Thomas v State [2007] PGSC 26; SC867 (28 August 2007)

SC867

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCR 08 OF 2006

BETWEEN:

IRAI THOMAS
Applicant

AND

THE STATE
Respondent

Mt. Hagen: Kandakasi, Lenalia and David, JJ.
2007:26 February
: 28 August

APPEALS - PRACTICE & PROCEDURE – Power of the Supreme Court on appeal – Power to increase sentences – Sentence imposed by trial judge inordinately low - National Court sentence quashed and substituted – Section 23 (4) Supreme Court Act (Chap. 37).

CRIMINAL LAW - PRACTICE & PROCEDURE – Claims of sorcery- Mitigating factor – Ready claim of and prevalence of commission serious offences such as wilful murder – Need for and revisit of principles - Sorcery is not a fact but only a believe – Danger that offenders claim belief in sorcery to avoid full consequences of their offence - Acting on believe of sorcery repugnant to general principles of humanity and may be Unconstitutional – Inappropriate to readily treat a claim of belief in sorcery as a mitigating factor – Only in cases where the offenders acted on the spare of the moment without preplanning and execution may get their cases mitigated – Section 19 Sorcery Act .

CRIMINAL LAW – Appeal against sentence – Wilful murder – Leader and part of a group alleging deceased cause of appellant’s fathers death - Claim of believe in sorcery for committing the offence – Deceased kicked punched and eventually struck hard on forehead causing split in skull and brain damage and instant death – Appellant acting against people trying to stop him – First time offender – Guilty plea – Sentencing trend – Deterrence against claims of sorcery and offence required – Sentence of 18 years imposed by National Court too low – Sentence increased to 22 years imprisonment in hard labour.

Cases Cited:

Seki Wanosa & 2 Ors. v. The Queen [1971-72] PNGLR 90.
Acting Public Solicitor v. Uname Aumane & 3 Ors. [1980] PNGLR 510.
Avia Aihi v. The State [1981] PNGLR 81.
Agoara Kelo & Anor. v. The State (1981) SC198.
Danny Sunu & Ors v. The State [1984] PNGLR 305.
Public Prosecutor v. Apava Keru and Aia Moroi [1985] PNGLR 78.
Kwayawako & 5 Os. v. The State [1990] PNGLR 6.
Lawrence Hindemba v. The State, (27/10/98) SC593.
The State v. Sambura (2002) N2219.
The State v. Boat Yokum & Ors. (04/12/02) N2337.
The State v. Francis Kuta Amet & Ors, CR1418 of 2002 & CR688 of 2003, unreported and unnumbered decision, (2004).
Sakarowa Koe v. The State (01/04/04) SC739.
The State v. Urari Siviri (30/08/04) N2747.
John Baipu v. The State (2005) SC796
Manu Kovi v. The State (2005) SC789.
James Pangnan and Patrick Ponat v. The State, SCRA 39 & 54 OF 2004, (2005).
The State v. Maraka Jackson, CR1433 of 2004, unreported and unnumbered, (2006).

Counsels

Applicant in Person.
Mr. R. Auka, for the Respondent.

28 February, 2007

1. BY THE COURT: You sought a review of a decision of the National Court sitting in Kundiawa on 26 August 2005. You want this Court to reduce a sentence of 18 years imposed against you on a wilful murder conviction. We heard your review and decided against you as we found no merit in your application. At the same time, we ruled that the sentence you received was too low and decided to increase your sentence to 22 years less your pre-trial custody and the time you already served under the sentence imposed by the National Court. At the time of handing down our decision, we promised to provide a written judgment with the full reasons for our decision. This is now the promised written judgment.

2. In your review application form, you set out your grounds for seeking the review of the sentence as follows:

1.	EXCESSIVE SENTENCE. 17 YEARS
2.	IT’S A GROUP MURDER BUT I WAS SENTENCE ONE SIDE, ITS LEGAL OR ILLEGAL YET TO BE JUSTIFIED.
3.	COURT DID NOT CONSIDER MY GROUNDS BEFORE HANDING DOWN DECISION."

3. Standing alone, these grounds of your application do not make any sense. However, when we read them together as one, you seem to be claiming that the sentence of 17 years imposed against you by the National Court is excessive because you were part of a group that committed the offence and that the National Court did not consider your side of the story or matters operating in your favour.

4. As for your appeal against sentence, you claimed that, the learned trial Judge was wrong in imposing the sentence of 17 years against you. You did not expressly say it, but, we note that, you impliedly claim that, the sentence was excessive.

5. You lodged your appeal six months out of time. The Supreme Court has therefore registered it as a review under s. 155(2)(b) of the Constitution. That means, this Court must decide whether or not to allow you to proceed to a review of the sentence you complain of. It is now settled law[1] that, the Court can allow you to proceed with your application only if we are satisfied that:

(a) It is in the interest of justice for us to grant you leave;

(b) There are cogent and convincing reasons and exceptional circumstances warranting a grant of leave; and

(c) There are clear legal grounds meriting a review of the decision, the subject of your application.

6. Of these requirements, the second and third requirements are important, because, they would lead to a determination of the first requirement. The reasons for the delay in lodging your appeal within the time prescribed by law and the merits of the grounds for your application are relevant in order to determine whether there are cogent and convincing reasons and exceptional circumstances.

7. We deal first with your reasons for not lodging your appeal within time. The decision of the National Court was delivered on 26 August 2005. You claim that, you immediately filled in a notice of appeal and arranged for it to be lodged with the Supreme Court registry. You go onto claim that, that notice of appeal was lost and you filled in a new one on 26 February 2006. That was successfully lodged with the Supreme Court registry which acknowledged its receipt on 20 March 2006. You did not file any affidavit and did not provide us with any evidence that confirms your claims. You have not provided this court with a copy of your original notice of appeal. Also, you did not provide us with the details of the arrangements you made to lodge your original appeal documents. In the circumstances, we find that you have not provided us with good reason or explanation for your failure to lodge your appeal within time and for us to grant you leave to proceed to a review of your sentence.

8. This leads us to turn to the issue of whether there are clear legal grounds meriting a review of the decision, the subject of your application. This issue can be determined by having regard to the relevant facts of the case, the reasons for the learned trial judge’s decision and the arguments you are advancing against them. We will now give consideration to each of these aspects, starting with a statement of the relevant facts.

9. Briefly, the facts commence with you and your brothers going to the house of the deceased, an elderly old woman on 20 November 2004. When you got to her house, you asked her to go to a gathering in the middle of the village. At that gathering, there was a discussion about who was responsible for causing the death of your father, which death occurred a few days earlier. During the discussion, another person accused the deceased of causing your father’s death by sorcery. You and two of your brothers kicked and punched the deceased. You got a rope and tried to strangle the deceased but were stopped by others. Instead of stopping at that, you went and got yourself armed with a bush knife and struck the deceased with it on her head. The deceased skull split and her brain was damaged resulting in her instant death.

10. In your allocutus before the National Court you said, the villagers forced you and told you that the deceased killed your father by sorcery. Also you informed the Court that, you were moved by the death of your father which was a big loss to you. Further, you informed the Court that, your mother was very old and that you had no siblings. Your lawyer added by submitting that, you were a first time offender and that you pleaded guilty to the charge. Furthermore, your lawyer submitted that, you were then a single; 19 years old young man educated up to grade 3 education, from Dramo village Gumini, Simbu Province. Your lawyer went on to submit that, you were still mourning the death of your father when confronted with the news of sorcery by the deceased and you committed the offence in the way you did and he urged the Court to take into account the fact that you committed the offence on your belief in sorcery by the deceased. Finally, your lawyer submitted with the agreement of the State that, this was not a worse case of wilful murder.

11. The learned trail Judge gave careful consideration to the relevant facts, what you said in your allocutus and your lawyer’s submissions on sentence. His Honour also gave consideration to the obiter dictum sentencing guidelines provided by the decision of the Supreme Court in Manu Kovi v. The State.[2] Further, the learned trial judge considered the decision of the Supreme Court in John Baipu v. The State 2005 SC796 . Furthermore, the learned trial judge noted that the murder of sorcery suspects was very common in the Simbu Province. Then after carefully considering the factors for and against you, His Honour arrived at his decision to impose the sentence of 18 years in hard labour against you.

12. The decision in John Baipu’s case reviewed the recent sentencing trends and tariffs in sorcery related killings starting with The State v. Sambura[3] to The State v. Francis Kuta Amet & Ors.[4] A more recent case representing the sentencing trend in sorcery related killings is the decision in The State v. Maraka Jackson.[5] All of these cases demonstrate an increase in the kind of sentence imposed in sorcery related killing cases. Most of the sentences have been around 20 years. The exception to that are the decision in the Francis Kuta Amet & Ors case, which saw a sentence of 15 and 16 years on guilty pleas to a charge of wilful murder and the decisions in the John Baipu and Maraka Jackson cases, where the court imposed a sentence of 25 years and 24 years respectively. In the John Baipu case, the National Court imposed a sentence of life imprisonment which the Supreme Court on appeal had it reduced to 25 years.

13. It was long held by the Supreme Court in Agoara Kelo & Anor. v. The State[6] in 1981 that:

"The belief in sorcery taken together with other factors in their favour only operates to reduce a life sentence to a term of years. It does not and should not operate to render a sentence equivalent to that usually imposed by judges here for murder, manslaughter, dangerous driving causing death, infanticide."

14. Before the Supreme Court in that case, was a case of wilful murder prior to the change in the law, which saw an increase in the penalty to death from one of life imprisonment.

15. What the Supreme Court said in the above case, effectively in our view, reaffirmed what the Court already said in its earlier decision in the case of Acting Public Solicitor v. Uname Aumane & 3 Ors.[7] There the Supreme Court per Kidu CJ speaking about the custom of believing and acting on a belief of sorcery said:

"However, it [the belief in sorcery] should not override the clear dictates of the Parliament that those who commit the crime of wilful murder attract to themselves the possible penalty of imprisonment with hard labour for life. If Parliament represents the people of Papua New Guinea and the laws it makes reflect the attitude of the people, then courts must take heed.

His Honour, with the greatest respect, over-emphasized the belief in sorcery. In fact he went so far as to state that the deceased had killed about twenty people by sorcery. There was no such evidence. This was only what was believed by the respondents. While I agree that the respondents believed that "... in the present case some twenty fell at the deceased's hands ..." there was no proof that this in fact happened.

His Honour used the Sorcery Act 1971 to justify the killing. With respect, that was an incorrect approach. This Act makes provisions for sorcery offences. This deceased was entitled to be charged under that Act. Whether she was guilty or not she was entitled to the protection of the law. The belief in sorcery was rightly taken into account in sentence but it seems to have outweighed other considerations."

16. Agreeing with the Kidu CJ and the other members of the Court, Kearney DCJ said:

"I respectfully agree with their views and add only this. The glue which holds together diverse peoples in one society has, as an essential element, respect for the sanctity of human life. The law must strengthen that element, inculcate that respect, as best it can. In practical terms, this is reflected in a sentencing policy for crimes of wilful murder which will best enhance that respect."

17. As can be seen, these decisions stand for the proposition that, acting on a belief in sorcery can only operate as a factor in mitigation of the offenders sentence, just like all other mitigating factors that the Courts often take into account before passing sentence on offenders, provided the offender establishes the basis for holding and acting on such a belief. The mitigation only reduces the sentence from the prescribed maximum of death penalty (life then) to life imprisonment or a determinate term of years where such sentences are warranted. So a believe in sorcery cannot render the sentence any less or equivalent to the kind of sentences given in murder, manslaughter and other offences in which death is the result of the offence. Because what is of paramount importance to the Court is the need to uphold the laws passed by Parliament which reflect the wishes of the people for the protection and upholding the sanctity of human life. Properly seen in that, it is obvious that belief in sorcery is not a special or significant mitigating factor. But it is a factor that can reduce the sentence to something lower than the prescribed maximum but not less than the highest sentence given for murder, manslaughter or other cases in which death is the result of the offence.

18. The Courts have therefore rightly expressed the view as did Injia J. (as he then was), in the case of The State v. Boat Yokum & Ors.,[8] that:

"A strong punitive and deterrent sentence is required to punish the offenders and to send a clear message to their own community; who apparently seem to think that it is alright to kill a sorcerer or a reputed sorcerer for that matter; that it is wrong to kill another person including a sorcerer, reputed or not, and that they will be punished by the Courts, if they do."

19. Batari J, endorsed the foregoing views of Injia J, in his judgment in The State v. Urari Siviri[9] and imposed a sentence of 18 years. In so doing his Honour noted that, there has been an increase in sorcery related killings even by people who were subjected to much Christian and modern influences. Similarly, Kandakasi J, endorsed those views and after observing that the sentence Injia J. gave was low, imposed a sentence of 24 years in the case of The State v. Maraka Jackson.[10]

20. Notwithstanding the clear importance of the decisions of the Supreme Court and the importance and validity of what the various National Court decisions, have held, some decisions of the Supreme Court have expressed the view that a belief in sorcery is a special or significant mitigation factor resulting in substantial reduction in sentences. In our limited research, we found that the pre-independence decision of the Full Court in Seki Wanosa & 2 Ors. v. The Queen,[11] first expressed that view in these terms in the words of Minogue CJ:

I am fully aware of the incidence of homicide particularly in the Highlands, and of the necessity for stern deterrent measures, but I feel that killing brought about by a belief in sorcery will for some time to come need special and individual treatment.

21. In that case, the Court was dealing with a sorcery related wilful murder case. At that time, the maximum prescribed penalty was life imprisonment and not death as is the case now. Also at that time, the level of education, other modern factors such as Christianity that could influence a move away from the belief and or allow the court system to deal with alleged sorcerers under the Sorcery Act, may not have covered most parts of the country. So the views expressed in that case can be understood in that context.

22. The post independence decision of the Supreme Court in Kwayawako & 5 Os. v. The State[12] effectively picked up on that idea in these terms:

"It is true that over the years the National Court and the Supreme Court have treated killings of reputed sorcerers as a special class of homicides for the purposes of sentencing."

23 With respect however, the Court did not refer to any particular authority, let alone the decision of the Full Court in the above case, supporting the proposition it advanced. Our research has taken us to the case of Public Prosecutor v. Apava Keru and Aia Moroi[13]where the court said:

"If the killing had been of a reputed sorcerer then a sentence of six years would have been appropriate on the leading sentencing authority of Acting Public Prosecutor v Uname Aumane [1980] PNGLR 510. That case puts the wilful murder of a reputed sorcerer in a special category of its own - meriting a sentence of around six years. All other kinds of wilful murder normally attract a sentence of years or more up to a maximum of life imprisonment."

24. With respect however, the above decision appears to have overlooked the decision in Agoara Kelo & Anor, the relevant parts of which we already noted. Also we note with respect that the decision in Apava Keru and Aia Moroi appears to have misunderstood the effect of the decision in Uname Aumane & 3 Ors case, the pertinent parts of which we have already noted above. The decision in the latter case, did not expressly say that wilful murderers killing on a belief in sorcery should be given special treatment. Instead, the Court said the belief in sorcery "should not override the clear dictates of ...Parliament." Parliament represents the wishes of the people of Papua New Guinea and as such, the laws Parliament makes reflect the attitudes of the people. So for people "who commit the crime of wilful murder attract themselves the possible penalty of imprisonment with hard labour for life."

25. Further, the decision in Uname Aumane & 3 Ors case points out that, a belief in sorcery need not be overemphasized when considering an appropriate sentence. In so doing, the Court acknowledged that, sorcery is only a belief and not a fact and that the person accused or suspected of engaging in sorcery has a right to be dealt with according to law under the Sorcery Act and is thus entitled to a full protection of the law. That of course, accords well with the sanctity of human life and the need for its protection.

26. The decision of the Supreme Court in the John Baipu case, is the latest Supreme Court decision on sentence in relation to sorcery related killing cases. The decision noted the law and practice as follows:

"A believe in the power of sorcery is a mitigating factor on sentence where that belief was submitted as being the cause of the offence.... Where the belief is raised in submissions and confirmed by the record of interview the court is duty bound to allow the defendant to properly present it to the court to be taken into account in the defendant’s favor....It has been the practice of the Court to take the version of events most favorable to the accused, in the absence of evidence from the State to the contrary....provided it is not utterly unreal. But the "most favorable version" doctrine cannot be applied if the prisoner on his plea and on his allocutus makes no challenge to any of the facts sworn to in the evidence....For the purposes of applying this principle the allocutus includes statements made by the defence counsel from the bar table."

27. The Court then said:

"However we are of the view that all the aspects of social change in Papua New Guinea which have permeated to even remote parts of the country means that it can no longer be assumed that a belief in sorcery will be treated as a significant mitigating factor in every case. The degree to which a belief in sorcery will mitigate a sentence will depend upon the facts of each case. Actions taken on the spur of the moment motivated by fear and self preservation and which have parallels to but perhaps do not amount to provocation as contemplated by s16 of the Sorcery Act are likely to increase the degree of mitigation. But such factors as educational level of the defendant, a place of residence with the availability of village councillors, village courts, police, churches, other educational influences such as radio and television, and other aspects of good order and government which give the defendant alternate remedies to self help and the knowledge that it is unacceptable, may be factors which reduces the mitigating effect of the belief in sorcery. Not because the belief in the effectiveness of the sorcery may diminished, but because the belief that taking the law into the defendant’s own hands as the only effective means of dealing with the problem should and ought to be diminished. And the more these factors of social change are present in a defendant’s society the less a mitigating factor belief in sorcery should be. The result being that sentences for serious offences involving a belief in sorcery will tend over time to come closer to sentences for the same offence where no belief in sorcery is a factor."

28. That decision, correctly notes the level of change and development the country has gone through since the earlier Supreme Court decisions. The present level of education, development and change is not the same as it was in the 1970s, 1980s or even 1990s. Accordingly, we endorsed the views expressed (later part of our quote) in the John Baipu case. However, we do so with one correction, that the correct position is that, belief in sorcery has not always been a special mitigating factor. Instead it has been and should correctly be accepted as mitigating factor only, just like all other mitigating factors. The reasons for this were clear explained in the Agoara Kelo & Anor and Uname Aumane & 3 Ors cases.

29. We have also had regard to what Kandakasi J., said recently in his decision in the Maraka Jackson case. There his Honour said:

"The only thing that makes sorcery related killings special is the believe in sorcery. However, sorcery is neither a fact that can easily and readily be proven or refuted. It is a matter of what one wants to believe and not. The Sorcery Act provides for the way in which people suspected of sorcery should be dealt with. It does not say that those who kill on believe of sorcery should be given special treatment. To do so would be to give sanction and to license some of the most vicious, brutal, merciless and public execution type killings that have thus far occurred. Sorcery is a belief based on custom. The Constitution in Sch. 2.1 (2) dictates that we should retain only those customs that a not inconsistent with a written law and are not repugnant to the general principles of humanity. Murder, intentional or otherwise is an offence proscribe by our Criminal Code in particular ss. 299 (wilful murder), 300 (murder) and 302 (manslaughter), which is a written law. This follows on from the preservation of the right to life under s. 37 of the Constitution. Killings in whatever form or manner, except as may be provided for by law, is a prohibited act world wide because, it is against the general principles of humanity. Some countries, as in our case, do have provisions in their criminal codes for the death penalty in the worse case of wilful murders. Even these kinds of legislation are now the subject of public and international criticism and debate as to the justification for their retention.

24. No positive law be it the Constitution or the Criminal Code, says that people who kill others because they believe that the deceased killed one of their relatives through sorcery should be given special treatment or that their sentence should be far less than those received by other murderers. Indeed, the Sorcery Act expressly provides that only the moral blameworthiness of an offender acting on his or her belief in sorcery, may be diminished and warns against using sorcery as an excuse to do harm against others. Thus, I am of the view that, the courts need to approach sentence in sorcery related cases as any other case of killing and consider the believe only as a factor in mitigation and give the same treatment as they give to other factors in mitigation such as a guilty plea, and the Courts should be careful not to drastically reduce sentences given the dangers of encouraging people intend on killing others and get away by claiming a believe in sorcery."

30. We agree with His Honours views and endorse them. We observe in support of His Honour’s views that none of the earlier decisions of the Supreme Court gave any consideration to the constitutional foundation for the retention of the belief in sorcery, especially in relation to the use of that belief to avoid the full consequence of the law for the criminal conduct of serious offenders, namely wilful murderers. In view of what His Honour brings out as well as what was said in Agoara Kelo & Anor and Uname Aumane & 3 Ors cases, we endorse His Honour’s suggestion that, plea of acting on a belief in sorcery should only entitle an offender to a factor in mitigation just like any other mitigating factors and not as a special mitigating factor, if the offender is able to establish the basis for his belief. Whether the plea should be accepted or rejected would be dependant on whether the offender is able to establish the basis for his or her belief. In that regard, the decision in John Baipu’s case would be relevant and on point.

31. As we noted earlier, the learned trial Judge took into account what you said in your allocutus, submissions on your behalf by your lawyer, the relevant sentencing trend and tariffs in this kind of cases, including the decision of the Supreme Court in Manu Kovi v. The State[14] and decided to imposed the sentence of 18 years against you.

32. A close examination of the reasons for His Honour’s decision to impose the sentence of 18 years against you in the particular circumstances of your case, fails to provide any foundation for any of the arguments you put forward against the decision. It is however, clear to us that, the learned trial judge was far too lenient on you. You were charged with the wilful murder of the deceased. Neither you nor any body else who accused the deceased of killing your father established the basis for claiming that the deceased performed an act of sorcery. You had no idea or basis to independently believe that the deceased killed your father through sorcery. Only someone amongst the people who were there made the suggestion. Earlier, you and others set out to look for and bring the decease to a meeting purposely to point her out as the sorcerer. You acted on someone amongst the crowd claiming that the deceased was the sorcerer responsible for your father’s death, as if it was an established fact. Significantly however, at the same time of the accusation and your violent reaction to the accusation, the people present at the time successfully stopped you from attacking and killing the deceased by strangling. This means in our view that, the accusations levelled at the deceased was not believed because the converse would have been the case had the people let you proceed with the attack on the deceased. Despite that, you went ahead and got yourself armed with a bush knife and viciously attacked the deceased, who was a helpless elderly woman and killed her.

33. When you acted in the way you acted, you became the accuser, prosecutor, jury, judge and executioner after summarily determining the guilt of the deceased and her penalty as well as its execution. You denied, her the right to the full protection of the law, the very laws you are seeking the protection of or benefit from and to be entitled to a fair trial, a fair decision on both guilt and penalty by a fair and impartial judge. You have had the benefit of the full protection of the law. You have been tried and penalty determined by a fair and impartial court which imposed a sentence, that was, in our view, too lenient and failed to reflect the fact that you did not have any regard whatsoever for the sanctity of human life and the prohibition against the unlawful and intentional killing of a person, whose guilt was yet to be established. It was cold blooded murder in full witness of other people in the village who unsuccessfully tried to stop you from attacking the deceased. It was a calculated and a vicious attack on a helpless old woman.

34. Bearing in mind what we already said about how much effect a believe in sorcery should have on a wilful murderer’s conviction as in your case for the reasons we have already expressed, we are of the view that a sentence less than the prescribed penalty of death but one not less than life imprisonment or something closer to it was called for. Despite that the learned trial judge imposed the sentence he imposed against you. That sentence was even less than the kind of sentence in similar sorcery related cases, some of which we referred to in the foregoing discussion.

35. Section 23 (4) of the Supreme Court Act empowers this Court to either increase or decrease sentences in appropriate cases, when a prisoner appeals against his or her sentence. In the decision this Court handed down in Kokopo on 30 August 2006, in the two separate appeals by James Pangnan and Patrick Ponat v. The State,[15] the Court fully reviewed the cases on point. That started with the judgment of this Court in Lawrence Hindemba v. The State,[16] and ended with the decision in Sakarowa Koe v. The State.[17] It is not necessary for us to repeat the discussion here. We will only summarize the principles that emerge from the discussions in that judgment.

36. These authorities make it clear, first that, pursuant to Schedule 2.9 (1) of the Constitution, the National Court is bound by the decisions of this Court. Where this Court provides some guidelines as to how a power vested in the National Court can be exercised, they have similar force, unless there are good reasons that are sound in law exists that warrants a departure. The next point clearly made by these authorities is that, where the National Court clearly falls into an identifiable error, say for example, by imposing a sentence that is manifestly low or the National Court makes a decision in relation to sentence without any legal authority, the Court can exercise its powers under s. 23 (4) of the Supreme Court Act. Further, going by the decision in Lawrence Hindemba v. The State,[18] this Court can exercise that power with or without any cross appeal by the State or the Public Prosecutor. Finally, this Court has given sufficient warning of its intention to exercise that power in appropriate cases. Hence, the time has come to give effect to that warning in cases which warrant an exercise of the power in question.

Your Case

37. In your case, we have come to the conclusion that the sentence the learned trial judge imposed was too lenient. In expressing that view, we have also expressed the view that, in the particular circumstances of your case and the principles governing sentence in your kind of cases, you deserved a sentence less than the prescribed maximum penalty of death but nothing less than life imprisonment or a sentence very close to it. Life imprisonment is the highest sentence imposed in murder cases, which is a lower category of unlawful killing compared to wilful murder. This kind of sentence was called for to serve both the deterrent and appropriate punishment of you for the commission of the offence, particularly, in view of the serious aggravating circumstances in which you committed the offence. A proper weighing of the factors for and against you, in our view, dictated a sentence beyond 20 years but not exceeding 25 years, especially under the prevailing sentencing approach as at the time of the decision on your sentence. After the clarification we have endeavoured to make in these judgment, we expect sentences to be in the range we have suggested, that is, between the prescribed death penalty and life imprisonment or something very close to it, given the seriousness of the offence.

38. Taking into account all of the foregoing we are of the view that, this is an appropriate case for us to exercise the powers vested in this Court under s. 23(4) of the Supreme Court Act. Accordingly, we would quash the National Court decision and order that the 18 years sentence be substituted with a sentence of 22 years. Of that sentence, we order a deduction of the period you have already spend in custody awaiting your trial as well as the time you have already served under the 18 years sentence imposed by the National Court, leaving you with the balance to serve in hard labour at Barawagi Correction Services.

_____________________________

Appellant in Person
Public Prosecutor: Lawyers for the Respondent.

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^[1] See Avia Aihi v. The State [1981] PNGLR 81 and Danny Sunu & Ors v. The State [1984] PNGLR 305 for case on point.
^[2] (2005) SC789.
^[3] (2002) N2219.
^[4] CR1418 of 2002 & CR688 of 2003, unreported and unnumbered decision, (2004).
^[5] CR1433 of 2004, unreported and unnumbered, (2006).
^[6] (1981) SC198.
^[7] [1980] PNGLR 510.
^[8] (04/12/02) N2337.
^[9] (30/08/04) N2747.
^[10] Opt cit note 4.
^[11] [1971-72] PNGLR 90.
^[12] [1990] PNGLR 6.
^[13] [1985] PNGLR 78.
^[14] Opt Cit note 2.
^[15] SCRA 39 & 54 OF 2004, per Sevua, Kandakasi, and Manuhu JJ.
^[16] (27/10/98) SC593.
^[17] (01/04/04) SC739.
^[18] Opt cit. n. 16.