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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCRA 10 OF 1997
BETWEEN:
STEVEN LOKE UME, CHARLES PATRICK KAONA & GREG WAWA KAVOA
Appellants
AND:
THE STATE
Respondent
Waigani : Kapi CJ, Injia DCJ, Los, Hinchliffe & Davani JJ
CRIMINAL LAW – Sentence – Death penalty – wilful murder –Not mandatory – Discretionary - Principles – Types of cases which warrant the death penalty – Criminal Code Act (Ch. No. 262), s.19(1)(aa), s.299(2).
CRIMINAL LAW- Sentence – Appeal - Against death penalty for wilful murder – Pay-back killing of innocent woman by group of men – Error in exercise of sentencing discretion occurred – Appeal allowed – Sentence quashed and substituted with imprisonment for life.
PNG Cases Cited:
Hure Hane v The State [1984] PNGLR 605.
Jim Kas v The State (1999) SC772.
John Elipa Kalabus v The State [1988] PNGLR 193
Manu Kovi v The State (2005) SC789.
Mark Nainas v The State [1998] PNGLR 2008.
Pake Kik v The State (1996) SC511.
Public Prosecutor v Apava Keru & Aia Moroi [1985] PNGLR 78.
Regina v Peter Ivoro [1971-72] PNGLR 374.
Reginal v Bulda Melin & Ors [1973] PNGLR 278.
The State v Blasius Bana (2004) N2863
The State v Yapes Paege & Relya Tanda [1994] PNGLR 65.
Tony Imuno Api v The State (2001) Unreported Supreme Court Judgment in SCRA 15 of 2001.
William Norris v The State [1979] PNGLR 605.
Overseas Cases Cited:
Bachan Singh v The State of Punjab (1979) 3 SCC 727
Cornelius v The King (1935) 155 CLR 235.
Furman v Georgia [1972] USSC 170; 408 US 238.
Green v The King (1938) 61 CLR 171.
Lavis v Attorney General of Jamaica [2000] UKPC 35; [2001] 2 AC 50.
O’Leary v The King (1946) CLR 566.
Profitt v Florida 428 US 249.
R v Lee [1950] HCA 25; (1950) 82 CLR 133.
R v Ryan and Walker [1966] VicRp 76; [1966] VR 553.
Reyes v The Queen [2002] UKPC 11; [2002] 2 AC 235
Ross v The King [1922] HCA 4; (1934) 30 CLR 246.
Sandra Lockett v Ohio 438 US 587.
Stuart v The Queen (1959) CLR 1.
Tukiar v The King (1934) CLR 335.
Constitutional provisions cited in the judgment:
Constitution; s.35(1)(a), s.36(2).
PNG Legislations Cited:
Criminal Code Act (Ch. No. 262), s.1, s.19 (1)(aa),s.21A, s.37, s.81, s.82 & s.299(2).
Overseas Legislations Cited:
Murder (Abolition of Death Penalty) Act 1965 (UK).
Ohio Revised Code Ann (1975), s.2929.04, (USA).
Texts & Articles Cited:
Kirby J, “The High Court and the death penalty: Looking back, looking forward, looking around”, (2003) 77 Australian Law Journal 811.
Counsel:
N Kubak, for the Appellants
S Soi, for the Respondent
19 May 2006
1. BY THE COURT: This is an appeal against the death penalty for wilful murder imposed on each appellant by the National Court at Kimbe on 7 February 1997. In their original Notice of Appeal filed on 11 February 1997, the Appellants appealed against both conviction and sentence. In their Supplementary Notice of Appeal filed on 23 July 1997, the Appellants appealed against conviction only. On 4 May 2000, the Supreme Court bench comprising of Amet CJ, Kapi Dep. CJ (as he then was) and Sevua J, dismissed their appeals against conviction. The appeal against sentence under the original notice of appeal could not proceed before that bench because it was not clear from the supplementary notice of appeal whether the Appellants abandoned their ground of appeal against sentence. That issue has been now clarified. The Respondent concedes the appeal against sentence is still on foot.
Leave to Appeal
2. We heard this appeal and reserved our decision. Whilst preparing our judgment, it came to our attention that the issue of leave to appeal against sentence was still outstanding. As this point was not argued before us, we re-called the matter for this issue to be argued. On 30 August 2005, upon hearing submissions from both counsels, it was clear that the Appellants in fact sought leave to appeal against sentence in their original Notice of Appeal. In Jim Kas v The State (1999) SC772, the Supreme Court by majority decision decided that leave was not required to appeal against sentence and went on to invalidate s.22 (d) of the Supreme Court Act which required leave. That decision does not apply to the present appeal because it was filed before that decision. There is no dispute that the application for leave in this appeal is still on foot. There is also no dispute that leave ought to be granted because the appeal raises important and arguable issues as to the trial judge’s exercise of sentencing discretion which has been argued before us. For this reason, we grant leave to appeal against sentence.
Facts
3. The brief facts are that on 2 December 1995, there was a confrontation amongst the village people at Pagalau Village. In that confrontation, one Patrick Reu was killed. The people suspected one Francis Reu killed him and decided to avenge Patrick’s death. A search was conducted by the village people to find Francis and kill him. The Appellants were amongst a group of nine (9) men who set out to search for Francis. They went to his house but did not find him there. Instead they found his mother there, the late Agnes Banovo. They asked her where Francis was. When she could not tell them, they abducted her and “brutally assaulted her by raping her and then ... chopped her so viciously that she died.” State witnesses identified the Appellants were amongst the group of nine (9) men who attacked and killed her.
4. The trial judge found the killing to be of the worst type of wilful murder and sentenced each appellant to death.
5. The Appellants’ counsel Mr. Kubak raised ten (10) points which he submits constitute identifiable errors on the part of the trial judge, such that the sentence should be quashed and a term of years imposed. The Respondent’s Counsel Mr. Soi contests each point and submits the trial judge did not err and that the appeal should be dismissed.
The Death penalty and the Constitution
6. Before we deal with the submissions, we should say at the outset that the constitutional validity of the death penalty for wilful murder prescribed by s.299 (2) of the Criminal Code Act (Ch. No. 262) (“the Criminal Code”) is not in issue. The death penalty for an offence in Papua New Guinea is authorized by s.35 (1)(a) (Right to life) of the Constitution which states:
“No person shall be deprived of his life intentionally except –
(a) in execution of a sentence of a court following his conviction of an offence for which the penalty of death is prescribed by law”.
Section 36(2) (Freedom from inhuman treatment) of the Constitution which is also relevant states:
“(1) No person shall be submitted to torture (whether physical or mental), or to treatment or punishment that is cruel or otherwise inhuman, or is inconsistent with respect for the inherent dignity of the human person.
“(2) The killing of a person in circumstances in which Section 35(1)(a) (right to life) does not, of itself, contravene Subsection (1), although the manner or the circumstances of the killing may contravene it.”
7. We are aware that there is on-going public debate in this country as in many other democratic countries on the constitutional validity of the death penalty. Other countries including Australia and the United Kingdom have repealed death penalty provisions in their penal statutes. PNG may wish to go down that path. That is a matter for the legislature to consider. As for the Courts, we are required by law to consider the death penalty following conviction for wilful murder or any other offence which carries the death penalty. In the circumstances, the Court cannot read its own moral value judgment in considering the exercise of its discretion in imposing the death (see dicta of Lord Bingham of Cornhill in Reyes v The Queen [2002] UKPC 11; [2002] 2 AC 235 at 246.
Is the death penalty for wilful murder mandatory?
8. The death penalty is prescribed for three (3) other offences in the Criminal Code. They are piracy (s.81), attempted piracy (s.82) and treason (s.37).
9. The wording of the death penalty provision in the three (3) offences vary. Section 299(2) says the offender “shall be liable to be sentenced to death”; s.37 says “Penalty: Death”, s.81 says “the offender is liable to punishment of death”, and s.82 says “Penalty: Death”. These provisions do not say if upon conviction, the death penalty is mandatory or automatic. The question is whether the use of the words “shall” in s.299(2) (or the word “is” in s.81 or the absence of such words in s.37 and s.82) means the death penalty is mandatory or automatic upon conviction for wilful murder.
In relation to wilful murder, s.299 (2) of the Criminal Code provides:
“(2) A person who commits wilful murder shall be liable to be sentenced to death.” (our emphasis).
The word “liable” means “liable on conviction on indictment”: s.1.
Section s. 19(1)(aa), of the Criminal Code is relevant and it provides:
“(1) In the construction of this Code, it is to be taken that, except when it is expressly otherwise provided—
(aa) a person liable to death may be sentenced to imprisonment for life or for any shorter term.” (our emphasis).
10. The use of the phrase “shall be liable” in s.299(2) and “except when it is expressly otherwise provided” in s.19(1) is the basis for Mr. Soi’s submission that upon conviction, the death penalty is automatic or mandatory. This is shown by the use of the word “shall” in s.299(2) and the absence of any reference to s.19 in s.299(2), as it is the case with s. 300 and s.302. Any of the discretionary penalties in s.19 cannot be substituted for the specific penalty in s. 299(2).
11. Mr. Kubak submits the death penalty is discretionary by virtue of s.19(1)(aa).
12. During further argument however, Mr. Soi did not press his submission and appeared to accept that the death penalty is discretionary.
13. In our view, when s.299(2) is read on its own and in conjunction with s. 19(1)(aa), it is clear that the death penalty is discretionary. Since the amendment to s.299(2) in 1991, judges of the National Court have taken that position.
14. The confusion apparent from Mr Soi’s submission is caused by the word “shall” in s.299(2) and the phrase “except when it is otherwise expressly provided” in s.19(1). The word “shall” (or “is” in s.81) originates from the old death penalty provision for wilful murder, whereby the death penalty was mandatory at one stage. This argument is not new. In Regina v Bulda Melin & Others [1973] PNGLR 278, the Crown Prosecutor raised the same argument but the full Court of the Supreme Court rejected the argument. As the same argument has resurfaced, we set out the historical development of the death penalty provision in this country in some detail, in order to show that the death penalty for wilful murder or any other offence for that matter is the maximum penalty and therefore discretionary.
15. The history goes back to the early colonial days when the Territories of Papua and New Guinea were administered separately and the Criminal Code (Queensland) was adopted for both territories. As the development of the criminal law in the two territories up to the time when PNG gained Independence in 1975 is similar, it is sufficient for our purposes to trace the history of the law as it developed in Papua.
16. Prior to 1907, s.305 the Criminal Code (Queensland, adopted) provided mandatory death sentence for wilful murder which stated that “any person who commits the crime of wilful murder is liable to the punishment of death.” (our emphasis).
17. The use of the term “is liable” appears to be determinative. The death penalty was automatic or mandatory upon conviction for wilful murder. The practice was that upon pronouncement of the death penalty, the sentence was carried out.
18. In 1907, the Criminal Code Amendment Ordinance of 1907 (Amendment No. 4 of 1907) was enacted. In this amendment, whilst the death penalty provision in s.305 still remained automatic or mandatory for wilful murder, s.2 gave the Court the discretion to merely record the death sentence instead of pronouncing it, if in its opinion “the offender should be recommended for the Royal Mercy”. Whether the death sentence was pronounced or merely recorded, it was automatic upon a conviction for wilful murder. This amendment generally applied to “any crime punishable with death” under the Criminal Code - a provision similar to the present discretion provision in s. 19 of the Criminal Code.
19. There is only one reported case of a “native” being executed by hanging, under this provision: see Sir Hubert Murray’s speech in 1924 reported in “Papua of Today” quoted by Prentice J in Regina v Peter Ivoro [1971-72] PNGLR 374.
20. In 1965, the Criminal Code Amendment Ordinance 1907 Ordinance was amended by Ordinance No. 72 of 1965. This amendment repealed the words “punishable with death” in s.2 of the 1907 amendment and replaced it with the words “punishable with death other than the crime of wilful Murder.” This meant that s.2 of the 1907 amendment only applied to crimes other than wilful murder. This amendment did not affect the penalty provision in s.305. Therefore, the death penalty for wilful murder still remained automatic or mandatory. Had it not been for another amendment in 1965, the death penalty for wilful murder would have remained automatic or mandatory.
21. By Ordinance No. 69 of 1965, which came into force at the same time as Amendment No. 72 of 1965, s.305 was amended. This amendment introduced the “extenuating circumstances” provision. It provided:
“(2) If a Court finds that a person committed the crime of wilful murder it shall thereupon consider whether there existed extenuating circumstances such that it would not be just to inflict the punishment of death, and if it finds that those circumstances existed the Court may impose a sentence of imprisonment for life or for such lesser term as the Court thinks just.
(3) Where the Court does not make a finding of extenuating circumstances within the meaning of the last preceding subsection, an appeal by the convicted person against the severity of sentence shall lie on the ground that such circumstances existed.
(4) The questions of whether extenuating circumstances exist and, if so, what weight is to be given to them are questions to be decided in the light of the facts of, and the circumstances of and surrounding, each individual case.”.
22. Even after this amendment, because the principal penalty provision in s.305 remained unchanged, this created some confusion as to whether the death penalty was still automatic/mandatory or subject to the existence of “extenuating circumstances” and therefore discretionary. The issue was settled by the full Court of the Supreme Court in Regina v Bulda Melin & Others [1973] PNGLR 278. The Court said the death penalty was discretionary. This is the import of the Court’s statement in the following passages which appear at pages 279 – 280:
“However, before so proceeding we should deal with a submission upon which counsel for the Secretary for Law placed a great deal of reliance. As he put it the Criminal Code provides that sentence of death is the “automatic and mandatory” penalty for wilful murder and his strong submission was that where an accused person is convicted of this crime the onus is upon him to take himself “out of the ambit of the death sentence.” This we think is to misconstrue the relevant provisions of the Code. True it is that the Code provides for sentence of death to be pronounced if guilt is found. But it also provides that if the Court finds that a person committed the crime of wilful murder it shall thereupon consider whether there existed extenuating circumstances such that it would not be just to inflict the punishment of death, and if it finds that those circumstances existed it may impose a sentence of imprisonment for life or such lesser term as the Court thinks just. Provision is also made that the questions of whether extenuating circumstances exist and if so what weight is to be given to them are questions to be decided in the light of the facts of and circumstances of and surrounding each individual case.”
23. The 1965 amendment did not define the concept “extenuating circumstances”. This also created some confusion. The question then was what was the meaning of the concept. This question was settled by the full Court of the Supreme Court in Peter Ivoro’s case. The majority of Frost A.C.J. and Kelly J gave a broad definition of the concept. Their Honours said at page 381:
“We note that the same term has been in use for some years in the criminal legislation of South Africa and that there it has been judicially defined as “A fact associated with the crime which serves, in the minds of reasonable men, to diminish, morally albeit not legally, the degree of the prisoner’s guilt”: see R. v. Biyana9(9) per Lansdown J.P. cited in Gardiner and Lansdown, South African Criminal Law and Procedure, vol. II, p.1566. The Shorter Oxford English Dictionary defines the term as “circumstances that tend to diminish culpability”. The legislature has not seen fit to define the term and we do not consider that this Court should essay this task. The concept, however, is certainly quite clear – the existence of some relevant circumstances which operate so as to diminish the culpability of the prisoner, not in the strict legal sense but broadly, regard being had not only to moral considerations but to all the 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. Further, as sub-s.(4) shows, there is no flexible standard for determining what are extenuating circumstances and each must be determined on its own facts.”
24. Their Honours then considered the medical evidence in that case and concluded that the appellant’s culpability had been diminished by his psychopathic state which affected his capacity to control his actions. His psychopathic state amounted to an extenuating circumstance, in which case “it would not be in accordance with the moral and ethical standards of this community to execute a man, however heinous his crime might be whose capacity to control his actions was affected.”
25. Prentice J (as he then was) who dissented, also gave a broad definition of “extenuating circumstances”.
His Honour said:
“All the judges of this Court have an unhappily extensive experience in trying to assess degrees of moral or social culpability of offenders and of trying to balance punishment against the requirements of pacification and social security, among varying communities in this land. All are repeatedly engaged in the application of the provisions of s.305(2). Some of the considerations which have weighed with them have been expressed in reported judgments: primitiveness, absence from village, ignorance of Government, upbringing, tribal custom demanding killing: Lakalyo’s13(13); lack of formal education, primitiveness, family situation, tribal setting: Dogwaingikata’s case14(14); immediate circumstances, state of sophistication, development of community, knowledge of Government, accessibility to and protection by Government, force of custom, ignorance, upbringing, obedience to tribe: R. v. Ketapi15(15); lack of sophistication, remoteness, lack of contact, commerce, ignorance of Government law, little Government influence: Harape’s case16(16); some doubt of degree of knowledge of illegality under administration law, youthfulness of most accused who were not from normal decision-making age group, tribal excitement, first contact outside Highlands, some doubt as to degree of ritual association: Re Hame17(17) my own decision.
“Usually the question has been dealt with informally without regard to much more than the facts of the trial record and brief evidence from administration and mission sources. The contention in favour of extenuating circumstances is not usually opposed by the Crown.
“We were informed by counsel that s.305(2) probably had its genesis in the recommendations of the Royal Commission into Capital Punishment (U.K. 1949) – that no other country has such a provision, except in South Africa. The evidence of Dr. Lansdown before the Commission stated that for purposes of the South African provision, under which the question remains a separate issue for the jury subject to a judicial direction, factors diminishing moral culpability were accepted as “extenuating circumstances”. I would be of the opinion that a restriction to the concept of “moral culpability” might be inapt and too restrictive for purposes of Papua New Guinea’s legislation and social circumstances.
“I consider that any attempt to define or restrict what has been granted as an unlimited judicial discretion to the judges—should be resisted. Each case must be decided upon its own special facts.”
26. It is clear from the above passage that the concept “extenuating circumstances” is a broad concept which includes not only relevant extenuating circumstances of the offence but also relevant mitigating factors as well as general relevant social and moral considerations.
27. The other question was whether the prosecution or the defence carried the onus of establishing or negating “extenuating circumstances”. This question was once again settled by the full Court of the Supreme Court in Bulda Melin & Another. The Court said at p.280:
“Provision is also made that the questions of whether extenuating circumstances exist and if so what weight is to be given to them are questions to be decided in the light of the facts of and circumstances surrounding each case. The duty is cast upon the Court of considering these circumstances and it is not to the point to talk of there being an onus upon one side or the other. The prosecution carries the onus of satisfying the tribunal beyond reasonable doubt of guilt of the offence charged. Except where specifically provided, in circumstances not relevant to this appeal, the Court knows of no other onus. After conviction the Court expects that any consideration affecting either the public good or the interest of the person convicted will be put to it by the prosecution. It expects, too, that counsel for the defence will put before it all proper considerations in mitigation of sentence. But the responsibility is the Court’s to decide whether extenuating circumstances exist and if they do what is the proper sentence to impose. In the fulfilment of its duty it may well direct further inquiries to be made and information to be furnished. We mention purely by way of example that the Court may and in appropriate cases should, seek information as to local custom or as to the mental state of the prisoner”.
28. At independence, the Criminal Code Act 1974 (Act No. 28 of 1974) for Papua New Guinea was enacted. The death penalty and “extenuating circumstances” provision for wilful murder were repealed. Section 304 defined the offence of wilful murder. Section 309(1) prescribed the penalty as “any person who commits the crime of wilful murder shall be sentenced to imprisonment for life”. (our emphasis).
29. This is the first time that the phrase “shall be” was introduced in the penalty provision for wilful murder. The question whether life imprisonment was mandatory for wilful murder did not arise. There is no reported case of this issue being considered.
30. In 1976, the Criminal Code (Amendment) Act 1976, (amendment No. 2 of 1976) was enacted. This amendment repealed s.309(1) and replaced it in such terms as “any person who commits the crime of wilful Murder shall be liable to imprisonment with hard labour for life.” (Our emphasis).
31. The only new word introduced by this amendment to the penalty provision was the word “liable”.
32. In the same amendment, s.19(1) was amended by adding a new para (a) as follows:
(1) In the construction of this Code, it is to be taken that, except when it is otherwise expressly provided –
- (a) a person liable to imprisonment for life or for any other period, may be sentenced to imprisonment for a shorter term.” (Our emphasis).
33. Notwithstanding the presence of the words “shall be” in s.309(1), and the phrase “except when it is otherwise expressly provided” in s.19(1), Courts understood the penalty of imprisonment for life to be the maximum penalty and therefore discretionary. After the 1976 amendment, it was never open to argument before the Courts that by virtue of the phrases “except when it is otherwise expressly provided” in s.19(1) and “shall be liable” in the principal penalty provision, life imprisonment was automatic and mandatory. The phrase “shall be liable” was then understood by the Courts to mean that upon conviction for wilful murder, the prisoner was simply “liable” to be sentenced to the maximum punishment of life imprisonment by virtue of s.19(1)(a) and it was discretionary. Further, given that the punishment of imprisonment for life is the maximum punishment, the phrase “except when it is otherwise expressedly provided” referred to other situations where a law expressly fixed a particular penalty such as a minimum penalty.
34. In 1991, the Criminal Code Amendment Act 1991, (Act No. 25 of 1991) was enacted. This amendment repealed what was by then s.299(2) ( wilful murder) and re-introduced the death penalty but without the “extenuating circumstances” provision. Section 299(2) now reads as “a person who commits wilful murder shall be liable to be sentenced to death.” (our emphasis).
35. It is noted from the above amendment that the words “shall be liable” as it appeared in the repealed provision was retained. The only amendment to this subsection was that the phrase “imprisoned for life” was repealed and replaced with “sentenced to death.”
36. In the same Amendment, s.19(1) was amended which now provides that “ a person liable to death may be sentenced to imprisonment for life or for any shorter term(aa)”
37. It is noted that the opening sentence of s.19(1) which contains the phrase “except when it is expressedly provided otherwise” was not altered. The amendment in s.19(1)(aa) in effect made the death penalty the maximum penalty and gave the Court the discretion to impose a lesser penalty.
38. In so far as the maximum penalty for wilful murder is concerned, the situation after the 1991 amendment to s.299(2) and s.19(1)(a), is no different to the situation under the repealed penalty provision. Just as life imprisonment was the maximum punishment for wilful murder and therefore discretionary, the death penalty too remained the maximum punishment for wilful murder by virtue of s.19(1)(aa) and therefore discretionary.
39. From the foregoing, the law as it stands today is quite clear - that the imposition of the death penalty since 1965 has always remained discretionary. The death penalty is the maximum penalty for wilful murder (or for that matter, the three (3) other crimes which carry the death penalty) and therefore discretionary. For these reasons, we reject Mr. Soi’s submissions on this point.
General principles of sentencing in wilful murder cases
40. The punishment for wilful murder must be considered in the same way punishment for other murder offences or any other criminal offence for that matter, is considered. The sentencing principles in homicide cases are settled. In the exercise of its sentencing discretion, the Court must take into account all relevant aggravating circumstances, all relevant extenuating circumstances and all relevant mitigating factors. The Court must then balance these factors and determine a punishment which fits the particular crime.
41. The consideration of aggravating factors is of course not new. They include pre-planning, degree of pre-mediation, weapons (if any) used, multiplicity of attack or injuries inflicted, any inhuman acts such as torture or cutting up the body performed after the killing, and so on.
42. As to extenuating circumstances, the concept is also not new. They relate to the circumstances of the commission of the offence itself – factors which reduce the seriousness of the crime. They are relevant factors for purpose of sentencing in all criminal offences. Examples of extenuating circumstances include de-facto provocation, duress or coercion, the degree of and extent the offender’s participation, the offender’s medical condition such as psychopathic personality, offender’s lack of sophistication or traditional customs, practices and beliefs which influence the offender to act in the way he did.
43. As for mitigating factors, relevant factors to be considered include the offender’s youth, good personal and family background, personal antecedents such as good character, education, employment and Christian background; first offender; guilty plea; early confession to police; remorse; co-operation with police; poor health and restitution or compensation.
44. There is however a distinction between extenuating circumstances and mitigating factors. Although both have the same desired effect of reducing the punishment, extenuating circumstances relate to the circumstances of the offence which reduces or diminishes the gravity of the offence whereas mitigating factors are usually unrelated to the circumstances of the offence. In murder offences, a distinction must be maintained between these two matters because the weight to be given to these two matters may vary. In murder offences, as with all serious crimes of violence, the gravity of the offence determined in the light of relevant aggravating factors may reduce the weight to be given to extenuating circumstances and mitigating factors and in some cases, rendered completely irrelevant: John Elipa Kalabus v The State [1988] PNGLR 193.
45. The death penalty being the maximum punishment for wilful murder is reserved for the worst case of its kind. The facts of each case will of course be different and the punishment for each case is to be determined on its own facts. In considering the appropriateness of the death penalty in a particular case, there are many relevant factors and considerations under the different heads mentioned above to be taken into account and it is not possible to list them all. Some relevant considerations are the position of the victim, the capacity of the offender, the reasons or motive for the crime, the modus operandi and the expression of genuine remorse after the killing.
46. Further, because the death penalty is the ultimate penalty under the Criminal Code, the Court should not restrict its consideration of relevant factors to the factual circumstances of the case and the offender’s personal circumstances. It should also consider other relevant matters such as community concerns over prevalence of violent crimes and the need for strong deterrent and punitive sentence, public or private morality concerns, customary beliefs and values of both the deceased and offender’s customary groups which influence the killing and the views of the victim’s relatives.
47. The position of the victim is in fact given special consideration by statute. Section 21A of the Criminal Code (as amended by Criminal Code (Sexual Offences and crimes Against Children Act 2002 (No. 27 of 2002), s.4) requires the Court to consider any victim impact statement that may have been prepared by the victim of crime. In a case where the victim is dead, ill or incapable of giving evidence, “victim” includes the relatives of the deceased: Section 21A provides:
“21A. Victim Impact Statements
(1) For the purposes of determining the sentence to be imposed on an offender, the court shall consider any statement that may have been prepared in accordance with Subsection (2) of a victim of the offence describing the harm done to, or loss suffered by, the victim arising from the commission of the offence.
(2) A statement referred to in Subsection (1) must be—
- (a) prepared in writing in the form and in accordance with the procedures established for that purpose; and
- (b) filed with the court.
(3) A statement of the victim of an offence prepared and filed in accordance with Subsection (2) does not prevent the court from considering any other evidence concerning any victim of the offence for the purpose of determining the sentence to be imposed on the offender.
(4) For the purposes of this section, “Victim”, in relation to any offence—
- (a) means the person to whom harm was done or who suffered physical or emotional loss as a result of the commission of the offence; and
- (b) where the person described in Paragraph (a) is dead, ill or otherwise incapable of making a statement referred to in Subsection (1), includes the spouse or any other relative of that person, anyone who has in law or fact the custody of that person or is responsible for the case (sic. The word “care” was intended) or support of that person or any dependent of that person.”
48. Section 21A applies to all offences in the Criminal Code including murder offences: e.g. see State v Blasius Bana (2004) N2863.
49. In determining the community’s concerns, the Court may have recourse to objective views as expressed in appropriate forums such as the legislature, the media and public forums and relevant literature on the subject. While public opinion has some relevance, of itself is not determinative. The appropriate weight to be given to public opinion (if any) is ultimately one for the Court to determine. It is the duty of the Court to apply the law as it considers appropriate without fear or favour.
50. The consideration of the death penalty for wilful murder is not new in this country. The principles applicable to the exercise of discretion are similar to those enunciated by the full Court of the Supreme Court in Peter Ivoro’s case and Bulda Melin’s case. Notwithstanding the absence of legislation mandating consideration of “extenuating circumstances”, the principles set out in those cases on “extenuating circumstances” are equally applicable and we adopt them.
Types of cases which warrant the death penalty.
51. The experience in other countries which once had or still retain the death penalty for capital offences show that it is desirable for the legislature to prescribe the types of wilful murder cases which warrant the death penalty. In PNG, the Parliament chose not to do this. Instead, the Parliament has left the matter to the Court’s discretion.
52. None of the cases decided prior to 1976 clearly prescribe the types of intentional killing cases in which the death penalty may be considered appropriate. It is difficult for the Court to prescribe the types of killing which warrant the death penalty with some degree of precision. Each case will depend on its own facts.
53. There are a number of National Court cases including the present case in which the death penalty has been imposed, all of which have been appealed. The appeals are pending hearing.
54. The only case before the Supreme Court in which the Court commented on the type of killing which warranted the death penalty is Tony Imunu Api v The State, Unreported Unnumbered Judgment of Supreme Court SCRA 15 of 2001 dated 29 August 2001 of Los, Sevua & Kandakasi JJ. A fourteen (14) year old school student had his skull crushed in different places and his body dumped in an isolated location. The deceased went missing from school for two days. The deceased’s body was located by police with assistance from the prisoner. The National Court sentenced him to life imprisonment. On appeal against severity, the Supreme Court said:
“We are of the opinion that this was a worst type of wilful murder. A 14 year old school student had his skull crushed in different places. He died in bizarre circumstances, and we think that this was an appropriate case warranting the death sentence. We allude to this because we cannot see any motive other than a blatant and complete disregard for the sanctity of a young life which was terminated prematurely. To describe this killing as bizarre or brutal would clearly be an understatement, in our view. We therefore hold the view that the prisoner should have been sentenced to death.”
55. In relation to the death penalty for crimes generally, many countries of the world are divided on the question of whether they should have the death penalty in their penal law for serious crimes. Out of a total of some 180 countries, at one stage as many as 121 countries had the death penalty for serious crimes. In the eighteenth (18th) century, there was a movement towards abolition of the death penalty. Today, some eighty-six (86) countries have abolished the death penalty whilst some seventy-five (75) countries still retain the death penalty. Amongst those countries which have abolished the death penalty include almost all European countries including England, Germany, Italy, Russia and Turkey; North American countries including Canada; many South American countries including Brazil, Costa Rica, Venezuela, Colombia and Argentina; some twenty (20) African countries including South Africa and countries of the Asia Pacific Region including Australia and New Zealand. In countries that still retain the death penalty, few countries once had mandatory death penalty for capital crimes but have repealed it and made it discretionary. Countries which retain the discretionary death penalty include the United States, India, Pakistan, Singapore, Malaya, Nigeria, Uganda, countries of the Caribbean and countries of the Asia-Pacific region including Fiji, American Samoa, Nauru, Tonga, Fiji and of course Papua New Guinea. In countries where the death penalty is discretionary, the death penalty is restricted to or reserved for the very worst case of its kind, or for the most exceptional cases, or “for the rarest of the rare” cases (for the situation in India, see Bachan Singh v The State of Punjab (1979) 3 SCC 727) or in cases where the killing is considered to be unthinkable, “unconscionable, pitiless and unnecessarily torturous”: Profitt v Florida 248 US 249 at 255.
56. Because the death penalty is qualitatively different from other penalties in that once a convicted person is put to death the punishment is irreversible, the Courts are very cautious when they consider the death penalty. For instance, even when a prisoner has exhausted his appeal rights, courts are even prepared to review executive decisions of boards or committees on mercy which refuse a prisoner’s request for pardon. Because human life is sacred, the emphasis is on ensuring that a man condemned to die should not be put to death unless all avenues for reviewing and correcting mistakes made in the sentencing process by the courts and executive bodies which decide on pardon are exhausted. For instance, in the Jamaican case of Lewis v Attorney General of Jamaica [2000] UKPC 35; [2001] 2 AC 50, the Appellant was sentenced to death for murder. After his appeal was dismissed by the Jamaican Court of Appeal, he sought a recommendation for pardon from the Jamaican Privy Council. The Council determined the request without giving him an opportunity to be heard and refused the request. He applied for judicial review of the decision by the English Privy Council. The English Privy Council held that he had a right to be heard which was denied by the Jamaican Privy Council. In granting the application, the Court said at p.76;
“On the face of it there are compelling reasons why a body which is required to consider a petition for mercy should be required to receive the representations of a man condemned to die and why he should have an opportunity in doing so to see and comment on the other material which is before that body. This is the last chance and in so far as it is possible to ensure that proper procedural standards are maintained that should be done. Material may be put before the body by persons palpably biased against the convicted man or which is demonstrably false or which is genuinely mistaken but capable of correction. Information may be available which by error of counsel or honest forgetfulness by the condemned man has not been brought out before. Similarly if it is said that the opinion of the Jamaican Privy Council is taken in an arbitrary or perverse way – on the throw of a dice or on the basis of the convicted man’s hairstyle – or is otherwise arrived at in an improper, unreasonable way, the court should prima facie be able to investigate”.
57. A study of relevant legislation and cases in a few countries which have legal systems similar to ours, in which the death penalty was applied or is being applied, give some guidance as to the type of wilful murder cases which attracts the death penalty.
58. In Australia, the death penalty was abolished in all States by the late 1960’s. There were a total of some 114 persons executed in Australia: see Kirby J, “The High Court and the death penalty: Looking back, looking forward, looking around” (2003) 77 ALJ 811. These were killings marked by special circumstances such as the killing of harmless persons in cold blood without any motive other than to kill, such as the killing of a policeman in cold blood: Tukiar v The King (1934) CLR 335; murder accompanied by sexual assault on a young girl: Ross v The King [1922] HCA 4; (1922) 30 CLR 246; murder of a Church Minister inside his Church after entering the Church for stealing: Cornelius v The King (1935) 155 CLR 235; double murder of two women: Green v The King (1938) 61 CLR 171; murder of hotel guest in hotel room by strangling: R v Lee [1950] HCA 25; (1950) 82 CLR 133; murder in the course of assaulting several other people whilst drunk: O’Leary v The King [1946] HCA 44; (1946) 73 CLR 566; and murder of a 9 year old girl: Stuart v The Queen (1959) CLR 1. Ronald Ryan was the last prisoner to be hanged in Australia. He was hanged at Pentridge Prison on 3 February 1967. A small-time criminal, he broke out of jail and in the process of escaping, shot dead a prison guard: R v Ryan and Walker [1966] VicRp 76; [1966] VR 553.
59. In England, the Murder (Abolition of Death Penalty) Act 1965 which abolished the death penalty for all offences except capital murder. It retained the death penalty for five (5) kinds of capital murder and these are set out by Bredmeyer J in Hure Hane v The State [1984] PNGLR 105 as follows:
60. In 1970, the death penalty in England was completely abolished.
61. In the United States, in response to the Supreme Court decision in Furman v Georgia[1972] USSC 170; , 408 US 238 which invalidated mandatory death penalty for capital murder, many States reviewed their death penalty statutes. The death penalty is still retained for capital murder in some thirty-seven (37) States whilst thirteen (13) States have abolished it. In the States which retain the death penalty, it is discretionary. State statutes prescribe the types of cases, by way of aggravating circumstances, in which the death penalty may be imposed. For instance, s.2929.04 of the Ohio Revised Code Ann (1975) provides the death penalty may be imposed upon proof beyond reasonable doubt of one or more of the following aggravating factors:
(1) The offence was the assassination of the president of the United States or person in line of succession to the presidency, or of the governor or lieutenant governor of this State, or the president-elect or vice president-elect of the United States, or of the governor-elect or lieutenant governor-elect of this State, or of a candidate for any of the foregoing offices. For purposes of this division, a person is a candidate if he has been nominated for election according to law, or if he has filed a petition or petitions according to law to have his name placed on the ballot in a primary or general election, or if he campaigns as a write-in candidate in a primary or general election.
(2) The offence was committed for hire.
(3) The offence was committed for the purpose of escaping detection, apprehension, trial, or punishment for another offence committed by the offender.
- (4) The offence was committed while the offender was a prisoner in a detention facility as defined in section 2921.04 of the Revised Code.
(5) The offender has previously been convicted of an offence of which the gist was the purposeful killing of or attempt to kill another, committed prior to the offence at bar, or the offence at bar was part of a course of conduct involving the purposeful killing of or attempt to kill two or more persons by the offender.
(6) The victim of the offence was a law enforcement officer whom the offender knew to be such, and either the victim was engaged in his duties at the time of the offence, or it was the offender’s specific purpose to kill a law enforcement officer.
(7) The offence was committed while the offender was committing, attempting to commit, or fleeing immediately after committing or attempting to commit kidnapping, rape, aggravated arson, aggravated robbery, or aggravated burglary.
62. State statutes also prescribe the mitigating factors that should be taken into account in deciding on the death penalty. The US Supreme Court has taken the view that the sentencing judge must consider all relevant mitigating factors and State statutes which restrict mitigating factors to only a few is unconstitutional. The rationale for this principle is set out in the majority decision in Sandra Lockett v Ohio, State [1978] USSC 154; 438 US 586. Ohio State legislation provided that once a defendant was found guilty of aggravated murder with at least one of the above seven aggravating factors present, the death penalty must be imposed unless after considering “the nature and circumstances of the offence and the history of the offence and the history, character and condition of the offender”, the sentencing judge determines that at least one of the following mitigating factors is established by the evidence:
“(1) The victim of the offence induced or facilitated it.
(2) It is unlikely that the offence would have been committed, but for the fact that the offender was under duress, coercion, or provocation.
(3) The offence was primarily the product of the offender’s psychosis or mental deficiency, though such condition is insufficient to establish defence of insanity.”
63. The Supreme Court concluded that this provision restricted the mitigating factors to only a few and therefore it was unconstitutional. The Court said because the death penalty is “qualitatively different” from any other sentences, it “calls for a greater degree of reliability when the death sentence is imposed.”
The majority continued at p.604 – 605:
“We are now faced with those questions and we conclude that the Eighth and Fourteenth Amendments (prohibition against cruel and unusual punishment) require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offence that the defendant proffers as a basis for a sentence less than death. .... “There is no perfect procedure for deciding in which cases governmental authority should be used to impose death. But a statute that prevents the sentencer in all capital cases from giving independent mitigating weight to aspects of the defendant’s character and record and to circumstances of the offence proffered in mitigation creates the risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty. When the choice is between life and death, that risk is unacceptable and incompatible with the commands of the Eighth and Fourteenth Amendments.”
64. In Profitt v Florida 428 US 249 at 255, the United States Supreme Court said the death penalty may be appropriate in cases where the killing is “consciousless, senseless, pitiless and unnecessarily tortuous”.
65. Returning to our own situation, the Supreme Court recently reviewed the sentencing tariff for murder offences including wilful murder in Manu Kovi v The State (2005) SC789. The Court observed that the worst case of wilful murder which falls under the fourth category may be marked by cases where there are special aggravating factors, there are no extenuating circumstances and mitigating factors or where there are extenuating circumstances and mitigating factors, they are rendered completely insignificant by the gravity of the offence.
66. It is difficult to lay down any universal principle of general application as to the kind of intentional killing which may warrant the death penalty. Each case will depend on its own facts. In general, considering that the death penalty is “qualitatively different” from any other penalties for wilful murder and that in our Criminal Code the death penalty is limited to only three crimes considered to be the most serious crimes, we consider the death penalty may be considered appropriate in a wilful murder case which is pre-meditated, vicious and brutal killing in cold blood of an innocent and defenceless or harmless person, or a person in authority or position of responsibility in the community, with complete and blatant disregard for the sanctity of human life and for which there is no motive or lawful motive for taking away the life of another person. The killing is unthinkable, “consciousless”, “senseless”, “pitiless” and “unnecessarily torturous”: see Profitt v Florida 428 US 249 at 255. The crime is committed “by persistent, violent, wicked-tempered man with the utmost ferocity and with cunning”. Regina v Peter Ivoro, per Prentice J, at p.388-389. The offender’s culpability is so grave that the offender deserves execution. Whatever the extenuating and mitigating circumstances may be, the degree of moral and criminal culpability and the degree of cruelty exhibited by the offender is so grave and reprehensible that the offender is undeserving of a chance to live his own life, and instead, it is only just and fair that the prisoner should pay for the crime with his own life. His banishment from the community is the only just and appropriate punishment for his crime in all the circumstances.
67. In our view, given the English experience and in particular the United States experience, the Parliament may wish to consider prescribing the types of aggravating circumstances in wilful murder cases which warrant the death penalty. It may also consider prescribing mitigating circumstances or perhaps re-introducing the “extenuating circumstances” provision. In the absence of such legislation, we would suggest the death penalty may be considered appropriate in the following types of cases:-
The present case
68. Mr. Kubak raised ten (10) points in which he submits the trial judge erred. These are:
69. Mr. Kubak submits there exists sufficient extenuating circumstances and mitigating factors which warranted a lesser punishment. He submits that the trial judge erred in finding that there were no mitigating factors when in fact there were relevant mitigating factors such as the Appellant’s previous good character, their first offender status, their Christian background, stable family backgrounds and their rural village upbringing. He referred to the evidence before the trial judge and pointed out where the trial judge failed to make specific findings on each appellants’ participation in the offence and to impose disparate sentences commensurate with their involvement. He relied on the US Supreme Court decision in Sandra Lockett v The State of Ohio 438 US 587 which recognizes the principle of individualized sentencing of offenders in capital cases.
70. Mr Soi submits the appellants bear the onus of establishing identifiable errors in the exercise of the trial judge’s sentencing discretion. The appellants have failed to do this. The appellants were clearly identified as being actively involved with a group of men in attacking the deceased. They acted in concert and inflicted multiple injuries on the victim from which she died. Their actions are covered by s.7 & s.8 of the Criminal Code and they are equally liable to receive the same punishment.
71. Mr Soi submits this case falls under the worst category of wilful murder cases. He referred us to Tony Imuno Api’s case and submits the present case is similar to that case in that an innocent and defenceless woman was raped and brutally killed. As they cut her she pleaded with them not to torture her but end her life quickly. She was repeatedly cut with bush-knives and put to death for no wrong. She died a violent death. These Appellants are sophisticated men, they have no mental incapacity and they were not provoked by the victim. They showed no remorse and they failed to co-operate with police. This is a pay-back killing which is now outlawed. They were found guilty and despite that, they maintained their innocence.
72. Mr Soi submits this Court must uphold the will of the people expressed through Parliament that the Court should impose the death penalty in an appropriate case and not shrink from that duty. Parliament reintroduced the death penalty in 1991 due to escalating law and order problems in the country evidenced by rapes, murders and robberies. Even today, crime in PNG has reached unacceptable level. This Court should not ignore the crime problem in PNG “whilst trying to consider another penalty that is not crushing on the accused person at the expense of the people of Papua New Guinea”. The appeal must therefore be dismissed and the sentence confirmed.
73. The principles on appeal against sentence are settled. An appellant must show an error in the exercise of the sentencing discretion. The error may be identifiable or although no error is identifiable, the “sentence is out of reasonable proportion to the circumstances of the crime ...(that) this Court will infer that some error must have occurred in the exercise of sentencing discretion”: William Norris v The State [1979] PNGLR 605.
74. Applying these principles to the present case, we are of the view that the trial judge erred in the exercise of his sentencing discretion in the following areas:-
“Parliament has made the laws and I as a judge have sworn on the Constitution to uphold the laws as made by the Parliament and I do not have the luxury to side-step or avoid the law. Of course the Criminal Code still has a discretion to give a lesser penalty than the maximum in extenuating circumstances and I must follow what the Supreme Court said in the case of Public Prosecutor v Keru & Moro [1985] PNGLR 78–
a person who commits pay-back murder in accordance with his custom is entitled to no reduction of sentence because of that custom...
I am bound by the Criminal Code, the will of the Parliament and how the Supreme Court has dealt with wilful murder and emphasized the maximum punishment for such revenge or pay-back of an innocent victim. There are no mitigating circumstances here. I must therefore order the death penalty prescribed by Section 299 of the Criminal Code, the death penalty.”
The trial judge’s comments contain strong suggestions that the death sentence is mandatory in given circumstances. This to us seems to echo some voice of the past when the death penalty for wilful murder was automatic or mandatory. The trial judge failed to fully understand that the death penalty today is truly discretionary.
Also the sentencing judge’s own policy position on the death penalty in connection with his oath of office to serve as a judge is an irrelevant consideration in the exercise of his sentencing discretion.
75. These errors are fundamental to the core issue of whether the death penalty was appropriate in the circumstances of this case. What was required of the trial judge was a full and proper inquiry and careful consideration of all relevant factors on sentence and a proper exercise of discretion. This task was an onerous one. We have read the notes of proceedings kept by the trial judge and we are satisfied that the trial judge failed to discharge this task properly.
76. We accept that this was a serious killing of an innocent woman who had done no wrong to the appellants. There was no evidence that she knew about the suspected killing of Francis Reu by her son and that she had played a part in supporting her son in the offence. We agree with the trial judge that this killing “must be seen as the most horrendous crime, there are no words to really express the disgust and horror of such an abduction and vicious murder of what was an innocent woman”. This conclusion was reached on the oral evidence which showed that she was “brutally assaulted by raping her and then ... chopped her so viciously that she died”. The medical report also detailed “the most horrendous and grossest injuries”. This kind of killing must not be tolerated in civil society and an appropriate punitive and deterrent sentence is warranted. Any cultural influences which promotes or encourages this kind of human behaviour in Papua New Guinea should be strongly condemned.
77. The seriousness of the killing however must be balanced against other relevant factors in arriving at an appropriate punishment. Other factors which aggravate, extenuate or mitigate the crime are also relevant. All relevant factors must be considered. We have set out above relevant mitigating factors and extenuating circumstances which were not considered or considered and which were given little or no weight.
78. One source of relevant information on mitigation was the Antecedent Reports prepared by the police investigating officer. The Antecedent Reports are incomplete in that the only information in them is each appellant’s name and village background. Another source of information was the records of interview prepared by police. In their respective records of interview, each appellant gave details about their age, place of origin, their marital status and church background. In his judgment on sentence, the trial judge did not refer to any submissions on mitigation nor any of the Appellant’s personal background as set out in their respective records of interview.
79. The records show the trial judge did not keep notes on the tendering of the Antecedent Reports and submissions of counsel on sentence. There is no doubt defence counsel would have made submissions in mitigation on relevant factors. The records also do not show if the prosecutor in his submission sought the death penalty. In our view, this is an ideal case where this Court should request a report from the trial judge on these matters under Order 14 Division 11 of the Supreme Court Rules. However it is pointless to request such report because the trial judge has since retired. Therefore we can only go by the record which is before us: see Pake Kik v The State (1996) SC511, Mark Nainas v The State [1998] PNGLR 208.
80. It is open to this Court to illicit from the record of proceedings, however unsatisfactory, the relevant factors and considerations on sentence and to then determine their weight after which the Court can then exercise its own discretion on sentence. In so far as the appropriateness of the death penalty is concerned in the circumstances of the present case, we are of the view that we are in no better position than the trial judge to determine and exercise that discretion. We say this because we simply do not have on record evidence or information on all the relevant factors and considerations which are necessary to be considered when deciding whether the death penalty is appropriate in this case.
81. On that note, it is timely to remind both counsel for the defence as well as the prosecution who appear in wilful murder cases, that when the question arises as to the appropriateness of the death penalty in a particular death penalty case, that they must represent their clients diligently in preparing and presenting all relevant matters which will assist the sentencing judge to determine whether the death penalty is appropriate in that case. The duty is then on the sentencing judge to carefully consider those matters and if the judge feels certain relevant matters have been ignored by counsel, the judge should require counsel to provide the relevant material. The onus placed on both counsel and the Court is succinctly stated by the Supreme Court in Regina v Bulda Melin and Others, supra, in the passage we have already quoted and we would adopt it.
82. In the present case, we have a situation where the trial judge committed grave errors in the exercise of his sentencing discretion in imposing the death penalty on each offender. The trial judge also, with respect, failed to properly discharge his sentencing task and thereby erred in the exercise of his sentencing discretion. In the circumstances, we are of the view that the exercise of sentencing discretion was flawed and the death penalty which was arrived at through that flawed sentencing process cannot be sustained in law.
83. For these reasons, we are of the view that the death penalty should be quashed. The question is whether the matter should be remitted to the trial judge to re-consider penalty. If the matter is remitted, the same trial judge would be seized of the matter. Since the sentence was pronounced, the trial judge has since retired. Also some eight (8) years have lapsed since the sentence was imposed and circumstances would have changed. For these reasons, we do not think it is appropriate to remit the matter for a re-hearing on penalty.
84. This was a bad revenge killing of an innocent and harmless woman who had done no wrong. She was tortured and made to die a slow and painful death. These factors clearly call for stern punishment. The weight to be attached to any extenuating circumstances or mitigating factors is significantly reduced by the gravity of the offence. There is no question that these Appellants were involved with the group that attacked the deceased with the common intention of killing her. There is no evidence to differentiate the role played by each appellant in the killing. We would impose the same sentence on each Appellant. We consider that the seriousness of the killing in the circumstances warrants a sentence of imprisonment for life.
Orders
The formal orders of this Court are:
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Norbert Kubak & Company : Lawyers for the Appellant
Public Prosecutor : Lawyer for the Respondent
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