Agoara Kebo and Karunai Uraki v The State

• Jurisdiction: Papua New Guinea
• Judge: Kidu CJ, Kapi J, Miles J
• Judgment Date: 27 May 1981
• Citation: (1981) SC198
• Court: Supreme Court
• Year: 1981
• Judgement Number: SC198

Supreme Court: Kidu CJ, Kapi J, Miles J

Judgment Delivered: 27 May 1981 or 24 March 1981

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

S.C.A. 15 OF 1980

BETWEEN: AGOARA KEBO AND KARUNAI URAKI

AND: THE STATE

Waigani

Kidu CJ Kapi Miles JJ

24 March 1981

CRIMINAL LAW — appeal against sentence — sorcery.

Where reasons for sentence not available on appeal the Supreme Court may for the first time exercise its own discretion on sentence.

Chief Justice — To do justice in appeals, reasons if orally given should be reduced to writing and furnished to the Supreme Court.

Miles J — Observations on proper evidentiary basis to be supplied to the court on the belief and extent of belief in sorcery for purposes of sentence.

Cases Referred To

Secretary for Law v. Witrasep Binengim (1975) P.N.G.L.R. 172

Cowell v. Cowell (1954) 71 W.N. (N.S.W.) 217

William Norris v. The State Unreported Supreme Court Judgment SC 171 of 7/12/79

Brian John Lewis v. The Independent State of Papua New Guinea Unreported Supreme Court Judgment SC 178 of 29/8/80

KIDU CJ: This is an appeal by two men who pleaded guilty to a charge of wilful murder. They were each sentenced to be imprisoned with hard labour for a period of eight years.

The learned trial judge made some remarks on sentence but such remarks have not been provided to this court. His Honour's notes on the case read:

"15th August 1980 — Goroka — 9.30 a.m.

Interpreter Steven Emissen.

Pidgin — English Sworn

Miss Bourke for Prosecution

Arraignment — both say "true"

Mr. Roddenby for each accused — no application — read deps. 10 safe

Plea — guilty as charged in each case

Verdict — guilty as charged in each case

Allocutus: Each says "nothing to say"

State tenders deps.

Antecedent reports — nothing else

Mr. Roddenby

Second accused was not employed on rubber plantation but was employed as a cook last year for less than a year — returned to village when father died — straw that broke the camel's back — typical case of killing of sorcerer — on same day just before accused had been attacked by four others with sticks as a sorcerer — deceased denied any knowledge — they (accused) were annoyed by his off-hand attitude — there was a fight between the two lines — the four people hit him, then the two accused killed him — accused supposed to have killed 18 men and Kalunai's father — Kalunai — standard 1 — single — father dead — 17 years of age — no priors — pleaded guilty — co-operated with police

Agoara — late 20s or early 30s — Port Moresby rubber plantations — married man — pleaded guilty — co-operated with Police

Both in custody since 12th June 1980 — note difference in age I.H.L. — eight years."

Sentencing is a discretionary power and it has been said that a judge is not obliged to make any remarks on sentence. (See the pre-Independence Full Court case of Secretary for Law v. Witrasep Binengim (1975) P.N.G.L.R. 1721 per Prentice S.P.J. (as he then was) at p. 174). Raine J. (as he then was) in the abovementioned case at p. 176, however, said the following:

"The second matter to which I would shortly refer is this question of remarks on sentence, and the attitude to be taken by an appellate court where the trial judge lays emphasis on some, but says nothing as to other aspects of importance, or, if you like, says nothing at all.

In John Kemai v. Symonds ( (1975) P.N.G.L.R. 81) I was not intending to lay down any rigid rule. However, I still feel that the judgment of Maxwell J. in Cowell v. Cowell ( (1954) 71 W.N. 217, at p. 218) is to be preferred to that of Wells J. in R. v. Reiner ( (1974) 8 S.A.S.R. 102, at pp. 113-5), not because I really disagree with much that Wells J. says, but because I believe that Maxwell J. adopts an approach that is more fluid, and gives the appellate court more room to move."

The part of Maxwell J.'s judgment in Cowell v. Cowell (1954) 71 W.N. (N.S.W.) 2172 appears at p. 218:

"The fact, if it be the fact, that his Honour has not stated directly or expressed himself so that one can by inference say, that these are the principles on which his Honour has exercised his discretion, makes it not only easier but more incumbent upon this Court to examine the circumstances in which the exercise of discretion was sought.

In my opinion, there is ample authority for the proposition that this Court, faced with no real explanation of the principles acted upon in the first instance, must perhaps for the first time exercise its own discretion, not for the purpose of substituting...