Hane v The State [1984] PNGLR 105 (28 May 1984)

Papua New Guinea Law Reports - 1984

[1984] PNGLR 105 - Ure Hane v The State 

[1984] PNGLR 105

SC270

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

URE HANE

V

THE STATE

Waigani

Bredmeyer McDermott Woods JJ

5 March 1984

28 May 1984

CRIMINAL LAW - Appeal against sentence - Wilful murder - Maximum sentence imposed - Whether worst type of case - Categorisation of offence - Appeal allowed - Substitution of 15 years - Criminal Code (Ch. No. 262) s. 299.

A twenty-three-year-old lawyer working in the office of the public prosecutor murdered his de facto wife in his office after everyone had left for the day by stabbing her with two knives at least thirty times: he then reported the matter to the police and pleaded guilty to a charge of wilful murder. In mitigation of sentence he pleaded inter alia, good character, inability to cope with the demands made upon him to meet traditional obligations in relation to his marriage and provocation. The trial judge found that the case could be categorised as amongst the “worst type” of cases and imposed a sentence of life imprisonment.

On appeal against sentence:

Held

(1)      When considering whether or not the maximum penalty of life imprisonment should be imposed for wilful murder, the court should, insofar as the law allows, categorise those “worst type” cases for which the penalty of life imprisonment should be reserved and then determine whether the particular offender comes within that category: the crime must warrant the penalty not the offender.

(2)      In finding that the murder was amongst the “worst type” of cases the trial judge had misdirected himself on principles of sentencing and had imposed a sentence which was manifestly excessive.

(3)      The appeal should be allowed and a sentence of fifteen years imprisonment substituted.

Discussion of appropriate categorisation of the offence of wilful murder.

Cases Cited

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

Avia Aihi v. The State (No. 3) [1982] P.N.G.L.R. 92.

Goli Golu v. The State [1979] P.N.G.L.R. 633.

Hodgson (1967) 52 Cr. App. R. 113.

Peter Naibiri and Anor v. The State (Unreported judgment No. SC 137 of 1978 dated 25 October 1978).

Public Prosecutor v. Tom Ake [1978] P.N.G.L.R. 469.

R. v. Lu Kepati and Anor [1971-72] P. & N.G.L.R. 44.

R. v. Lakalyo Neak and Ors (Unreported judgment No. 632 of 1971).

R. v. Peter Ivoro [1971-72] P. & N.G.L.R. 374.

R. v. Peter Numa Kumangal and John Kaupa Kumangal (Unreported National Court judgment dated 16 October 1979).

R. v. Wheeldon (1978) 33 F.L.R. 409.

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

Skinner v. The King (1913) 16 C.L.R. 336.

State, The v. Kaupa Mogia (Unreported National Court judgment dated 22 September 1979).

Veen v. The Queen [1979] HCA 7; (1979) 143 C.L.R. 458; (1979) 23 A.L.R. 281.

Appeal

This was an appeal against a sentence of life imprisonment imposed by Kaputin A.J.:

Counsel

B. Narokobi, for the appellant.

P. Boyce, for the respondent.

Cur. adv. vult.

28 May 1984

BREDMEYER J: A person who commits wilful murder in Papua New Guinea is liable to be given life imprisonment (Criminal Code (Ch. No. 262), s. 299). It is not a mandatory sentence. In giving judges a discretion, Parliament must have intended that the maximum punishment of life imprisonment should be reserved for the worst kind of wilful murders. What are the worst classes of categories of wilful murder which should attract the heaviest penalty? Between 1966 and 1975 judges in Papua New Guinea had power to impose the death penalty for wilful murder but if they found “extenuating circumstances” could impose a life sentence or a term of years instead. The death penalty was only pronounced once in that period by a trial judge but his decision was reversed on appeal. Between 1 November 1975 and 1 April 1976 a mandatory life penalty was in force for wilful murder. Since then the maximum punishment allowable for wilful murder is life imprisonment. In practice since 1966, apart from the five months interregnum between 1975-1976 already mentioned, judges in Papua New Guinea have been deciding whether to impose a life sentence or a term of years for the offence of wilful murder. In the 1960s the convictions for wilful murder averaged seventy-nine per year and since Independence they have averaged sixty per year. Judges have thus had considerable experience in Papua New Guinea in classifying murders as more or less serious, perhaps more so than in England and in the Australian States where mandatory life sentences are the norm. The Australian Capital Territory is a recent exception: see R. v. Wheeldon (1978) 33 F.L.R. 409.

The English Parliament by legislation in 1965 classified murders into more and less serious. The Murder (Abolition of Death Penalty) Act 1965 (Imp.) retained the death penalty as the maximum punishment for five kinds of capital murder as follows:

“(a)    any murder done in the course or furtherance of theft;

(b)      any murder by shooting or by causing an explosion;

(c)      any murder done in the course or for the purpose of resisting or avoiding or preventing a lawful arrest, or of effecting or assisting an escape or rescue from legal custody;

(d)      any murder of a police officer acting in the execution of his duty or of a person assisting a police officer so acting;

(e)      in the case of a person who was a prisoner at the time when he did or was a party to the murder, any murder of a prison officer acting in the execution of his duty or a person assisting a prison officer so acting.”

The Act expired in 1970. The sentence in England since 1965 for non-capital murders, and since 1970 for all murders, has been a mandatory one of life imprisonment. The English cases on when it is appropriate to impose a sentence of life imprisonment have been in relation to offences other than murder. One such leading case is Hodgson (1967) 52 Cr. App. R. 113 where a life sentence was upheld for convictions of rape and buggery and other assaults on women.

I believe that we can and should distill from our own experience — with some reference in passing to English and Australian experience — what are the most serious categories of wilful murder which merit the most severe punishment. I am aware that any list must necessarily be somewhat subjective. Sentencing is an art rather than a science and two judges applying the same principles to the same facts can reach a different appropriate sentence. I am aware too that any list must be somewhat open ended and flexible. New situations will arise, new kinds of murders will be committed; certain kinds of murders may become more or less prevalent or more or less serious. Papua New Guinea has not hitherto had many murders caused by firearms or explosives for example. Social values are changing and will change in Papua New Guinea and the judges’ values change and will change. I hope, on matters of sentence, that judges’ attitudes will change with and reflect the best of society’s changing values. An example of changed attitudes on sentence can be seen in the Supreme Court’s attitude to the wilful murder of a reputed sorcerer. In 1975 the Supreme Court upheld sentences of twelve months’ imprisonment for such an offence, Secretary for Law v. Ulao Amantasi [1975] P.N.G.L.R. 134; in 1980 sentences of six years were imposed on similar offenders, Acting Public Prosecutor v. Uname Aumane [1980] P.N.G.L.R. 510.

The following is an attempt to list the most serious kinds of wilful murder.

(1)      A wilful murder done in the course of committing a theft, a robbery, a break and enter, or a rape. This category is taken in part from the English Statute quoted. I consider it a particularly heinous crime for someone to commit a break and enter and, if accosted by the householder or someone else, to kill him. I consider it is particularly heinous for someone to commit a robbery, say a highway robbery, and in the course of it, to kill the victim. Likewise for someone to commit a rape and then, in order to escape detection, to murder the victim. I am unable to give any pertinent Papua New Guinean examples except perhaps The State v. Kaupa Mogia (Unreported National Court judgment dated 22 September 1979) in which the accused was given twenty years’ imprisonment for the wilful murder of a householder committed in the course of a break and enter.

(2)      A wilful murder of a policeman or a prison warder acting in the execution of his duty.

(3)      A wilful murder done in the course of or for the purpose of resisting, avoiding or preventing lawful arrest or in effecting or assisting in an escape from lawful custody.

These two categories can be considered together. Again they are taken from the English Statute quoted. A pertinent local example in Peter Naibiri and Anor v. The State (Unreported judgment No. S.C. 137 dated 25 October 1978). In that case two youths aged seventeen and nineteen committed a break and enter, escaped in a stolen car, were pursued by police in a high speed chase through the streets of Port Moresby, crashed their car and were surrounded by police. The youths drove off with two of the police and then stabbed the driver of the police vehicle. All the police were unarmed. They were convicted of attempted murder and sentences of life imprisonment on each offender were upheld by the Supreme Court. The courts must protect the police, as they carry out their duties, by stern punishments on anyone who attacks them.

(4)      A wilful murder of a person in police or court custody.

This is a special Papua New Guinean category and local examples abound. The first reported case is R. v. Iu Kepati and Anor [1971-72] P. & N.G.L.R. 44. In that case the two accused stabbed to death a man in police custody as he was being taken to the Kainantu Court on a minor charge. It was a payback killing for the death of one of the accused’s line. The victim had been acquitted for the manslaughter of the first man killed. Life sentences were imposed by Clarkson J. as the killing showed a complete contempt for the processes of law which had acquitted the victim of manslaughter and was a challenge to the administration of justice which requires the State to investigate and prosecute crimes and the courts to punish. The second reported case, cited here by way of analogy, is Goli Golu v. The State [1979] P.N.G.L.R. 653. The killing in that case occurred at the Kwikila court house and the victim was not in custody but was a spectator to a trial of men from rival clans on charges of riotous behaviour. The Supreme Court in that case substituted an effective sentence of thirteen years’ imprisonment. The third example is that of Avia Aihi v. The State (No. 3) [1982] P.N.G.L.R. 92. In that case the victim was being tried for dangerous driving causing death and he was fatally stabbed in the presence of the Chief Justice, lawyers, and thirteen police, whilst the court was engaged on a view. The Supreme Court by a majority of four judges to one upheld a sentence of life imprisonment.

(5)      A payback killing of a completely innocent man.

This is not a payback killing of the wrongdoer or the alleged wrongdoer who may be in custody or in hiding, but a retributive killing of some innocent member of the wrongdoer’s clan or family. I cite two examples. The first is R. v. Lakalyo Neak and Ors (Unreported judgment No. 632 of 1971). In that case the three prisoners, plantation labourers, were convicted of the payback murder of an innocent man. They were revenging what was apparently an accidental death and the victim they chose was unknown to them and unconnected with the earlier death. Lakalyo Neak, the leader and instigator of the crime, was given life imprisonment; his two co-prisoners were given fifteen years’ imprisonment each. The second example is R. v. Peter Nima Kumangal & John Kaupa Kumangal (Unreported National Court judgment dated 16 October 1979). The prisoners were Gumine men aged forty-five and fifty employed in Port Moresby. They had been told that their “son” had been killed by a Misima man the day before. (Later no prosecution was brought against the Misima man as the public prosecutor was satisfied that he killed the Gumine man in self defence). The prisoners decided to payback so they axed and stabbed to death a light-skinned man in the Boroko Hotel whom they mistakenly believed came from the Milne Bay Province. Life sentences were imposed.

(6)      Any second or third murder.

(7)      Any murder where the offender has a long record of violence such that he is likely to commit such offences in the future.

Categories 6 and 7 differ from the others in that it is not the kind of murder which attracts the highest penalty but rather the dangerousness of the offender. R. v. Peter Ivoro [1971-72] P. & N.G.L.R. 374 is an example of both these categories. He shot and killed three people in one night and was classified as an aggressive psychopath. In Goli Golu two of the judges of the Supreme Court, Raine Dep. C.J. and Wilson J. cited with approval the English case of Hodgson and a passage from the leading English text on sentencing, D. A. Thomas, Principles of Sentencing at 300-307, to the effect that a life sentence is only appropriate where the dangerousness of the offender warrants it, that is, where it is clear from the history or personality of the offender that he is likely to commit such offences in the future. This view would mean that my categories 6 and 7 are the only ones where a life sentence is appropriate. I do not agree with that view. I remind myself that Hodgson’s case and Thomas’s text are not dealing with the offence of murder but other offences such as robbery, grievous bodily harm and sex offences. England at that time had, and still has, a mandatory and unappealable life sentence for murder. There is thus no need for English judges to decide, or English text book writers to discuss, when a life penalty is appropriate for murder. I much prefer the view expressed by the majority, including the Chief Justice, in Avia Aihi (No. 3) that there are certain murders which require life imprisonment even though the murderer is not regarded as dangerous to the public.

(8)      A wilful murder of the Governor-General, the Prime Minister, the Leader of the Opposition, the Speaker of National Parliament, the Chief Justice, a Bishop, a visiting Prime Minister, the Pope, or other V.I.Ps.

This category is admittedly a new one of my own making and I can cite no authority for it. But I believe it is akin to category 2 above. A policeman carrying out his duty deserves the full protection of the law. If he is trying to arrest an escapee, for example, he should be able to do so by virtue of the authority which attaches to his position without fear of attack. He should be able to arrest an escapee, although outnumbered by the escapee’s wantoks. On the same reasoning the men I have listed in this category have been appointed or elected to high office and they should be able to perform their duties without fear of attack and without the need for heavy security. Any person who murders one of them does so at the peril of receiving a life sentence.

I consider that if a wilful murder falls into any of the above categories, a judge should seriously consider life imprisonment as the appropriate punishment. He should not automatically impose a life sentence but must seriously consider it. Having categorised the crime as one in which life imprisonment should be seriously considered, the trial judge must then consider the seriousness of the particular murder in the scale of seriousness of murders in that category. To kill a spectator at a court as was done in Goli Golu (which attracted a sentence of thirteen years) may be less serious than killing an accused at a court as was done in Avia Aihi (which attracted a life sentence). The judge too must consider the offender’s degree of participation and his personal circumstances. If two men are convicted of the wilful murder of a policeman and one is a principal and the other a minor accessory, then a life sentence may be appropriate for the principal and a term of years for the accessory. Similarly with the offender’s personal circumstances. They may be such that they justify a term of years.

The categories of most serious murders which I have listed are not closed and are flexible. Different judges may disagree with some of them and wish to add other categories. I have considered and rejected a category of murder by explosives or firearms because such murders, although very serious, are not common in Papua New Guinea. Similarly I have rejected as a category “contract” killings, carried out for payment, as again outside our experience in Papua New Guinea. But whatever the most serious categories of murder are, I am convinced that the present case, where the appellant murdered his de facto wife, lies outside those categories. This kind of murder which arose out of marital discord is very common in Papua New Guinea. It may be the most common kind of murder that we try and punish. A husband may kill a wife because she committed adultery, or left him, neglected him, or insulted him, or shamed him. Less commonly, a wife may kill a husband for one of the same reasons, or, the husband may kill the wife’s lover; or a senior wife through jealousy may kill a junior wife. The love between a man and a woman which at its highest makes marriage a noble institution when it turns sour leads to anger, jealousy, shame and often assaults and sometimes murder. I believe that the appellant’s killing was a bad example of its type. For reasons which I mention in a moment, but that however serious, it is definitely not of a type which merited life imprisonment. The killing was of the type which merited a term of years and I believe the trial judge erred in law in not imposing a term of years and I would allow the appeal on this basis.

There are two matters which I believe count against the appellant. The first is that I agree with the learned trial judge when he said that the prisoner’s “intolerable” situation was largely of his own making. He chose to live with the victim in her village against the wishes of his family and her family and without paying bride price. His actions thus brought upon himself antagonism, shame and humiliation from both families instead of love and support. One solution open to him was to leave the girl, return to live with his family and marry her later when he could afford the bride price and/or separate accommodation. Instead he chose to kill her. Secondly, the fact that the appellant was a twenty-three-year-old law graduate, employed as a prosecutor on probation, and the son of a pastor means that he cannot claim lack of sophistication as a reason for reducing the sentence. I believe that those involved in the administration of the law — policemen, lawyers, magistrates, judges, and politicians — must be judged harshly. They cannot claim lack of sophistication or ignorance of the law in mitigation.

A number of matters were urged upon us in the appellant’s favour. Some of these I do not regard of any great importance. His prior good character and his plea of guilty are of little importance on a wilful murder charge for the reasons given in Public Prosecutor v. Tom Ake [1978] P.N.G.L.R. 469.

It was urged upon us that he was a youth and that this was a mitigating factor. As the appellant was aged twenty-three at the time of the offence, I cannot agree. I regard the compensation paid by the accused’s family (K500 cash, two big arm shells, two pig’s tusks and two string bags) to the victim’s family as piddling and not indicative of remorse. It may have been paid to escape payback. I note that the committal hearings of this case were held with special security arrangements because of fear of payback.

I have considered the matters for and against the appellant urged before the trial judge and before us and have come to the view that a proper sentence is sixteen years’ imprisonment with hard labour. The appellant served one year pre-trial. I would allow the appeal and substitute a sentence of fifteen years with hard labour.

MCDERMOTT J: This is an appeal against the imposition of the maximum penalty for wilful murder. It is an appeal against the sentence of Kaputin J. following a plea of guilty by Ure Hane to the wilful murder of his defacto wife.

The powers of this Court have been stated on many occasions, simply, the principles enunciated in Skinner v. The King (1913) 16 C.L.R. 336 are followed, that is, a sentence is manifestly excessive if the trial judge acted on a wrong principle or overlooked, undervalued, overestimated or misunderstood some salient features of the evidence.

Exhaustive reasons for sentence were given but despite all that was put in mitigation, the conclusion reached was:

“I have come to find that taking everything together, your case comes within the worst category of cases.”

And later:

“Your case calls for public deterrent sentence and retribution as overriding considerations.”

Many points were taken in the notice of appeal and it was argued that insufficient or no weight at all was given to matters of youthfulness (he twenty-three, she twenty), moral blameworthiness, previous good character, the “domestic” nature of the crime, the accused’s co-operation, the payment of compensation by one family to another, the element of diminished responsibility and of the time already spent in custody. In this Court, the important arguments correctly centred on the domestic nature of the crime and on the accused’s state at the time.

There was a lot of material before the trial judge. The circumstances of the crime, where it was committed, the events of that day, the note left by the accused at the scene, his record of interview later the same day, the post mortem report of the victim, the opinion of Dr Burton Bradly, psychiatrist, following an examination of the accused twelve months later (tendered without objection) and the background of the accused, revealed in some detail. Two character witnesses testified to his qualifications and abilities. They also mentioned the personal problems which he was experiencing at the time — and these were not of recent origin. It is clear the accused and his de facto were locked into an impossible union, disapproved of by both families, with no home of their own and little emotional support. Really all they had was their love for each other which appears to have become insufficient to weather the storms encountered.

The trial judge acknowledged the “marriage” problems and the pressure to meet traditional obligations. Indeed, a lengthy dissertation on bride payment appears in the reasons for sentence and in my view unfairly used against the accused, as appears from the following:

“What I have outlined amounted to this. You had created the situation yourself which you now say had provoked you to act as you did and pleaded that this should be taken into account in mitigation. How could it be?”

And further:

“I have concluded that an ordinary reasonable person of your environment and culture, which is the Motuan society, would not have acted as you did. In this case, no substantial mitigation should be afforded to you.”

The judge was clearly mindful of and correctly applied the law in relation to the elements of provocation and diminished responsibility in this case that is as matters of mitigation not exculpation. Notwithstanding, he says:

“But I do understand however, as an individual, you were in fact provoked under the circumstances. That the pressures were so great for you that you collapsed under the weight of them. And I will take that into account. However, the degree to which mitigation will be afforded to you will not be as much as could be given to one whose action could be considered as that of an ordinary reasonable man of your own environment and culture.

...

The effect of it all (after considering the medical report of Dr Burton Bradly and the law of diminished responsibility) merely comes to this — that you were in a temporary or transient suspension of your state of mind, so to say, which was caused by the history of tension and current provocation ... The medical evidence can also go to support the view that with the severe pressures and tension from the traditional demands upon you, which you have clearly described in your record of interview made you susceptible to collapse under the weight of it.”

Further on the reasoning is more specific:

“But I will however, take the medical evidence as I have found, to show, that as an individual, you collapsed under the great pressures and tension from the traditional demands upon you and from the fact that you did not have any food at the time. That the tension and provocation induced you to lose your ability to control your emotional responses at the time, not as understood in the strict legal sense but broadly. It will be to this extent only that I will take into account in mitigation of sentence.”

Whilst the post mortem report, the record of interview and the note left at the scene are indicative of the accused’s agitated condition — noticed also by the police at the scene, the trial judge took a different approach. Of the many different wounds noted by the doctor, particularly in the neck area, the conclusion reached was one of “determination and savagery” — “It is a cold blooded murder”; of the contents of the record of interview, the conclusion was: “It is clear from that that you had made up your mind to kill the girl, Toutu, and face the consequences thereafter”; and of the note, the conclusion was:

“It appears from that statement that you had had a great deal of thought about your course of action. It shows that you had no remorse and love for the girl. It exhibited your contempt for her and her people; and shows your obsessional desire for her beauty and when she was falling out with you at the time you made up your mind to kill her so that no one else would have her love and company.”

There is more in the same vein which I find unnecessary to quote here. Suffice it to say, this evidence deserves closer scrutiny and a more cautious approach. With respect, I would be unable, without more, to come to these definite conclusions. This is a sad crime. It is bizarre. I fail to see the relevance of references to the ordinary Motuan.

In the circumstances of this crime, moral blameworthiness, the build up of domestic tensions, the mounting hopelessness of it all, the feeling of family abandonment when it mattered most, the provocation (and I use that term advisedly) of those last hours in the Public Prosecutor’s office and the diminished responsibility aspect are interrelated. They are matters rooted in the crime itself and in my view cannot be ignored on sentence.

I have set out at some length the reasons given in the court below. In my view, they were arrived at through a misconception of the evidence viewed as a whole. This in turn has led to inherent inconsistencies in the reasoning for sentence which cannot be cured by total reliance upon the sentencing principles of deterrence and retribution.

I consider the sentence imposed to be demonstrably wrong in principle and manifestly excessive in duration.

Counsel for the appellant submitted the appropriate imprisonment range to be six to thirteen years whilst the range submitted on behalf of the State was twelve to fifteen years’ imprisonment. In general, I agree with the remarks of Bredmeyer and Woods JJ. on the categorisation of wilful murder and the imposition of life imprisonment.

I would allow the appeal and bearing in mind the fourteen months the accused spent in custody prior to the hearing, impose in lieu of a life sentence, a sentence of fifteen years’ imprisonment with hard labour.

WOODS J: This is an appeal from a sentence of the maximum penalty of life imprisonment for wilful murder.

I refer to the preamble to the Constitution which states inter alia:

“We, the people of Papua New Guinea ... pledge ourselves to guard and pass on to those who come after us our noble traditions and the Christian principles that are ours now.”

and further:

“that respect for the dignity of the individual and community interdependence are basic principles of our society.”

We are a Christian society and we believe in the dignity of the individual and this must mean that a belief in the precept of forgiveness and that there is some good in all persons is part of our social and thereby also our legal system.

When considering a penalty of life imprisonment, the court should, in so far as the law allows consider first the penalty — why life imprisonment — before considering the individual it has before it.

When the court has categorised for whom imprisonment should be reserved, then the court should consider whether the offender before it comes into that category.

Life imprisonment is in this country, the ultimate punishment. One asks, why should it be imposed? Because the crime committed is so bad that the offender has forfeited all rights to be allowed to exist in ordinary free society. The offender is a danger and a menace to free society. Free society has no place for him, cannot control him and must remove him permanently for its own protection.

However, we should not at this stage fall into the trap of classifying an offender as a danger and a menace to society and thereby sentencing him because he may be a menace if he is released after too early a period. The crime itself must warrant the life imprisonment because he has shown his danger to society. We must not imprison for life because we consider he will be a danger. As Stephen and Jacobs JJ. said in Veen v. The Queen (1979) 23 A.L.R. at 281:

“The protection of the public does not alone justify an increase in the length of sentence.”

And as Murphy J. said in the same case:

“The punishment should not be disproportionate to the gravity of the offence.”

The punishment for wilful murder is life imprisonment as set out quite clearly in s. 299 of the Criminal Code (Ch. No. 262). There can be no disagreement that wilful murder is the worst crime. However the law has given Judges a discretion to not always impose the punishment of life imprisonment. Does this mean Parliament is saying that whilst the penalty for wilful murder shall be life imprisonment, there may be situations which warrant a lesser punishment, perhaps because some wilful murders may be less serious than others. It appears therefore that the court is required to form a judgment on the relative seriousness of a murder. And looking at the range of sentences that are handed down for wilful murder this is clearly what the court does in practice.

I note here the case Avia Aihi v. The State (No. 3) [1982] P.N.G.L.R. at 92:

“The basic sentencing principle of proportionality to the offence applies when considering sentences of life imprisonment, which, as the maximum punishment, should be imposed only in cases properly categorised as ‘worst type’ cases.”

And see also Goli Golu v. The State [1979] P.N.G.L.R. at 653:

“In sentencing for wilful murder, the maximum penalty of life imprisonment should be reserved for the most serious instances of the offence.”

I must agree with Blackburn J. in R. v. Wheeldon (1979) 33 F.L.R. 409 at 412 when he says that:

“... it is only with great hesitation that I embark upon any comparative moral judgment on kinds of murder. It would be presumptuous to make any but tentative and general judgments; fine distinctions, or a detailed scale of culpability, would be both absurd and dangerously subjective.”

In so far as one can categorise the most serious types of wilful murder perhaps they would include the indiscriminate murder, the murder of a passer-by or an innocent unrelated person accosted in the bush, or a murder for personal material gain, or the murder of a policeman.

A wilful murder following a build-up of ill feeling or frustration with the victim in what could be called a domestic situation may not be such a serious murder even though the actual circumstances of the act may appear expectionally brutal. Also a wilful murder in a traditional tribal dispute situation seems to be regarded as not so serious although I wonder whether the court should now be looking at those wilful murders in a harsher light. Section 299 is quite clear:

“A person who commits wilful murder shall be liable to be sentenced to imprisonment for life.”

Whilst not relevant to this case there may be another type of person who should incur the ultimate penalty, namely, the repeat violent criminal, the person who has committed a number of crimes of violence involving threats or injury to human life, he may have forfeited all rights to be allowed or trusted to remain in free society.

I now look at the facts of the case before this Court. I must agree with the trial judge that this was a most cold-blooded murder, but then any wilful murder is. This man killed a woman he professed to love, he did it in a rage of frustration at the situation he had got himself into and a rage at the apparent, to him, unsympathetic attitude of everyone else concerned. But whilst the details of the stabbing and the injuries inflicted are quite heinous, does this bring it into the category of worst kind of wilful murder. Is he a man who is an indiscriminate murderer, or a murderer for personal material gain, a man who has shown he is a menace to free society, or is he a man who could reform, is or could be sorry for what he has done after having served an appropriate term of punishment. Should we consider him as our Christian society expects us to treat him, with hope for his future and our own.

It was submitted that his Honour the trial judge over emphasised deterrence and retribution and gave no weight at all or insufficient weight to factors in mitigation of sentence. On looking at the trial judge’s comments, I note he states:

“With wisdom goes mercy.

...

I can conclude therefore that up until the time of the offence your record was good to suggest that you had a good character which I will take into account (sic).

...

I find that you are not a dangerous offender.”

I cannot help finding that the trial judge misdirected himself having said the above to then say this was amongst the worst type of case. I cannot help feeling that he confused the savagery of the actual attack namely the number of stabbings and the particulars of the injuries with the worst type of case. He had already explained the savagery by finding that:

“You could no longer bear the pressures and that you collapsed under the weight of it.

...

You found yourself in a hopeless position that in a blind reaction you chose to get even with it by taking the girl’s innocent life.

...

This was a culmination of the tension, ill feelings, anguish and humiliation which you had vividly described.”

Of course it was a cold-blooded murder, all wilful murders are, but having found it was from a build up of tension, pressures, hopeless situations and anguish, the trial judge then fell into error in finding that the multiple stab wounds made it into the worst type of murder.

I am unable to find that the appellant is an offender for whom life imprisonment, the ultimate penalty, is the only penalty that can be given. Whilst he must be punished as a lesson to himself and to others, this was not what we appear to categorise as the worst type of wilful murder. The offender here must be given a chance. I cannot be concerned with matters like the possibility of review of sentence which may be a purely arbitrary administrative possibility. That is an executive discretion. As a judge, I must do what a judge has to do, namely consider what is the appropriate penalty within the ambit provided by the law.

I find that the trial judge misguided himself on principles of sentencing and imposed a sentence which was manifestly excessive. The authorities are quite clear that in such a situation an appellate court has power to interfere with the sentence imposed by the court below.

I feel that in so far as we impose a range of sentences for wilful murder, a sentence of imprisonment with hard labour for any period between fifteen and twenty years would be appropriate.

I would allow the appeal against the sentence of life imprisonment and bearing in mind the period the accused spent in custody prior to the hearing substitute a sentence of fifteen years’ imprisonment with hard labour.

Appeal allowed.

Sentence of 15 years substituted.

Lawyer for the appellant: Bernard Narokobi.

Lawyer for the respondent: Public Prosecutor.