Unreported Supreme Court Decisions
SC198
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
S.C.A. 15 OF 1980
BETWEEN: AGOARA KEBO AND KARUNAI URAKI
AND: THE STATE
Waigani
Kidu CJ Kapi Miles JJ
24 March 1981
CRIMINAL LAW - appeal against sentence - sorcery.
Where reasons for sentence not available on appeal the Supreme Court may for the first time exercise its own discretion on sentence.
Chief Justice - To do justice in appeals, reasons if orally given should be reduced to writing and furnished to the Supreme Court.
Miles J - Observations on proper evidentiary basis to be supplied to the court on the belief and extent of belief in sorcery for purposes of sentence.
Cases Referred To
Secretary for Law v. Witrasep Binengim (1975) P.N.G.L.R. 172
Cowell v. Cowell (1954) 71 W.N. (N.S.W.) 217
William Norris v. The State Unreported Supreme Court Judgment SC 171 of 7/12/79
Brian John Lewis v. The Independent State of Papua New Guinea Unreported Supreme Court Judgment SC 178 of 29/8/80
KIDU CJ:  This is an appeal by two men who pleaded guilty to a charge of wilful murder. They were each sentenced to be imprisoned with hard labour for a period of eight years.
The learned trial judge made some remarks on sentence but such remarks have not been provided to this court. His Honour’s notes on the case read:
“15th August 1980 - Goroka - 9.30 a.m.
Interpreter Steven Emissen.
Pidgin - English Sworn
Miss Bourke for Prosecution
Arraignment - both say “true”
Mr. Roddenby for each accused - no application - read deps. 10 safe
Plea - guilty as charged in each case
Verdict - guilty as charged in each case
Allocutus: Each says “nothing to say”
State tenders deps.
Antecedent reports - nothing else
Mr. Roddenby
Second accused was not employed on rubber plantation but was employed as a cook last year for less than a year - returned to village when father died - straw that broke the camel’s back - typical case of killing of sorcerer - on same day just before accused had been attacked by four others with sticks as a sorcerer - deceased denied any knowledge - they (accused) were annoyed by his off-hand attitude - there was a fight between the two lines - the four people hit him, then the two accused killed him - accused supposed to have killed 18 men and Kalunai’s father - Kalunai - standard 1 - single - father dead - 17 years of age - no priors - pleaded guilty - co-operated with police
Agoara - late 20s or early 30s - Port Moresby rubber plantations - married man - pleaded guilty - co-operated with Police
Both in custody since 12th June 1980 - note difference in age I.H.L. - eight years.”
Sentencing is a discretionary power and it has been said that a judge is not obliged to make any remarks on sentence. (See the pre-Independence Full Court case of Secretary for Law v. Witrasep Binengim[lxxviii]1 per Prentice S.P.J. (as he then was) at p. 174). Raine J. (as he then was) in the abovementioned case at p. 176, however, said the following:
“The second matter to which I would shortly refer is this question of remarks on sentence, and the attitude to be taken by an appellate court where the trial judge lays emphasis on some, but says nothing as to other aspects of importance, or, if you like, says nothing at all.
In John Kemai v. Symonds ((1975) P.N.G.L.R. 81) I was not intending to lay down any rigid rule. However, I still feel that the judgment of Maxwell J. in Cowell v. Cowell ((1954) 71 W.N. 217, at p. 218) is to be preferred to that of Wells J. in R. v. Reiner ((1974) 8 S.A.S.R. 102, at pp. 113-5), not because I really disagree with much that Wells J. says, but because I believe that Maxwell J. adopts an approach that is more fluid, and gives the appellate court more room to move.”
The part of Maxwell J.’s judgment in Cowell v. Cowell[lxxix]2 appears at p. 218:
“The fact, if it be the fact, that his Honour has not stated directly or expressed himself so that one can by inference say, that these are the principles on which his Honour has exercised his discretion, makes it not only easier but more incumbent upon this Court to examine the circumstances in which the exercise of discretion was sought.
In my opinion, there is ample authority for the proposition that this Court, faced with no real explanation of the principles acted upon in the first instance, must perhaps for the first time exercise its own discretion, not for the purpose of substituting it for that of the learned judge, but of really formulating the grounds upon which a particular course ought or ought not to be taken”.
It is established in this jurisdiction that for an appellant to succeed in an appeal against sentence he must persuade this court that a more lenient sentence is warranted. To do this he is required to show some error on the part of the trial judge going to sentence. Kearney J. (as he then was) put this very succinctly in William Norris v. The State[lxxx]3 at pp. 8-9:
“So the question in practice on a sentence appeal is usually this - has the appellant shown that an error occurred which has the effect of vitiating the trial judge’s discretion on sentencing? Such an error may be identifiable: thus, the trial judge may have made a mistake as to the facts; or acted on a wrong principle of law; or taken into account matters which he should not have taken into account; or failed to take into account matters which he should have taken into account; or clearly given not enough weight or too much weight to a matter he properly took into account. There will also be vitiating error if upon the proved facts and making the fullest allowance for the advantaged position of the trial judge, the sentence is obviously (and not merely arguably) excessive, although no identifiable error can be shown; for, if a sentence is out of reasonable proportion to the circumstances of the crime, even though no particular error can be identified, this Court will infer that some error must have occurred in the exercise of the sentencing discretion”.
If this is the law here, this court is disadvantaged in not having the learned trial judge’s reasons for sentence and counsel for the appellant is also disadvantaged in arguing his client’s appeal. However, if the view is taken that the absence of reasons for sentence leaves it open for this court to determine the proper sentence, then the appellants are probably in a better position as they can, as they have done through counsel, ask the court to look at all relevant facts and determine what the proper sentence ought to be. I take this view as a reasonable one under the circumstances.
Although a judge is not obliged to give his reasons for sentence, if we are to do justice in appeals, reasons for sentence, if verbally given, should be reduced to writing and furnished to the appellate court. Counsel involved should not depend or rely on the trial judge making notes. They should write down all that a trial judge says on judgment as well as sentence.
The two appellants killed the deceased because they believed that the deceased had killed their father by sorcery. They also believed that the deceased had previously killed, by sorcery, 18 other persons and they feared that he might kill them by sorcery. I accept that they did hold such beliefs in the absence of challenge by the Prosecution in the National Court. It has been held by this court and individual judges that belief in the power of sorcery is real and such a factor has been taken into account in reducing sentences in homicide cases.
Is a sentence of 8 years imprisonment hard labour ‘manifestly excessive’ for a sorcery killing? Counsel for the appellants submitted that this case is distinguishable from other sorcery killings in that apart from the belief that the deceased had killed the appellants’ father and 18 others by sorcery, they (the appellants) feared that they would be killed by the deceased the same way. This extra ‘belief’, although not supported by any independent evidence, was not challenged by the Prosecution in the National Court. I accept it to be their belief. Although both appellants have been exposed to other tribes in Papua New Guinea and speak Pidgin, the belief is reasonable from their point of view. There are countless number of Papua New Guineans, educated and sophisticated, who still believe in the power of sorcery. I know of Papua New Guineans who are ministers of religion, who still believe that a sorcerer can kill, not by administering poison, but by working magic, vada, mura mura, sanguma and so on.
Even taking this into account I am of the view that this does not make an 8 year sentence for wilful murder, which carries a maximum penalty of life imprisonment, manifestly excessive. The belief in sorcery, taken together with other factors in their favour, only operates to reduce a life sentence to a term of years. It does not and should not operate to render a sentence equivalent to that usually imposed by judges here for murder, manslaughter, dangerous driving causing death or infanticide. I am not persuaded from the facts of the case as well as submissions from counsel for the appellants, that the sentence of the National Court was manifestly excessive.
I would dismiss the appeal and confirm the sentence imposed by the National Court.
KAPI J:  I agree with the conclusions and reasons given by the Chief Justice and Mr. Justice Miles, and I have nothing further to add.
MILES J:  I agree with the order proposed by the Chief Justice and the reasons given.
The circumstances in which an appellate court may or should interfere with the findings of fact of a judge at first instance were the subject of detailed analysis in the Court in Brian John Lewis v. The Independent State of Papua New Guinea[lxxxi]4. Generally speaking, an appellate court needs to be convinced that a trial judge’s finding of fact is wrong before it will substitute its own finding of fact. However where no reasons are given for the finding of fact by the trial judge, or where the facts as found cannot be spelled out from the judgment, an appellate court will be less hesitant about arriving at its own conclusions of fact, and any consequences which may be reflected in, for instance, determination of sentence.
In the present case counsel for the applicants told the trial judge that this was a “typical case of killing of sorcerer”. Yet there was not the slightest evidence to suggest that the deceased had ever engaged in acts of sorcery. Counsel for the applicants told the trial judge that they “were told he was a sorcerer by a big man from his line”. The statement from the only eye witness mentions nothing remotely connected with sorcery.
However having regard to what the applicants said in their records of interview and the reasons advanced by the Chief Justice, I accept that a belief that the deceased engaged in sorcery was a factor present in the minds of the applicants at the time of the offence.
Sentencing is an important part of the process of criminal justice. Sir James Stephen once said - “The sentence ... is to the trial what the bullet is to the powder.” More so on a plea of guilty, where there has been no trial and where (as in the present case) the evidence may be scanty, it calls for special skills on the part of the advocate. The calling of evidence to support the version of facts put forth on behalf of the offender should not be overlooked by defence counsel in appropriate cases. The antecedent reports in general use in this country at the present time are of little assistance, apparently having been designed for use in conditions which no longer exist. Pre-sentence reports prepared by professional probation or parole officers are only rarely available.
Counsel should not lightly assume from the absence of protest on the part of the State that everything said from the bar table on behalf of the offender will be persuasive. If leniency is sought for a murderer on the ground that the person murdered is believed to have practiced sorcery, the sentencing judge ought to know on some proper evidentiary basis about the grounds for such belief and the extent of such belief in the community to which the offender belongs. A self-appointed executioner may be motivated by belief that what he is doing is just or for the protection of himself and possibly others: there may be other less worthy motives. The recognition that there is a widespread belief in sorcery in Papua New Guinea is not necessarily of any great assistance in a particular case.
On the general question of advocacy and establishing facts at the sentencing stage, I commend to practitioners the article by Fox and O’Brien “Fact Finding for Sentencers” (1975) 10 Melbourne University Law Review 163.
Solicitor for the Appellants: A. Amet, Public Solicitor
Counsel: C. Bruce
Solicitor for the Respondent: L. Gavara-Nanu, Acting Public Prosecutor
Counsel: J. Byrne

[lxxviii](1975) P.N.G.L.R. 172
[lxxix](1954) 71 W.N. (N.S.W.) 217
[lxxx]Unreported Supreme Court Judgment SC 171 of 7/12/79 at pp 8 - 9
[lxxxi](Unreported) Supreme Court Judgment SC178 dated 29th August 1980