State v Imbuni [1997] PGNC 26; N1558 (14 March 1997)

Unreported National Court Decisions

N1558

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR. 1129, 1130, 1131 & 1132 OF 1995
STATE
V
YAKOTO IMBUNI, BOKOM TAMBAI (ESCAPE), YOKOLE KANJA (ESCAPE AFTER CONVICTION), MASOLYAU PIKALI, YAUPATI PINDAU

Goroka & Mount Hagen

Akuram J
4 November 1996
29 November 1996
20 December 1996
7 February 1997
14 March 1997

CRIMINAL LAW - Evidence - identification - persons not known before incident - caution on dangers inherent in acting upon.

CRIMINAL LAW - Evidence - Community handing in suspect - not mere conjecture - development of underlying law - weight to be placed.

CRIMINAL LAW - Evidence - Alibi defences - accuseds’ evidence not believed - Alibis - false.

CRIMINAL LAW - Wilful Murder - Sentence - prisoner convicted but absent during sentencing - absence does not invalidate sentence/judgment.

CRIMINAL LAW - Sentence - Allocutus not administered - prisoner represented by Counsel - failure does not invalidate sentence/judgment.

CRIMINAL LAW - Wilful Murder - Sentence - life sentence - meaning - during the natural life of a person - Corrective Institution Act, 1959; Corrective Institution Act, Ch. 63; Correctional Services Act, No. 6 of 1995 - discussed;

CRIMINAL LAW - Wilful Murder - trial - convicted - Sentence - appropriateness.

All 4 accuseds, in company with others, armed with dangerous weapons, blocked the road, shot at and chopped the deceaseds in retaliation for the death of their clansman, a student of UNTECH in Lae. The accuseds offered adefe defences.

Held

1. &##160; The three deceasedsaseds died at the hands of the four accuseds and others, Contrary ction 299 of the Criminal Code.

2. ҈ Al0; All four four accuseds in company with others acted in concert in the prosecution of a common purpose within sections 7 and 8 of the Code.

3. ـ A60; After conviction prisoner escapedabsented himself before beie being administered allocutus and sentenced, does not invalidate sentence or judgment.

4. ҈&ـ Court s plad place weight to the fact that that Comt Communitmunity leaders and people handing in suspects and not treat it as a mere cture supported by proper evidence.

5. & Parliamentame t in enactinacting Correctional Services Act, 1995, had intended that life sentence is “sentence during the natural life of a person and not to be commuted to a detete nuof yenor remission to n to be cobe considensidered”.

6. ټ&##160; A60; An appr appropriate sentence in this case, taking into account the meaning of death and life sentences and the factual circumstances and considering section 19 of the code, a sce of sentence is warr warrantedanted.

Cases Cited

John Beng v The State [1977] PNGLR 115

R v Raymond Turnbull & Ors [1976] 63 Cr. App. R. 132

George Kalupai v The State [1995] SC 492 (Unreported)

The State v Buka Pepekon & Ors [1995] (Unreported) dated 19th May (1995)

The State v Anis Noki [1993] PNGLR 426

The State v Kakas [1994] PNGLR 20

Tabe v The State [1983] PNGLR 10

Biwa Geta v The State [1988-89] PNGLR 153

Moses Aikaba v Tami [1971-72] PNGLR,155

State v Quati [1990] PNGLR 57

The State v Steven Luke Uma & Ors (Unreported) [1996] CR 686 of 1996 dated 6th February 1997

Public Prosecutor v Keru & Moro [1985] PNGLR 78

The Acting Public Prosecutor v Uname Aumane & Ors [1980] PNGLR 510

R v IU Ketapi [1971-72] PNGLR 44

R v Lokalyo Neak [1977] N632 dated 21st July 1971

Hure Hane v The State [1984] PNGLR 105

Regina v Peter Ivoro [1971-72] P&NGLR 374

The State v Ian Napoleon Seteb [1996] N1473 dated 31st October 1996

Goli Golu v The State [1979] PNGLR 653

Statutes Cited

Constitution SS. 35, 37 (3) & (4), Schedule 21.3, 2.2 (1), 2.3 and 2.4

Criminal Code Act, Ch. 262, SS. 7, 8, 19, 299, 571, 593 & 596

Corrective Institution Act, 1959

Corrective Institution Act, Chapter 63

Correctional Services Act, No. 6 of 1995

Counsel

Mr Kumo for the State

Mr Aipe for the Accuseds

23 December 1996

AKURAM J: The accuseds are each and severally charged that on the 20th of January, 1995 at Weimala Village, Wabag, Enga Province, in common purpose, they:

1. & W60; Wilfully murdered Leo Kende, a male person;

2. Wilfullyered Geofrey Kende, a male person; and

3. & W60; Wilfulilfully murdered Lau Kende, a female person,

Contrary t299 o CCA.ter 2p>

St

State aate allegelleged thad that on t on Friday 20/1/95 at about 10 am the late late Leo Kende and Lau Kende and their son Geofrey Kende and other relatives were on the way to Lae from Wabag in a Ford Utility vehicle driven by Leo Kende. They drove passed a doubne lane bridge and after passing it saw logs across the road blocking the road. They drove pastlogs and drnd drove to someance away from a cemetery where a Unitech student was killed and buried. There they chey came across a human road block and peoolding axes, knives and guns.

Late Leo Kende tried tied to make a U-turn to return to Wabag. t was fired at him.&#1e wa1e was injured and couldn’t drive any further. H60; He was apprd by accusaccuseds’ and others. Deceased was shrough the wead with a gun and also his wife. Their soir son was dragged some distance and axed to death. During the time llinge was use of kniv knives, axes and guns on the body of Lau Kende, Leo Kende & Geofrey Krey Kende. Allseds surrendered lice.;ice.; Accused Bokom Tkom Tambai had escaped and Warrant of Arrest issued. All accuseds plds pleaded not guilty.

The evidenceitnesses is discussed, where relevant, below.

REAb>REASONS FOR DECISION

This trial took a total of almost three and two days. There are about hundred paed pages of s of hand written evidence in five note books. I have summarised them into about 70 pages.

The Counsels’ submissions also has about 60 pages of both typed and hand written.

The accuare charged that they in common purpose wilfully murdered one Leo Kende, Lau Kende and Geof Geofrey Kende. They were also chargth atth attempted murder of another person which is still pending.

I have focused my attention, inter alia, when summarishe evidence on the incidents between 10 am to 11 am that day. I looked at the evhe evideevidence in relation to Yapoko Imobuni & Masolyau Pikali from the double bridge to their houses and the distance from double bridge to Birip and Akom.

I havo concluded at the end of e of each of their (4 accuseds’) evidence of whether I believe or do not believe them and also of their alibi evidence. I did tme for the State wite witnesses. My conclusions were that I do not believe the accuseds evidence but I do believe the evidence of the State witnesses.

However, the evidence has raised four issues which I will discussw. These are the issues of identification at the scen scene and at the Police Station ID parade; the issue of surrendering or being given to police by elders and members of the Community where the accuseds come from; and the issue of alibi evidence, coupled with the hand written note.

1. Alibi Evidence

I will dispose of the alibi evidence first. All I can say is thaid notd not believe the evidence of alibi witnesses for the reasons I gave at end of each of summaries of their evidence. ain r being that the note note written to Paul Kain clearly showed that this story of alibialibi was fabricated.

Apart from YaKanja, the other three accuseds produced alibi witnesses. Firstd not believe thee thee the accuseds own stories and secondly I did not believe their witnesses’ stories due to a lot of inconsistencies which I pointed out in my summary of each witness217; evidence which I do nodo not wish to repeat. I will therefot go throughrough their evidence again.

2. The Handwritten Note By Yaupati Pindau To Paul Kain

This note is very impressive in that it advises the witness (Paul Kain) that the ttnesses who already gave evve evidence were very good. It also ms the witness thas that he is not to reveal the real names of the writer (Yaupati Pindau) and that of Masolyau Pikali whose real names were Kopilyo (writer) and Naopaege Lapele. He thansed ttness to say tsay that that police took some names and came and asked for those named or anybody to take their place to give thees up to the police. And that p will release thse them after about 3 or 4 days of beif being in custody.

This piece of advice to this witness has put into grave doubt about the truthfulness or honesty of their evidence in relation to their story. east I can say is that it t it is all fabricated evidence by the defence. I therefore do not be that that the police had ped names by themselves but the names were provided with the assistance from the Witness Paus Paul Kain and other leaders in the Commu However, it is a normally held fear by villagers in s in the Highlands that when such an incident as in this case take place, they expect police to raid villages but not in all cases. I alsnot believe the defendefence evidence that police made promises that whoever gives himself to police will be returned in three or four day’s time. This voes counter to the uthe usulice investigation practicectices. Iition, and in view of thef the seriousness of these killings, I do not believe for the momeat the accuseds would think that they will be send back homk home after 3 or 4 days as they did know at the time of surrender why they were surrendering themselves - that is, for the triple murder of Kende family.

In the final analysis this note has already demonstrated that the accuseds who had voluntarily surrendered with the pressure from their leaders and peers are now trying their best to come up with a story that they were not involved but were at other places.

3. Identification

The three State witnesses’ evidence showed that they made the first identification at the scene of the killings of the three deceased. Each saw which person dit what at the scene. They posit identified Yaup Yaupati Pindau as the person who chopped female Lau Kende after she was shot by a gun. Each witness had clearlntidentified and told the court what each of the other threuseds did or did not do at o at the scene. The accuseds and others dtd not wear any thing on their faces nor cover their faces y way. It was a broadbroad day light in the morning between 10 o’clock to 11 o’clock and no clouds or obstacles thald have impeded their visiovision. Tstance from the witnessesesses to the accuseds and others in their party was about 2 to 4 meters. It was a very horrific attack first by a human road block, then shooting of a gun at the car, then throwing of a stone followed by shots to Leo Kende and Lau Kende and chopping of their bodies. The whole incident took about 10-15 minutes. However, the not see who kwho killed Geofrey Kende but witness Helen Pamakali saw one accused kicked Pauline Akusa. Pauline at thme wah GeoKeny Kende beside the road. WheliPauline fell, Geofreyofrey was taken to the ceme cemetery and axed or chopped to death.I must remind and did remind myself that there are dangers inherent in eye witnesses identidentification evidence. I apply the Suprourt decisdecision in John Beng v The State [1977] PNGLR 115 at 122-123 when it followed the House of Lords’ decision in Rymond Turnbull & Ors. [1976] 63 CR. App. R. 132, that:

“Whenever the case case against an accused person depends wholly or substantially on the correctness of one or more identifications of the accused which the defence allege to be mistaken, the trial judge should warn the jury of the special need for caution before convicting in reliance on the correctness of the identification. He should make reference tnce to the possibility that a mistaken witness could be a convincing one and that a number of such witnesses could all be mistaken. Provided such aing is give given, no particular form of words need to be used.

Further, the trial judge should direct the jury to examine closely the circumstances in which the identification by each ss came to be made...

Recognition may be more reliable than identification of a stranger; but even when the witness is purporting to recognise someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made. Aese matters go to the quae quality of the identification evidence. When the quality is good, the jury can be safely left to assess the value of the identifying evidence even though there is no other evidence to support: Pro always, however that an adequate warning has been given about the special need for cautionution.

When the quality of the identifying evidence is poor - i.e. a fleeting glance or a longer observation made in difficult conditions - the judge should then withdraw the case from the jury and direct an acquittal unless there is other evidence which goes to support the correctness of the identification.

The trial judge should identify to the jury the evidence which he adjudges is capable of supporting the evidence of identification. If there is any evidence or circumstances which the jury might think was supporting when it did not have this quality, the judge should say so...”

At pp. 139, 140 the following observations were made by the :

“Having rega regard to public disquiet about the possibility of miscarriages of justice in this class of case, some explanation of the jurisdiction of this Court may be opportune. That jurisdiction is statutory: we can do no more than the Criminal Appeal Act 1968 authorises us to do. It does not authous to re-o re-try cases. It is he jury in ease tide tide which witnesses should be believed. On matters of credibility lity this Court wilt will only interfere in three circumstancecondf there has been been no direction at all when there shouldhould have been one; and thirdly, if on the whole of the evidence the jury must have taken a perverse view of a witness but this is rare.” (emphasis added).

The identifintification of the four (fifth escaped) accuseds at the Mt. Hagen police station was just a matter of recognition of whom they saw at the scene. Even that was good with xce exception of Mary Lakau missing one of the accuseds and pointed to a wrong Hagen man but this she correct by pointing out one of the accuseds and told the police men to ignore the Hagen ma>

The defence raised thed the issue of names not being mentioned by the witnesses in their statements to police prior to the identification parade in Mt. Hagen Police Station as being inconsistent. This is understandablehe wthe witnesses all come from another area to that of the accuseds. The distance between themiis like from Daulo Pass to Goroka Court House. The Se Court inge Kalupai upai v The State [1995] SC 492 said thid this:

“And the identification was not just by name, the usthe nki is not a majormajor discrepancy, people often have other names and any way the identifictification was not by name but by identifying the accused in person regardless of what name was used.” (emphasis added)

4. Handing in suspects by Community Leaders

This is a grey arethe development of the law in Papua New Guinea circumstances. Hr two judges have have dive discussed this in three cases. Theiw is that once people ople have identified and hand in a person to the police, courts should not treat it as a mere conjectut onere is sufficientcient evidence before the village people implicating the suspect, his invo involvement in the crime be readily inferred as a matter of course. This is the view held in The State v Buka Pepekon & Ors [1995] 19th May per Injia J, (Unreported and Unnumbered Judgement) where he said:

“Speaking of people in the area of the three accused, it is true thare was a lot of investigatiigation carried out by the village people to identify those responsible. It was not an easy task. Tould not come up with anyh any names immediately. But through astaking proceprocess which took some time, they have sd oute three accused. This careful scruti culpriulprits started from day one up e up to thto the time of the commencement of the tri160; I think this painstakistaking process is understandable because the victim comes from a distance place and he does not belong to the respective tribal group from which the three accused come from. He is a stranger who was attacked on foreign soil by people he believed he knew. It is noy for fellow membemembers of a clan to come forth with the identity of attackers even when witness the incident and they know who the culprits are.&#1e. They h tendency to protestotest their own clansmen or simply have no sympathy towards a man from a different area. But somehow, if th come upme up with the names and disclose it to the police, would rather remain anonymnonymous out of fear of retaliation. The e in many cases exceedxceed to their request for anonymity.; But once the accused are are singled out through this rigorous process in the village and reported to the police or apprehended anivered to the police, the vthe village people would be pretty sure of the accused’s involvement in the crime. Therefore, ourt should notd not treat these accused lightly as some suspects brought to Court on mere conjecture. Once there is suffi evidbece before the village people implicating the suspects, their involvement in the crim crime is readily inferred as a matter of e. The onus then shift to the accused to show reasonable cause why that should not beot be so. If the accused’s defence is one of alibi, he should give evidence of a good alibi and where necessary, supported by alibi witnesses. That is the pre in illage lage and I see no reason why this Court should not give due weight to this meth method of screening the evidence against ccused.” (emphasis added)

In Stan State v Anis Noki [1993] PNGLR 426, at 427t 427, His Honour, Woods J, in speaking of suspects named and brought to police by Local Councillor and villagers, said this:

“In his evidence the investigating officer said that the suspects were named to him and brought to him by the local councillor and villagers. I find this a veportant pint piece of evidence. So, how o I take and assess that piece of evidence?

The Constitution has clearly resed the overriding importance of the traditional village and community as the main viable able asset in the country. The governand oauthoritiesities have have continually reiterated the consensus nature of PNG society, the communal attitude to ownership or usessets and land and the communal responsibility for problems. Buely have the cour courtsourts been able to give full recognition of this, as the court must always be careful of the rights of the individual, as set out in the Constitution.

When the city works to participate inte in the legal process, the courts must accept this participation and not disregard it. When anythippens in a trad traditional community, that community appears, as a rule, to face the event together. They are all entitlepartieipate in the benefits, and they all have to share in the losses. So, in a dispudispute, they all feel involved.

Th where the coming forward of the leaders and people of the community to hand over the suspesuspects must be duly recognised. Ofse, iuld be seen in and and with the evidence. ThereThere must be oevidenvidence. It becomes a matf evidencedence which be admissible, it is very relevant in the eyes of the people and must, therefore, be considonsidered.

Again, the communal natu PNG ty makes one real realise that there can be very few secretecrets. When something happens everyone soon knows. There are no strs in the nthe night.

So, if village leaders have come forward with their own knowledge and “made” peoplrendere must be some weight in that. Surely, in , in such a communal society, elders are nare not going to blame their own line for something the neighbouring lines have done - if the neighbouring lines did it, people would know.

The fear of a police rad subsequent damage and losd loss of face cannot be so strong that leaders would turn in their own people for nothing if it was known to all the guilty party was from the other line or village.

The government wants to put more responsibility into the hands of the people over law and order and social control. Ifthen the courts must asst assist by recognising the relevance and knowledge of the leaders of the village and community. Of coujust because the leae leaders turn in some suspects should e the end of the case.&#160 Criminalges must be supporupported by the evidence. The turning in suppand cord corroborates ther evidence. One mune must be sure that the leaders are not just marking some trouble makers to get them out of the way. Alse must be that the vict victims did not merely identify they the accused after they learnt the leaders and community had handed over the sts, thus identifying by suggestion.” (emphasis added).

“Once there is sufficient evidence before the village people implicating the suspects, their involvement in the crime is readily inferred as a matter of course. The onus then shift to tcu accused to show reasonable cause why that should not be so. e accused’s defence ence is one of alibi, he should gvidence of a good alibi and where necessary supported by alibi witnesses. That is thes the practice in the village and I see noon why this Court should nold not give due weight to this method of screening the evidence against the accused.” (emphasied).

His Honour,nour, Injia J, in State v Kakas [1994] PN4] PNGLR said this of person holding Leadership position, that:

&#8 have found that the defence concedes that the deceased died at the hands of the Pyain clan clansmen of Mamale in retaliation for Kijia’s death. By virtutheir leadership phip positions, they would be the first ones to know, or at least provide, some valuable information to this Court as to who those responsible persons may be. Then the Court have some some basis to form the view that there exists some reasonable doubt as to the involvement of the four accused. I am aying that the four aour ac should have adduced further evidence to prove their respecespective defences. Indeed, there is no lburdeburden on them to do s60; All I am saying is that, given their position in the cohe community, they would know who the deceased’s attackers are.&#160en the strong affiliations which exists throughout PNG betw between members of the same tribal group, members of a clan try to keep in strict confidence information regarding involvement of their clan in murders arising from tribal conflicts. Such informamay be peculiaculiarly within the knowledge of the clan members.

The law does not require an accused person to disclose iation which incriminates himself. But it is the duty of every citizen, especially leay leaders in tribal groups, to disclose the identity or involvement of other clan members. All that was red of the fohe four accused in this case is to provide someable lead or information ason as to which of their clan members were involved, which in turn would then provide some reasonable basisoubt the evidence of State tate witness Mrs Aron.”

The Courts are also empowered under Schedule 2.1, 2.2(1), 2.3 and 2.4 of the Constitution to recognise custom and develop the underlying law for Papua New Guinea. I am therefore of the view that once a leader and villagers hand in a suspect, that in itself be regarded as a matter of course or seen as:

(a) ;ټ An identifictification of the accused by his own clansmen;

(b) &160; ټ Suppory d by ble anle and admissible evidence.

And that the following factors must be considered in thin the light of (a & b) above that:

160;&ـ Leaders to give evidencedence and and reasoreason why those suspects arrested may not be the ones responsible on balance of probabilities;

(ii) ҈ The rece recognition of tle relevance and knowledge of leaders and community as paramount in their discharge of Criminal justice; and

(iii) ـ That the accu accused than be called upon to his ence on the balanbalance ofce of probability except on matters which are peculiarly within his own knowledge which he needs to prove d reale doubt.

>

In the present case, the accuseds wers were named by leaders whose names were also given to the police. P then came and asked for for them to surrender. Those who wereent surrenderendered. One laterped. I ther ther place much weight in this fact (surrender) which is also supported by the four State witnewitnesses. They weready identify thee theers aeir Comr Community as the persons responsible fore for the triple deaths. The police lice were only effecting lawful arrests ancarry out the remaining procedures on collecting evidence tnce to support the findings of the leaders and the villagers. This tid bying and interviterviewing State witnesses three of whof whom came and gave evidence.

On the above basis, I find the four eds, each and severally guilty of the three counts of wilful murder of the three deceaseds seds and in common purpose pursuant to section 7 & 8 of the Criminal Code Act.

SENTENCE

I found the four accuseds guilty on the 23rd, December 1996 and adjourned the matter to 6th February 1997 for submissions on sentence which eventuated on 14th February 1997. I theourned to 14th March arch 1997 and then to today for sentence which I now do. One of the accuseakole Kane Kanza, between trd December 1996 and 14th February 1997 had attempted escape and was shot by the prison autn authorities. Whilst admitted at th Hagen General hospital for treatment, he escaped and stillstill is at large. He was not present durllocallocutus and Submissio sentence. I will deal with this issre first.

ABSENCE OF PRISONER DURING SENTESENTENCE

I have informed the Counseat I do not wish to prolong the sentence just because one pone prisoner has absented himself by escaping and that I will proceed and sentence him, with the three present, in his absence. I realise section 37(4)(e)4)(e) & (f) of the Constitution only deal with the situation during the proceedings leading to conviction but does not specifically deal with a convicted prisoner during scing. Section 571 of 1 of the Cede deals with a situation where a person is present but for various reasons Court orders that he be absent during the trial. Hr, section 596 of the Code Code (Sentence) is of some assistance in the present circumstances where a convicted person is absent for judgment or sentence to be imposed on him and his co-accuseds. Section 596(1) is relevant and it reads:

“596. Sentence.

(1) &##160;; If a mo a motion tion to arrest the judgems not made or is dismissed, the court may:

(a) pass sess sentence on thenoffender immediately; o

(60;&##160; &160; #160; disc dige arm on his his recognizance, as provided for in this Code, conditioned that he shall appear and recjudge

) at somereututtisittings ofgs of the court; or

(ii) #160;&#160 &##160; when called oled on byce inpresc form21;In tesent case the Counsels did not ask the Cthe Court ourt by waby way of y of MotioMotion to n to arrest the judgment so I have therefocidedass sce on t on the eshe escaped prisoner with the others in hisn his absence. He will therefore sers sens sentence after he is arrested.

The word “judgment” is not defined in the Criminal Code nor in the Criminal Practice Rules. Howevt is imous with the wthe word “ence” 221; in ; in Criminal trial but is much wider in that it also refers to “s” by the Court in civil trials. In Osborn’s Concise Law Dictionary, 3rd 3rd Edition, 1964 “judgment” is “the decision or sentence of a Court in a legal proceeding” whereas “Sentence” is defined as “the jut of a Court, particularly arly in an ecclesiastical or criminal cause”. In Stroud’icial Dict Dictionary the word “judgment” has about 27 different connotations but the one more relevant in the instant case is where it says “proper use of the terms the only judgment given by a court ourt is the order it makes. The reasor judgment are nore not themselves judgments though they may furnish the Courts’ reasons for decision and thus form a precedent” whereas “Sen” by the same author says “It includes any orde order of the court made on conviction; it does not include a sentence of imprisonment for failure to surrender to bail”.

Allocutus not Administered

On the issue of allocutus not being able to be administered to the prisoner who escaped and unable to be present, I am of the view that, although section 593 of Code says that:

“Where an accused person:

(a) s eadt hhais g ilty of an f an offence; or

(b) on trial, is convicted ofoany offence,

the proper officer shall ask hetheras ang to hy see should not be pase passed osed on himn him, but, but an o an omission to do so does not invalidate the judgment.” (emphasis added).

Failure does not invalidate a sentence that is passed on him.

This section allows a convicted person to say “why sentenculd not be passed on him”. This provision was discussed in two cases I have sige sighted, namely State v Quati [1990] PNGLR 57 where Doherty AJ (as she then was) quoted Raine J in Moses Aikaba v Tami [1971-72] P & NGLR 155 which said:

&#8he provision allows a conviconvicted person to say ‘why sentence should not be passed on him...’ (my emphasis).&#16is expreexpression adopts the old common law words of address to the prisoner. It makes no refe to how seow sentence shoulassessed or what matters the court should take into account in assessing sentence. Th0; The prisonernder no o no obligation to r but frequently does and raises matters such as his lack oack of prior conviction, provocation or other circumstances of the offenceof which are proper matters a court can consider in sentencntence and which the Supreme Court and National Court have ruled in various cases should be properly considered.

Strictly then, such statements are not, as Raine J, aptly described them in Moses Aikaba v Tami an allocutus in the strict sense but are a plea in mitigation.”

In Aikaba v Tami, Raine J, also said a statement made in allocutus can be made by either that prisoner and or his Counsel. His r explained:

&#

“In England it has been held that the only purpose of the allocutus, the calling up of a man convicted or pleading guilty to a fe is to give him an opportunity of moving in arrest of judgmjudgment on a point of law. See R. Venc Gombos (1) and) and R. v. Rear (2). In both these appeals, n a in an unreported appeal referred to in Rear’s case (3) counsel had made pleas in ation, and despite what the three courts had to say about tout the true role of the allocutus, I am left with the feeling that in the exercise of their discretion Their Lordships might well have taken some other course had the appellants been unrepresented on sentence or had counsel not addressed in mitigation. Needless to as a matter ofer of commonsense, there should be an opportunity given to a prisoner, and/or his counsel, to be heard on sentence. As far as I know it is the invariable practice of this to put the allocutus and tand then to call upon counsel to address. Speaking for myself I think the practice is highly desirab8221;

However, the allocutus, “strictu senso&#nso”, is only put in a trial, in other words, not in courts of summarisdiction.

But in the district court, and for that that matter, in the local court, it is imperative that counsel or, where there is no representation, the defendant, should always be invited to address on the question of sentence.

The Court of Appeal in New South Wales has held in two cases that the failure to give counsel for the defendant an opportunity to be heard on the question of sentence is a denial of natural justice and renders the sentence pronounced a nullity. Ex parte Kelly; Re (40 an40 and Ex parte Kent; re Callaghan (5). With respect, I ely agree gree with this statement of the law by the Court peal, and with the reasons advanced in support thereof. In Ex parte ; Re Teece (ece (ece (5) the Court said:

“We aso of the view that the leae learned magistrate fell into error in failing to give counsel for the defendant an opportunity to be heaon sentence. We consiconsider thereby teby there was at that stage a denial of natural justice to the defendant. It is true there is no seco section of the Justices Act which specifically gives to a defendant the opportunity to be heard upon sentence, buare led to the firm conclusion that such an opportunity should be given and that if it is n is not so given then there is a denial of natural justice. It is funtal to the systemystem of criminal trial that it proceed in two stages, the first up to the stage of determination of guilt and the second after that determination and up to sentence. It is racticable to have aave an account of matters going to sentence, and it is therefore impracticable to address on sentence, until the first stage has been conclu#8221; (emphasis added).

In the present case, there are two factors, first the prisoner escaped thus rendering his presence impossible and secondly, he is still represented by counsel who has addressed the Court later on sentence. I am thee of the view, tha, that there is no miscarriage of justice. Fumore, section 593 concluoncludes by saying: “...but assion to do so does not invalidate this judgment” which means sentence is not invalidvalidated.

Appropriate Sentence

will now deal with the isse issue of what is an appropriate sentence to be imposed on the four prisoners.

Parliament has passed an amendment, No. 25 of 1991 and by section 2, replaced the life sentence for Wilful Murder to that of death. Since theo judges have impe imposed death penalty one successfully appealed, the other has not been appealed against as yet. I have his r’s, Wood Woods J, judgment in the latter case of The State v Steven Luke Uma &ama & Ors. Cr 686 of 1996, dated 6th Fey 1997. His Honour referred to ase case of Public Prosecutor v Keru & Moro [1985]1985] PNGLR 78, a case of payback killing according to custom of the Goilala people. There the Supreme Corevieweviewing the sentence of 6 years each on appeal held that:

“(1) fende17;s2lack lack of sopf sophistication is no longer a mitigating factor on sentence unle comes from an area so remo remote that he does not know that there is a government with courts and police available to redress wrongs.

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

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

(4);ټ Old age is not generallerally a mitigating factor on sentence fore for murd murder.

(5) The first reenondhou s be d be sentenced to fifteen years imprisonment and the second respondent to life imprisonment.”&#160oted headn.

he Su Court reviewed the decisions in previous cases of s of ActinActing Pubg Public Plic Prosecrosecutor v Uname Aumane & Ors. [1980] PNGLR 510; R v IU Ketapi [1971-72] PNGLR 44, R v Lokalyo Neak [1971] N632 dated 21-7-1971; Hure Hane v The State [1984] PNGLR 105; in the above case. In peal against death sent sentence in Regina v Peter Ivoro [1971-72] PNGLR 374, where the court held that:

1. &ـ I6 esta establishilishing whether there are “extenuating circumstances such that it would not be just to inflict the punishment of death” within the meaning of s.305 (2) (now s.299(2)) of The Criminal Code (Queensland, adopted).

2. &ـ P60; Per Fror Frost A.C.J. and Kelly J. The concept is quitar̵—the existence of some relevant circumstances which operate so as to diminish the culpability of the prisoner, not in the strict legal sense, roadlgard being had noad not only to moral considerations, but tbut to all considerations, which might reasonably be taken into account in order to determine whether it would not be just that the law should be applied in its full rigour and the punishment of death inflicted. There is no infle standardndard for determining what are extenuating circumstances and each case must be determined on its own facts.

3. Per Pretice J. Any attempt to define or restrict what has been granted as an unlimited judicial discretion should be resisted. Each case must be decided upon its own special facts: usto rue and apply the sece sect section iion in then the setting of the circumstances of this country, the dispositions and natures of its peoples, the type revalof crime there, tre, the specific pacification and the law law and order situation into which it was designed to fit, and possibly that it was passed by a largely indigenous House of Assembly. (emphasis added)

His Honour, Prentice J, (as he then was) in summarising the extenuating circumstances and mitigating factors in discussing section 305(2) (now section 299) in previoses, said at 387, that:

“All are repeatedly enly engaged in the application of the provisions of s.305(2). Some ofconsiderations whic which have weighted with them have been expressed in reported judgments: primitiveness, absence from villageorance of Government, upbringing, tribal custom demanding killing: Lakalyo’s ca;s case (9); lack of formal education, primitiveness, family situation, tribel setting: Dogwaingikata&#82case (10) (10); immediate circumstances, state of sophistic, development of community, knowledge of Government, accessccessibility to and protection by Government, force of custom, ignorance, nging, obedience to tribe:&ibe: R.v. Ketapi (11); lack of sophistication, remoteness, lack of contact, commerce, ignorance of Government law, little Government influence: Harape’s case; some some doubt of degree of knowledge of illegality undeinistration law, youthfulnefulness of most accused who were not from normal decision-making age group, tribal excitement, first contat-side Highlands, some doub doubt as to degree of ritual associ: Re Hame (13) (13) my own decision.”

All these factors were held not to apply in the case of Public Prosecutor v Keru & Moro (supra) and also by virtue of section 35 aneduleof the Constitutiitution and as Prentice J (as he then was) was) puts it:

“One must attempt to construe and apply the section in the setting of the circumstances of his country, the dispositions and nature of its peoples, the type and prevalence of crime there, the specific pacification and the law and order situation into which it was designed to fit, and that it was passed by a largely indigenous House of Assembly.”

This is exactly what the Parliament intended after 16 years of Independence since 1975 in 1991 when it passed the amendment from life to death penalty. In the nt case, it is the the payback killing or murder of an innocent family victim which is the worst category of homicide. The laworder situation nown now is that there is a lot of this happening. Furthermore, ore, the prisoners were, according to evidence, of a larger group of abouteople who blocked the road and shot deceaseds and axed them them to death. It is the worst kind of kglling as is done by peopleare hypocrites because each each cannot face and solve the problem of the death of one of their clansman who was a student at Lae Unity of Technology. They also do ave faith andh and trud trust in the legal system by taking the law unto themselves by being the accusers, investigators, judges and executioners.

However, I have to sentence them not based on moral principles only but on a lot of other factors which I quoted above and said by Prentice J, (as he then was). Thatthe circumstances of t of this country, the nature of the people where they come from, prevalence of this crime of wilful murder, the pacification of the peopleheir area, and the law and order situation into which this this offence is designed to fit. Alle factors have to be tabe taken into account. From my analysis em againsgainst each of the accuseds, I do not think that any of them is in their favour.&#The only thing in their favour is that they all are first trst time youthful offenders.

In Ure Hane v The State [1984] PNGLR 105, His Honour, Bredmeyer J, set out what he considered to be the worst category of wilful murder cases where a judge should consider imposing life sentence, being the highest sentence at the time. At page 110 he said:

8p>“The categories of most serious murders which I have listed are not closed and are flexible. Different judges may disawree with some of them and to add other categories. I have consd and rejectejectejected a category of murder by explosives or firearms because such murderthough very serious, are not common in Papua New Guinea.a.”

I agree to the statement that the list of serious or worse category of wilful murders can be added but disagree on use of explosive or firearms is not worst category.

His Honour was talking of 1984 and back but we are in 1997, thirteen years later. I am therefore of the viat that it be classified as one of the worst kind of killing and must be looked at in the facts and circumstances of each case.

His Honour also at page 1 category No.5 said that:

“a payback killing oing of a completely innocent man be regarded as worst category of wilful murder.”

This category fits into the facts of this case. However, that was a chere here the maximum for wilful murder was only life sentence.

The offence of wilful murder although says maximum is death, the court still has a discreof either imposing life or a determinate number of years.

In deciding what is an appropriate sentence in this case, I have had a look at the cases cited above to see, whether there are any extenuating circumstances, mitigating factors, and as I said before, there are no extenuating circumstances. The only ating factor is t is that of the youthfulness of prisoners and that of being first offenders. Ie and adopt the views exps expressed by the Court in Public Prosecutor v Keru & Moro&#8 case (supra). I also also agree andt what what His Honour, Sevua J, said in The State v Ian Napoleon Seteb [1996] N1473 dated 31st October 1996. I have consideredh sentencntence but think it not proper in the circumstances of this case. This leaves me with or detr determinate term of years. In trying to decide between the two, I looked at what is the meaning of life sentence aether it is more effective than a number of years. In Goli Golu v Thte [1979]1979] PN9] PNGLR 653, His Honour, Raine DCJ, discuwhat is meant by life sentesentence at 657 to 658 by looking at the Corrective Institution Regulations 1959. His Honour said:&#82 isIt is important to t to find out just what life imprisonment means. Does it mean for the tera of a person’s naturfe? atter is governed by the Cthe Corrective Institutions Regulations 1959. Sec; Section 141 providr afor a reviewing come conng of three members with a Chairman who shall prel preside at all meetings of the committeeittee. Se 142 provides that wheetwheetainee imprisoned for life has served a period of twelve ylve years of that imprisonment, the visiting justice shall interview him aquire into his conduct and health during the preceding twel 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 pes that when 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 enquires as seem relevant to the review of sentence. On completioneview of sent 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 further 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 thatappellppellant will serve will be fifteen years. If after the fn years has has elapsed the committee made no recommendation that he be released, then it be as long as twenty years before the appellant’s ca;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 pararly busy and not able to review the case soon after the fifteen years or twenty years had had elapsed, or the committee might be dilatory. Thus the appellant be in h in his forties before he can be released.”

His Honour than discussed the dangerousness of the offender in the light of his health and mental condition and whether sentencing him to life would keep him away for life from committing any further murders.

According to the provisions of the repealed Corrective Institutions Regulation, Ch. 63 sections 143, 144 and 145, the most a person can expect to serve on a life sentence is 15 to 20 or 25 years. Th Correctional Services Aces Act, No. 6 of 1995, with the Regulations do not provide similar provisions. This new Act was ged on Fend February 1996 in Gazette No. G14 of 1996. The former had sions for rfor reor remission (s. 142A), Reviewing Committe 143) Preliminary Review (s. 144) and Review of Sentence (145). I ont out 143, 143, 144 &a44 & 145 below. They read:

“1160;&160; R60; Reviewing Commit/p>

(1) ټ Tsere ball be a Re a Reviewing Committee conng ofe members appointpointed by the Head of State, acting on advice, by notice in the National onal Gazette.

(2) ـ Thd of , actinacting on g on advicadvice, may appoint a member of the Reviewing Committee to be the Chairman.

(3) &##160;RevieCommittee shall meet at such times and places as the Head of State, act, acting oing on advn advice, directs or the Chairman determinp>

(5) ټ&#The Chae Chairman rman shall preside at all meetings of the Reviewing Committee.

144. ҈ Preliminary w.

(2) ـ On the the completion of an interview and inquiry under Subsection (1), the visiting justice shall report, in wr, to the Reviewing Committee on:

(a) the conduct and hand heal h of the detainee; and

(b) the extent (if any)hto wthch the detainee appears to have been rehabilitated; and

(c) ҈& suchr matters as eo the visiting je seeevant to a review of the detainee’s sentence.ence.

14

145.&#15. < Revi sentence.

(a) &#in0; inte interview view the detainee; and

(b) ҈ suke inqh inquiriesiries as to it seem relevant to the review of sentence.

(2) ;&#fin c srgel call comply mply with any reasonable request made by a member of the Reviewing Committmmittee inee in the the course of a review of sentence under sectip>

(4) he tmpleoion of a review oiew of sentence under this section, the Reviewing Committee may, in view of:

(a) & the heae health or a the nee; p>

(c) ټ&#the exte extent (int (if to wthe dee appearsave behabied, recomrecommend mend to thto the National Executive Council that:

>

(d)&#(d) ـ&#1he sene sentbe cobe cod to a determinatminate pere period specified by the Committee; and

(e) accorditgly ete deeeinasmeeasmediately or on a date specified by the Committeeittee.

.

(5) ـ Where no recommendamendation is mader Subon (4e Revg Come shall hold a furt further rher revieweview of t of the sehe sentence on a date to be fixed by the Committee, not being later than fears the review.view.̶”

These provisions are same as those quoted in Goli Golu’s case (supra) but are they applicable to these prisoners. Th Act & Regulations cons came into operation in February 1996, without inclusion of provisions in section 143, 144 & 145. That means Parliament did not intend to have any term of life sentence to be reviewed and commuted to a determinate term of sentence after 12 years, 15 years or 20 years, or after a prisoner reaches age of 55 years. er thsoners committed tted tted this offence when the old Act, Ch. 63, was in force but found guilty after the new Act came into forc60; I am of the view, that the provisions of the Correctional Services Act, No. 6 of 1995 a995 are operative and applicable where a person is convicted and sentenced to prison as stipulated by section 116. Section 116 reads

̶“116. Cust/p> <#160; #160; Aoners deemed to be in then the custody of the Commissioner where:

(a);ټ&##160; the person is committed to a corr correctional institution by warrant or oror order oder of a court, judicial officer or Parole Board addressed to the Commissioner; or

(b) the person is transferred to a correctional institution from a lock-up under Section 96, and is delivered with the warrant, order or transfer authority to the Commissioner or to a correctional office>

160;& The Comm Commisommissionerioner’s custody of a detainee ceases:

(a) &#1here the det is terred tred the custody of the Commissioner of police; or

(b) < &160; #1660&#1here the sentence ence expires; or

(c0;҈& with the death of the deta detaidetainee; nee; or

(d) ټ w en ainetainee esce escapes; or

On the question of a determinate term of years, ars, I am of the view that due to the seriousness and gravity of this case, a figure in the vicinity equivalent to life is warranted. If I were to impose a determinate term of sentence, in the light of the facts and circumstances of this case, I would impose the maximum of 60 years and a minimum of 50 years based on the cu average life expectancy of a Papua New Guinean person.&#16. Thans that each of you wilu will be released with remission when each of you will be aged between 54 to 58 years, but I think this is too lenient.

In conclusion and in view of what I have above, the authorities diss discussed and the facts of this case, subject to section 19 of the Criminal Code such a determinate term of years is not warranted. I am of the view that the use of firearms and weapons such as axes and knives and in company with others in pay back killing warrant a much severe penalty. Iware that three of the ache accused, Yakole Kanja, Masolyauli and Yapoko Imobuni playeplayed a lesser roll but because they were in a group and took part, they must be punished equally as well0; Whereas Yaupati Pindau idau is said to have, according to evidence, chopped Mrs. Lau Kende with a knife after she was brutally shot with a gun. I therefore sentence each each of you to life imprisonment, for all three counts of wilful murder to be served concurrently.

In sentencing them, I am aware of the fact that their ages range from: Yaupati Pindau - 20 years; Masolyau Pikali - 24 years; Yapoko Imobuni - 24 years; and Yakole Kanja - 20 years; at the time of committal to National Court by the District Court in 1995. They ar about 2 years olde older.

Yakole Kanja’s term is to commence after he is arrested and taken to prison.

Lawyer for the State: Public Prosecutor

Lawyer for the Accused: Public Solicitor