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Secretary for Law v Amantasi [1975] PNGLR 134 (1 August 1975)

Papua New Guinea Law Reports - 1975

[1975] PNGLR 134 - Secretary for Law v Ulao Amantasi

[1975] PNGLR 134

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SECRETARY FOR LAW

V

ULAO AMANTASI AND OTHERS

Port Moresby

Prentice SPJ Raine Saldanha JJ

28 July 1975

1 August 1975

CRIMINAL LAW - Sentence - Murder - Relevant considerations - Murder of reputed sorcerer - Very primitive accused - Sociological factors pre-eminent - Sentences of 12 months’ imprisonment taking into account 5 months in custody proper in circumstances.

CRIMINAL LAW - Appeal against sentence - Appeal by Secretary for Law against inadequacy of sentence should be confined to cases where sentence grossly inadequate - Supreme Court (Full Court) Act 1968, s. 29 (1).

Ten accused pleaded guilty to the murder of one Yamo and were each sentenced to twelve months’ imprisonment, the trial judge taking into account five months in custody prior to trial. The trial judge found that the killing of Yamo, who was believed to be a sorcerer, and believed to have caused the death of eleven people from the area, was planned, that the accused were of the most primitive type to be found in the community with strong beliefs in the power of sorcery, and, in killing Yamo, were acting in the interest of preservation of their society, which numbered some one hundred people only.

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

Held

(Per Prentice SPJ with whom Raine J agreed, Saldanha J dissenting) (1) In relation to sentencing this was a case where pre-eminently a consideration for survival and education of the group was that which should prevail over all other objects of punishment.

(2)      The Courts in Papua New Guinea must still endeavour to carry out the task, as they have always done, of marrying the government sociological task to the imposition of the Criminal Code (Queensland adopted) by varying sentences for murders from the most severe to the notional.

(3)      In all the circumstances the sentences were proper ones and the appeal should be dismissed.

Per curiam (per Raine J) The power of the Secretary for Law to appeal against sentence under s. 29(1) of the Supreme Court (Full Court) Act 1968 is designed for cases where it is considered that a trial judge has imposed a grossly inadequate sentence, not where the Crown’s view is that the judge might reasonably have awarded rather more.

Appeal

Ulao Amantasi and 9 others pleaded guilty to charges of murder of one Yamo, a reputed sorcerer. The trial judge imposed sentences of 12 months’ imprisonment on each accused and took into account in each case five months in custody prior to trial. The Secretary for Law appealed pursuant to s. 29 (1) of the Supreme Court (Full Court) Act 1968, against the sentence imposed in each case upon the ground that the sentences were inadequate and insufficient.

Counsel

K. B. Egan, for the appellant (Secretary for Law).

C. F. Wall, for the respondents.

Cur. adv. vult.

1 August 1975

PRENTICE SPJ: This is an appeal by the Secretary for Law brought without leave under s. 29 (1) of the Supreme Court (Full Court) Act, on the ground of insufficiency of sentence. The learned trial judge imposed sentences of 12 months’ imprisonment on each of the ten accused who pleaded guilty to the murder of one Yamo and had been in custody five months.

Mr. Secretary concedes that this was a case involving primitive men killing a reputed sorcerer; but submits that it was of the nature of an intentional payback killing, and that it was elaborately planned. He relies on R. v. Bulda Melin[cxlix]¹ as having established in effect that substantial gaol sentences are called for in all cases of wilful murder despite the primitiveness of the murderers.

It was submitted that Raine J in R. v. Ami Tabi & Ors.[cl]² regarded himself as constrained to apply Bulda Melin’s case[cli]³ in such a sense.

Sentencing policies in Papua, and latterly in Papua New Guinea, were built up along the lines described by Sir Hubert Murray in “Papua Today” (1924) at p. 85; and by Gore J in the Annual Report for Papua for 1930 (found in the “judgments” of this Court as No. 213). I have quoted from these sources in R. v. Peter Ivoro [clii]⁴. I have never known these principles to have been challenged or questioned in any way.

In deference to the submissions by the appellant, I have studied again the Full Court decision in Bulda Melin[cliii]⁵. With respect, I do not think it is authority for the proposition for which it has been cited. I do not think that it was even before their Honours’ minds that a general change in sentencing policy in regard to all wilful murders was being effected; or that long-standing principles were being resiled from —  particularly those by which the Court had regard to the social effect of multiple sentences on small communities. Indeed it is noteworthy that the Full Court expressly affirmed “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”.

I recall that that judgment was written at a time when all Judges of the Court were concerned with the persistence, in the Highlands particularly, of payback murders between tribes and lines of tribes. About that time, the Judges were forming the conclusion that sentences for such crimes should be increased. It appears to me that in Bulda Melin’s case[cliv]⁶ the Full Court was indicating that for payback murders a water-shed between comparative educational indulgence and severe deterrence of the Highlanders from a predilection for payback, had been reached. It was careful to say in the penultimate sentence of its judgment, “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”. It had earlier had reference 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” in setting ten years as the proper punishment for the two leading offenders.

But in coming to those conclusions the Full Court specifically stated, “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”.

The Ami Tabi[clv]⁷ decision seems to me to be no more than a recognition by the trial judge therein that there were degrees of primitiveness which would cause punishment to be lightened to a greater or lesser extent and that he should apply the Full Court decision in that sense.

The Bulda Melin case[clvi]⁸ was one of line payback with intent, in what might be called the classic stone-age tradition. The shedding of one tribe’s blood customarily demanded a reply in the shape of the shedding of blood of the offending line. Such cases have always been regarded as quite distinct and separate from those involving other kinds of murders such as wife or child killing, and notably the killing of sorcerers. It seems that in all Papua New Guinea societies the killing of an acknowledged sorcerer who has repeatedly been responsible for or has boasted of causing deaths, has been regarded as a benefit to society (unlike the payback which rebounds not on the offender personally but with cruel uncertainty, possibly on some innocent member of his line). The punishment of sorcerer killers has always been comparatively light. The Judges imposing it have no doubt been conscious they were administering an imposed law which in this aspect receives little or no approbation from primitive villagers, comparable to the relief which many of them would receive from the elimination by that law of the payback.

I cannot recall a case where the punishment for the killing of a sorcerer has been the subject of complaint by the Secretary for Law —  until this instant case. A notable exception of severe punishment in the case of the killer of a “sorcerer” was that of Seki Wanosa & Ors. v. The Queen [clvii]⁹. The circumstances therein were very special and the Court was concerned not with an insufficiency of sentence but with a severe sentence imposed by a trial judge in circumstances where he had not been fully apprised of the background facts. The accused in that case came from an area which had long been the subject of Administration activity.

In many parts of the transcript contained in the appeal book herein, the word “payback” is used in relation to this killing in the translation from the “ples tok”. But in my opinion this killing cannot be categorized as a payback in the sense of the Highland murders which all sections of the community want to see eliminated. It was the murder of a reputed sorcerer (and I think the evidence capable of supporting the inference that the murdered man had boasted of having killed others by sorcery) in a desperate attempt to prevent the destruction of the tribe. I consider it quite beyond the type of case being considered by the Full Court in Bulda Melin [clviii]¹⁰.

The accused were plainly of the most primitive type that it is possible to imagine. Most Judges of the Court have had experience of judging people from the Upper Sepik. Many of those peoples are incomparably less advantaged than the vast majority of Highlanders. Many live in desperate contest with an extremely hard environment, with only the barest contact with other races, and minimal knowledge of the Government and the world that is advancing from outside to engulf them for better or for worse.

The trial judge here, as Clarkson J had done in regard to an earlier batch of accused from a closely-adjoining locality, clearly considered them as deserving of the utmost consideration that the Court could give, consistent with the need to educate them as to the demands of Government law (introduced to their lives for the first time comparatively recently) that killings shall cease.

The trial judge here must have had an opportunity to assess their primitiveness such as cannot be approached by the members of this Court by their merely reading the transcript. He has put in the forefront of his judgment the possible sociological effect that long sentences upon so many men of such a small tribe (the whole linguistic group which has suffered so many deaths for which they sought to eliminate the “cause” numbers some 100 people). In doing so, I consider he has administered a cardinal principle of law; that it exists to help people not to crush them. I myself have many times given regard to the necessity to ensure, particularly where many members of a small group are convicted, that the accumulation of sentences among the accused does not work the destruction of their particular society, precious as it must be in the scheme of the universe. I think all other Judges have always done so.

I note that as recently as 12th June of this year O’Loghlen J has handed down judgments in murder cases involving punishments of 18 months and 21 months only, neither of which has been the subject of an appeal by the Secretary for Law (R. v. Andi Yauwei & 6 Ors.[clix]¹¹ and R. v. Andi Yauwei & 3 Ors.[clx]¹²).

I consider this was a case where pre-eminently a consideration for survival and education of the group was that which should prevail over all the other objects of punishment. Gore J, at p. 4 of the report referred to above, speaking after many years as Crown Law Officer, pointed out the difficulties involved in the Government itself carrying out in Papua New Guinea the sociological task which the Courts had hitherto endeavoured to marry to the imposition of the Criminal Code, by their varying sentences for murders from the most severe to the notional. In my opinion, these difficulties remain; and the Courts must still endeavour to carry out this task as they have always done, unless relieved of it in the future.

Having regard to all the circumstances of the case including the nature of the killing, that it was indeed planned, the degree of culpability of the accused not only in their own society’s eyes but of those endeavouring to administer and introduce the law, his Honour’s assessment of punishment was, I think, a proper one.

Even if I thought that I myself might have been a little more severe, it would have been I am sure to the extent of a few months only and not of years. I would not wish to see the trial judge’s sentence varied.

RAINE J: I have read in draft the judgment of the presiding judge, and I agree that the appeal should be dismissed, for the reasons he gives.

I wish to add that I myself would have imposed rather heavier sentences, but the difference between the sentences imposed by the learned trial judge and those I believe I would have thought proper is not great. To vary his Honour’s sentences and replace them with the sentences I have in mind would only be to substitute one arguable view for another.

With respect, I agree with all the learned presiding judge has said about Bulda Melin’s case[clxi]¹³. All the Full Court said there was that the sentences were quite inadequate. I might point out that the respondents were greatly disadvantaged in that appeal, as the Crown neglected to include the trial judge’s notes in the appeal book, and the Public Solicitor failed to notice the omission.

There is one final matter that I wish to advert to. This is an appeal by the Secretary for Law under s. 29 (1) of the Supreme Court (Full Court) Act. We are being virtually swamped with such appeals. The Secretary does not require the Court’s leave to institute such an appeal. In my home state of New South Wales a similar provision exists. It is most sparingly used, it is only used in glaring cases, where the Crown takes the view that a judge has given a grossly inadequate sentence, but never where the Crown’s view is that the judge might reasonably have awarded rather more. See for instance, R. v. Cuthbert [clxii]¹⁴. The fact that a number of the Secretary’s appeals have succeeded is not to the point because no leave is required to launch appeals. The provision was designed for cases where it was considered that a trial judge had gone very seriously wrong indeed. Section 29 (1) is being overworked here, and I trust that some attention is paid to my remarks.

As a matter of practical politics I might point out that there are only six judges. This leaves only five available for an appeal, as the trial judge does not sit in appeal, although, curiously, he often used to do so, in the old days, in England. There are generally only two judges in Port Moresby for most of the month, and it is difficult to assemble a Full Court. On Tuesday, because of this appeal, and the other appeal by the Secretary on Monday, no Chambers matters could be heard, Tuesday being the day set down for this work.

I would dismiss this appeal.

SALDANHA J: This is an appeal by the Secretary for Law under s. 29 (1) of the Supreme Court (Full Court) Act on the ground that the sentences imposed were inadequate. Each respondent pleaded guilty to wilful murder and was sentenced to twelve months’ imprisonment, allowance having been made for the period of five months that each had spent in custody.

The deceased Yamo was ambushed as he was returning home with his wife after visiting the wife’s brother. Two of the respondents attacked him with bone knives while others held him and when he escaped after a struggle he was killed by each of the respondents shooting arrows into him as he ran away.

The learned trial judge gave the following reasons for the sentence he imposed. He found that the killing of the deceased was a planned affair, that the respondents believed Yamo to be a sorcerer, that eleven people from the area had recently died and the respondents believed that the deceased had caused their death by sorcery. The last to die was a luluai. His death was the last straw resulting in the decision to kill Yamo. He found the respondents to be as primitive as can be found anywhere in the country with strong beliefs in the power of sorcery. He found that the respondents acted in the interests of the preservation of their society and considered themselves under an obligation to kill Yamo. He took into account that they were members of a group of not more than a hundred men, women and children and that to impose sentences of a kind normally given for wilful murder might result in the destruction of their group.

There can be no doubt that the sentencing of the prisoners must have caused the learned trial judge considerable anxiety. I have no quarrel with most of his findings. Nevertheless, I feel, with respect, that the sentences were insufficient.

Before Bulda Melin’s case[clxiii]¹⁵ comparatively light sentences were being imposed in cases of wilful murder where the offenders were primitive. Thus in R. v. Asis Bitimur[clxiv]¹⁶ Clarkson J imposed a sentence of three years’ imprisonment. In R. v. Leko[clxv]¹⁷ the same judge gave two years’ imprisonment. In R. v. Yimbang & Yauma Manyak[clxvi]¹⁸ Prentice J gave two years. There would appear to be other cases in which light sentences have been imposed.

In R. v. Be’inye Sumuisi and Ors.[clxvii]¹⁹ Raine J gave sentences ranging from two years eight months to four years three months.

In Bulda Melin’s case[clxviii]²⁰ sentences ranging from two years eight months to three years four months had been imposed by the trial judge. On appeal by the Secretary for Law the Full Court increased the sentences in the case of the two principal offenders to ten years’ imprisonment and in the case of the others who had played a more subordinate role to six years’ imprisonment giving the following reasons:

“In this instance applying the principles set out in The Queen v. Andrew Pia-Afu [1971-72] P. & N.G.L.R. 393 we are 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.”

I consider Bulda Melin’s case[clxix]²¹ crucial as far as sentencing policy is concerned. The significance of this case is that for the first time the Secretary for Law, presumably acting in response to informed public opinion, appealed on the ground of insufficiency of sentence in a case of wilful murder, and the Full Court thought fit to increase the sentences substantially, more than doubling them. These heavy sentences were imposed in spite of the fact that the trial judge had found that the line of the respondents was only a small line of twenty men of whom two were old. In the case before us the respondents are members of a group of about a hundred men, women and children.

In my view the principle to be deduced from Bulda Melin’s case[clxx]²² is that in cases of wilful murder more than derisory sentences should be imposed despite the primitiveness of the offenders. Nor do I see the need as far as deterrence is concerned to distinguish between a typical payback killing in the stone-age tradition and the killing of reputed sorcerers, women and children. So-called sorcerers are not always what they are reputed to be and are entitled to what little protection the law can afford them. And offenders and like-minded people who look upon women and children as chattels that can be disposed of at will and almost with impunity must be equally deterred.

In R. v. Ami Tabi & Ors.[clxxi]²³ Raine J stated that in his first circuit at Ambunti he gave light sentences to the accused. He was referring to R. v. Be’inye Sumuisi & Ors.[clxxii]²⁴. After referring to Bulda Melin’s case[clxxiii]²⁵ which was an appeal from his own judgment he went on to say that the two cases were very similar, that the killings were deliberate and planned and the offenders all very primitive people. He noted that in Bulda Melin’s case[clxxiv]²⁶ the sentences were more than doubled by the Full Court, and said he must and certainly would pay heed to the Full Court’s decision. He made a finding that the accused persons were even more primitive than in Bulda Melin’s case[clxxv]²⁷, that whereas the killings in the two previous cases were planned and brutal in Ami Tabi[clxxvi]²⁸ they happened on the instant. Nevertheless the learned judge sentenced them to five years and four months taking into account the three months they had spent in custody. The sentences were a good deal heavier than the sentences he had imposed in the two previous cases. With respect, that was the right approach and the right decision.

There are still pockets here and there in which exist very primitive people for whom the sentencing policies of Gore J and Sir Hubert Murray were designed and were considered apt. But such pockets of backwardness must be viewed in the context of what is happening in the rest of the country. This country has advanced to the point where it is now poised on the threshold of independence and will soon be independent.

There is a feeling abroad that Courts are not sufficiently tough with offenders. Judges cannot afford to be insensitive to popular demands and must give effect to some extent to the wishes of the people whom they seek to serve. There must be some concession to the will of the people. What the people think is reflected in the provision in the new Code soon to come into effect wherein the penalty for wilful murder is mandatory life imprisonment.

Another consideration that must be borne in mind is that failure to take into account public opinion may result in the legislature providing minimum sentences resulting in the destruction of the very same small groups which judges are seeking to protect. In other words the imposition of light sentences may in the long term be counter-productive.

The crime of wilful murder is one of the most heinous known to the law. The punishment is death unless there are extenuating circumstances. Cases of wilful murder are always given publicity in the mass media. Rightly or wrongly the full facts are not always published and, where they are, are not always appreciated. Thus the imposition of light sentences tends to bring the law into contempt and may in some quarters encourage the view that they are a licence to kill. In my view sentences of a few months’ imprisonment for wilful murder are derisory. They have neither retributive value nor a deterrent effect.

I would allow the appeal and substitute for the sentence imposed by the trial judge a sentence of five years and seven months in respect of each respondent.

Appeal dismissed.

Solicitor for the appellant: B. W. Kidu, Crown Solicitor.

Solicitor for the respondent: N. H. Pratt, Acting Public Solicitor.

[cxlix][1973] P.N.G.L.R. 278.

[cl]Unreported judgment of 21st March, 1973, Ambunti.

[cli][1973] P.N.G.L.R. 278.

[clii][1971-72] P. & N.G.L.R. 374.

[cliii][1973] P.N.G.L.R. 278.

[cliv][1973] P.N.G.L.R. 278.

[clv]Unreported judgment of 21st March, 1973.

[clvi][1973] P.N.G.L.R. 278.

[clvii][1971-72] P. & N.G.L.R. 90.

[clviii][1973] P.N.G.L.R. 278.

[clix]Unreported judgment — 12th June, 1975, Koroba.

[clx]Unreported judgment — 12th June, 1975, Koroba.

[clxi][1973] P.N.G.L.R. 278.

[clxii](1967) 86 W.N. (Pt.1) (N.S.W.) 272.

[clxiii][1973] P.N.G.L.R. 278.

[clxiv]Unreported Judgment No. 559 of 16th March, 1970, Madang.

[clxv]Unreported Judgment No. 560 of 16th March, 1970, Madang.

[clxvi]Unreported Judgment of 15th June, 1971, Angoram.

[clxvii]Unreported Judgment of 7th Dec., 1971, Ambunti.

[clxviii][1973] P.N.G.L.R. 278.

[clxix][1973] P.N.G.L.R. 278.

[clxx][1973] P.N.G.L.R. 278.

[clxxi]Unreported judgment of 21st March, 1973, Ambunti.

[clxxii]Unreported judgment of 7th Dec., 1971, Ambunti.

[clxxiii][1973] P.N.G.L.R. 278.

[clxxiv][1973] P.N.G.L.R. 278.

[clxxv][1973] P.N.G.L.R. 278.

[clxxvi]Unreported judgment of 21st March, 1973, Ambunti.