Acting Public Prosecutor v Nitak Mangilonde Taganis of Tampitanis [1982] PNGLR 299

• Jurisdiction: Papua New Guinea
• Judge: Kidu CJ, Kapi DCJ, Pratt J
• Judgment Date: 28 July 1982
• Court: Supreme Court
• Citation: [1982] PNGLR 299
• Year: 1982
• Judgement Number: SC229

Full Title: Acting Public Prosecutor v Nitak Mangilonde Taganis of Tampitanis [1982] PNGLR 299

Supreme Court: Kidu CJ, Kapi DCJ, Pratt J

Judgment Delivered: 28 July 1982

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

ACTING PUBLIC PROSECUTOR

V

NITAK MANGILONDE TAGANIS OF TAMPITANIS

Waigani

Kidu CJ Kapi DCJ Pratt J

25 May 1982

28 July 1982

CRIMINAL LAW — Sentence — Customary compensation — Relevance in homicide cases — As mitigating factor on sentence — Deduction of specific period not appropriate — Onus of proof of.

Customary compensation is a matter that may be taken into account on sentencing in homicide cases, (per Kidu Dep. C.J. and Pratt J.), where such payment is considered relevant to sentence.

It is not, however, appropriate to deduct a specific period from the sentence imposed on account of the payment of customary compensation.

Where an accused relies on the payment of customary compensation as a mitigating factor on sentence he bears the onus of proving as a matter of fact the existence of such a custom.

Cases Cited

Acting Public Prosecutor v. Konis Haha [1981] P.N.G.L.R. 205.

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

R. v. Jim Kaupa (Unreported pre-Independence Supreme Court judgment No. 765 dated 25th September, 1973).

R. v. Morse (1979) 23 S.A.S.R. 98.

Appeal

This was an appeal against sentence on the ground of inadequacy made pursuant to the Supreme Court Act, 1975, s. 23.

Counsel

L. Gavara-Nanu, for the appellant.

A. Amet, for the respondent.

Cur. adv. vult.

28 July 1982

KIDU CJ: This is an appeal by the Public Prosecutor, under s. 23 of the Supreme Court Act 1975, against a sentence of two years nine months for murder.

The respondent is from the Kumalin Tribe of Enga Province and the deceased was from Yuli Tribe of the same Province.

Some time in 1979 Yuli and Aiyakani Tribes were at war. The respondent's father was walking through an area owned by the Yuli who mistook him for an Aiyakani and speared him. He was taken to hospital and died some time early in 1980.

Custom dictated that the respondent pay compensation to his uncles for the death of his father. The respondent and his line paid 183 pigs and K170 in cash. It seems that the compensation paid by the respondent and his line (Kumalin) was shared by the Aiyakani and the Yuli.

On 31st July, 1980, the Aiyakani paid 75 pigs to the respondent and his line (Kumalin). This was accepted as adequate compensation for the respondent's father's death.

On 1st August, 1980, the Kumalins went to receive compensation payment from the Yuli. (The respondent had given K35 to the deceased. The reason was that the deceased would either give a large pig in return or more money.) The deceased, however, offered only two small pigs to the respondent. He was not happy about this offer and raised the matter with the deceased whose reaction was one of "take it or leave it" "if you want to fight we'll fight". The respondent was angered by this. He picked up an axe and cut the deceased on the left shoulder blade. The deceased died from the wound he sustained.

For his death the respondent and his line paid the deceased's line 160 pigs and K1,102 in cash.

The learned trial judge in sentencing the respondent took into account various factors in mitigation including the compensation payment. He stated that if he were to penalize on the basis of deterrence alone "... the accused would well deserve a term of imprisonment according to the State Law, for four years." His Honour then commented on the compensation paid and said:

"I cannot ignore payment of compensation and march merrily into imposing a sentence based on custodial deterrence alone. I would subtract one year from the term I would have imposed, on account of the compensation payment."

Apart from comment on other factors that should affect sentence, the learned trial judge took into account the two months the respondent had spent in custody awaiting trial and imposed a sentence of two years nine months.

In sentence appeals to this Court from the National Court by the State it is established that this Court will not interfere unless it is shown that the sentencing judge improperly exercised his discretion (Acting Public Prosecutor v. Konis Haha [1981] P.N.G.L.R. 205).

The learned trial judge took into account, in determining the penalty, factors which are usually taken into account by judges in this country. He considered deterrence and concluded that a four year sentence would be an adequate sentence. His Honour then made some observations on incarceration as deterrence and the deterrent effect of a Melanesian's belief in the supernatural for wrongs done. His Honour then commented on the inevitability of ultimate punishment "by the Supreme Judge in some very concrete way".

I see no error in this regard. The fact is that the trial judge quite properly, in my view, gave adequate weight to deterrence as a principle of punishment.

His Honour then, taking into account the payment of customary compensation, deducted one year from the sentence he would have imposed in the absence of this factor. Now, in this jurisdiction some judges have taken into account compensation payments in considering appropriate penalties for homicide cases.

This is the first time, however, that the National Court has deducted from a sentence a specific period to make allowance for the payment of compensation for homicide.

As the learned trial judge had accepted that the money and pigs paid by the respondent and his clan was required by their custom, the payment was properly taken into account. A word of caution is, however, required. Those who rely on compensation payment as a mitigating factor have the duty to prove, as a matter of fact, the existence of such custom in a proper manner. Evidence from the bar table is not the proper manner. I would myself, in future, refuse to accept such "evidence". I say this because it is not every society in Papua New Guinea that requires payment of compensation in cases of homicide or death.

The allowance of a specific period for payment of compensation is a novel one. In sentencing the general practice is to consider all mitigating factors in arriving at an appropriate sentence. Although emphasis is sometimes given to certain mitigating factors no actual period is allowed for any particular one. There is no legislation on the matter nor are there precedents for it.

However, as a matter of good commonsense it is undesirable that a specified period be deducted from an appropriate sentence for any offence. The fact that a person has no prior conviction is usually taken into account as a mitigating factor. So are factors such as plea of guilty, youth, and so forth. None of these, however, commands the deduction from an appropriate sentence a specific period. If the payment of K1,000 and 160 pigs means now the deduction of 12 months from a sentence, should the court deduct ten years if the payment is K10,000 and 1,000 pigs? What happens if an accused only pays K500 and 80 pigs? Do we deduct only six months? I do not consider that this Court should encourage the concept that rich people can receive lower sentences and poor people higher sentences.

This was a brutal murder. There can be no justification for killing a person because his compensation payment was considered inadequate. If this type of attitude is to be condoned, we might as well forget the law.

The effective sentence was three years. I consider the facts of the case did not warrant such a low sentence for murder.

I would allow the appeal and set aside the sentence of two years nine months and substitute six years I.H.L.

KAPI DCJ: The facts surrounding this matter are set out in the judgment of the Chief Justice.

It seems to me the whole basis of this appeal revolves around the question of taking into account payment of compensation on sentence. In this case the respondent and his clansmen paid compensation according to custom for the death of the deceased of 160 pigs and K1,102.00 in cash.

The trial...