Wai v The State [1983] PGSC 6; SC263 (27 September 1983)

PAPUA NEW GUINEA
IN THE SUPREME COURT OF JUSTICE

BETWEEN

MICHAEL KAMANE WAI
Appellant

AND

THE STATE
Respondent

CORAM: Kidu, C.J.
Kapi, D.C.J.
Amet, J.

Tuesday 27 September 1983

(S.C.A. No. 30 of 1981)

Criminal - appeal against severity of sentence for wilful murder - no error - sentence-confirmed.

Legislations:
Criminal Code
Legal Aid Act

Order of the Court:

We grant leave to appeal against sentence and dismiss the appeal.

JUDGMENT

BY THE COURT

1983 – Sept. 26 & 27 – WAIGANI NATIONAL CAPITAL DISTRICT -

Kidu, C.J.
Kapi, D.C.J.
Amet, J.

The appellant was, on the 23rd of October 1981, convicted of the wilful murder on the 30th of February 1981, of a Gumine man by the name of Mathias Unai. There were eight other accused's on the indictment but only seven appeared before the National Court. One of these pleaded guilty whilst the other six pleaded not guilty and a trial ensued before the National Court (Bredmeyer, J.). They were found guilty (except TEINE SIWI - he was acquitted) and the person who actually wielded the axe and who actually caused the fatal wound, Wagl Ire Kote, was sentenced to ten years in hard labour. However, as he had served eight months pending the hearing of his trial the actual sentence imposed on him was nine year and four months. Bandi Kiaknem who had actually cut the deceased with a tomahawk was sentenced to eight years imprisonment. He had also been in custody awaiting his trial for eight months, and the actual sentence he received was seven years four months with hard labour. Milka Ire and Kambukama Kombukua had gone along with the others and shared their intention to kill the man. They took part in surrounding the taxi in which the deceased was and their: sentience was five years.

However, since they had also been in custody for eight months, were sentenced to four years four months in hard labour. Siune Kumba received the lightest sentence of all. His sentence was two years eight months and because he had been in custody for eight months he was sentenced to two years in hard labour. The reason why his sentence was so light was that he had helped the European baker who had been driving the motor vehicle in which the deceased was and prevented him from being killed. The appellant Michael Kamane Wai went to the bridge with the others. He had been driving the motor vehicle in which all the others were. He had been aware of the fact that the intention of the group was to kill a Gumine man. In fact they did kill a Gumine man. He transported them to the scene and after the killing he had taken them back home. For his part in the commission of the crime he was given six years four months in hard labour.

The general background of this killing is contained in the reasons for judgment of Bredmeyer, J. (Unreported National Court Judgment (unnumbered) dated 23rd October, 1981) as follows:

"In the early hours of the morning of 13/2/1981. TINE IRE a security man employed by the Premier of the Chimbu Province at his residence was killed by a Gumine man, JOHN AL. KUMAN. Within a few hours of a day break, two Gumine men had been killed in separate incidents.

JOHN AL. KUMAN was convicted of the wilful murder of the security guard by KAPUTIN A.J. and sentenced to 14 years IHL. Four men were indicted for the murder of DAVID WAMARI a Gumine man killed at the Lutheran Mission and one of these KOMBOGO IRE was convicted by PRATT J. and imprisoned for 12 years.

I am concerned with the 3rd killing. MICHAEL KAMANI WAI and 7 others have been indicted for the wilful murder of the Gumine man, MATHIAS UNAI, killed near the Waghi bridge in the Dom area some 4 or 5 miles out of Kundiawa.

Of these 8 men one of them, NAURU KOKIA, has escaped and another WAGL IRE KOTE pleaded guilty to the wilful murder and I have remanded him for sentence. WAGL IRE KOTE is a true brother of the dead security man TINE IRE. On arraignment he admitted that he had killed MATHIAS UNAI, that he had cut him with an axe and that when he cut him, he intended to kill him.

I acquitted one accused TEINE SIWI following a no case submission at the conclusion of the state case.

I am thus concerned in these Reasons for Decision with five men: MICHAEL KAMANE WAI, MILKA IRE, SIUNE KUMBA, BANDI KIAKNUM, and KAMBUKAMA KOMBUKUA. The State evidence is that all of them are related by clan in some way to the deceased security guard Teine Ire who was from the big clan KOMANAGU, small clan ENDUKANI.

Michael Kamane Wai is related by marriage. His wife belongs to the same clan and sub clan as the deceased. Milka Ire is a half brother of the deceased and belongs to the same clan and sub clan."

The sum total of the evidence was summed by the trial judge as follows:

"Weighing up the State evidence of these key witnesses it is to the effect that the Toyota land cruiser parked above the Stationary baker's car to block the road. 10 or 15 men got out armed. They surrounded the taxi smashed the window on the left hand side attempted to cut the 2 Gumines sitting there. They tried to stop the 2 Gumines getting out. The 2 men got out, Yoba was cut on the forearm with a tomahawk ran downhill approximately 75 yards then off the edge of the road down a steep bank to the river.

All the men who got out of the Land cruiser chased them down the hill. Luciano was left alone. When the 2 Gumines fled down the steep bank, heavy bush, no track there, I infer one or more pursuers followed them. The others walked up the hill to start an argument with the baker. He was punched to the ground, there was cross talk, his shoes and watch stolen and he was helped by SIUNE KUMBA who told the others not to hit the European and told the baker 'No worries' and walked with him down to the bridge and across it.

As part of the background to this appeal, I quote the finding of evidence for and against the Appellant by the trial judge:

"This man had a good demeanor, gave prompt answers that is understandable. He had 20 years in the army, is a forceful man, a man of good education and natural leader. He has travelled to Australia and his 20 years service in the army would make him big man in the village. I find nothing adverse in his demeanour but I consider his evidence is improbable in some aspects.

(1) He did not look at the men he saw walking up to the hill. If he had gone there to stop the Komanagus killing a Gumine at the Waghi Bridge, I would expect him to look to see if the men there were Komanagus.

(2) The men got in the back of his car after the attack. He did not ask them if they'd killed a man and they did not say. I find that wildly unlikely. They would boast or be pleased about the killing and would tell trusted people like Baundo and Michael of it.

(3) He was not told of the death of the Gumine later even when he met the four men involved he was not told of the death. I find that wildly unlikely. I think he is lying on these matters. There is a substantial body of evidence that there were men in the back of his car that they were armed and that there were no others at the scene. I consider that he did not go there to save the Gumines from getting killed but went there with the opposite intention."

And later on in his judgment; the learned trial judge says of the appellant:

"I find and infer beyond reasonable doubt that he drove the brown Toyota land cruiser with armed men in the back. Their aim was to kill a Gumine as a payback. He knew that. That is why he drove them there. He shared in that intention by driving them. He was not force to do it. The men from his car got out, surrounded the taxi, smashed the glass, attempted to kill the two Gumines insides, some of the men chased these two and caught and killed one of them Mathias. This accused gave them a ride back towards town.

I infer he knew of their intention to kill. It is fairly obvious a large armed group of Kamanagus going into Gumine territory just a few hours after a Gumine man had killed a Kamanagu. The intention was clear. He took them and this facilitated the crime. I find him guilty of wilful murder under Section 7(c) of the Criminal Code."

Now against this background the Appellant has said to this court that the sentence of six years and four months imposed on him by the National Court was and is manifestly excessive. He has had the disadvantage of trying to argue his own appeal before the Supreme Court. For the record it must be noted that the Public Solicitor's Office had refused him legal aid for reasons which are not relevant. A private practitioner, Mr Stan Cory, had then decided to take on the appeal but later on, for reasons which are not relevant, withdrew from the case. It is, of course, unfortunate that a person such as the appellant has to appear and argue his own case in the Supreme Court. But he has exercised his right and appeared on his own. Of course, no law in this country says that a person must appear by or through a lawyer in the Supreme Court or any Court in this country. However, the advantage of lawyers representing people before the Courts is that lawyers have made it their business to learn the law and are able to argue more effectively before Judges and Magistrates.

If we had the specific power, we would have ordered that a lawyer be allocated to the appellant to argue his case and the reasonable cost paid by the State. It seems that we may have this power under the Legal Aid Act, (see the Revised Law of Papua New Guinea Ch. No. 53). We note, however, that this legislation has not been used at all. Perhaps in another case, it could be argued and perhaps the court might consider utilising this legislation to help people who are unable to get the assistance of the Public Solicitor's Office and Private practitioners.

The appellant has not given substantive reasons in his appeal. He merely says that this was first time that he had got into this type of trouble and this should have been taken into account by the trial judge. Also he submitted the fact that he had been in the Defence Force for twenty years and had retired without blemish should have been taken into account by the court. Also he said to this court that he did not actually fight. He just drove, and he had been put in jail for this.

It must be emphasised to the people of this country that the law says that any person who helps, aids or abets another person to commit a crime, whatever the crime might be, is just as guilty as the person who actually commits the crime. For instance, in a case like this if a person goes along with somebody else with the intention of committing a crime, and help in any way, a person who does the killing, then the law says that he is just as guilty as if he had wielded the weapon and killed the deceased himself. It was under this law that the National Court found the appellant guilty of wilful murder and sentenced him to imprisonment with hard labour for six years and four months.

It must always be borne in mind that wilful murder is one of the most serious criminal offences defined in the Criminal Code and because of that it carries the maximum possible penalty of imprisonment with hard labour for life. It is against this maximum sentences that any particular case of wilful murder be considered. If the Court thinks that the facts of a particular wilful murder case comes within what is termed as "the most serious" of wilful murder cases, then the maximum penalty may be imposed in that case.

This was a wilful murder case and the sentence of ten years imposed by the trial judge indicates his view of the gravity of the offence. Sentencing, in cases apart from where there are compulsory minimum sentences defined by Parliament, is a discretionary matter for the Courts. Usually in almost every case, a court exercise such a discretion and takes into account different considerations before coming to a proper sentence. Not one factor usually influences the Court's exercise of its discretionary power of sentencing. As it is an exercise of discretion, any person who challenges the exercise thereof must show why and how the sentencing judge made an error of law or fact, or mixed law and fact. In this case the Appeal Book and the submission by the appellant do not show what error was made by the trial judge when imposing the sentence. A sentence of 6 years 4 months comes well within the range of sentences for wilful murder which have been imposed by judges in wilful murder cases in the last decade and more. It cannot be said with seriousness that the sentence imposed on the appellant, taking into account the part he played in the killing of this man Mathias Unai, can be said to be manifestly excessive. As far as we are concerned the sentence was most appropriate, taking into account the facts of the case, the nature and the circumstances of the killing and the role played by the appellant in the killing. He took an active part in the killing in that he transported people to the scene of the crime and afterwards took them back away from the scene of the crime. Any person who does that must expect the heavy hand of the law when it comes to sentencing. People of this country must realise that it is illegal for anybody to help or to take part in the commission of any offence of any description. Sometimes those who actually do the killing are encouraged to do so mostly because of the encouragement by those who go along but who do not actually take part in the killing. The law frowns on those who encourage and help others to commit crimes, and especially in cases of this nature where the life of person is taken by a group. The law views such situations with grave concern. We do not think there is any merit in the appeal.

Appellant: In person
Lawyer for the State: Public Prosecutor; L. Gavara-Nanu
Counsel: J. Byrne