Acting Public Prosecutor v Taganis [1982] PGSC 6; [1982] PNGLR 299 (28 July 1982)

Papua New Guinea Law Reports - 1982

[1982] PNGLR 299 - Acting Public Prosecutor v Nitak Taganis 

[1982] PNGLR 299

SC229

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

ACTING PUBLIC PROSECUTOR

V

NITAK MANGILONDE TAGANIS OF TAMPITANIS

Waigani

Kidu CJ Kapi DCJ Pratt J

25 May 1982

28 July 1982

CRIMINAL LAW - Sentence - Customary compensation - Relevance in homicide cases - As mitigating factor on sentence - Deduction of specific period not appropriate - Onus of proof of.

Customary compensation is a matter that may be taken into account on sentencing in homicide cases, (per Kidu Dep. C.J. and Pratt J.), where such payment is considered relevant to sentence.

It is not, however, appropriate to deduct a specific period from the sentence imposed on account of the payment of customary compensation.

Where an accused relies on the payment of customary compensation as a mitigating factor on sentence he bears the onus of proving as a matter of fact the existence of such a custom.

Cases Cited

Acting Public Prosecutor v. Konis Haha [1981] P.N.G.L.R. 205.

Acting Public Prosecutor v. Uname Aumane [1980] P.N.G.L.R. 510.

R. v. Jim Kaupa (Unreported pre-Independence Supreme Court judgment No. 765 dated 25th September, 1973).

R. v. Morse (1979) 23 S.A.S.R. 98.

Appeal

This was an appeal against sentence on the ground of inadequacy made pursuant to the Supreme Court Act, 1975, s. 23.

Counsel

L. Gavara-Nanu, for the appellant.

A. Amet, for the respondent.

Cur. adv. vult.

28 July 1982

KIDU CJ: This is an appeal by the Public Prosecutor, under s. 23 of the Supreme Court Act 1975, against a sentence of two years nine months for murder.

The respondent is from the Kumalin Tribe of Enga Province and the deceased was from Yuli Tribe of the same Province.

Some time in 1979 Yuli and Aiyakani Tribes were at war. The respondent’s father was walking through an area owned by the Yuli who mistook him for an Aiyakani and speared him. He was taken to hospital and died some time early in 1980.

Custom dictated that the respondent pay compensation to his uncles for the death of his father. The respondent and his line paid 183 pigs and K170 in cash. It seems that the compensation paid by the respondent and his line (Kumalin) was shared by the Aiyakani and the Yuli.

On 31st July, 1980, the Aiyakani paid 75 pigs to the respondent and his line (Kumalin). This was accepted as adequate compensation for the respondent’s father’s death.

On 1st August, 1980, the Kumalins went to receive compensation payment from the Yuli. (The respondent had given K35 to the deceased. The reason was that the deceased would either give a large pig in return or more money.) The deceased, however, offered only two small pigs to the respondent. He was not happy about this offer and raised the matter with the deceased whose reaction was one of “take it or leave it” “if you want to fight we’ll fight”. The respondent was angered by this. He picked up an axe and cut the deceased on the left shoulder blade. The deceased died from the wound he sustained.

For his death the respondent and his line paid the deceased’s line 160 pigs and K1,102 in cash.

The learned trial judge in sentencing the respondent took into account various factors in mitigation including the compensation payment. He stated that if he were to penalize on the basis of deterrence alone “... the accused would well deserve a term of imprisonment according to the State Law, for four years.” His Honour then commented on the compensation paid and said:

“I cannot ignore payment of compensation and march merrily into imposing a sentence based on custodial deterrence alone. I would subtract one year from the term I would have imposed, on account of the compensation payment.”

Apart from comment on other factors that should affect sentence, the learned trial judge took into account the two months the respondent had spent in custody awaiting trial and imposed a sentence of two years nine months.

In sentence appeals to this Court from the National Court by the State it is established that this Court will not interfere unless it is shown that the sentencing judge improperly exercised his discretion (Acting Public Prosecutor v. Konis Haha [1981] P.N.G.L.R. 205).

The learned trial judge took into account, in determining the penalty, factors which are usually taken into account by judges in this country. He considered deterrence and concluded that a four year sentence would be an adequate sentence. His Honour then made some observations on incarceration as deterrence and the deterrent effect of a Melanesian’s belief in the supernatural for wrongs done. His Honour then commented on the inevitability of ultimate punishment “by the Supreme Judge in some very concrete way”.

I see no error in this regard. The fact is that the trial judge quite properly, in my view, gave adequate weight to deterrence as a principle of punishment.

His Honour then, taking into account the payment of customary compensation, deducted one year from the sentence he would have imposed in the absence of this factor. Now, in this jurisdiction some judges have taken into account compensation payments in considering appropriate penalties for homicide cases.

This is the first time, however, that the National Court has deducted from a sentence a specific period to make allowance for the payment of compensation for homicide.

As the learned trial judge had accepted that the money and pigs paid by the respondent and his clan was required by their custom, the payment was properly taken into account. A word of caution is, however, required. Those who rely on compensation payment as a mitigating factor have the duty to prove, as a matter of fact, the existence of such custom in a proper manner. Evidence from the bar table is not the proper manner. I would myself, in future, refuse to accept such “evidence”. I say this because it is not every society in Papua New Guinea that requires payment of compensation in cases of homicide or death.

The allowance of a specific period for payment of compensation is a novel one. In sentencing the general practice is to consider all mitigating factors in arriving at an appropriate sentence. Although emphasis is sometimes given to certain mitigating factors no actual period is allowed for any particular one. There is no legislation on the matter nor are there precedents for it.

However, as a matter of good commonsense it is undesirable that a specified period be deducted from an appropriate sentence for any offence. The fact that a person has no prior conviction is usually taken into account as a mitigating factor. So are factors such as plea of guilty, youth, and so forth. None of these, however, commands the deduction from an appropriate sentence a specific period. If the payment of K1,000 and 160 pigs means now the deduction of 12 months from a sentence, should the court deduct ten years if the payment is K10,000 and 1,000 pigs? What happens if an accused only pays K500 and 80 pigs? Do we deduct only six months? I do not consider that this Court should encourage the concept that rich people can receive lower sentences and poor people higher sentences.

This was a brutal murder. There can be no justification for killing a person because his compensation payment was considered inadequate. If this type of attitude is to be condoned, we might as well forget the law.

The effective sentence was three years. I consider the facts of the case did not warrant such a low sentence for murder.

I would allow the appeal and set aside the sentence of two years nine months and substitute six years I.H.L.

KAPI DCJ: The facts surrounding this matter are set out in the judgment of the Chief Justice.

It seems to me the whole basis of this appeal revolves around the question of taking into account payment of compensation on sentence. In this case the respondent and his clansmen paid compensation according to custom for the death of the deceased of 160 pigs and K1,102.00 in cash.

The trial judge took into account this compensation on sentence. He said, “I would subtract one year from the term I would have imposed on account of the compensation payment”.

Under s. 7(e) of the Native Customs (Recognition) Act 1963, custom shall be taken into account in determining penalty. Under this provision, the court may increase or decrease sentence, on account of custom, within the range given by a written law. See Acting Public Prosecutor v. Uname Aumane [1980] P.N.G.L.R. 510. Compensation payment has always been taken into account as a mitigating factor by the courts in this jurisdiction. See R. v. Jim Kaupa (unreported pre-Independence Supreme Court judgment No. 765 dated 25th September, 1973). This is taken into account on the basis that compensation has a punitive effect on the accused. In principle this is no different from taking into account punitive effect of such matters as apprehension, arrest, appearance in court, time spent in custody, loss of employment and the like. This principle has not been questioned on this appeal.

The question of customary compensation to be taken into account on sentence must be clearly identified in each case. The general statement in mitigation that compensation was paid is of itself not necessarily of any assistance in a particular case. The concept of customary payment must be clearly proven and its relationship to the concept of penalty. In the Highlands, the concept of compensation is connected with the fear of payback killing. Is that connected with the concept of customary penalty? There must be a proper evidentiary basis upon which the courts can develop the law. This is significant in this country where there are many different customs. General statements by counsel can no longer be considered sufficient. These matters were not raised by counsel or by the court in this case and I have proceeded on the basis that compensation was related to the question of penalty.

The question that arises is whether the trial judge fell into error by subtracting the period of 12 months from the prison term on account of the customary punishment. This exposes the difficult task of determining the actual sentence in any case. The trial judge acknowledged this when he said:

“Sentencing is always a difficult, if not an impossible task. How many years am I to ascribe to or subtract on account of each of these factors. Can I soberly and scientifically determine the score in favour of and score against the wrongdoer and reach a balance as a credit or debit against the wrongdoer?”

How did the trial judge come to the period of 12 months on account of the compensation? There is very little guidance given by the Code or the Native Customs (Recognition) Act by which this Court can review the term of 12 months deducted on account of compensation. This raises the question of the proper approach to sentencing. In practice most judges take into account the aggregate effect of all the relevant facts, mitigation factors and principles when coming to a term of sentence. There is no mathematical formula for determining the actual length of sentence. In determining the term of sentence in this way, the experience and the good judgment of the judge is a big factor. A judge who is comparatively less experienced can get a lot of assistance from the range of sentences customarily imposed by the court for the particular offence. In determining the proper sentence for an offence where compensation has been paid, it is necessary to have regard to the maximum penalty for the offence, range of sentences customarily imposed for the offence with compensation, the scale of seriousness of the crime to be attached to offenders in the context of the particular facts of the case, and personal circumstances: R. v. Morse (1979) 23 S.A.S.R. 98 at p. 99.

In my view the proper approach is not to apportion sentence in the manner in which the trial judge dealt with the question of compensation, but to deal with it in the manner suggested above.

The question for the court now is whether the effective sentence of three years falls within the accepted scale of sentence for this type of offence, having regard to all the factors put together including compensation.

A sentence customarily imposed for murder in recent years is between four and eight years. This is only a guide for the court. Each case must be given individual consideration in the context of range of sentences given by the court. Having regard to the facts of this case, on the one hand it was a brutal killing by a lethal weapon which calls for severe punishment, on the other hand the accused’s father was killed by the deceased’s line (by mistake) and he was provoked and insulted by the deceased during the moka exchange. His Honour had regard to all these considerations. However, by treating the matter of compensation in isolation from all the other factors he fell into error in the final calculation of the sentence. The sentence imposed does not in my view reflect the facts and all of the circumstances of the case.

I would allow the appeal and impose a sentence of five years nine months imprisonment (six years effective) in hard labour to commence from the commencement of the criminal sittings at which the respondent was convicted of this offence.

PRATT J: I have had the advantage of reading the draft judgments of the Chief Justice and Kapi J., and I shall not again traverse the facts other than to say that there was a gap of some period of time between the insult offered by the paying clan and the retaliation administered by the respondent. The Moga had been completed and the participants were leaving—indeed the women and children had already left. Perhaps they were anticipating trouble. Obviously the respondent’s resentment had been building up over the intervening period, albeit short, and he decided to kill the deceased. However the State accepted a plea to murder and on this basis the learned trial judge had to proceed, as we must also. I do not think the evidence supports his Honour’s finding that “the accused moved quickly when bitter words were exchanged”.

I agree with my brothers that it is not appropriate to deduct a specific period from the sentence to represent the “punishing” aspects already incurred through payment of compensation by the respondent and his own clan. If payment of compensation is to be a mitigating factor in homicide cases, then it should be treated like any other factor and not given some special individual rating which is reflected in a specific number of months in reduction of sentence. If the learned trial judge was correct in determining that an allocation of a specific period should be made, it seems to me a logical extension that one should also nominate periods for the other mitigating factors, for example two months for pleading guilty, three months for no prior convictions, two months for co-operating with the police, three months for youth, and so on. Such a mathematical approach is unrealistic and prone to detract from the most important aspect of sentencing, that is, what is the most adequate, fair and proper sentence in all the circumstances bearing in mind the general principles of sentencing which of course include all factors relevant to mitigation. I therefore agree with Kapi J. that one should not apportion sentence in the manner followed by the learned trial judge but should have regard to the maximum penalty, the range of sentence, the seriousness of the crime, personal circumstances and any payment of compensation where such payment is considered relevant to sentence.

However, I do not wish to be regarded as accepting in principle that compensation payment in homicide cases is necessarily a factor of mitigation. I agree that many judges have done so over the years and outside of compensation paid for homicide, the area does not present any insuperable problems provided evidence of custom is properly adduced. I have often wondered whether the grafting of customary compensation onto the introduced requirement of sentencing to imprisonment for a term of years in homicide cases may not contain an inherent incompatibility of concepts which can never be really resolved. The assumption that compensation is a mitigating factor was clearly made both in counsels’ submissions during the present case and by each of us sitting as the members of the court. It is an assumption however which has never been the subject of proper investigation and detailed submission. Broad general propositions have been put forward without any attempt to analyze the underlying concepts and the objects to be attained. The area would certainly present difficulty of presentation and the amount of research prior to argument would be quite considerable. Nevertheless the issue is an extremely important one. There are a number of anthropologists available within the country to give evidence, and there is a steadily mounting collection of written material upon which to draw. At present a considerable amount of data is being collected by the Law Reform Commission for the purpose of drafting a Bill to govern the amount to be paid for compensation in homicide cases. It is perhaps significant to note that no compensation is to be paid under the proposal on death resulting from payback, tribal fights or road accidents.

This is not the time or place to canvass the issues involved. In a very broad sense however, I can say that some of the questions which trouble me are as follows:

N2>1.       Where a man comes from a “rich” and powerful group which is in a financial position to pay a large amount of compensation, should the member of that group before the court receive a greater reduction in penalty than one who comes from a small and financially insignificant clan and whose payment therefore must be quite small in comparison? In short, can the rich man buy out more gaol?

N2>2.       I believe that some groups (for example the Toaripi referred to in the article by Morauta Hasu and Louise Morauta contained in Homicide Compensation in Papua New Guinea) would never dream of mentioning a figure as one suitable for such compensation and would not overtly express dissatisfaction if the amount were thought inappropriate. Assuming no compensation is paid at all by some groups in homicide cases, should the sentence receive nominal or no reduction because of the attitude of custom in the particular area?

N2>3.       In certain areas tribal fighting and payback killing would seem to be on the increase. If the compensation payments are still continuing and are sometimes themselves the causes of further killing, as in the present case, I have doubts as to whether, as the learned trial judge says, such payments restore equilibrium. Indeed not only do I have the impression that the system is designed to make more powerful clans even stronger and the less affluent ones weaker, both in terms of wealth and manpower, but the opportunity for blatant repression and extorting money by menaces is gradually becoming a major factor where the two groups are other than evenly matched.

N2>4.       Most of the anthropological works dealing with compensation payments emphasize, as indeed has his Honour the trial judge, the negotiation and arbitration processes which precede the final ceremony of payment. There does seem to be a considerable amount of ceremony attached to the entire procedure and no doubt these ceremonies, whether they be symbolic or otherwise, are an important part of the whole process. In addition, one of the underlying concepts in the payment of compensation is to restore peace within the clan or between two clans who were either traditional enemies or allies on a previous occasion. Yet where the death of a Southern Highland man occurs in say Bougainville, it is difficult to see how such a procedure can operate. Admittedly, many of such deaths will occur as a result of motor accidents, but by no means all. A recent case in Port Moresby involved a young man born of mixed Papuan stock who had been responsible for the death of a Goilala woman. Apart from the questionable fact of whether the groups from which he descended recognized any compensation payments in homicide cases at all, his clan affiliations, being from a family which had become quite urbanized, gave him no clan and tribal protection whatsoever. It was quite clear however that if monies were not paid, either he or his immediate family were under threat of death. Fortunately his employer was prepared to assist with the advancement of a loan which, combined with his own meagre resources, permitted a figure to be settled between the Goilala group and his mediator. In my view the whole episode smacked far more of terror tactics than of traditional compensation payment. I would be very loath to support any system which proceeded on such a basis.

N2>5.       The learned trial judge pointed out that compensation “is a form of punishment” because both the accused and his family will have to repay their line, one way or another. Yet after reading such works as Professor Mervyn Meggitt’s Blood Is Their Argument (1977, Mayfield Publishing Co.), it would seem in some areas of the country at least, that the process of giving and receiving, both in the family and in the line, is so continuous because of the many family deaths, that any deterrent effect of such “punishment” is becoming completely lost. It must be quite difficult to balance the incoming payments with the outgoing, in order to ascertain whether or not your line is the financial winner.

I have given only some examples here but I think they illustrate the inadvisability of accepting as axiomatic that because custom must be taken into account under the Native Customs Recognition Act, such requirement directs that payments of compensation in homicide cases must be reflected in the matter of sentence. It may be that it should. I cannot say. Before being called upon to do so, I would hope for the advantage of full and detailed objective argument. In the case before us his Honour’s reasons for sentence contain some persuasive arguments in favour of applying compensation in mitigation of penalty.

Returning to the facts of the present case, as I regard the penalty proposed by my brother judges as too lenient, I must respectfully dissent from the period suggested, even though I agree with their statement of principle in relation to the point under appeal.

Appeal allowed. Sentence of two years nine months set aside. Sentence of six years substituted.

Solicitor for the appellant: L. Gavara-Nanu, Public Prosecutor.

Solicitor for the respondent: A. Amet, Public Solicitor.