Secretary for Law v Binengim [1975] PGLawRp 472; [1975] PNGLR 172 (4 September 1975)

Papua New Guinea Law Reports - 1975

[1975] PNGLR 172 - Secretary for Law v Witrasep Binengim

[1975] PNGLR 172

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SECRETARY FOR LAW

V

WITRASEP BINENGIM

Port Moresby

Prentice SPJ Raine Saldanha JJ

29 August 1975

4 September 1975

CRIMINAL LAW - Sentences - Inadequacy of - Wilful murder as principal offender under s. 7 of Criminal Code - Sentencing of co-offenders - Co-offenders sentenced to fifteen years’ and twelve years’ imprisonment - Sentence of 9 years 6 months’ imprisonment substituted for sentence of 2 years 6 months’ imprisonment.

The respondent was charged with the wilful murder of her husband (a Pastor in the Baptist Church), as a principal offender under s. 7(b) and (c) of the Criminal Code (Queensland adopted) the respondent taking no part in the actual killing which was performed by two men called Thomas and Tari. The respondent a young woman aged about 30 years with two children had been having an affair with Thomas and gave her consent to a proposal put forward by Thomas that he would murder her husband so that they could be free to marry; the respondent was not “primitive” and was fully aware that she had the power in village custom and in fact, to veto the killing and that the killing would not have proceeded without her consent. The co-offenders were sentenced to fifteen years’ and twelve years’ imprisonment and the respondent to two years and six months imprisonment, the trial judge taking into account 7 months in custody awaiting trial. On appeal against inadequacy of sentence,

Held

That the sentence was manifestly inadequate to the circumstances of the crime seen in the light of the respondent’s background and a sentence of nine years and six months imprisonment should be substituted.

Discussion of the arguments for parity of sentencing where co-offenders involved.

Appeal

This was an appeal by the Secretary for Law pursuant to s. 29 of the Supreme Court (Full Court) Act 1968 on the ground of inadequacy of sentence.

Counsel

L. W. Roberts-Smith, for the appellant (Secretary for Law).

W. J Andrew and W. Kaputin, for the respondent.

Cur. adv. vult.

4 September 1975

PRENTICE SPJ: Mr. Secretary appeals herein under s. 29, Supreme Court (Full Court) Act 1968, on the ground of the inadequacy of a sentence imposed on the respondent following a conviction for wilful murder of her husband. His Honour the trial judge had found that the respondent by giving her consent to the proposed murder of her husband by one Thomas, was guilty as a principal offender under s. 7 (b) of the Criminal Code of the murder which ensued[ccxii]¹; and he sentenced her to two years and six months’ imprisonment. The sentence calculated with the period spent in custody awaiting trial would amount in all to a confinement of three years one month. Thomas, the man who strangled the respondent’s husband, had previously been sentenced to fifteen years, and Tari his accomplice in the deed, to twelve years’ imprisonment.

Initially during argument, counsel for Mr. Secretary seemed disposed to erect a submission that such a disparity of sentence could be shown between the punishment of Thomas and Tari on the one hand and that of the respondent on the other, as called in law for the appeal to be allowed. This if successful would have amounted to the establishment of the converse of the “sense of grievance” principle such as was discussed and applied in Winugini Urugitaru v. The Queen[ccxiii]². Such a submission would involve substituting, as it were the “grievance” of the Secretary for Law at an inadequacy, for that of offenders in the decided cases claiming to have received excessive punishment. No case involving such a submission or set of facts could be cited; and after discussion I understood counsel to have worked a shift of emphasis in his submission. He ultimately contended for a manifest inadequacy of sentence which he endeavoured to illustrate by reference (inter alia) to the disparity shown between the sentences.

The respondent and Thomas had for some time been lovers; and Thomas had suggested the murder of the respondent’s husband. Apparently at first the woman did not agree; but ultimately at a point two months before the murder, again four weeks before, and apparently on the day itself, she gave her consent thereto.

In sentencing the respondent, the trial judge’s only remarks were as follows:

“I shall take into account the minor role of the woman, the fact that she did not instigate the agreement, the possibility of payback and the consideration that she should not be imprisoned for such a period as to destroy the relationship with her children, and to a lesser extent, her remorse. Accused sentenced to imprisonment for two years and six months without hard labour.”

Counsel submits that a reading of these remarks supports the inference that his Honour overlooked a number of matters, namely:

N2>(1)      that this was a case of wilful murder as a principal, for which the punishment yet on the statute books, is death;

N2>(2)      that fifteen and twelve years’ imprisonment had been imposed upon her co-offenders;

N2>(3)      that she had provided a motive to the co-offenders by informing Thomas that if he killed her husband, she would then marry him; and

N2>(4)      that she had the power in village custom and in fact, to veto the killing; that the killing would not have proceeded without her consent; and that she was fully aware of these factors.

Just as in civil cases it has been said that a Court “should not be readily receptive of criticism of a summing up and at all times should look at it as a whole and regard its tenor, bearing in mind that the jury have heard all the witnesses and it is unnecessary for a judge to review all the evidence or to repeat all the respective arguments” (Sellers L.J in Warren v. King[ccxiv]³); and more humorously, by Harman L.J in the same case at p. 9 — “It is notorious that to give reasons is to invite attack. Witness the saying ‘O that mine enemy had written a book’ “; so in criminal cases it has been said that a summing up directs the attention of a jury to the salient points of a case and it would be wrong and lead to pedantry and technicality and injustice if it were scrutinized too closely. (R. v. Smith)[ccxv]⁴. There is no obligation in a Judge to make any remarks on sentence at all; and by analogy with the approach to a summing up, I consider that it may constitute an error to look microscopically at any remarks that he does choose to make on sentence. Because certain matters may be mentioned in such remarks it is not readily to be inferred I apprehend, that other relevant matters have been overlooked by him.

The trial judge here in his remarks on sentence made mention of “the possibility of payback”. This has been variously construed by opposed counsel as having called in his Honour’s mind for leniency (the factor of payback on the respondent or her family looming over her as an insecurity of the future constituting itself a mental punishment), or — the very opposite — as calling for sternness such as would meet the approval of the community involved and stave off a payback. It appears to me that the context indicates that his Honour was making a collation of mitigating factors only, and that he was therefore, (unusually to my mind), regarding possibility of payback in the first sense. Be that as it may, I would be most reluctant to conclude that in listing factors he considered called for leniency, his Honour was excluding from his mind those calling for salutary punishment.

However his Honour does use the phrase “the minor role of the woman”. Perhaps his Honour was thereby intending to do no more than refer to the passive nature of the woman’s role. I myself am unable to conceive of hers as any other than a major role. The deceased was a mission pastor. The respondent had worked as a domestic servant for two years and prior to the murder had been the manageress of the Baptist Mission Children’s Hostel in Telefomin. Her village was five minutes walk from the Administration Centre at Telefomin. She cannot therefore be viewed as a primitive with little knowledge of Government law. She had children seven and three years old by the deceased her husband. It was accepted that without her consent the murder would not have taken place and that she knew this to be the fact. She must have known that by agreeing to marry the would-be murderer she was providing him with a motive for his projected deed. Her consent was not given hurriedly or thoughtlessly, or immediately before the crime so that there was no time for her to relent and withdraw it. Her participation as wife of the victim, mother of the victim’s children, and adulterous lover of the actual murderer, makes the crime a particularly dreadful one. I find myself compelled to the conclusion that the sentence was manifestly inadequate to the circumstances of the crime seen in the light of the respondent’s background. Taking into account all matters of mitigation available to her, I would yet consider a sentence of nine years six months’ imprisonment (without hard labour) called for. I would therefore allow the appeal and propose the subsitution of a sentence of nine years six months’ imprisonment.

RAINE J: I have read in draft the judgments of my brethren, and I agree in that which they propose, and with their reasons.

There are only two matters to which I need refer. I only do so in order to assist the Bar to understand in which direction I lean qua two points raised in argument.

Firstly, there is the “disparity of sentences” argument. There now seems no doubt that there is a firmly established principle that, to the extent that is possible, there should be no disparity in sentences, all things being more or less equal, between co-offenders. The situation often arises where Mr. Justice A. deals with one of a group of co-offenders one month, and Mr. Justice B. deals with the remainder subsequently. The second judge might feel that the first judge was lenient, but the principle is, so I believe, that the second judge, albeit rather unwillingly, ought to award much the same sentence as awarded earlier.

Here the Crown asks that the principle be, as it were, applied in reverse. I do not believe that the “sense of grievance” principle that inhibits Mr. Justice B. from imposing much stiffer sentences than those earlier imposed by Mr. Justice A. upon a similarly placed co-offender, has any application where, in reverse, stiff sentences were imposed by the first judge.

The second matter to which I would shortly refer is this question of remarks on sentence, and the attitude to be taken by an appellate court where the trial judge lays emphasis on some, but says nothing as to other aspects of importance, or, if you like, says nothing at all.

In John Kemai v. Symonds[ccxvi]⁵ I was not intending to law down any rigid rule. However, I still feel that the judgment of Maxwell J in Cowell v. Cowell[ccxvii]⁶ is to be preferred to that of Wells J in R. v. Reiner[ccxviii]⁷, not because I really disagree with much that Wells J says, but because I believe that Maxwell J adopts an approach that is more fluid, and gives the appellate court more room to move.

SALDANHA J: This is an appeal by the Secretary for Law under s. 29 (1) of the Supreme Court (Full Court) Act 1968 on the ground of insufficiency of sentence. The learned trial judge found the respondent guilty of the wilful murder of her husband and sentenced her to two and a half years’ imprisonment without hard labour. She had been seven months in custody thus making the effective sentence one of three years and one month.

The respondent Witrasep Binengim is a young woman aged about thirty years. She was married to the deceased Borli. She has two children by Borli, a girl aged about seven years and a boy aged about three years. She had been having an affair with a man called Thomas Unaropnok with whom she had had sexual intercourse on a number of occasions. The respondent had given her assent to the proposal put forward by Thomas that he would murder her husband. She had done this so that she would be free to marry Thomas.

Thomas with the help of a man called Tari Apengim strangled the deceased. They appeared before Williams J, on an indictment charging them with wilful murder. They were convicted and sentenced, Thomas to fifteen years’ imprisonment and Tari to twelve years. Thomas and Tari were then called as witnesses for the Crown at the trial of the respondent.

The learned trial judge made the following observations before passing sentence:

“I shall take into account the minor role of the woman, the fact that she did not instigate the agreement, the possibility of payback and the consideration that she should not be imprisoned for such a period as to destroy the relationship with her children, and to a lesser extent, her remorse.”

With respect his Honour’s observation that the respondent played a minor role appears to be inconsistent with his findings that the respondent gave her assent to the murder of her husband knowing that had she dissented her husband would not have been killed and that she gave her assent in order to enable her to marry Thomas after the death of her husband. It is possible that by “minor role” his Honour meant “passive role”.

The respondent had two children by the deceased. This was not a traditional killing. The respondent was not under any social pressure or obligation to kill. The killing was the result of her sordid passion for Thomas. Her culpability in my view was greater than that of either Thomas or Tari. She is not primitive. She can read and presumably write. She lives at Telefomin within five minutes walking distance from the Administration Centre and two minutes from the Mission Station. Her husband was a Pastor in the Baptist Church and she herself received instruction in the local Mission Pastor Training Scheme. She had worked as a domestic for two years and had recently been employed as a manageress of the Mission Children’s Hostel. All those factors weighed heavily against her on the question of sentence. The trial judge did not advert to any of these matters before sentencing the respondent. If he had them in mind he does not appear to have given to them the overriding importance they deserved, probably because he allowed his compassion for the respondent and her children to persuade him to give more weight than they deserve to the mitigating factors that he has mentioned.

There is a great disparity between the sentence imposed upon the respondent and the sentences imposed upon Thomas and Tari. There appears to have been established in recent years a principle that an accused person, who, all other things being equal, has been awarded a sentence substantially higher than those imposed upon his co-offenders is entitled on an appeal by him to have the sentence reduced on grounds of parity. But there would appear to be no reported cases where on an appeal by the Crown on the ground of insufficiency a sentence has been enhanced to accord with higher sentences imposed upon co-offenders.

I would therefore increase the sentence imposed upon the respondent not on grounds of parity but because I consider that having regard to all the circumstances and the factors of aggravation mentioned by me above the sentence is inadequate. I would set aside the sentence imposed by his Honour the trial judge and after taking into account the seven months spent by the respondent in custody and the factors in mitigation referred to by his Honour I would substitute a sentence of nine and a half years’ imprisonment without hard labour.

Appeal allowed: Sentence of nine years and 6 months without hard labour substituted. Fresh warrant issued.

Solicitor for the appellant (Secretary for Law): B. W. Kidu, Crown Solicitor.

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

R>

[ccxii]Editorial note: Reported herein at p. 95.

[ccxiii][1974] P.N.G.L.R. 283.

[ccxiv][1964] 1 W.L.R. 1.

[ccxv](1915) 11 Cr. App. R. 81.

[ccxvi][1975] P.N.G.L.R. 81.

[ccxvii] (1954) 71 W.N. 217, at p. 218.

[ccxviii] (1974) 8 S.A.S.R. 102, at pp. 113-5.