Secretary for Law v Jimbun [1976] PNGLR 288 (2 July 1976)

Papua New Guinea Law Reports - 1976

[1976] PNGLR 288 - Secretary for Law v Kaibug Jimbun and Peter Korua 

[1976] PNGLR 288

SC99

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SECRETARY FOR LAW

V

KAIBUG JIMBUN AND ANOTHER

Waigani

Frost CJ Prentice DCJ Williams J

30 June 1976

2 July 1976

CRIMINAL LAW - Sentences - Appeal against sentence - Application to increase sentence - Wilful murder - Co-offenders - Disparity of sentences between actual assailants and other participants - Sentences of 8 years substituted for those of 2 years 6 months.

The two respondents were arraigned on charges of wilful murder, with two other men, who were shown to have chopped a man to death with axes in their presence. All four were convicted of wilful murder and the two actually wielding the axes were each sentenced to 13 years imprisonment. The respondents were each sentenced to 2 years and 6 months imprisonment. On appeal brought by the Secretary for Law against inadequacy of sentence under s. 29 of the Supreme Court (Full Court) Act 1968 (and heard as though it had originated under s. 43 of the Supreme Court Act, 1975),

Held

(1)      The evidence revealed a concerted action, a common intention and support and approval of a preconceived plan to attack, exhibited by the two respondents, such that it was difficult to distinguish their degrees of responsibility from the two axemen;

(2)      Whilst accepting that it is common for allowance to be made for a somewhat lesser sentence given “watchmen” or “passive” participators than those given actual assailants, nothing in the age, degree of sophistication, education or tribal standing of the four accused would support such a differentiation between them in the circumstances;

(3)      A gross inadequacy of sentence had been shown;

(4)      Sentences, more closely approximate those of the two axemen should be imposed, though less close than might otherwise be considered because of the meagre details concerning the events preceding the attack.

(5)      Sentences of 8 years imprisonment should be substituted for that of 2 years 6 months previously imposed.

Counsel

B. M. Ryan, for the appellant (Secretary for Law), referred to the following cases:

R. v. Pia-Afu, [1971-72] P.N.G.L.R. 393;

R. v. Harley, [1971-72] P.N.G.L.R. 399;

R. v. Radich, [1951] NZGazLawRp 155; [1952] N.Z.L.R. 193;

R. v. Tovarula & Ors., [1973] P.N.G.L.R. 140;

R. v. Bulda Melin, [1973] P.N.G.L.R. 278;

R. v. Witrasep Binengim, [1975] P.N.G.L.R. 95;

R. v. Kuk Pum, [1974] P.N.G.L.R. 103;

Winugini Urugitaru v. The Queen, [1974] P.N.G.L.R. 283;

Wanosa & Ors. v. The Queen, [1971-72] P.N.G.L.R. 90; and

Secretary for Law v. Ulao Amantasi & Ors., [1975] P.N.G.L.R. 134.

W. J. Andrew, for the respondents, referred to the following cases:

Wanosa and Ors v. The Queen, [1971-72] P.N.G.L.R. 90;

Edwards v. Noble (1971), 125 C.L.R. 296;

R. v. Tiddy, [1969] S.A.S.R. 575;

R. v. Allan and Ors., [1963] 2 All E.R. 897 at p. 901;

R. v. Evans, [1973] 5 S.A.S.R. 183;

R. v. Tovarula and Ors., [1973] P.N.G.L.R. 140;

R. v. Potosi and Ors. (Unreported) Judgment No. 730 of 28 Feb., 1973; and

R. v. Lawlor, [1976] A.C.L.D. 082.

Cur. adv. vult.

2 July 1976

FROST CJ PRENTICE DCJ WILLIAMS J:  Appeal was brought herein on 10th June, 1975 by the Secretary for Law under s. 29 of the Supreme Court (Full Court) Act 1968. The matter being a pending matter at Independence, was heard as though it had originated in this Court under s. 43 of the Supreme Court Act 1975.

On behalf of the appellant it is argued that the sentences of 2 years and 6 months for wilful murder imposed on each of the respondents by the trial judge in the pre-Independence Supreme Court at Mount Hagen on 1st May 1975, were inadequate.

The respondents were arraigned with two other men Du and Kiap, who were shown to have chopped a man to death with axes in their presence. All were convicted. Those wielding axes were sentenced to 13 years’ imprisonment.

The State submits that the sentences imposed on the respondents are clearly inadequate. The disparity between the sentences it is said, is such that it ought to be inferred that the trial judge overlooked or gave insufficient weight to a number of factors. These factors were listed as being:

(a)      that both were convicted as principals (under s. 7 of the Code) to wilful murder, for which the then punishment, in the absence of extenuation, was death. Even accessories after the fact became liable to life imprisonment (s. 307 Code);

(b)      that the killing was a deliberate, premeditated, unprovoked one, effected as a pay-back;

(c)      that the accused could not be considered as completely unsophisticated. They came from an area of strong Administration and mission influence;

(d)      that disparity in sentence of co-offenders should not be of a gross order;

(e)      that pay-back killings were and are prevalent in the Highlands; that deterrent sentences on all four offenders were called for.

Counsel for the respondents supported the trial judge’s sentences on the basis that the respondents were only encouraging rather than actively participating in, the crime. The punishment ought to be minimal in “encouraging” cases he says, because such offenders are only just caught by the provisions of s. 7 of the Code. He cited a number of cases to support the proposition that the roles played often discover differential degrees of guilt; and submitted that sentences should relate to degree of guilt and relative responsibility. He pointed to R. v. Tovarula & Ors.[cccxxvi]¹ in which Minogue C.J. explained[cccxxvii]² his differential sentences of 14, 11, 2 years (two men), and 18 months for various participants in a killing. And counsel referred to R. v. Potosi[cccxxviii]³ in which 10 and 8 year sentences were given to principal killers and 2 years to each of two “watchmen”.

All cases differ both in the facts of the killing and in the background and degree of responsibility of participants. As has been pointed out many times, it is difficult to make use of the facts of one in considering those of another. It is noteworthy for example, that in Potosi’s case[cccxxix]⁴ the trial judge who is a member of this Court, made it clear in his remarks on sentence, that he was treating the “watchmen” more lightly, because they were most unwilling and reluctant participants who at first declined to take part in the murder but were later shamed into attendance by stern reflections on their manhood (i.e. they were “suborned” in a village setting).

In deciding to convict the respondents and the actual assailants, the trial judge appears to have relied almost exclusively on the evidence of Kombuk, a Local Court Magistrate and former councillor, whom he described as an independent witness. This witness was walking at seven o’clock on a Sunday night in the vicinity of the Banz Hotel and in company of the convicted axe-man Kiap. This man left the witness and “joined his men at the pit pit”. A little later the witness saw Du and Kiap each chop the murdered victim and Kiap chop another man Pepe who came to Yaga’s assistance. As to Pekep, one of the respondents, he said, “he went along with Du and Kiap” — this was when Du and Kiap were using their axes. Referring to Pekep’s association with Du and Kiap he said “They went along together and hid in the pit pit ... there I saw them with my own eyes ... when they hid in the pit pit they came out together with Du and Kiap leading Kaipel” (Kaibug) “and Pekep followed them”. Asked what Kaipel did when he came out of the pit pit, he replied “they went together and when Du chopped Yaga they left them lying on the ground. They all ran off to the car ... they went to their car and drove off”.

It is clear to this Court that the sudden emergence of the four men together from a hiding place in the pit pit, exhibits a concerted action, a common intention, and that the two respondents were exhibiting their support and approval of a preconceived plan to launch the attack. This must be the understanding of his Honour the trial judge when he says (page 123 Appeal Book) “However, by hiding in the pit pit with the axe-men, coming out with them and being present when the latter used their axes I am of the opinion that they are fully implicated in the transaction”.

The Court finds itself unable to take the view that the respondents were mere watchers on the sideline, lending the merest encouragement to the murder. Their presence meant that the victims had to face an advance upon them of a party increased to four men. It finds difficulty in distinguishing their degree of responsibility as seen in their full participation from that of the axe-men themselves. The Court is satisfied that a gross inadequacy of sentence has been revealed. Whilst accepting that it is common for allowance to be made for a somewhat lesser sentence upon “watchmen” or “passive” participators than those given actual assailants, such a differentiation is perhaps not always defensible in logic. In this case there appears nothing in the age, degree of sophistication, education or tribal standing of the four accused which would support a differentiation between them. While agreeing with his Honour that some differentiation might nevertheless be considered, the Court feels that the sentences should more closely approximate those of Kiap and Du. However, the details concerning the events preceding the four men hiding themselves in the pit pit are meagre, and thus induces the Court to increase their sentences to a figure less close to those of the axe-men, than otherwise it might have done. The Court is of the opinion that a sentence of 8 years’ imprisonment with hard labour should be substituted for that imposed on each of the respondents.

Appeal allowed; sentence of 8 years imprisonment with hard labour substituted for those imposed at the trial upon each of the respondents.

Solicitor for the appellant: L. W. Roberts-Smith, Public Prosecutor.

Solicitor for the respondents: N. H. Pratt, Acting Public Solicitor.

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[cccxxvi][1973] 9 P.N.G.L.R. 140.

[cccxxvii]R. v. Tovarula & Ors. at pp. 4-6. Remarks on Sentence, unreported Case No. 711.

[cccxxviii](unreported) Judgment No. 730 of 28th Feb., 1973.

[cccxxix](unreported) Judgment No. 730 of 28th Feb., 1973.