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Golu v The State [1979] PGLawRp 703; [1979] PNGLR 653 (14 December 1979)

Papua New Guinea Law Reports - 1979

[1979] PNGLR 653 - Goli Golu v The State

[1979] PNGLR 653

SC172

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

GOLI GOLU

THE STATE

Waigani

Raine DCJ Kearney Wilson JJ

26 November 1979

14 December 1979

CRIMINAL LAW - Sentence - Principles of sentencing - Maximum penalty for worst type of offence - Punishment proportionate to gravity of offence - Life imprisonment - When appropriate on charge of wilful murder - Criminal Code, s. 309.

CRIMINAL LAW - Appeal against sentence - Appeal against severity - Wilful murder - Life imprisonment - Serious case - Killing in precincts of court - Life imprisonment to be reserved for worst type of case - Punishment to be proportionate to gravity of offence - Long fixed term sentence substituted - Criminal Code, s. 309.

Section 309 of the Criminal Code provides:

N2>(1) Any person who commits the crime of wilful murder shall be liable to imprisonment with hard labour for life.

N2>(2) Any person who commits the crime of murder shall be liable to imprisonment with hard labour for life.

On appeal against severity of a sentence of imprisonment with hard labour for life on a charge of wilful murder, the evidence revealed that the appellant (accused) a man with no previous convictions, had together with other clan members attended at the Kwikila court house where proceedings were to commence arising out of a riot between the appellant’s and the victim’s clans, and had in the vicinity of the court house and despite the presence of numerous police run down and stabbed the deceased a man he did not know other than as a member of an enemy clan. In his remarks on sentence, the trial judge, after referring to the prevalence of this type of offence near court houses or at or near police stations or in similar circumstances, stated that the sentence of life imprisonment “should be imposed both as retribution for the offence the accused has committed and to deter like minded offenders.”

Held

N1>(1) In sentencing for wilful murder, the maximum penalty of life imprisonment should be reserved for the most serious instances of the offence.

N1>(2) In sentencing, the basic principle to be observed is that the punishment to be awarded should be strictly proportionate to the gravity of the offence.

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

N1>(3) In the circumstances the sentence of life imprisonment was out of reasonable proportion to the circumstances of the crime, for which a long fixed term sentence was appropriate.

N1>(4) Accordingly the appeal against sentence should be allowed and an effective sentence of thirteen years’ imprisonment with hard labour substituted.

Consideration by Wilson J. of the circumstances in which a sentence of life imprisonment is justified.

Appeal Against Sentence

This was an appeal against a sentence of life imprisonment imposed on a charge of wilful murder.

Counsel

N. Kila, for the appellant.

J. Karczewski, for the respondent.

Cur. adv. vult.

14 December 1979

RAINE DCJ: This is an appeal against a sentence of life imprisonment following a conviction for wilful murder. The appellant pleaded not guilty, relying on defences of provocation and self defence, but these were rejected by the learned trial judge in a lengthy and careful judgment. When sentencing the appellant his Honour said:

“It is true that the accused has no previous convictions but I take the most serious view of this case.

There have been a series of cases where accused persons have been attacked near the court house or at or near police stations or in similar circumstances.

It is true that the deceased was not an accused person but he had come to the court to attend the hearing of a case. It is the one place where he ought to have been secure. There were extra policemen on duty because they expected trouble and they had taken precautions to ensure that no weapons were brought into the precincts of the court house. In spite of this knives were smuggled in a small car into the parking area in front of the court house.

After this incident there have been a series of incidents where accused persons have been killed or injured near a court house or at a police station or in similar situations.

At Bereina an accused person who had been taken to view the scene was ambushed and killed (despite the presence of the Chief Justice, Sir William Prentice, and policemen who had been detailed to protect him).

At Banz a man who had killed a person in a car accident was forcibly taken out of the police cells and murdered.

At Kainantu an attempt was made to murder an accused person who was on his way to or from the court house.

This type of crime has reached proportions that make some members of the public think that there has been a complete breakdown in law and order — and the courts would be failing in their duty if they were not to impose deterrent sentences.

The maximum penalty is life imprisonment and I am of the opinion that this sentence should be imposed both as retribution for the offence the accused has committed and to deter like-minded offenders.

I sentence the accused to imprisonment for life.”

The murder occurred at Kwikila court house where proceedings were to commence arising out of a riot between the appellant’s and the deceased’s lines. The police feared there would be trouble and were there in force to prevent it if possible.

It is abundantly clear that the appellant’s line managed to smuggle knives into the town despite efforts by the police to prevent this and the appellant’s line got their knives from a car parked in the vicinity of the court. It is perfectly clear that some sort of punitive action had been planned.

There are few court houses in the country that are anything like secure and judges, magistrates, counsel, prisoners and spectators can only rely on respect for the law and for the places where it is administered for their lives and safety. A court should be a haven. The same goes for parliament, or a church.

It will be seen from his Honour’s judgment on sentence that these matters weighed very heavily on his mind. The learned judge devoted himself to this question of the obvious need for courts to be safe, and apart from acknowledging that the appellant had no prior convictions he dealt with no other considerations. His Honour gave three examples of rather similar incidents, and I see no reason for his not having done so, notwithstanding that they were subsequent in point of time to this killing. He was merely exemplifying the need for this sort of thing to be stamped out, and indicating that there must be a change of climate.

Mr. Kila cited R. v. Smith[dcccxxix]¹ in support of his argument but it is clearly distinguishable, as is R. v. Huchison[dcccxxx]². Counsel also relied on R. v. Withers[dcccxxxi]³. I really do not see that it has any application. There a Recorder passed a very serious sentence on a charge of receiving stolen property but the property received was of negligible value. Mackinnon J. said (the emphasis is mine)[dcccxxxii]⁴:

“We have been told that there had been a considerable amount of warehousebreaking in Leicester at that time and that it was the policy of the Recorder to impose a sentence which might act as a deterrent to those who commit that class of crime. That is a proper consideration so long as it does not result in a convicted man being made the scape-goat of other people who have committed similar crimes but have not been caught and convicted.”

Another of Mr. Kila’s arguments was that there was a disparity between the appellant’s sentence of life imprisonment and a subsequent effective sentence of ten years passed by the Chief Justice on one Raga Raga who was convicted of the wilful murder of this deceased on a s. 7 basis. He was not playing a passive role, he too was holding and waving a knife, he was running with the appellant, and he was at the feet of the deceased as he was put to death.

The most usual situation that arises in disparity cases is as described by me in Secretary for Law v. Witrasep Binengim[dcccxxxiii]⁵ where I said:

“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.”

However, the situation can arise where a co-offender is dealt with before his comrade or comrades, and the latter, when dealt with later, receive far less punishment, such as might reasonably leave the first man dealt with with a sense of grievance. R. v. Pitson[dcccxxxiv]⁶ is an example of this.

Thus the argument is open, but does it succeed? In my opinion it does not, the discrepancy between the two sentences is not so great, in my opinion, active participant though Raga Raga was, as to give the appellant a sense of grievance. Raga Raga had every chance to use his knife, but did not do so.

Mr. Kila further submits that this is not the worst type of murder and he complains that if this is so then the award of the maximum penalty of life imprisonment is wrong. He relies on Passingan v. Beaton[dcccxxxv]⁷. See also Green v. Josey[dcccxxxvi]⁸. Whilst maximum punishment should be reserved for only the worst sort of cases, that is not to say that the case must be the very worst in the book. This was certainly a very bad case. The appellant was jubilant after he killed the deceased, a man whom he did not know and only knew as a member of the enemy clan. The deceased was a small, thin male person in middle age and the appellant was a fit man in his mid-twenties. The deceased had just returned to consciousness after being knocked out and was unarmed and, of course, he had come to the court house as a spectator, he obviously had come there to listen to the hearing of the riotous behaviour charges. Counsel also submits that the award of life imprisonment was in excess of the range of punishments for very bad murders awarded by National Court judges or by the Supreme Court on appeal. The examples cited by Mr. Kila and those cited by Mr. Karczewski, and my own experience, do not lead me to believe that the award was outside the customary range.

I now turn to consider whether this case, which I will now examine in the board, justified a sentence of life imprisonment. There are various matters not referred to by the learned trial judge which bear on the matter. The first is that the appellant and his line had a grievance and it related to land. As we all know, in Papua New Guinea the people are extremely close to the land and land disputes almost invariably lead to trouble. The court proceedings that were to be held on the day of the killing were in respect of a serious riot between the accused’s line and a neighbouring line and there can be no doubt that the accused would have become overheated because of what had gone before, and in my opinion this is a very serious consideration in determining what is the proper sentence. A further matter is that whilst his Honour mentioned the fact that the accused had no prior convictions, he had nothing more to say on the question of character and antecedents, and the fact is that the accused was quite well educated and came from a good background and had either worked for or served in the defence force before joining the public health department as a field officer in the malaria service. He was married with a child of two and one that had only recently been born. Another consideration that might be taken into account is the fact that whatever sentence the appellant received, it obviously was going to be a heavy one. Thus the appellant will not be back in his area for many years, by which time one hopes that the trouble will be over and it is highly probable that the appellant is not likely to commit a similar offence again.

It is important to find out just what life imprisonment means. Does it mean for the term of a person’s natural life? The matter is governed by the Corrective Institutions Regulations 1959. Section 141 provides for a reviewing committee consisting of three members with a chairman who shall preside at all meetings of the committee. Section 142 provides that when a detainee imprisoned for life has served a period of twelve years of that imprisonment, the visiting justice shall interview him and enquire into his conduct and health during the preceding twelve years and the extent to which he appears to have been rehabilitated and such other matters as may seem relevant, and the visiting justice shall report on these matters in writing to the reviewing committee. Section 143 provides that when a detainee has served a period of fifteen years of that imprisonment the committee shall review the sentence and for that purpose may interview the detainee and make such enquiries as seem relevant to the review of sentence. On completion of review of sentence the committee may in view of the health or age of the detainee and his conduct and the extent to which he appears to have been rehabilitated, recommend that the sentence be commuted to a determinate period specified by it so that the detainee could be released either immediately or at a future date specified by the committee. Where no recommendation is made then the committee shall hold a further review of sentence on a date to be fixed by it, such date not being later than five years after the immediately preceding review. Thus, the least that the appellant will serve will be fifteen years. If after the fifteen years has elapsed the committee made no recommendation that he be released, then it could be as long as twenty years before the appellant’s case could be reviewed for the second time. Of course, of those two periods of fifteen and twenty years that I have mentioned, one might have to add several months because the committee might be particularly busy and not able to review the case soon after the fifteen years or twenty years had elapsed, or the committee might be dilatory. Thus the appellant will be in his forties before he can be released.

D. A. Thomas deals with sentences of life imprisonment in his well known and often cited Principles of Sentencing, (2nd ed., 1979), at pp. 300 to 307. At pp. 301 to 303 the learned author says:

“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 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. That 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 condition exists, 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.

The nature of the mental condition required to justify a sentence of life imprisonment eludes precise definition. In some cases the offender suffers from a mental disorder within the meaning of the Mental Health Act 1959 but cannot be dealt with by means of a hospital order for one or more of the reasons given earlier; in other cases the offender is subject to a condition which is clinically recognizable but is not within the statutory definition. Life sentences have been upheld on the basis of evidence that the offender is emotionally immature, subject to abnormal sexual drives or fantasies or impulsive and unstable. What is important is not whether the offender’s condition can be accurately described by a recognised psychiatric term, but whether it can be predicted with a sufficient degree of confidence that the offender will, unless restrained, commit further grave offences in the future, and that his propensity to do so will not decline within a foreseeable period, In Stanford a man with a long record of violence was sentenced to life imprisonment for causing grievous bodily harm to a sixteen-month-old girl. The evidence was that the appellant had a ‘defective personality’ and had previously been classified as psychopathic, although no psychiatric treatment was possible. The present offence was thought to be related to a hostility towards small girls which resulted from an accident suffered by the appellant’s father shortly before his death; further acts of violence to children were ‘a clear possibility’. The sentence was upheld.”

(I have not reproduced the footnotes with their numerous references.)

I agree with what the learned author says and what he concludes from the cases he cites.

Mr. Kila submits that a fixed term sentence is appropriate, and I think I have dealt already with most of the matters he urged upon us. It will be apparent that I by no means agree with all that he has put. However, I have concluded that the learned trial judge has manifestly erred in imposing a sentence of life imprisonment. It is possible that the error stemmed from the fact that he directed his mind, so it seems to me, almost exclusively at the fact that the killing was in the precincts of the court house. If this is not correct, then, in any event, I am of opinion that there must have been error. See House v. The King [dcccxxxvii]⁹.

I would allow the appeal and substitute for the sentence imposed by his Honour one of twelve years and six months in hard labour, which is an effective sentence of just over thirteen years.

KEARNEY J: This was an application for leave to appeal against a sentence of life imprisonment imposed upon the appellant for wilful murder.

Leave to appeal was granted when the hearing commenced, because the case raised the important question of when a life sentence is warranted.

The facts of the case, and the learned trial judge’s reasons for sentence, have been set out by the Deputy Chief Justice, whose judgment I have had the benefit of reading; I need not set them out again.

Wilful murder has always been regarded as one of the most intrinsically serious of all offences. That is why, in most jurisdictions, it carries a fixed penalty; sometimes death, freqently life imprisonment. Under our Code it does not carry a fixed penalty; there is a maximum penalty of life imprisonment. A sentence for a long fixed term of years, which is usually imposed for this crime, is taken to be a lesser penalty than the indeterminate sentence of life imprisonment, although, as my brother Raine has spelled out, a “life” detainee may be discharged by commutation of his sentence by a reviewing committee, after he has served fifteen years. Or again, as pointed out in Peter Naibiri v. The State[dcccxxxviii]¹⁰ a “life” detainee, as any other detainee, may be discharged through exercise of the power of mercy under s. 151 of the Constitution of the Independent State of Papua New Guinea, or released on licence under s. 627 of the Criminal Code.

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.

In England, it appears from R. v. Hodgson[dcccxxxix]¹¹ and the citation from Thomas in my brother Raine’s judgment, that this general principle of sentencing — the “worst case” principle — no longer applies as a general guide to the imposition of a life sentence. That penalty is usually there applied as an indefinite preventive sentence imposed upon mentally disordered and dangerous persons found guilty of serious crime, not necessarily of a “worst case” type. The protection of the public is seen as the primary consideration. Its use for that purpose is explicable against a background of a social system ensuring proper hospital treatment for such offenders under secure conditions, and regular executive monitoring of their progress; and against a legislative background (though now changed) where there was no power to impose indefinite custodial control on a mentally unstable offender, or to release on licence an offender serving a lengthy fixed term as opposed to life imprisonment. See R. v. Kocan [dcccxl]¹², per Sugerman J.A.

There is no such social “back-up” in this community; and accordingly, in my opinion, no warrant to depart as in England, when considering whether a life sentence should be imposed, from the basic principle of proportion that a man be given the sentence appropriate to his offence, and no more.

That conclusion appears to accord with the view of the majority of the High Court in Veen v. The Queen [dcccxli]¹³, when considering whether the English approach to life sentences should apply in Australia; it was emphasised that the sentence should be strictly proportionate to the gravity of the offence. In that case a life sentence had been imposed, exclusively because of the trial judge’s assessment of the probable future violent behaviour of the applicant; a fixed term of years was substituted by the High Court, on the basis (amongst others) that the particular circumstances of the crime, grave as it was, did not put it in the most grave category.

This of course is not to deny the importance of the protection of the community, in sentencing. It is one factor. It is not suggested that the appellant here is a mentally disordered and dangerous offender; so there was no scope in this case for the application of the English approach, and the learned trial judge did not purport to apply it.

In assessing the degree of seriousness of the particular case, the analysis cannot be precise. It is wrong to attempt fine distinctions; it is fruitless to attempt a definitive catalogue of aggravating and mitigating factors, though the recent case of Peter Naibiri v. The State[dcccxlii]¹⁴ marks something of a borderline. In R. v. Wheeldon (No. 2)[dcccxliii]¹⁵ a murder case in the Australian Capital Territory where a similar maximum penalty obtains, Blackburn J. said, and I respectfully agree:

“... 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 ...”

The learned trial judge, in his reasons for sentence cited by my brother Raine, sets out three instances of another such “factor”— attacks upon accused persons in circumstances which clearly brought those crimes into the most serious class. See also R. v. Iu Ketapi [dcccxliv]¹⁶, as another example of this factor. However, the incidents to which his Honour referred differed significantly from the present case in that the person attacked was at the time in the custody of the police or the court.

Mr. Kila’s first submission, in essence, is that the learned trial judge erred in that the case lacked those circumstances of aggravation which alone warrant the imposition of the maximum sentence. In other words, the sentence was out of reasonable proportion to the circumstances of the crime, bearing in mind the proper weight to be placed upon the circumstances of aggravation mentioned by the trial judge, and the other circumstances of the case. I would uphold that submission. I refer to the facts, as set out by my brother Raine. The trial judge clearly had to the fore of his mind the need to deter violent behaviour when parties are gathered together under the law so that the courts may administer justice by peaceful means. As my brother Raine says, it weighed very heavily on his Honour’s mind. It was a very proper consideration, and an aggravating factor when considering the punishment for this offence; but not a factor, in my opinion, to move into the most serious category of wilful murders a case which, in all its other aspects (as to which I adopt the analysis by my brother Raine) merited a long fixed term sentence.

I should add that I do not think a contention that a sentence is “in excess of the range of sentences normally imposed” is, in itself, an arguable ground of appeal. Each case depends upon its own facts, and the tariff in practice, for crimes of wilful murder, certainly extends to life imprisonment.

I agree with my brother Raine that there is no force in the contention that the lower sentence later imposed upon a co-offender Raga Raga was such as to involve in this case a breach of the principle that sentences imposed on offenders for the same offence, should bear a proper relationship. The lower sentence on Raga Raga properly reflected a difference in his degree of culpability.

The appellant has established error in sentencing. The question then is, whether a different sentence should have been passed. The error involved too great a weight being placed upon what was clearly a circumstance of aggravation. The other circumstances of the case did not warrant the maximum penalty, which is reserved for the worst type of case, bearing in mind the nature of the crime and the circumstances of the criminal. The sentence should therefore have been less than one of life imprisonment. It was a bad case; I refer again to the facts set out by my brother Raine. It was clearly a case in which a long fixed term sentence should have been imposed. I consider the sentence which should have been imposed was an effective sentence of thirteen years’ imprisonment with hard labour. Accordingly, I concur in the order proposed by the Deputy Chief Justice.

WILSON J: This appeal raises for consideration the relative merits of the indeterminate life sentence of imprisonment and the fixed-term of imprisonment for the crime of wilful murder. It must be remembered that since the 1976 amendment of s. 309 of the Criminal Code the mandatory life sentence for wilful murder was abolished in Papua New Guinea. Since then the life sentence has been the discretionary maximum with the courts having a wide discretion to impose a lesser penalty ranging in theory down to a fine or release on a good behaviour bond but ranging in practice down through a wide range of fixed term prison sentences to a sentence to the rising of the court. (See The State v. Panikuiaka Nope[dcccxlv]¹⁷ and The Public Prosecutor v. Panikuiaka Nope [dcccxlvi]¹⁸.)

In the instant case there is no doubting the fact that the appellant committed a cowardly and vicious crime. Although it was committed at a time of ill-feeling between two village groups, the deceased was given no chance to avoid a sudden and violent death at the hands of a man to whom no provocation had been offered. The appellant took the law into his own hands and administered his own form of “justice”. A substantial sentence was appropriate for a very grave crime. The appellant was not entitled to leniency.

But was this a crime which warranted not only a substantial sentence but also the most severe sentence which could be imposed? Was an indeterminate life sentence called for?

The learned trial judge acknowledged that the appellant had no previous convictions. His Honour took “the most serious view of this case” and was of the opinion that the maximum penalty of life imprisonment “should be imposed as retribution for the offence (the appellant) has committed and to deter like-minded offenders.”

The sentence of life imprisonment passed on the appellant means imprisonment for his lifetime or, as the Supreme Court characterized it in Peter Naibiri v. The State [dcccxlvii]¹⁹, “for the actual term of his natural life”. Although regulations 142 and 143 of the Corrective Institutions Regulations contemplate the periodic review of life sentences, and although any prisoner may be released on licence (under s. 627 of the Criminal Code) or in the exercise of the power of mercy (under s. 151 of the Constitution), there is nothing in the statute books or in practice which offers the appellant much encouragement for any favourable consideration of his release in the near future.

I hesitate to disagree with the exercise by the learned trial judge of his discretion in the difficult task of sentencing. However, I am led to conclude that this sentence of life imprisonment, imposed predominantly on account of the need to recognise the notions of retribution and general deterrence, is therefore one which requires reconsideration. It does not conform to the principle in sentencing that the maximum penalty is reserved for the worst type of case; it overlooks the fact that the notions of retribution and general deterrence could just as effectively be recognised in a substantial fixed term sentence; and, there being few, if any, facilities in this country for the constant review and treatment of wilful murderers with a view to their release if and when they respond and there being no need to emphasise the need for public protection in a case such as this, this sentence sacrifices the important factor of proportionality, i.e. it offends against the fundamental principle that a man must be given the sentence appropriate to his crime and no more.

That this case (albeit a wilful murder case) is not the type of case in which the sentence of life imprisonment is appropriate may be seen from a reading of the respective judgments of Stephen, Mason and Jacobs JJ. in the recent but most important manslaughter case in Australia of Veen v. The Queen Mason J. said[dcccxlviii]²⁰:

“In the case of a very serious offence involving violence, it will rarely transpire, if at all, that a sentence of life imprisonment is disproportionate to the offence of which the prisoner has been convicted, given that he has a prior record of conviction for that class of offence and that he has a propensity, because he is unstable or disordered, to commit violent crime.”

It is to be noted that in this case, unlike the situation in several of the cases to which Mr. Karczewski drew our attention, the appellant had had no prior convictions for crimes of violence, he was not a multiple killer, and, apart from the offence for which he was to be sentenced, he had exhibited no signs of a propensity to commit violent crime.

Mason J. alluded to the principle governing the imposition of the discretionary maximum penalty of life imprisonment when he said[dcccxlix]²¹:

“The court imposes a sentence of life imprisonment on taking account of the offender’s record, his propensity to commit violent crime, the need to protect the community and the very serious offence of which he stands convicted ...”

I consider that imprisonment for life is a penalty appropriate to serious wilful murder when it is attended by the additional factors to which Mason J. referred, but not otherwise. Notwithstanding the absence in Papua New Guinea of statutory provisions corresponding to the Criminal Justice Act 1967 and the Mental Health Act 1959 in England and of the system for psychiatric treatment and assessment which obtains in that country, I share the opinion of Mason J.[dcccl]²² that “... life imprisonment should be imposed when it is necessary to protect the community from an offender who has a disposition to commit violent crimes and that the conditions for the imposition of that sentence are as stated in R. v. Hodgson [dcccli]²³.” In other instances a fixed term sentence is appropriate.

The relevant principle in R. v. Hodgson[dccclii]²⁴ is found in the judgment of the Court of Criminal Appeal (Lord Denning M.R., Widgery and MacKenna JJ.) where their Lordships stated:

“When the following conditions are satisfied, a sentence of life imprisonment is in our opinion justified: (1) where the offence or offences are in themselves grave enough to require a very long sentence; (2) where it appears from the nature of the offences or from the defendant’s history that he is a person of unstable character likely to commit such offences in the future; and (3) where if the offences are committed the consequences to others may be specially injurious, as in the case of sexual offences or crimes of violence. We think that these conditions are satisfied in the present case and that they justify an indeterminate life sentence. The Home Secretary has of course the power to release the appellant on licence when it is thought safe to release him, if that time comes.”

Dr. D. A. Thomas in his book Principles of Sentencing, (2nd ed., 1979), at p. 301, said:

This crime, very grave as it was, was not in the category of the worst type of wilful murder case. A life sentence was in the circumstances manifestly excessive. The learned trial judge, in my judgment, fell into error in acting upon the wrong principles to which I have referred. A heavy fixed term sentence could just as effectively recognise the notions of retribution and general deterrence. Any punishment to be award should be strictly proportionate to the gravity of the offence. I agree therefore, that this appeal should be allowed and the sentence reduced from one of imprisonment for life to one of twelve years and six months, which represents an effective sentence of just over thirteen years.

Application for leave to appeal granted. Appeal against sentence allowed. Sentence of life imprisonment quashed; in substitution therefor, sentence of twelve years and six months’ imprisonment with hard labour, imposed.

Solicitor for the appellant: Ikenna Nwokolo & Co.

Solicitor for the State: K. B. Egan, Public Prosecutor.

[dcccxxix] (1946) 63 W.N. (N.S.W.) 231.

[dcccxxx] [1972] 1 W.L.R. 398; [1972] 1 All E.R. 936.

[dcccxxxi] (1935) 25 Cr. App. R. 53.

[dcccxxxii] (1935) 25 Cr. App. R. 53, at p. 54.

[dcccxxxiii] [1975] P.N.G.L.R. 172, at p. 175.

[dcccxxxiv] (1972) 56 Cr. App. R. 391.

[dcccxxxv] [1971-72] P. & N.G.L.R. 206, at p. 208.

[dcccxxxvi] [1970] W.A.R. 70.

[dcccxxxvii] (1936) 55 C.L.R. 499, at p. 505.

[dcccxxxviii] Unreported. (Judgment S.C. 137, 25th October, 1978.)