PNG Law Reports 1994
[1994] PNGLR 65
N1234
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
THE STATE
V
YAPES PAEGE AND RELYA TANDA
Mount Hagen
Woods J
24 June 1994
CRIMINAL LAW - Sentence - Wilful murder - Death penalty - When applicable - Discretion of Judge - Whether worst case type - Role of Public Prosecutor in sentencing.
WORDS AND PHRASES - "Discretion of Judge" - Wilful murder - Whether s 19 Criminal Code affords sufficient discretion.
Facts
The accused were found guilty of wilful murder. The Judge reviewed the recent amendment of Criminal Code s 299, which provides the death sentence for wilful murder. Both the Public Solicitor and the Public Prosecutor urged the Court to use its discretion under Criminal Code s 19 and impose a prison sentence instead.
Held
1.       While the killing is an example of disorder and disrespect for the sanctity and dignity of human life ... and, therefore, the death penalty provided for in s 299 of the Criminal Code could be considered, the Public Prosecutor's plea against the death penalty ought to be taken into account.
2.       Section 597 of the Criminal Code determines that the final decision of the death penalty is in the government, through the National Executive Council.
3.       This case is not the worst type case and, thus, the limited discretion under s 19 Criminal Code ought to be applied in favour of imprisonment.
4.       Both men were sentenced to life imprisonment.
Cases Cited
Papua New Guinea cases cited
Aihi v The State (No 3) [1982] PNGLR 92.
Golu v The State [1979] PNGLR 653.
Hane v The State [1984] PNGLR 105.
R v Kilape (1973) unreported No 763.
Other case cited
Veen v R (1979) 53 ALJR 305; 143 CLR 458; 23 ALR 281.
Counsel
J Kesan and S Carter, for the State.
P Tusais, for the defendants.
24 June 1994
WOODS J:  Yapes Paege and Relya Tanda, you have been found guilty of the wilful murder of Piari Loo on 7 October 1992 near Laiagam. The murder happened in an ambush situation, when the deceased came out of his house to investigate some disturbance. He was attacked by you two and chopped on the stomach so severely that he died in hospital from the injuries some weeks later. 
The penalty laid down in Criminal Code s 299 for wilful murder is death. So, initially there is no range of sentence for this offence, such as is implied by the words "not exceeding", as used in the penalty section of many of the other provisions of the Criminal Code. And the Court must now be mindful of the fact that the Parliament brought in this penalty by deliberate consideration in 1992, so it is not as though it is a penalty that can be regarded or disregarded lightly. The Members of Parliament meant it.
Of course, Parliament has also said that the court can act under s 19 of the Criminal Code and impose a term of years instead of death. This immediately implies that the penalty in s 299 is not mandatory. There is some discretion. However, this discretion under s 19 cannot be an automatic moderation of the law. The application of s 19 must require appropriate circumstances, but it cannot mean there is a very wide discretion within the range of one year imprisonment to life imprisonment to death. Surely, if there was this automatic wide range, this would have been included in s 299 itself. By putting it specially in s 19, it suggests something special. Other aspects of s 19 are considered by Judges, such as where there is a plea of guilty, where there is a young offender, where there has been remorse and an attempt at compensation or paying back for the problem caused.
Generally, the application of punishment by the Court is a matter of applying a sentence within a range depending on the severity of the offence. Thus, as I have already referred to above, most penalty sections of the Criminal Code use the words "not exceeding". These words are a clear direction to make the punishment fit the severity of the crime. And, of course, most crimes do permit consideration of a range of severity. Thus, assaults and grievous bodily harm do have a range of severity of the actual injury caused. There can be degrees of rape, such as whether it is multiple pack rape or a single perpetrator, and also whether further bodily injury is caused in addition to the act itself. In stealing, there is the difference between the snatching of a few kina to the careful misappropriation of thousands of kina of public money over a period of time. There can even be degrees of manslaughter or, in layman's terms, "accidental killings", depending on the amount of culpability or recklessness, such as between an accidental kicking in the stomach or spleen and the knifing in a tavern brawl.
But how can wilful murder, after the clear statutory distinction of it from two other levels of unlawful killings - murder and manslaughter - lend itself to degree? There cannot be a more wilful murder. Oh, yes, there may be different levels of violence used, but the end result is the same. The victim, if he could talk from beyond the grave, would surely see no difference between one gunshot to the head and four shots to the head, whereas in a grievous bodily harm there would be a difference between one axe wound and several axe wounds. Wilful murder is the intention to kill and the carrying out of that intention, the end result of which, regardless of the amount of violence used, is the extinction of human life.
Some judges have talked of more serious categories in various cases, but usually that has been by individual judges and not by the whole Bench. Also, it has been obiter in cases of pleas of guilty where an immediate extenuating circumstance is present. Thus, in the case Hane v The State [1984] PNGLR 105, one Judge recited a list of different categories of wilful murders. But at the end of that case, the consideration of the two other Judges was that the plea of guilty was the extenuating circumstance, plus the highly charged domestic history which had not been properly considered by the first Judge. And, of course, even if one looks at the categories of wilful murder listed by Bredmeyer J in that case, it could be argued that this wilful murder before me now appears to come within one of the worst categories, namely, a payback killing of a completely innocent man.
In Aihi v The State [1982] PNGLR 92, whilst all the members of the Court used the words "worst case type" or "most serious type of case", there was no listing of the worst type of cases. Each member, instead, referred to the surrounding extenuating or aggravating features and decided accordingly. The then Chief Justice said at p 96, "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." At the end of that case, the Supreme Court affirmed the maximum penalty.
Applying what I see as the limited discretion allowed for in s 19, there is no doubt that the Christian principles embodied in the Constitution would let me impose a term of years where there has been truth and contrition, such as in a plea of guilty. And as suggested in the Hane case referred to above, the court could apply some discretion in a difficult domestic situation. But in the case before me now, there has been no contrition, there has been no plea of guilty, there are no special domestic circumstances. Instead, it was a cold-blooded ambush attack, of which we have been having too many in this particular area of Papua New Guinea and for which it is highly probable that the Parliament was thinking when it amended the penalty in 1991.
It may be suggested that the death penalty is in conflict with certain principles of the sanctity of human life, as embodied in the Constitution. However, the Constituent Assembly, acting as the spokesperson for the people of Papua New Guinea, deliberately provided for the death penalty in the Constitution ss 35 and 36.
"Section 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 ..."
"Section 36.   Freedom from inhuman treatment
(1)      No person shall be submitted to torture (whether physical or mental), or to treatment or punishment that is cruel or otherwise inhuman, or is inconsistent with respect for the inherent dignity of the human person.
(2)      The killing of a person in circumstances in which Section 35 (1):
(a)      (right to life) does not, of itself, contravene Subsection (1), although the manner or the circumstances of the killing may contravene it."
So, Parliament has clearly provided for the sentence of death in the cultural and social circumstances of the country. And what can be so anathema about that. The circumstances of this case and of so many other cases the court has seen over the years suggest a very casual attitude to life. There are many cases of the deliberate setting out in gangs to kill someone from an enemy line or to ambush someone. Just last week, I had another case of a 15-year-old boy from the same area of Enga in a group axing an 11-year-old boy to death in an ambush situation where the victim's family were completely surprised at their home. And a couple of years ago, again from the same area, some men were returning from a fight and saw a girl of the opposing line working in a garden, so they chased her and chopped her to death. And just this week, I had another case of a man being ambushed at night near his home near Wabag and chopped to death by four men. These are just some of many such deliberate killings from this part of the country, and this continual behaviour is making the whole province suffer with the breakdown of law and order, interruptions to schooling, and the continual hindrance to the growth of business activity.
Twenty years ago, judges were considering in wilful murder situations in tribal conflicts that there may be a partial cultural justification for this sort of killing, which reduces the defendant's culpability or level of moral blame worthiness; for example, see R v Kilape (1973) No 763. In another case, consideration was given to the defendant's ignorance of the ways of government, their upbringing, and the strong tribal traditions which have until now controlled their life and which require these killings. Those were all circumstances which were proper to take into account into determining the question of sentence.
However, how can that be seen to be relevant now in places like Laiagam, where there has been a history over the past 10 years of police action to try and curb tribal fights, where the road is busy with modern traffic and modern business, and where schools have been operating for years and people have been benefiting from the modern advantages synonymous with the modern wealth flowing down from Porgera and Mount Kare?
Parliament has clearly shown their concern at these continual tribal fight and ambush killings and ordered that the punishment is death. This court cannot ignore that law. And considering the history of violence and similar killings in that area, I have some difficulty in finding the existence of appropriate circumstances which allow the exception provided for in s 19.
Whilst the Public Solicitor has pleaded for a lesser penalty, so also has the Public Prosecutor submitted strongly against the maximum penalty of death, suggesting that, in spite of the long history of violence from that area of the country, this case is not a worst case scenario. As I have already said, I have difficulty with this further categorisation of deliberate killings. There are already three degrees of unlawful killing - wilful murder, as found in this case, and two others, murder and manslaughter - which can incur a maximum punishment of life imprisonment. But the State, through the Public Prosecutor, still submits that there are degrees of intentional killing, where other matters of extreme violence or more disregard for human life is evident, such as, for example, a destruction of a machine with many passengers, or raping a victim to death with degrees of violence during the assault and before the death. I have already asked the question, is there any difference when a man is killed by one bullet or four? The State says yes, there is a difference in degree, and this is part of the discretion allowed for in s 19. The State also presses that this killing arose out of some domestic family argument between the lines, all of whom knew each other, so there was no innocent stranger.
The case Golu v The State [1979] PNGLR 653 makes a considered reference to Veen v R (1979) 53 ALJR 305, an Australian case where Mason J, in the High Court, said at 309: "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 ..." 
Should not such matters be extended in the Papua New Guinea context by reference to the continual extreme level of violence in this area of the country, which is making good government for the majority of the people impossible? However, the Public Prosecutor is strongly submitting that this does not make it a worst type case.
I see this case as just another example of the disorder and disrespect for the sanctity and dignity of human life, as emphasised in the Constitution. Such attitudes continually undermine peace and good order throughout areas of the country. Therefore, the penalty of death, as provided for in s 299, could be considered. However, the Public Prosecutor has, in effect, pleaded strongly against the death penalty. As he is the representative of the people and the State, I must regard his views as the policy of the government and the State. Further, as it is clear by the wording of Criminal Code s 597 that the final decision on the death penalty is in the government through the National Executive Council, I must find that this could be seen as not a worst type case, and I must exercise the limited discretion I have under s 19 and apply a term of years instead of the penalty as stated in s 299.
There is only one term of years that I can consider in view of the circumstances of this case and the surrounding aspects, and that is life imprisonment.
I sentence you, Yapes Paege, and you, Relya Tanda, each to life imprisonment.
Lawyer for the State: Public Prosecutor.
Lawyer for the defendants: Public Solicitor.