Antape v The State [1981] PGSC 10; [1981] PNGLR 68 (26 March 1981)

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CRIMINAL LAW Sentence - Doing act for purpose of aiding unlawful killing - No sentencing pattern - Relevance of sentencing patterns in homicide cases - Factors in sentencing - Interference with administration of justice - Heavy sentence called for - Proposed killing in precincts of court house - Term of four years’ imprisonment upheld - Criminal Code, s. 315.

Section 315(1)(b) of the Criminal Code provides, that any person who “does or omits to do any act for the purpose of facilitating enabling or assisting the unlawful killing of another” is guilty of a crime and liable to imprisonment with hard labour for seven years, and s. 315(2) provides that it is immaterial that no person was in fact killed.

On an application for leave to appeal against a sentence of four years’ imprisonment with hard labour for an offence under s. 315(1)(b), it appeared that the applicant had attended with his brother outside a court house at Kainantu, where a person who had allegedly caused the death of the brother’s wife by unlawful acts of sorcery was to stand trial. The arrangements between the applicant and his brother were that the brother would kill the sorcerer and the applicant would protect the brother in the event of a payback attack by wantoks of the sorcerer. No person was in fact killed and the evidence fell short of an attempt to kill.

N1>(1) it is proper for a heavy sentence to be imposed where an intended killing takes advantage of and interferes with the administration of justice.

N1>(2) Bearing in mind, inter alia, the lack of sentencing pattern for the particular offence, and the sentencing patterns in homicide cases, the sentence was not obviously excessive nor was it based on any erroneous principle.

This was an application for leave to appeal against sentence of four years’ imprisonment with hard labour for the offence of doing an act for the purpose of assisting the unlawful killing of the person named in the indictment under s. 315(1)(b) of the Criminal Code.

KEARNEY DCJ: This was an application for leave to appeal against sentence. [Having heard the parties, the Court ruled that application for leave be refused, and stated that reasons would be published later. This we now do.]

I have had the benefit of reading the opinion of Miles J. and respectfully agree with his Honour’s reasons and conclusion. I would add a comment about the Criminal Code, s. 315.

The provision, I think, exists chiefly to enable “behind-the-scenes” persons who plan and organize payback killings to be effectively prosecuted. It is directed to the pre-killing stage. The incidence of payback killing would be reduced if it were nipped in the bud by discouraging the planners; s. 316 is an adjunct to s. 315.

PRATT J: I agree with the views and conclusions expressed herein by the Deputy Chief Justice and Miles J. I have nothing to add.

MILES J: This is an application for leave to appeal against a sentence of four years’ imprisonment with hard labour for an offence under s. 315(1)(b) of the Criminal Code, namely doing an act for the purpose of assisting the unlawful killing of the person named in the indictment. No person was killed in fact and the evidence fell short of an attempt to kill. The offence provided for is an unusual one and apart from some obiter dicta in Porewa Wani v. The State[cxxiii]¹, has not been the subject of any pronouncement in this Court. The section provides as follows:

(b) does or omits to do any act for the purpose of facilitating, enabling or assisting the unlawful killing of another,

As was suggested in argument, s. 315 seems to be directed towards the situation where the prosecution is unable to prove an attempt to kill, or an aiding under s. 7, or a conspiracy to murder under s. 313. The maximum term of imprisonment is seven years. As far as ascertained, s. 315 has no equivalent in similar legislation in other countries.

The facts in the present case are that the applicant and his brother both aged about twenty-six years and without education, lived in a village said to be half a day’s walk from Kainantu. The brother’s wife died. Her death was attributed to the actions of a local sorcerer. How widespread this belief was is not clear. An accused who commits an offence according to his own individual belief as to what is right or wrong, can expect less leniency than an offender who commits an act tolerated by a system of traditional values which is generally held in the community to which he belongs. The alleged act of sorcery was reported to the police (apparently by the brother) and the alleged sorcerer with two colleagues was to be brought before a court at Kainantu on 21st March, 1980. In the meantime, some older person of the applicant’s clan or line successfully persuaded the brother that the sorcerer should be killed when he was in attendance at the court house. The brother enlisted the assistance of the applicant.

On the day in question the applicant and his brother, having sharpened their axes, took up positions outside the court house, the brother at the time of his apprehension being near the door. Although the axes were to some extent concealed, there was not much secret about it. Bystanders went to the police station nearby on more than one occasion to enlist police assistance and when the police eventually intervened, an axe was discovered in the applicant’s bilum. The brother’s axe was found in his shirt. In their statements to the police, it appears that the arrangements between the applicant and his brother were that the brother would kill the sorcerer and the applicant would protect the brother in the event of a payback attack on him by wantoks of the sorcerer. By his attendance on this understanding, the applicant “did an act for the purpose of assisting the unlawful killing” within s. 315(1)(b). When apprehended, the brother stated that it was his intention to kill the sorcerer “in front of the police”.

This provision is directed to the determination of guilt. It does not affect the function of sentencing. An offence under s. 315 which is related to an actual killing is more serious than one where no killing takes place. Apart from that however, it is doubtful whether it is very relevant to consider how imminent a killing might have been. By proceeding under s. 315 the prosecution concedes that the act of an accused falls short of an attempt to kill.

Whilst the court is not able to proceed in this matter on the basis of a sentencing pattern which has been established over a period of time, assistance may be gained by looking at the range of sentences normally handed down in homicide cases. Mr. Wilson for the appellant in his helpful submission suggested that, apart from the very serious cases, the customary range in wilful murder cases is from eight to twelve years’ imprisonment and in murder cases four to eight years. Mr. Roddenby for the State did not dispute these figures and they accord with the experience of the court. Whilst there is no hard and fast tariff, each individual case depending on its circumstances and merits, it seems that the appellant has received a sentence which approximates to what the court, with the exercise of leniency, might impose upon a murderer. The applicant had spent four and a half months in custody, a fact of which his Honour was aware. One’s immediate impression is that the sentence is certainly a heavy one.

Counsel for the appellant for his part conceded that the principles to be applied in an appeal on sentence from the National Court are as have been repeatedly stated in Supreme Court decisions before and after Independence and recently in William Norris v. The State[cxxiv]². The appellant has to show that an error occurred which has the effect of vitiating the trial judge’s discretion on sentencing. Such an error may be identifiable, but if not identifiable, the sentence may be shown to be on the face of it excessive, that is to say “manifestly” excessive, or out of all reasonable proportion to the circumstances of the crime.

In Porewa Wani v. The State[cxxv]³ the appellant had been convicted on indictment charging her with wilful murder. The facts however supported a finding that the appellant’s culpability was restricted to aiding the principal offender within s. 7(c) of the Criminal Code. The appellant appealed, inter alia, against the severity of the sentence of seven years’ imprisonment. The Supreme Court dismissed the appeal against sentence as incompetent as no notice of application for leave to appeal was given within forty days of the conviction as required by s. 27(2) of the Supreme Court Act. The court did however add some remarks relating to the power of mercy which might be exercised by the Head of State bearing in mind that the appeal on sentence had not been decided on the merits. The court said that had the appellant been charged under s. 315 of the Criminal Code, then “it would be hard to imagine that a sentence of more than four years’ imprisonment would have been called for”[cxxvi]⁴. Porewa Wani’s case (supra) itself involved a killing of an accused person during a view being conducted by the National Court in the course of a trial. The appellant’s participation was that she stood by, knowing the intention of the principal offender, and called out the words “Kill him, kill him, kill him!” It is to be observed that in Porewa Wani’s case (supra) no submissions on sentence were put to the court by either party. It is also to be observed that in that case the degree to which the murderer actually received encouragement from the appellant was at best not clear.

N1>Hence, although it is possible to say that the sentence of four years’ imprisonment in the present case appears heavy when one tests it against the customary range of sentences for homicide, it is not possible to say that it is manifestly excessive in the sense that it is out of all proportion having regard to the range of sentences usually handed down under s. 315 itself. There is simply no yardstick of sentencing patterns under the section. One turns then to the reasons advanced by the learned sentencing judge in order to ascertain whether his Honour proceeded on some wrong principle of law or otherwise fell into error in his assessment of the case.

N1>The reasons of his Honour appear in a short report furnished for the purposes of this appeal. They indicate that his Honour considered the following mitigating factors:

“... there were no prior offences, the accused were young men, fairly primitive, from an area where belief in sorcery at least among the older people is strong. Once intercepted the accused surrendered quietly. They pleaded guilty. They believed the proposed victim had killed a relative and were themselves under the influence of an older person and no doubt fulfilling traditional obligations.”

It was suggested by way of submission that his Honour failed to give sufficient weight to the consideration that the applicant and his brother were acting in accordance with traditional beliefs relating to sorcery. The quoted remarks however indicate that his Honour did not fail to take such beliefs into account. The extent to which such beliefs can be regarded as a mitigating factor will vary from case to case. The present applicant was not from some remote area barely touched by influences from the outside world. His village was half a day’s walk from the town of Kainantu. He knew that the intended victim was liable to punishment by the general law of the land if found guilty.

As against this, the learned sentencing judge considered, as he was entitled to do on the material before him, that the acts constituting the offence were not remote from the achievement of the purpose of killing the sorcerer, and that the offence was “well premeditated cold blooded and bold in concept”. Although his Honour did not expressly say so, the conduct of the applicant rendered substantial encouragement to the brother. It is also apparent, not only from his Honour’s remarks but also from the notes of counsel’s submissions, that his Honour saw that a principal aggravating factor in the commission of this offence was that the intended killing was to take place in or in the vicinity of the court house. His Honour said that this fact should not be over-emphasized. Counsel for the applicant submits that despite his Honour’s warning to himself, he did in fact overstep the mark in relation to the weight he gave to this factor. Amongst other things, his Honour went on to say this:

“If it is intended to kill a person, in court or between the court and the police station is often a convenient place to do it because the proposed victim is out of his own territory away from the immediate protection of his own people and the presence or proximity of the court is inclined to induce a sense of security in the police, the victim, and his friends which may aid the killing. The one was to do the killing and the other to prevent interference. The use consciously or unconsciously by intending killers of the courts in this way would tend to demean the status of the courts, make the administration of justice harder in ways I need not spell out and deter the attendance of the public who are entitled to attend and whose attendance is in the national interest.”

The essential question that falls to this Court to decide is whether, despite his caution, the sentencing judge laid too much stress, as an aggravating factor, on the fact that the applicant’s act occurred in the vicinity of a court house and was directed towards the killing of a defendant due to appear at the court to be held there. It is clear that his Honour had been reminded by counsel of such crimes having been committed in the recent past. One such case was in 1979 at Aiyura near Kainantu where a man being dealt with in the village court on a charge relating to sorcery was killed by a group of five men. The other was in 1978 at Kainantu Court House itself where the victim survived an attack made on him when being conveyed from the court house to the police station. The latter case was referred to by the trial judge in Goli Golu v. The State[cxxvii]⁵ when in imposing the maximum sentence of life imprisonment he said: “... this sentence should be imposed as retribution for the offence the accused has committed and to deter like-minded offenders.” Although the sentence in Goli Golu’s case (supra) was reduced on appeal to the Supreme Court for the reason that the maximum sentence should be reserved for the worst type of case, the judges recognized the seriousness of crimes involving attacks on persons being brought to or from a court house. Raine Deputy C.J. said[cxxviii]⁶:

“There are few courthouses 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.”

Kearney J., as he then was, spoke of “... the need to deter violent behaviour when parties are gathered together under the law so that the courts may administer justice by peaceful means.”[cxxix]⁷

N1>Counsel in the present appeal submitted that Papua New Guineans often regard the precincts of a court house as in the nature of a meeting place, something like a market place, and that the fact that a crime takes place in the vicinity of a court house should not necessarily be taken to be an aggravating factor. This may well be true in many cases but it is an answer to only one of the three factors mentioned by his Honour, namely the threat to the public. It is no answer to the other factors, namely the vulnerability of the victim and the threat, potential or actual, to the administration of justice.

N1>In the present case his Honour said that he had in mind both personal and general deterrence. The applicant was a person with no prior convictions, acting under pressure from others in the knowledge that he was acting in breach of the general law. A prison sentence might in relation to such a person as the applicant be seen to have greater deterrent value than in the case on the one hand of a person who has little knowledge or appreciation of the criminal law as contrasted with traditional beliefs and in the case on the other hand of the recidivist, unable because of social or other factors, to break a pattern of persistent offending. Whilst one might often take a sceptical view of the general deterrent value of a long prison sentence, nevertheless where an offence is prevalent in a particular area, heavy sentences are more likely to become widely known in that area and to have some effect on the behaviour of potential offenders —thus it is not inappropriate that general deterrence in the present case should have been stressed.

N1>Finally, although his Honour did not expressly allude to it, and it is an aspect of sentencing which often overlaps with the aspect of general deterrence, the case is one in which the sentence may properly contain a substantial retributive element, the mark by which society records its disapproval of the offender’s behaviour. It is proper for a heavy sentence to be imposed where an intended killing takes advantage of and interferes with the administration of justice. The intended killing was to take place in the view of the public and, significantly, of the police. This was not the first occasion on which efforts were made to kill a person being brought before the court house at Kainantu. A heavy sentence was justified.

N1>For these reasons the sentence imposed upon the applicant was not obviously excessive nor was it based on any erroneous principle. The application for leave to appeal is refused.

iv>
R>

[cxxiicxxiii][1979] P.N.G.L.R. 593.

[cxxiv][1979] P.N.G.L.R. 605 especially at pp. 612 and 613, per Kearney J.

[cxxv][1979] P.N.G.L.R. 593.

[cxxvi][1979] P.N.G.L.R. 593 at p. 598.

[cxxvii][1979] P.N.G.L.R. 653 at p. 663.

[cxxviii][1979] P.N.G.L.R. at p. 655.

[cxxix][1979] P.N.G.L.R. at p. 661.

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Supreme Court of Papua New Guinea

Antape v The State [1981] PGSC 10; [1981] PNGLR 68 (26 March 1981)

Papua New Guinea Law Reports - 1981