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Aihi v The State (No 3) [1982] PNGLR 92 (5 March 1982)

Papua New Guinea Law Reports - 1982

[1982] PNGLR 92 - Avia Aihi v The State (No 3) 

[1982] PNGLR 92

SC221

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

AVIA AIHI

V

THE STATE

(NO. 3)

Waigani

Kidu CJ Kearney DCJ Greville Smith Andrew Kapi JJ

26 October 1981

27 November 1981

5 March 1982

CRIMINAL LAW - Sentence - Wilful murder - Payback - Premeditated - Victim on trial - Crime committed whilst court on a view - Life imprisonment - Whether justified - Whether worst type case - Sentence upheld.

CRIMINAL LAW - Appeal against sentence - Life imprisonment - Principles applicable - Matters in mitigation before trial judge - Life imprisonment not reserved for dangerous offenders - Worst type of case - Principle of proportionality applicable.

On appeal against a sentence of life imprisonment for murder:

Held

(1)      The basic sentencing principle of proportionality to the offence applies when considering sentences of life imprisonment, which, as the maximum punishment, should be imposed only in cases properly categorized as “worst type” cases.

(2)      The law in Papua New Guinea does not require that life imprisonment be reserved for “dangerous” offenders.

Goli Golu v. The State [1979] P.N.G.L.R. 653, explained.

(3)      (Per Kearney Dep. C.J., with whom Greville Smith J. and Kapi J. agreed.) An appellate court may presume that a trial judge has taken into account all matters urged in mitigation before him unless the appellant can show that this did not occur or that some error was made in the process.

(4)      (Per Kearney Dep. C.J., with whom Greville Smith J. and Kapi J. agreed.) An appellate court’s consideration of a trial judge’s sentencing discretion is not to be affected by the fact that the sentence is one of life imprisonment.

(5)      (Andrew J. dissenting.) The sentence of life imprisonment for a payback murder where the victim was on trial for dangerous driving and was killed in the presence of the court whilst on a view, should stand.

Cases Cited

Acting Public Prosecutor v. Uname Aumane [1980] P.N.G.L.R. 510.

Avia Aihi v. The State [1981] P.N.G.L.R. 81.

Avia Aihi v. The State (No. 2) [1982] P.N.G.L.R. 44.

Goli Golu v. The State [1979] P.N.G.L.R. 653.

Peter Naibiri and Anor. v. The State (Unreported Supreme Court judgment S.C. 137 of 25th October, 1978).

R. v. Bryson (1974) 58 Cr. App. R. 464.

R. v. Hercules (1980) Crim. L.R. 596.

R. v. Hodgson (1967) 52 Cr. App. R. 113.

R. v. Iu Ketapi [1971-72] P.N.G.L.R. 44.

R. v. Lishman (1971) Crim. L.R. 548.

R. v. Picker (1970) 54 Cr. App. R. 330.

R. v. Radich (1954) Crim. L.R. 226.

R. v. Rose (1974) Crim. L.R. 226.

R. v. Rushby [1977] 1 N.S.W.L.R. 594.

R. v. Shannon (1979) 21 S.A.S.R. 442.

R. v. Wallis (Unreported decision of the Court of Criminal Appeal (New South Wales), 25th June, 1975).

R. v. Wheeldon (No. 2) (1978) 33 F.L.R. 409.

Re Rooney (No. 2) [1979] P.N.G.L.R. 448.

Shrubsole v. Rodriguez (1978) 18 S.A.S.R. 233.

Veen v. The Queen [1979] HCA 7; (1979) 53 A.L.J.R. 305.

William Norris v. The State [1979] P.N.G.L.R. 605.

Appeal

This was an appeal against a sentence of life imprisonment for murder.

Counsel

K. Wilson and S. Cox, for the appellant.

J. Byrne, for the respondent.

Cur. adv. vult.

5 March 1982

KIDU CJ: The appellant was sentenced to life imprisonment on 16th March, 1979 for the wilful murder of one Morris Modeda. Life imprisonment is the maximum penalty for that offence.

Morris Modeda was on trial for dangerous driving causing the death of the appellant’s husband. On 11th September, 1978 the National Court (Prentice C.J.) went out to the scene of the alleged offence. It was whilst the court was viewing the scene that the appellant with others rushed the accused and the appellant managed to inflict on the deceased the fatal wounds.

The learned trial judge described her action thus:

“She used a knife with a blade about twelve inches long. The blade is razor-sharp, it has been sharpened to a point and resembles a dagger, except that it is sharp only on one side. With this knife she pursued the unfortunate Morris Modeda with great determination, plunged it deep into his back and drew it downwards before pulling it out thus causing an enormous wound which penetrated the right lung and made it collapse making it difficult for him to breathe. He died from loss of blood from this wound and the other complications I have mentioned. There can be no doubt that she intended to kill.”

There is no doubt this was a pay-back killing by the appellant. Although others were involved the learned trial judge found that there was no pre-concerted plan by the appellant and the others to kill the deceased.

In her first record of interview on 12th September, 1978 she told the interviewing officer:

“... I ran to him and stabbed him on his back and he ran and I chased him and stabbed him again on his chest or stomach and he fell to the ground and Policemen grabbed me and they took the knife out of my hand and I went stood near jurge (Judge) and I spoke my language to jurge (Judge) but he did not hear me.

Q.       What did you say to jurge in your language?

A.       I said jurge my husband was killed by that man with the truck and later he went down pulled his head towards the direction to Bereina and today I payback for my husband.”

It was submitted by counsel for the appellant that her part in the killing and the mitigating factors put before the trial judge should have taken the case out of the most serious kind of wilful murder category.

The factors referred to as mitigation were:

1.       The appellant’s grievance at the fact that the deceased had run over her husband and that she had been told by a witness that Modeda had turned around after he had run over her husband and ran over the body again.

2.       The appellant was not allowed to attend the funeral and was secluded, as is the custom in her area.

3.       The fact that the grievance that the appellant had was further exacerbated by the lengthy delays in relation to the committal proceedings. During this time the appellant had appeared on a number of occasions at the proceedings which had been adjourned without full explanation to her and also Modeda had gone off on holiday. She also heard talks that there was to be no case to answer and that no action would be taken. These delays kept reinforcing the appellant’s belief that Modeda was going to be let off without any punishment.

4.       The sense of grievance was further fuelled by the suspicion that her husband’s death was more than an accident. This was the rumour in relation to the allegation that Modeda’s wife had been pursuing the husband of the appellant.

5.       The village custom in relation to widows is fairly severe on them. Only certain people are allowed to talk to them and they are treated in seclusion. This unfortunately would help to build up the sense of desperation.

6.       At the scene it was quite an excitable situation and people had already started moving towards Modeda, for instance the old man who was apprehended by the police. From this the appellant moved in to kill Modeda and was in an excited state.

7.       The appellant had pleaded guilty to the offence. She had accepted the seriousness of the offence and the fact that she would have to go to jail for it.

8.       She has no previous convictions, and no history of any violent behaviour.

It was submitted that all of these matters should have been weighed by the trial judge against the other aspects of the offence. For instance, the fact that the person was killed while the court party was taking a view. It was submitted that when one looks at all of these matters together the offence then comes out of the most serious class of offences and is an offence which can be dealt with by the use of a determinate sentence.

It could be that from what the learned trial judge said on sentencing that he was not impressed by any factors put forward in mitigation. He said in sentencing her as follows:

“You, Avia Aihi, pleaded guilty, the other four pleaded not guilty. The other four have had a fair trial, a trial which lasted nearly a month. A trial in accordance with the law and the Constitution. You had the assistance of counsel at Government expense. These counsel have pressed, quite rightly, all four constitutional rights. They have pulled out all the stops as the saying goes.

This man, Morris Modeda, was also entitled to a fair trial. At the time he was killed he was being tried by no less a person than the Chief Justice. In the course of a trial, sketches, maps and photographs are used to give the court an idea of the scene of the crime, as we have done in this case. But sometimes sketches, plans, photographs are not enough and then the court visits the scene. That is what the Chief Justice did. The Chief Justice had adjourned the proceedings to the scene of the accident on the Bereina-Waima Road.

Right in the middle of the view, in the presence of the Chief Justice, in spite of an escort of thirteen policemen guarding the prisoner and the court party, you snatched the prisoner from the hands of justice and executed him without a trial.

You have committed one of the most serious crimes known to the law, wilful murder, but this crime as I have pointed out was accompanied by the most aggravating circumstances.

The maximum penalty for the offence Morris Modeda committed was four years imprisonment, but you sentenced him to death. Now you are pleading for mercy and advancing all kinds of things in mitigation. You showed Morris Modeda no mercy or pity but armed with stones and sticks and knives and axes you hunted him like a wild animal. One unarmed man against about 100 people—one unarmed man who had no choice to come along because the court brought him there.

I have taken pains to mention all this so that you may appreciate the enormity of the offence you have committed.

You, Avia Aihi, you said in the record of interview that you killed Morris Modeda, in ‘payback’ for your husband’s death. In both these records of interview you said that you sharpened this knife. Now I am told by your counsel that you did not sharpen it. Whether you sharpened it or not you used it. It is a knife sharp as a razor, sharpened to a point like a dagger, you plunged this deep into his back and drew it down causing an enormous wound that pierced his lung and caused him to bleed to death. On your admission you stabbed him three times.

You stayed close to the court party, hidden from view, lying on the ground under a kapok tree, with the knife hidden on your person and you pressed your attack with such determination that you succeeded in what you wanted to do. You killed this man. You are sentenced to imprisonment for life.” (Emphasis mine.)

It cannot be disputed that wilful murder is “one of the most serious crimes known to the law”. The fact the Parliament has fixed life imprisonment for it as the maximum penalty quite clearly emphazises this.

There are, however, wilful murders and wilful murders. This has been accepted to be so in this jurisdiction. Not all wilful murder cases have attracted the maximum sentence fixed by law. In fact this Court has said that the maximum sentence for any offence (including wilful murder) should be reserved for the most serious instances of a particular offence.

In Goli Golu v. The State [1979] P.N.G.L.R. 653, the Supreme Court reiterated this principle. Kearney J. (as he then was) said at p. 660:

“It is a general principle of sentencing that the maximum penalty, the most severe sentence, should be reserved for the most serious instances of an offence, the worst possible cases normally encountered in practice; this is an application of an even more basic principle, that there must be proportion between offence and sentence.”

Wilson J., in the same case, said at p. 663:

“It does not conform to the principle in sentencing that the maximum penalty is reserved for the worst type of case ....”

What is “the most serious type of case” of any offence is very difficult to define with scientific precision. I cannot attempt a definition myself. As Blackburn J. (as he then was) said in R. v. Wheeldon (No. 2) (1978) 33 F.L.R. 409 at p. 412:

“There is a range of penalties, at the end of which is the most severe, imprisonment for life. So it is clear to me that that penalty should be reserved for the most serious cases. Let me say that it is only with great hesitation that I embark upon any comparative moral judgment on kinds of murder. It would be presumptuous to make any but tentative and general judgments; fine distinctions, or a detailed scale of culpability, would be both absurd and dangerously subjective. I think, nevertheless, that there are two factors, both absent here, either of which might put a murder into the most serious class. One would be a past record of murders or other serious crimes of violence, and the other a purely monetary or material motive. There might be other such factors, but I am clear that the case before me is not to be included in the most serious possible class of murders, and, for that reason, I reject the choice of imprisonment for life in this case.

Beyond that, in the classification of murders, it is difficult to go. I am reluctant to attempt any more exact analysis than that which arises from trying to list the circumstances of this crime in two classes.”

Counsel for the appellant urged this Court to rule that in wilful murder cases the maximum sentence of life imprisonment should be confined to the cases D. A. Thomas described in his book Principles of Sentencing (2nd ed., 1979) at pp. 301-303:

“The proper use of the sentence of life imprisonment has been considered in a large number of cases. Their general effect is that the sentence is reserved for persons who have committed offences of substantial gravity and who appear to be suffering from some disorder of personality or instability of character which makes them likely to commit grave offences in the future if left at large or released from a fixed term of imprisonment. The sentence is not normally used as a tariff sentence to deal with offenders of normal mentality who have committed offences of great gravity.

THE DANGEROUSNESS OF THE OFFENDER

The court has said that the sentence of life imprisonment should be used only where the mental condition of the offender is such that he will probably commit grave offences in the future. In Picker ((1970) 54 Cr. App. R. 330) it was stated that ‘where the nature of the offence and the make-up of the offender are of such a nature that the public require protection for a considerable time unless there is a change in his condition ... it is right for the judge to impose a life sentence. This will enable some other authority to ascertain from time to time whether the condition has changed and it is safe for the offender to be released ... but where no such conditions exist, it is quite clear ... that a judge should not pass the difficult matter of sentencing and the length of detention to others’. This principle has been applied many times.”

I do not think that this Court ought to adopt such a principle. There are murderers of normal mental condition who deserve the maximum penalty of life imprisonment. For example, a man of normal mental capacity, who cold-bloodedly kills another man in order to marry his wife, in my opinion, would deserve the maximum penalty of life imprisonment. It should not be laid down categorically by this Court that only murderers with mental conditions making it probable that they will kill again deserve the maximum penalty of life imprisonment. If this Court were to pronounce such a principle, “smart” murderers would receive lower penalties on proof that they would not commit murder again. Each murder case must be considered on its own facts. I consider, however, that a person who is shown to be unlikely to offend again should merit consideration more favourable than one thought to be likely to offend again.

The case before this Court was a payback killing. There was no evidence that Avia Aihi’s mental state was such that she would commit murder again. This factor was not considered by the learned trial judge. It was not mentioned by counsel in the trial.

The learned trial judge quite obviously thought that this case deserved the maximum penalty. His Honour, it seems to me, thought that the killing of a person in front of the National Court, was not to be tolerated and rightly so too. But it is not fair to say that his Honour ignored other factors urged on him in mitigation. A judge does not always, in making remarks on sentence, mention each and every factor for and against an accused person. However, in this case there is no doubt that the learned trial judge brought his mind to bear on mitigating factors put to him by counsel. He said, in sentencing the appellant: “Now you are pleading for mercy and advancing all kinds of things in mitigation.”

In imposing the maximum penalty, as he did, it is, I think, fair to say that the learned trial judge thought that the retributive — punitive — deterrent — denunciatory — principles of sentencing negatived any other principles of sentencing.

Did the sentencing judge lay much stress on the fact that the killing occurred before the Chief Justice or the court? The answer is in the affirmative and if I may say so quite properly too.

The Constitution guarantees certain very important fundamental rights. Section 35 and s. 37(4) say, inter alia, as follows:

35.     RIGHT TO LIFE

(1)      No person shall be deprived of his life intentionally except:

(a)      in execution of a sentence of a court following his conviction of an offence for which the penalty of death is prescribed by law; or

(b)      as the result of the use of force to such an extent as is reasonable in the circumstances of the case and is permitted by any other law—

(i)       for the defence of any person from violence; or

(ii)      in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; or

(iii)     for the purpose of suppressing a riot, an insurrection or a mutiny; or

(iv)     in order to prevent him from committing an offence; or

(v)      for the purpose of suppressing piracy or terrorism or similar acts; or

(c)      as the result of a lawful act of war.

37.     PROTECTION OF THE LAW

...

(4)      A person charged with an offence:

(a)      shall be presumed innocent until proved guilty according to law, but a law may place upon a person charged with an offence the burden of proving particular facts which are, or would with the exercise of reasonable care be, peculiarly within his knowledge; and

(b)      shall be informed promptly in a language which he understands, and in detail, of the nature of the offence with which he is charged; and

(c)      shall be given adequate time and facilities for the preparation of his defence; and

(d)      shall be permitted to have without payment the assistance of an interpreter if he cannot understand or speak the language used at the trial of the charge; and

(e)      shall be permitted to defend himself before the court in person or, at his own expense, by a legal representative of his own choice, or if he is a person entitled to legal aid, by the Public Solicitor or another legal representative assigned to him in accordance with law; and

(f)      shall be afforded facilities to examine in person or by his legal representative the witnesses called before the court by the prosecution, and to obtain the attendance and carry out the examination of witnesses and to testify before the court on his own behalf, on the same conditions as those applying to witnesses called by the prosecution.

These rights are guaranteed for every person in Papua New Guinea, whether they are citizens or non-citizens. They cannot and should not be compromised. No person in this country must be allowed to take the law into his or her own hands. The court must not permit people to kill with impunity, especially in cases where those who are accused of committing breaches of the law are in the custody of the courts. People in such custody must be assured that they will be tried according to law. That one place where people should feel secure from arbitrary treatment is a court of Justice. The National Court of Justice is one such court.

The people of Papua New Guinea (citizens and non-citizens) must be assured by this Court that when they are in breach of any law of this country, they will be guaranteed a fair trial according to the dictates of our Constitution.

I hold no qualms in asserting the proposition that any person who kills another in the custody of the court deserves the maximum penalty, save those who are mentally unbalanced or who are provoked, legally speaking.

The facts of this case very clearly show that this Court ought not to be swayed by emotional factors.

I would order that this appeal be dismissed.

KEARNEY DCJ: The tortuous course which led to this appeal ultimately now being heard on its merits may be traced through earlier rulings of this Court on 27th March, 1981, and 2nd October, 1981: see Avia Aihi v. The State [1981] P.N.G.L.R. 81 and Avia Aihi v. The State (No. 2) [1982] P.N.G.L.R. 44.

The appeal has now been fully argued. As I indicated in Avia Aihi v. The State (No. 2) (supra) I considered that the appellant had not then established that leave to appeal should be granted. The trifoliate procedure adopted in this case at the request of counsel, prevented at that time a full canvassing of the merits of the appeal. The majority considered that leave to appeal should be granted; I was accordingly in a minority on the court on a preliminary question the answer to which was intended to determine whether it was necessary to hear the appeal on its merits. So I am now in a position akin to that in which Cox J. found himself in R. v. Shannon (1979) 21 S.A.S.R. 442 at pp. 461-2. I respectfully agree with Cox J. that usually the minority judge in such a case will continue to apply his own view on the law; as indeed I did in Re Rooney (No. 2) [1979] P.N.G.L.R. 448 at pp. 483, 484. But the ruling in Avia Aihi v. The State (No. 2) (supra) that the appellant be given leave to appeal, is, I think, a ruling of a type which I should adopt and apply for the purposes of this appeal. Accordingly, I now deal with the appeal on its merits.

Mr. Wilson dealt with the circumstances of the offence, the appellant’s part therein, and the principles applicable to the imposition of life sentences. I follow that approach. No findings of fact have been challenged.

Five persons, including the appellant, were indicted for the wilful murder of one Morris Modeda. The appellant pleaded guilty.

The circumstances of the offence were as follows. Modeda was being tried at Waigani upon a charge of driving a motor vehicle dangerously at Bereina and thereby causing the death of one Mariano Aitsi, the appellant’s husband. On Friday 8th September, 1978, the trial judge, Prentice C.J., announced in open court that the court party would go on Monday 11th September to view the scene of the alleged offence on the Bereina-Waima road. On 11th September the court party—the Chief Justice, his associate, the two counsel, a correctional officer, Modeda and four policemen—went by car to Bereina. There they were joined by nine other policemen and a witness. None of the police had any weapons. They drove to the scene in three motor vehicles, two of which were police vehicles. They arrived at about 12 noon.

At the scene, the road descends through embankments for some way; thence there is kunai and thick bush on both sides. At the bottom, about 80 yards away, is a creek. The court party and the police parked the vehicles at the top and walked about halfway down the road. Two witnesses indicated certain physical features to the Chief Justice, and the court party then turned to walk back up the hill.

That was when the trouble started. There was a good deal of conflicting evidence as to what took place, but as I say, the trial judge’s findings of fact are not disputed. After setting out the various accounts, his Honour concluded:

“Nobody expected trouble on that day. The court party and the police were taken completely by surprise. There were only thirteen policemen present and they were unarmed. The trouble erupted suddenly and unexpectedly. It all happened within a small space, along a stretch of road from just below the kapok tree to about half way between the kapok tree and the place where the motor vehicles were parked, a stretch say about forty yards in length by eight feet in width.

Within this space were confined the Chief Justice, his associate, the two counsel in the case, the witness Aitsi Pui, the prison warder, the deceased Morris Modeda and ten policemen, leaving out of account the three policemen who were at the place where the motor vehicles were parked. That makes seventeen persons in all. There were, in addition twenty or so of the villagers, as some witnesses have called them who had got on to the road, to say nothing of the sixty or more who were converging on the court party from all sides. The police were busy trying to disarm the old man, trying to prevent Avia Aihi, the woman accompanying her and the villagers from coming on to the road. They had to guard the prisoner, who had taken fright and tried to run up the road for safety. They had also to guard the rest of the court party. They were running here and there and everywhere, going where they thought their presence was most necessary. They were scattered all over the place. To add to the confusion the villagers were brandishing axes, knives, sticks, branches of trees and raising their voices and shouting angrily.”

The trial judge indicated that he accepted in particular the evidence of one of the court party, Mr. Amet. His evidence was to the following effect:

“On arrival he noticed a number of people at the top and a number of people near the creek, not more than six in each group and consisting of men, women and a few children. The group down by the creek appeared to be washing clothes.... Whilst the court party was being shown the various locations on the road Mr. Amet noticed an elderly man detach himself from the group by the creek and walk up the road towards the court party and start to watch. He was asked by the police to move along. He did not move so the police pushed him and he resisted. A number of policemen started to grapple with him. Whilst this was going on the court had finished viewing the scene and turned to go back to the place where the motor vehicles were parked. As the court party started to move the man pulled out a knife from his hip pocket and the police were struggling with him and having difficulty in getting the knife from him. The court party had taken four to five steps when he noticed people moving towards the court party from the small rises on both sides of the road. This happened almost at the same time as the man produced the knife. People from the area of the creek were moving up towards the court party. Altogether about 60-80 people were moving towards Morris Modeda. About half of them were armed with knives and branches of trees. About 20 or so were actually on the road and of these most were armed with knives and branches of trees. The people were hurrying, not running but walking fast. Quite a number of them were talking in an excited manner. They were moving towards Morris Modeda from both sides encircling him almost completely except for the area in front of him leading to the motor vehicles.

Of the twenty or so on the road some were within a few paces of Morris Modeda. They were moving towards him brandishing their knives talking angrily and excitedly and raising their voices.

Mr. Amet was walking just behind Morris Modeda who was being closely guarded by a prison warder and a policeman. He became apprehensive for his own safety and walked up the road hurriedly, almost running, and stopped at the side of the motor vehicle in which he had travelled.

He then turned round and looked down the hill. He saw Morris Modeda running up the side of the road—the right side when looking down the road from where he was standing—and he noticed he had blood in the stomach area in the region of the diaphragm. He had no shirt on—he had been wearing one before. He saw him run up the side of the embankment but he was forced back by some people who were on the side of the embankment. These people moved toward him as he ran up, brandishing branches of trees and knives and attempting to hit him with whatever they had in their hands. Thus he was forced back on the road after describing a kind of arc ... Morris Modeda found himself then among a number of policemen. There was a lot of confusion at this stage, a lot of people milling about. The people were coming towards Modeda as he came to the road from both sides almost encircling him whilst the police were trying desperately to prevent people from the sides coming on to the road. In the midst of all this confusion he saw a fist shoot out in the direction of Modeda’s face and head but he did not see it connect. His attention was momentarily distracted. He looked on either side for his own safety’s sake and when next he looked where Morris Modeda was he heard him cry out in pain and saw him clutching the front of his stomach area and his back and falling on his back on the road. As Modeda fell crying people moved away from him and retreated.

He saw the Chief Justice go towards Morris Modeda and saw him trying to stop the blood from his abdominal area. With the assistance of his associate and one or two policemen he was half dragged half carried and quickly taken up the hill and placed in the back of a police vehicle. The driver was found and asked to drive Morris Modeda to Bereina. Mr. Amet noticed that the left rear tyre was flat but the driver drove on towards Bereina in spite of the flat tyre.

As Morris Modeda was being placed in the motor vehicle the people again became very angry raising their voices and talking excitedly and some moving towards the motor vehicle. As the motor vehicle moved some threw sticks and stones and five or six ran after the motor vehicle. He saw one man strike the side of the motor vehicle with an axe.

As the court party prepared to leave and the Chief Justice was about to get into his car he saw a woman come up to the Chief Justice and gesticulate with her hand indicating the cutting of her neck. She had blood on her hands and blood down the front of her clothes.”

This woman was in fact the appellant.

The wounds which Modeda received were as follows:

“Five wounds were apparent and these were located as follows: (1) on the front of chest on the right side 1.8 cm. in length at the skin surface. (2) on the front of the lower abdomen just to the right of the midline 1.5 cm. in length. (3) on the right flank region 6 cm. in length. (4) on the lower part of the back right side 4 cm. in length. (5) on the upper part of the back on the right side 14 cm. in length. Sutures were present in the exposed muscle layer of the chest wall. All of the wounds were of incised type i.e. that they had clean cut edges. Wounds (3) & (4) communicated beneath the skin and appeared to represent entrance and exit wounds.

...

The wound on the front of the chest involved only skin and subcutaneous tissue. The wound on the front of the abdomen penetrated the full thickness of the abdominal wall and a small opening into the abdominal cavity was present, however no vital structures appeared to have been injured. The wounds on right flank and lower right side of the back extended deeply into the subcutaneous tissue but had not entered the abdominal cavity. The large wound on the upper right side of the back had opened the right chest cavity between the 10th & 11th ribs, it had produced a cut in the diaphragm and superior surface of the liver approx. 3 cm. in length. There was also a small cut in the lower lobe of the right lung, the right lung was collapsed. There was a large amount of blood in the right chest cavity, a small amount of blood was present in the abdominal cavity.” (Emphasis mine.)

Against that background, the trial judge dealt with the appellant’s part in the attack as follows:

“As mentioned earlier Avia Aihi has pleaded guilty. There is ample evidence of her guilt. She used a knife with a blade about twelve inches long. The blade is razor-sharp, it has been sharpened to a point and resembles a dagger, except that it is sharp only on one side. With this knife she pursued the unfortunate Morris Modeda with great determination, plunged it deep into his back and drew it downwards before pulling it out thus causing an enormous wound which penetrated the right lung and made it collapse making it difficult for him to breathe. He died from loss of blood from this wound and the other complications I have mentioned. There can be no doubt that she intended to kill.... Moreover at that stage Avia struck only one blow, the one at the back. Morris had several injuries including some in front which must have been inflicted earlier and which Jack must have seen.

Morris was being chased by Avia with a knife. She was followed by a crowd that surrounded him, a crowd that was armed with assorted weapons which they were brandishing. They were screaming and shouting. Morris Modeda was fleeing for his life. He was probably injured.”

The remarks of the trial judge, on sentencing the appellant, have been set out by the Chief Justice at pp. 95-96 and need not be repeated here.

I make four general observations on those remarks. First, the proper approach to sentencing by a trial judge is clearly set out in R. v. Rushby [1977] 1 N.S.W.L.R. 594 at pp. 597-598. Second, remarks when sentencing are primarily spoken to and for the benefit of the prisoner, and are not to be treated as if they were reasons for judgment; I adopt, with respect, the cautionary comments of Wells J. on this aspect in Shrubsole v. Rodriguez (1978) 18 S.A.S.R. 233 at p. 235. Third, it is clearly desirable that the sentencer states the factors which affected the sentence, for the reasons stated by Wells J. at pp. 235-236; see also the general comments by Kapi J. in Acting Public Prosecutor v. Uname Aumane and Ors. [1980] P.N.G.L.R. 510 at pp. 538, 539. Fourth, if a sentencing judge does not expressly refer to all the matters urged in mitigation before him, it is not to be inferred that he has not taken them into account; the proper presumption is that he has considered each important matter put before him, and given it due weight; it is for an appellant to show that this did not occur, or that some error was made in the process.

I turn to Mr. Wilson’s submissions. In essence they were as follows. There is no evidence that the appellant was the principal in planning the ambush and attack. This was a pay-back killing, committed because she believed Modeda had killed her husband, Mariano, and that was all the appellant intended; no threat was offered to any others of the court party. The hearing of Modeda’s case had been delayed for a long time, and she thought he would get off scot-free. She was thus redressing a felt sense of grievance. Various matters had been urged in mitigation before the trial judge to which he did not appear to have given any, or proper weight: her sense of grievance due to her belief as to what Modeda had done to her husband, and that he had done it deliberately; that, as a widow, she was secluded from other people by custom, and this helped to build up a sense of desperation; the lengthy committal delays, leading to her belief that Modeda would not be punished; the excitable situation at the scene; her plea of guilty and clean record.

Mr. Wilson submits that, weighing up all these matters, the proper conclusion is that what the appellant did should not be categorized as one of the most serious cases of wilful murder, that is, it is not a “worst case” type, and so it should carry a fixed-term sentence and not the indeterminate sentence of life imprisonment. He submits that the trial judge over-emphasized what is admittedly a very serious aggravating factor, the fact that it was the killing of a man on trial, and took place in the presence of the trial judge, during a court view. Mr. Wilson relies on Goli Golu v. The State [1979] P.N.G.L.R. 653. I consider that that case is authority for the proposition that, applying the basic sentencing principle of proportionality to sentences for wilful murder, the maximum penalty of life imprisonment should be reserved for the most serious instances of that offence; that is, for the worst wilful murders likely to be encountered in practice. Raine Dep. C.J. enunciated that principle at p. 656; so did I, at p. 660; and so did Wilson J., at pp. 663 and 665. Further, as I understand it, that has been the unvarying practice in the National Court.

It is true that Raine Dep. C.J. also appeared to adopt at pp. 658-9 the English variation of this basic principle where the sentence is life imprisonment; namely, that in general it need not be a “worst case” type, though the offence must be grave, but the offender should be dangerous to the community before life imprisonment is imposed on him. That is, the protection of the public is given more emphasis than the culpability of the offender in such cases. See, for example, R. v. Bryson (1974) 58 Cr. App. R. 464, where a 14 year old boy was given life imprisonment for arson; the views expressed in R. v. Rose (1974) Crim. L.R. 266; and strikingly, R. v. Lishman (1971) Crim. L.R. 548, another arson case, where a person given three years probation, was, when called up for breach, sentenced to life imprisonment as a “merciful” sentence. Wilson J., at pp. 664, 665 of Goli Golu v. The State (supra) also appeared to take that view, citing some comments of Mason J., in Veen v. The Queen [1979] HCA 7; (1979) 53 A.L.J.R. 305 at p. 309, and applying R. v. Hodgson (1967) 52 Cr. App. R. 113 at p. 114.

However, I adhere to the opinion I expressed in Goli Golu v. The State (supra) at p. 660, for the reasons there stated, that there is no warrant in this country for requiring that a murderer must be regarded as dangerous to the public, before, life imprisonment can be imposed on him. The proportionality principle should apply to all sentences, including life sentences. That also appears to be the view in Australia; see the majority of the High Court (Stephen, Jacobs and Murphy JJ.) in Veen v. The Queen (supra). Further, I note that in England the “dangerousness” principle is not applied to persons over 18 years old convicted of murder; that offence there carries an automatic and non-appealable life sentence.

I therefore apply as the basic principle that the sentence must bear a just proportion to the offence, bearing in mind so far as wilful murder is concerned, the intrinsic seriousness of that particular offence; and also bearing in mind the circumstances of the offender. It follows that, on conviction for wilful murder, a sentence of life imprisonment is only warranted where the circumstances of the crime and its nature render it wilful murder of the “worst case” type, bearing in mind also the offender’s circumstances. I also have in mind the principle that subjective materials—the circumstances of the offender—are weighed only to see whether a sentence otherwise merited because of the actual facts and nature of the crime, should be dealt with less severely. Many factors have to be weighed.

In this case it is clear that the trial judge correctly placed great weight upon the fact that this was an intentional killing in the presence of a court engaged in a trial of a man then in the custody of the court. His Honour clearly considered that the punitive approach to formulating a sentence, based upon a need to deter this type of killing to which our society is relatively open, and to reflect the need for retribution, must be adopted in this case. In such a case, where those needs are seen to be paramount, the allowance usually made for mitigating factors need not be made; the particular emphasis on general deterrence must of course be justifiable.

Mr. Wilson submits, that if the matter on which the trial judge placed great weight, alone places the crime into the “worst case” category, it can only be because of the need to deter others from carrying out such crimes; and that this sentencing factor—general deterrence—can be as well met in these circumstances, as can the need for retribution, by a heavy fixed-term sentence. This submission, I think, misses the point that once the crime is seen to be properly categorized as a “worst case” type, for whatever reason, an appellate court cannot say that the trial judge erred when imposing the maximum punishment. An appellate court has a restricted role, in dealing with appeals against sentence; I adhere to the views I expressed in William Norris v. The State [1979] P.N.G.L.R. 605 at pp. 612-613 in that regard. The fact that the sentence is one of life imprisonment does not alter the appellate function.

It is trite that the circumstances of each case and of each offender are infinitely various. The circumstances of the killing in this case are quite different from those in Goli Golu v. The State (supra). With respect, I agree with the Chief Justice that the trial judge here very rightly laid great weight upon the fact that Modeda was killed while actually in the presence and custody of the court, under its protection, and while his trial was proceeding. There was clearly quite a degree of premeditation. To my mind the circumstances of this case were clearly worse than those of Peter Naibiri and Anor v. The State (Unreported Supreme Court judgment S.C. 137 of 25th October, 1978), a case of the attempted murder of a policeman where the Supreme Court confirmed life sentences imposed upon two youths, aged 17 and 19. I consider it is essentially similar to and in the same general category as R. v. Iu Ketapi [1971-72] P.N.G.L.R. 44, a “payback” involving the planned wilful murder of a man being escorted to court; a crime rightly categorized, with respect, by the trial judge, Clarkson J., at pp. 45-46 as

“... cold premeditated murder, which showed at least a complete disregard if not contempt for the processes of the law ...

The conduct of the prisoners was a challenge to the administration of justice ...”

His Honour there considered the sentence of life imprisonment “a just punishment”. However, there is no real point in going through all the cases, which are, as I say, infinitely various.

It is quite true that a sentence of life imprisonment is a terrible punishment. It is the ultimate sanction of society which requires of the State that the citizen be protected against the taking of his life and that the intentional killing of a human being be treated as a horrendous crime. The particular circumstances of this crime are so appalling as to merit that maximum punishment; as the trial judge said, it was a wilful murder “accompanied by the most aggravating circumstances”. Quite apart from the trial situation, Modeda was helpless and defenceless against an attack committed under cover of mob violence. The frequently-cited words from R. v. Radich [1954] N.Z.L.R. 86 at p. 87, on the purposes of punishment, and the need for the courts to see to it that what the community interest requires in the way of justice is not displaced by a merciful weakness, are applicable. As did the trial judge, I place this wilful murder squarely into the “worst case” category, bearing in mind all that can be urged in mitigation; and I consider that it cannot therefore be said that the trial judge fell into error in imposing the maximum punishment, when exercising his sentencing discretion; or that such a sentence is manifestly excessive.

I would dismiss the appeal and confirm the sentence of life imprisonment.

GREVILLE SMITH J: It follows from what I said in Avia Aihi v. The State [1981] P.N.G.L.R. 81 and Avia Aihi v. The State (No. 2) [1982] P.N.G.L.R. 44, that I would dismiss this “appeal” independently of my view as to the merits. However I think it desirable that I should also say as follows. I have read the judgment in draft of my brother Kearney Dep. C.J. and I agree with everything his Honour has said. To what his Honour has said I would only add this. This offence was committed in a community, by a mature member of that community, than which there is none more sophisticated in Papua New Guinea in its acquaintance with the requirements of civilized Christian behaviour and law and order. Of that, this Court can take judicial notice. This killing represented a shocking regression to savagery. The sentence in my view was entirely appropriate. I would dismiss the “appeal” on that ground also.

ANDREW J: The appellant was granted leave to appeal in earlier proceedings against a sentence of life imprisonment imposed on her by the National Court on 17th March, 1979. She now appeals against that sentence on the ground that it is manifestly excessive.

The facts of the case are well known. The appellant was one of five persons charged with the wilful murder of Morris Modeda. Modeda was being tried in the National Court on a charge of dangerous driving causing the death of one Mariano Aitsi Kaipa who was the husband of the appellant. During the course of that trial, on Monday 11th September, 1978, a view of the scene of the alleged accident was conducted by the court and Modeda was present. Whilst the court party was so conducting the view, Modeda was attacked and fatally stabbed by the appellant. These are the brief facts which constituted the charge of wilful murder to which the appellant pleaded guilty.

There can be no doubt that this offence was a terrible one. The appellant, on her own admission, had heard on the Friday before the offence was committed that the court would be going to the scene and she says that when she heard that, she decided to go there and wait for them to come. There were large numbers of villagers present. The court party was accompanied by some thirteen police officers who were unarmed. It appears that trouble first started when an old man attacked Modeda and he was seen to produce a knife. The police attempted to disarm him. Thereafter the appellant was seen to come onto the road and there was another altercation with the police. She was armed with a knife. People then appeared armed with bush knives, axes and sticks. There was a general melee and matters became increasingly confused. Modeda became separated from his warder and immediate police protection. He ran and was hit and fell. He was caught by the appellant. As the learned trial judge found:

“She used a knife with a blade about 12² long. The blade is razor-sharp, it has been sharpened to a point and resembles a dagger, except that it is sharp only on one side. With his knife she pursued the unfortunate Morris Modeda with great determination, plunged it deep into his back and drew it out thus causing an enormous wound which penetrated the right lung and made it collapse making it difficult for him to breathe. He died from loss of blood from this wound and the other complications I have mentioned. There can be no doubt that she intended to kill.”

It is submitted on her behalf that whilst these facts are indeed terrible, there were nevertheless circumstances relevant to the commission of the offence and to the circumstances of the appellant which take her case away from the worst of its kind, such that a life sentence is unjustified and that a determinate sentence is warranted.

These various factors in mitigation are set out in the judgment of the Chief Justice and it is unnecessary for me to repeat them. An additional factor was the submission that the appellant could not be now regarded as a dangerous person and that there is little likelihood that she will ever offend again.

It is also unnecessary to analyze once again all of the principles in relation to life sentences. Two main principles are re-affirmed by the Supreme Court in Goli Golu v. The State [1979] P.N.G.L.R. 653, namely that the maximum penalty of life imprisonment should be reserved for the most serious case and the basic principle to be observed is that the punishment should be strictly proportionate to the gravity of the offence.

In R. v. Wheeldon (No. 2) (1978) 33 F.L.R. 409, Blackburn J. (as he then was) at p. 412 had this to say in relation to the offence of murder:

“There is a range of penalties, at one end of which is the most severe, imprisonment for life. So it is clear to me that that penalty should be reserved for the most serious cases. Let me say that it is only with great hesitation that I embark upon any comparative moral judgment on kinds of murder. It would be presumptuous to make any but tentative and general judgments; fine distinctions, or a detailed scale of culpability, would be both absurd and dangerously subjective.”

The case of Goli Golu v. The State (supra) may be thought to be similar in many respects to the appellant’s situation. Both were cases involving attacks upon persons in the vicinity of a court. However on closer examination I think that the two cases are dissimilar. It is trite that the circumstances of each case are infinitely various. Here the appellant knew that the trial of Modeda was in progress and she went deliberately to the scene knowing that the court would be there conducting its view. There was premeditation.

The principal question now is whether upon a consideration of all of the circumstances of the case it was one of the most serious of its kind and if the sentence of life imprisonment was strictly proportionate to the gravity of the offence.

Before considering that question I think it is necessary to say that the contention that life imprisonment should be used only where the mental condition of the offender is such that he will probably commit grave offences in the future, is inappropriate to the circumstances of the country. That may be a general practice in England (see R. v. Picker (1970) 54 Cr. App. R. 330), but this case alone illustrates the practice of “pay-back” which is one of the greatest challenges to law and order and to the administration of justice in Papua New Guinea.

Having said that however it is my opinion that this was not the normal or usual kind of “pay-back” murder in the sense that the normal “pay-back” situation occurs when the death of a clan member is avenged by the killing of any member of the rival group be he responsible or not for the original death. In the appellant’s case she believed that Modeda was responsible for the death of her husband. There were other factors to which I have referred which preyed upon her mind. None of these matters excuse her conduct but they do, I think, when taken together with other matters to which I shall shortly refer, take her case away from the very worst of its kind.

True it is, that one of the main purposes of punishment is to protect the public from the commission of crimes of violence by making it clear to the offender and to other persons with similar impulses that, if they yield to them, they will meet with severe punishment (R. v. Radich [1977] 1 N.S.W.L.R. 594; R. v. Wallis (Unreported decision, Court of Criminal Appeal (N.S.W.), 25th June 1975). These cases also stress that, on the other hand, justice and humanity both require that the previous character and conduct, and probable future life and conduct, of the individual offender, and the effect of sentence on these, should also be given the most careful consideration (see per Jacobs J. in Veen v. The Queen [1979] HCA 7; (1979) 53 A.L.J.R. 305 at p. 309.

In my view the indeterminate nature of life imprisonment is a very severe sentence and should be avoided where possible. “A man who is sentenced to life imprisonment does not know when he will be released; the future for him is uncertain”: R. v. Hercules (1980) Crim. L.R. 596.

The other factors which I consider, taken overall, contribute to the appellant’s case being removed from the worst of its kind are that she had no criminal antecedents, she has no propensity to commit violent crime and is unlikely ever to offend again. In saying this I do not detract from the very serious nature of the offence. It obviously deserves very serious punishment but that can properly be imposed, in my view, by an appropriate determinate sentence.

In considering all of these circumstances I conclude that the sentence of life imprisonment was not strictly proportionate to the gravity of the offence.

I would allow the appeal against the sentence of life imprisonment and substitute a sentence of 15 years.

KAPI J: I have had the advantage of reading the draft judgment by the Deputy Chief Justice on the merits of the appeal against severity of sentence and I agree with his Honour’s statement of the principles of law and conclusions. I only wish to add the following remarks. It is now a well established principle of sentence that a maximum penalty provided by any written law is usually reserved for the worst type of case. As to what is a worst type of case, this must be determined from all of the circumstances. All of these considerations are set out in the judgment of the Deputy Chief Justice.

Mr. Wilson of counsel for the appellant urged certain considerations which if taken together with all the other considerations would make this case not a worst type of case.

First he mentioned that this was a payback killing. It was not intended to harm the court party. I do not see how the fact that this was a payback killing would mitigate the sentence. The only sense in which such fact would mitigate the sentence is when a person is acting out of compulsion to payback as a matter of custom as is understood in some Highlands Provinces. See R. v. Iu Ketapi [1971-72] P.N.G.L.R. 44. Such a customary practice or mentality of payback would at least reduce the blameworthiness of the act of killing. This is not the case here. The appellant comes from a community which has been open to Government and Church influence for at least one hundred years. There is no evidence to suggest that payback is customary or practised in the area. In a modern Papua New Guinea such ways must be discouraged. One way to do this is not to treat it as a mitigating factor. There will of course be exceptions. Such killings only proceed from a mere vengeance point of view more than anything else. This has no respect for the protection of the accused person (who is killed) given by the Constitution and the sanction by the Criminal Code against the taking of someone else’s life. The fact that she did not intend to harm the court party does not make it any better for the appellant. The point is that the deceased was in the court’s custody. His person was under the authority of the court and he went to the scene under that authority. This was a direct threat to the protection of an accused person by the court.

It was further submitted that the appellant had a reasonable belief—(a) that the deceased was responsible for the death of her husband; and that (b) she believed the deceased would not be punished and she therefore had a sense of grievance against the deceased.

Whether or not these were reasonable beliefs on her part, cannot reduce the blameworthiness of her act. These were issues before a court of law. By her killing she prevented the court from dealing with these issues. I cannot think of any greater threat or interference with the administration of justice in this country than what the appellant did in this case. A further matter which must be considered with this is that the deceased if he had been found guilty would only have been liable to a punishment of a term of imprisonment and not death.

There were other matters which were urged upon us in favour of the appellant. Such matters as the sense of desperation resulting from the customary isolation from other relatives at the time of mourning, long delay in finally getting the matter to the National Court, her plea of guilty and previous good record. These are matters which should be rightly taken into account; but when taken together with all the other considerations, I am not convinced that this is not in the class of worst type of case. I do not find any error.

I must say I have wanted to show mercy to the appellant. However I have exercised my discretion in accordance with the accepted principles of sentencing and the particular facts of this case.

I would dismiss the appeal.

Appeal dismissed.

Sentence of life imprisonment confirmed.

Solicitor for the appellant: A. Amet, Public Solicitor.

Solicitor for the respondent: L. Gavara-Nanu, Public Prosecutor.