyes and I lost the temper so I killed.

Q: Do you wish to say anything to your charge?
A: Yes I have a little to say.

Q: What do you wish to say?
A: We are all born from parents. They looked after us when we were small and they pay for our brideprices. With that feeling when you see a man or a vehicle kill them in your presence what do you think you would do. You run out of patience and kill whoever is responsible for the death of the parents. That is exactly what happened to me and I went and killed the driver of the vehicle, and now I am being charged. That is all."

This version was totally consistent with the account contained in the depositions of eyewitnesses.

Following a further consideration of these matters, the State Prosecutor, quite properly, indicated that he would accept a plea to the charge of unlawful killing or manslaughter due to the operation of s 303 of the Criminal Code.

The defendant was then arraigned and a plea of guilty to manslaughter was accepted by the Court.

SENTENCE

Wak Mond is thirty years of age. He is a villager and subsistance farmer. He has two wives and three children. He has no formal education. He has never had formal employment.

The crime of manslaughter admits of many degrees and the penalty prescribed by law ranges from a nominal punishment to a maximum of life imprisonment.

There has been over many years, and perhaps more so recently, a strong indication from the Supreme Court and various decisions of the National Court that the crime popularly known and understood as "payback killing" must be deterred. While this is a sentiment which finds acceptance and endorsement amongst all right minded people in the community, I consider that the nominal categorisation of a killing in these terms should not be the end of the court’s function in the determining which sentencing theory or philosophy it should apply to the case before it.

There are many variations to this crime. I would place the facts of this case at one end of the spectrum and the type of case involving the payback killing of an innocent victim, who was unconnected to the first death, at the other. As an example see Public Prosecutor v Apava Keru and Aia Moroi [1985] PNGLR 78.

As was said by Kapi J as he then was, in Acting Public Solicitor v Uname Aumane [1980] PNGLR 510 at 537:

"The task of a sentencing judge is a very difficult one. This is because a judge is dealing with a life of a human being who has broken the law. A law usually sets down the maximum penalty for an offence and gives the sentencing judge very wide powers to impose the appropriate punishment for the particular offender."

One of the essential tasks in determining the appropriate punishment must be an assessment of the culpability of the offender. This task is the cornerstone of the sentencer’s reasoning in fixing punishment.

In this deliberation the sentencer must consider the particular offender and his circumstances. Against the background of these considerations are what has been termed "the developed theories on sentencing" basically categorised as deterrence, separation from society, retribution and rehabilitation. The sentencer should always consider these aspects in determining punishment.

Apart from these theories the sentencer must also have in mind the fundamental principle that "the punishment to be inflicted must be proportionate to the crime" as per Mason J in Veen v The Queen (1979) 53 ALJR 305 at 309. In the same case Murphy J (at 320) put forward a similar sentiment by reference to the classics when he quoted a statement of Cicero: "Take care that the punishment does not exceed the guilt" (De Officio, Bk 1 Ch 25, s 89).

The proper application of these simple but important principles does not only turn on an assessment of the crime itself, it must include a full consideration of the particular circumstances of the crime.

In The State v Donald Robin (Unreported, National Court judgment N230 of Wilson J, 23 May 1980), Wilson J succinctly encapsulated another version of this concept, as follows (at 4):

"I shall endeavour to make the punishment fit the crime and the criminal as nearly as possible within the limits of what is a somewhat artificial sentencing process. This Court’s concern is the protection of the public but, subject to that, the Court should lean towards mercy. As a sentencing judge, I ought not to award the maximum which the crime will warrant but rather the minimum which is consistent with a proper regard for the public interest."

To do justice the Court as well as considering retribution and deterrence must have understanding when sentencing an offender and not be restrained from including elements of compassion and mercy in its decision where the case permits.

In this case, in a most dramatic and tragic sequence of events, the offender was exposed to the most severe and acute emotional stress. Seeing his parents killed he acted immediately in the heat of emotion and grief and took the life of the person responsible for their death. Such action can never be condoned but can be understood. The fact of the emotional stress, a clinical but correct description of the pressure attending on the offender at the time he committed this crime, is something which the Court is entitled to take into account in mitigation of punishment. In Neal v The Queen (1982) 42 ALR 609 at 624-625, Brennan J offered his understanding of this principle in these terms:

"Emotional stress which accounts for criminal conduct is always material to the consideration of an appropriate sentence, though its mitigating effect can be outweighed by a countervailing factor (see D A Thomas, Principles of Sentencing (2nd ed, 1979) pp 194, 207). The sentencing court takes account of emotional stress in evaluating the moral culpability of the offender just as it is entitled to have regard to the motive for the offence (R v Bright [1916] 2 KB 421 at 444 per Darling J). Consideration of emotional stress is commonplace in the exercise of a sentencing discretion.... It is erroneous to neglect consideration of emotional stress which explains criminal conduct; that factor is material to the assessment of proper retribution and it may be material to deterrence — at all events if those to be deterred are likely to be subjected to similar emotional stress."

Allowing for the difference in society and culture from which those statements arise, I adopt the principles expressed as being relevant to the circumstances of the offender in this case. No doubt emotional stress is usually attributed to a situation of a slow build up of emotion, but the considerations are equally, if not more, applicable where events move so quickly, as they did in this case.

In considering the importance of the emotional impact in this case I have considered the reference to D A Thomas "Principles of Sentencing", as referred to above, and find that aspects of deterrence can diminish the significance to be attached to this factor.

In considering deterrence I approach the issue in terms of personal and general deterrence. Due to the circumstances from which the offence arose I am firmly of the view that the offender is unlikely to offend in such a manner again. In terms of general deterrence I am not satisfied that a heavy sentence imposed in consequence of that principle would have any pragmatic effect on any person faced with the same circumstances as attended the commission of this offence. I do not however abandon the general importance in many cases of the adoption of this principle in determining the appropriate sentence. My comments in this respect are limited to the particular circumstances of this case but are indicative of my conviction that these principles of deterrence must be carefully weighed in each sentencing decision.

In Uname Aumane, Kapi J (as he then was) at 538, drew together eloquently a combination of the various factors and functions I have alluded to above, as follows:

"The agonising task for the sentencing judge is to evaluate which of these theories of sentencing should be achieved in the particular case he is dealing with. A judge is faced with a dilemma because if he chooses one theory of sentencing he is likely to frustrate the other theories. In some cases, a judge will need to give a balanced consideration to all the theories of sentencing. In others, a judge will want to emphasise or achieve one theory of sentencing more than others in certain classes of offence."

In this case the sentence is concerned with the recognition that what the offender did was against the law and that such actions cannot be condoned or treated lightly. Equally, justice is fairness and it is important that the circumstances of the offence, the tragic loss of his parents lives and the emotional impact on him be given due consideration. I also believe that, to the extent that his fate is known, most probably through word of mouth in his own area, others in the community will understand that his punishment reflects the fact that the court is attempting to discourage similar action, thereby, the principle of general deterrence is also served.

Wak Mond, you are sentenced to five (5) years in hard labour. You have spent four (4) months in custody awaiting your trial which I take into account. You have four (4) years, eight (8) months remaining to be served.

Sentence of five years imposed

__________________

Lawyer for State: Acting Public Prosecutor.
Lawyer for Defendant: Acting Public Solicitor.

[1986] PNGLR 265 - George Kiak v Tora Enterprises Pty Ltd and MVIT