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Keru; Public Prosecutor v Aia Moroi, Public Prosecutor v [1985] PNGLR 78 (1 April 1985)

Papua New Guinea Law Reports - 1985

[1985] PNGLR 78 - Public Prosecutor v Apava Keru; Public Prosecutor v Aia Moroi 

[1985] PNGLR 78

SC289

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

PUBLIC PROSECUTOR

V

APAVA KERU

AND

PUBLIC PROSECUTOR

V

AIA MOROI

Waigani

Kidu CJ Bredmeyer Amet JJ

26-27 April 1984

1 April 1985

CRIMINAL LAW - Sentence - Wilful murder - Payback killing - Mitigating factors - De facto provocation - Lack of sophistication - Custom of payback - Custom not to be recognised - Old age.

HUMAN RIGHTS - Right to life - “General principles of humanity” - Custom of payback contrary to - Constitution, s 35, Sch 2.1.

CONSTITUTIONAL LAW - Fundamental rights - Right to life - Custom of payback contrary to - Constitution, s 35.

CONSTITUTIONAL LAW - Custom - Recognition of - Repugnancy to general principles of humanity - Custom of payback not to be recognised - Constitution, Sch 2.1.

The two respondents, each aged about fifty years, were villagers from the Goilala area of the Central Province. The first respondent killed his daughter’s de facto husband following an argument. The second respondent, who was the father of the de facto husband, killed the son of the first respondent by way of payback. His victim was entirely innocent and ignorant of the first murder. An effective sentence of six years was imposed in each case.

Held

(1)      An offender’s lack of sophistication is no longer a mitigating factor on sentence unless he comes from an area so remote that he does not know that there is a government with courts and police available to redress wrongs.

(2)      The custom of payback is contrary to the “general principles of humanity” under the Constitution, Sch 2.1 and is contrary to the right to life guaranteed by the Constitution, s 35. A person who commits a payback murder in accordance with his custom is entitled to no reduction of sentence because of that custom.

(3)      A person who commits a payback murder in accordance with his custom may be entitled to some reduction in sentence for de facto provocation.

(4)      Old age is not generally a mitigating factor on sentence for murder.

(5)      The first respondent should be sentenced to fifteen years imprisonment and the second respondent to life imprisonment.

Cases Cited

Acting Public Prosecutor v Uname Aumane [1980] PNGLR 510.

R v Iu Ketapi [1971-1972] P&NGLR 44.

R v Lakalyo Neak (Unreported judgment, N632 dated 21 July 1971).

Ure Hane v The State [1984] PNGLR 105.

Appeal

The Public Prosecutor appealed against sentences imposed by Los AJ on each respondent for wilful murder. The appeals were lodged on the basis that the sentences imposed were inadequate.

Counsel

L Gavara and V Noka, for the appellant in each case.

N Kirriwom, for the respondent Apava Keru.

S Lupalrea, for the respondent Aia Moroi.

Cur adv vult

29 March 1985

KIDU CJ BREDMEYER AMET JJ: These two appeals were argued on successive days before the same bench. There ate many similarities between the two appeals and we have decided to, deal with both in the one judgment. The first respondent, Apava Keru, whom we shall call Apava, pleaded guilty to the wilful murder of Kava Aia on 29 March 1983 and was sentenced to imprisonment with bard labour for five years seven months by Los AJ. Apava had spent five months in custody pre-trial so the effective sentence was six years. The second respondent, Aia Moroi, pleaded guilty to the wilful murder of Aia Apouva on 30 March 1983 and was sentenced by Los AJ to imprisonment with hard labour for five years seven months which, together with a period of custody pre-trial, was an effective sentence of six years. The victim of each killing was the son of the other respondent. Thus the first respondent Apava killed the son of the second respondent Aia and, the next day, by way of payback, Aia killed Apava’s son.

The Public Prosecutor has appealed pursuant to the Supreme Court Act (Ch No 37), s 24, against what he says was the inadequate sentence, effectively of six years imprisonment, imposed in each case. In order to consider these appeals we have to consider the circumstances of each offence and the personal circumstances of each offender. The first killing happened in this way. The first respondent’s daughter lived with Andrew Kava Aia (the deceased). According to her she was “married” to him. She lived with him and got pregnant by him. Her father (the first respondent Apava) was upset by this relationship and took her back and, whilst living with her father, she gave birth to a child. On the day of the offence, Andrew Kava Aia came to Apava’s village and house to claim or reclaim his “wife” and child. He took them away against the will of Apava. According to Apava’s confession to the police, he followed them from a distance, following their footprints, and he did so with intent to kill Kava Aia. While Kava Aia and his wife and child were resting on the way, Apava came up behind Kava Aia who was sitting down facing away from him and killed him by two axe blows to the head. When asked by the police his reason for killing Kava Aia, Apava said it was because “Kava Aia and his father previously killed my four sons by sorcery so when I saw Kava Aia taking my daughter away I therefore followed them to kill Kava Aia”. He was asked “Did you know it was wrong to kill a person?” He answered “I knew it was wrong but I killed him because I have nobody to help me, so when Kava Aia did that to my daughter I killed him”. On the allocutus Apava had nothing to say and his counsel on his address on sentence made no mention of the sorcery deaths. He stressed rather that there was no marriage between the daughter and the deceased because no brideprice had been paid as was required by Goilala custom. Apava disapproved of the relationship and, when the deceased took the daughter back, Apava decided to kill him.

The personal particulars of Apava were that he was aged forty-five to fifty and came from Maini village in the Tapini District of the Central Province. Maini is about a day’s walk from Tapini. He was married with three children and had no formal schooling. The Catholic Mission had been in the area since 1963. He had never been in paid employment.

As we have mentioned, the second offence was a payback murder for the first. The second respondent, Aia Moroi, whom we shall call Aia, comes from the same village as the first respondent. On the day of the first killing he was working in his village with others building a village court house. He heard that his son had been murdered by Apava Keru. He left that afternoon for Tapini to avenge the killing. He arrived at 10.00 or 11.00 pm at Peter Maia’s house. Peter Maia was a relative or a wantok employed by the government as a clerk. Sleeping in his house were a number of relatives who had come on a visit from Maini village. Among them was Aia Apava the son of the first respondent Apava. The second respondent Aia had travelled fast and it is clear that no one in the house knew of the first murder and Aia did not tell them. The occupants were thus not afraid of Aia’s presence. They thought it a normal visit. They invited him to sleep the night but he said that he preferred to sleep in his daughter’s house which was nearby and he asked the young man, Aia Apava, to lead him to the house. The young man did so and, on the way, the second respondent Aia killed him while he was urinating, by two axe blows to the head. The victim was unarmed and unsuspecting. He did not know of the first murder by his father. In his confession to the police, Aia said that when he learnt of the death of his son, he set off for Tapini with his axe to commit a payback killing. At Tapini he went straight to Peter Maia’s house with intent to kill Apava’s son who was staying in that house.

The personal details of the second respondent Aia were similar to those of the first respondent. Aia was aged forty-five to fifty, a married man with six children. He had no formal schooling and had not had any paid employment. As we have said, he came from the same village as the first offender. Aia’s antecedent report, prepared by a policeman, says that the Catholic Mission — Kerau Catholic Mission — had been established in the area since the 1950s. Compare Apava’s antecedent report, prepared by a different policeman, which states that the Kerau Catholic Mission was established in 1963. At one stage in his confession to the police Aia was quizzed on a detail of the axe blows and he said, “That is true. I am a Catholic, I am telling the truth”. Aia, unlike Apava, spoke the lingua franca, Motu, as well as his native tongue, Goilala.

The learned trial judge in his sentencing remarks on the first respondent Apava did not regard the killing as motivated by a desire to kill a sorcerer. As we have said, Apava mentioned the death of his four sons by sorcery from the victim Kava Aia and his father. But his counsel gave no supporting details and made no mention of it in his address. It is of interest that one of Apava’s sons married one of Aia’s daughters which would be unexpected if Aia and his son Kava Aia were deadly sorcerers. In our view the learned trial judge rightly disregarded the sorcery aspect and rightly regarded the prime motive for the murder as Apava’s anger at the victim’s actions in taking his daughter and grandchild away from him, against his will, and without payment of brideprice. If the killing had been of a reputed sorcerer then a sentence of six years would have been appropriate on the leading sentencing authority of Acting Public Prosecutor v Uname Aumane [1980] PNGLR 510. That case puts the wilful murder of a reputed sorcerer in a special category of its own — meriting a sentence of around six years. All other kinds of wilful murder normally attract a sentence of ten years or more up to a maximum of life imprisonment.

The learned trial judge referred to Apava’s lack of sophistication as a mitigating factor. We quote:

“He belonged to the Catholic Church, although only for a short time. Even so he was not really involved. He had no formal education. Nor did he have any formal employment. All these go to show that the accused has little or no sophistication at all. I accept that the PNG courts have before and after Independence used and applied lack of sophistication as a mitigating factor. Such was in the decision of Clarkson J in R v Lakalyo Neak (Unreported judgment, N632, 1971). After Independence, though in my view sophistication is now a matter of degree, the principle still applies.”

In Lakalyo Neak’s case Clarkson J had to decide whether there were extenuating circumstances under the Criminal Code, s 305, as it then was, to make it just not to impose the death penalty. He readily found those circumstances. We quote:

“Although this crime was committed in the vicinity of an urban area the prisoners are all primitive men who have spent only a few months away from their villages. Their ignorance of the ways of the Government, their upbringing and their strong tribal traditions which have until now controlled their life and which required this killing are all circumstances which I think are proper in determining this question and without repeating it I affirm what I said in R v Iu Ketapi [1971-1972] P&NGLR 44 to which counsel has referred.”

In Lakalyo Neak’s case there was a killing on a plantation near Port Moresby by plantation labourers in payback for the death of one of their number. That death was apparently accidental and the man the prisoners killed in payback was an innocent victim. He was not connected with the first death. Having readily found the extenuating circumstances mentioned in the passage quoted to justify not imposing the death sentence, Clarkson J sentenced the offenders to fifteen years imprisonment.

The death sentence was abolished by statute in 1975. In our view matters which were appropriate to justify not imposing the death sentence are not necessarily appropriate to reduce what otherwise would be an appropriate sentence for a payback murder.

The old view was that a person’s sophistication was judged by whether he went to school, whether he left his village to take outside employment, the economic development in his area and the distance from a “civilising” influence such as a town or mission; and the more primitive a person was the less punishment he should receive. The rationale for this view was twofold: the more primitive man had a less developed sense of right and wrong and less control over his passions such as anger, fear, revenge and shame; and/or did not know that there was a Government in Papua New Guinea available to redress his grievances. We think the first reason plainly wrong. The unsophisticated man may be just as fine a man in the moral or spiritual sense as the sophisticated man. The uneducated man living in a village and wearing traditional dress may have just as developed (or as poor) a moral sense as the educated man living in a town. All men have consciences which tell them right and wrong. All men succeed at times, and fail at other times, in obeying their consciences and controlling their passions. We consider that the second reason is still valid. If an offender comes from such a remote area that he does not know that there is a Government with a police force and courts to redress his wrong, so that he is forced to resort to self-help actions, then we would reduce the sentence for that reason. But there must be very few people indeed living in Papua New Guinea who fall into this category. Certainly these two respondents living in the Goilala area of the Central Province do not fall into this category. We would allow them no reduction of sentence for lack of sophistication.

The second murder, by the second respondent Aia, was a payback killing for the first and the learned trial judge regarded that as a mitigating factor. We consider he fell into error there. We consider that there should never be a reduction in any case for the custom of payback. The reason is that under the Customs Recognition Act (Ch No 19), s 4(e), custom, formerly called in the legislation “native custom”, is to be taken into account in determining the penalty (if any) to be imposed on a guilty party. But that provision is subject to s 3 of that Act which provides that custom should not be recognised or enforced if the court considers that enforcement of it “would not be in the public interest”, and to Sch 2.1 of the Constitution which provides that custom is not to be applied if it is repugnant to the “general principles of humanity”. The custom of payback as it obtains in many areas of the country, is that relatives of the murdered man are required to payback by killing the wrongdoer or a member of his family or clan. Sometimes it is alleged that the obligation to payback extends to killing any person from the same province as the wrongdoer. It is not necessary for us to decide whether that is a true or spurious custom. Whatever the exact ambit of the custom we consider it not in the public interest to recognise that custom by giving a reduced sentence for a murder committed pursuant to that custom. We also consider that custom contrary to the “Right to Life” contained in the Constitution, s 35. A payback killing does not come under any of the categories of killings permitted by that section. We also consider the custom of payback to be repugnant to the “general principles of humanity”. That phrase is not defined in the Constitution and we have not heard argument on it, but in all sovereign states the power to punish for murder is vested in the government which through its police force and courts catches the wrongdoer, ascertains if he committed the crime and the level of his culpability, and punishes him. The alternative, to allow the victim’s relatives or tribe to redress the wrong, leads to anarchy. They may not be able to ascertain who did the killing, they may choose an innocent victim, or in their grief and anger they may over-react and kill numerous people in retaliation, or they may be weak and not able to avenge the death at all. Alternatively if we equate the principles of humanity with Christian principles, those principles require the forgiveness of one’s enemies, the turning of the other cheek, and obedience to the State authorities who have been appointed by God to punish evil doers.

As we have said the courts cannot legally allow any reduction of sentence for the native custom of payback. Having said that, we must distinguish however between two kinds of payback killing, one of which gains a reduction of sentence under the category of provocation. The first kind of payback killing is where the offender kills the first killer; for example, in this case, if Aia had killed Apava. In some cases the defence of provocation can apply to reduce the offence from wilful murder to manslaughter and in so doing reduce the sentence. Thus if Aia had seen Apava kill his son; and retaliated by killing Apava the offence could have been reduced to manslaughter because of provocation: Criminal Code (Ch No 262), s 303. If, however, Aia had only heard about the killing of his son by Apava and had sought out and killed Apava the next day, he could not avail himself of the partial defence of provocation because his passion had time to cool. He would be convicted of wilful murder but he would be entitled to some reduction in sentence because of the “provocation” offered by Apava. This is a well known principle of mitigation in Papua New Guinea and elsewhere (eg Thomas, Principles of Sentencing, (2nd ed, 1979) at 206) and is sometimes called “de facto provocation” to distinguish it from “legal provocation” affording a defence in the Criminal Code. The second kind of payback killing is where the victim is innocent of the first killing. There should be no reduction of sentence in that case because the victim did not give any provocation (of any kind) to the offender.

Applying those principles to these respondents, Apava is entitled to some reduction in sentence for de facto provocation. The man he killed took his daughter and grandchild away against his wishes and without having paid brideprice. The respondent Aia is entitled to no reduction of sentence because he acted in accordance with the Goilala custom of payback because the recognition of that custom is contrary to the principles of humanity and hence illegal under the Constitution and is not in the public interest under the Customs Recognition Act, s 3. He is entitled to no reduction under the heading of de facto provocation because the boy he killed was totally innocent of the first killing.

The learned trial judge appears to have taken into account the old age of the respondents as a mitigating factor. Referring to Apava, the trial judge said:

“I have taken into account the age of the accused. Police estimated him to be about forty-five. The counsel submitted the age of the accused to be from fifty to mid-fifty. He was a young man in the last world war. He was married in 1956. His oldest child is reported to be twenty-seven. In PNG the provisions of health services are not as good as in the more developed countries where life expectancy is high.”

Referring to Aia, the trial judge said:

“I also take note of the age of the accused. In my estimation he is about fifty. This is based on the fact that he was a young man during the last world war. He had seven children before the seventh was killed.”

In England, according to Thomas, Principles of Sentencing (2nd ed, 1979) old age is a mitigating factor. We quote from 196:

“Age begins to be a relevant consideration again once the offender has passed 60, although at this end of the spectrum it is most effective as a mitigating factor when combined with another, such as good character. In Wilkinson a man of 60 appealed against sentences totalling five years for offences of indecency committed over a period of several years with his young grandnieces. The Court observed that while ‘a substantial custodial sentence’ was inevitable, the appellant had a ‘perfectly good’ record and the offences began when he became a ‘desperately lonely’ widower. Stating that ‘no court willingly sentences a man of 60 to spend a large part of the remainder of his life in prison’, the Court reduced the sentence to thirty months. In Bishop the Court reduced a sentence of fifteen months for an ‘extremely serious’ tax fraud on a man of 61 with ‘the highest personal reputation’, not because the sentence was ‘in any way wrong in principle but simply as an act of mercy to this man at this stage of his life’.”

We note that Thomas is not there writing of murder offences which carry a mandatory life sentence in England. We are not convinced that the principle mentioned has much to do with murder although we leave the matter open for argument in some later case.

The learned trial judge made a number of overt errors in sentence which we have discussed and, in any event, gave sentences which were inordinately low. We consider that the appropriate sentence for Apava, bearing in mind particularly the circumstances of the murder (the de facto provocation), his lack of prior convictions, and his plea of guilty, is fifteen years imprisonment with hard labour. We substitute that sentence for the one imposed by the trial judge.

With respect to the respondent Aia we agree with the view of Bredmeyer J expressed in Ure Hane v The State [1982] PNGLR 390 that the payback murder of an innocent victim is one of the worst categories of homicide. We believe that the courts should impose stern sentences to discourage this kind of killing. Despite his lack of prior convictions and plea of guilty we impose a sentence of life imprisonment on him.

In preparing these reasons we have read the review provisions contained in regulations 143-145 of the Corrective Institution Regulations (Ch No 63). They provide for the review of a person serving a life sentence on the basis of age, health, conduct as a detainee, etc, which can result in his sentence being commuted to a fixed-term sentence or to him being released. Those regulations provide for a preliminary review after twelve years, a review after fifteen years followed by further periodic reviews; and a review when a prisoner attains fifty-five years and for annual reviews thereafter. All the reviews only relate to a prisoner serving a life sentence. It seems to us anomalous, and possibly unconstitutional, that a prisoner who has served say twelve or fifteen years of a fixed-term sentence, or a man who has attained fifty-five years whilst serving a fixed-term sentence, should not be entitled to the same reviews as one serving a life sentence. We draw this anomaly to the attention of the authorities for their consideration, and possible change.

Appeals allowed

Lawyer for the appellant: L Gavara-Nanu, Public Prosecutor.

Lawyer for the respondent: N Kirriwom, Public Solicitor.