Avia Aihi v The State (No 3) [1982] PNGLR 92

• Jurisdiction: Papua New Guinea
• Judge: Kidu CJ, Kearney DCJ, Greville–Smith J, Andrew J, Kapi J
• Judgment Date: 05 March 1982
• Citation: [1982] PNGLR 92
• Court: Supreme Court
• Year: 1982
• Judgement Number: SC221

Full Title: Avia Aihi v The State (No 3) [1982] PNGLR 92

Supreme Court: Kidu CJ, Kearney DCJ, Greville–Smith J, Andrew J, Kapi J

Judgment Delivered: 5 March 1982

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

AVIA AIHI

V

THE STATE

(NO. 3)

Waigani

Kidu CJ Kearney DCJ Greville Smith Andrew Kapi JJ

26 October 1981

27 November 1981

5 March 1982

CRIMINAL LAW — Sentence — Wilful murder — Payback — Premeditated — Victim on trial — Crime committed whilst court on a view — Life imprisonment — Whether justified — Whether worst type case — Sentence upheld.

CRIMINAL LAW — Appeal against sentence — Life imprisonment — Principles applicable — Matters in mitigation before trial judge — Life imprisonment not reserved for dangerous offenders — Worst type of case — Principle of proportionality applicable.

On appeal against a sentence of life imprisonment for murder:

Held

(1) 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 categorized as "worst type" cases.

(2) The law in Papua New Guinea does not require that life imprisonment be reserved for "dangerous" offenders.

Goli Golu v. The State [1979] P.N.G.L.R. 653, explained.

(3) (Per Kearney Dep. C.J., with whom Greville Smith J. and Kapi J. agreed.) An appellate court may presume that a trial judge has taken into account all matters urged in mitigation before him unless the appellant can show that this did not occur or that some error was made in the process.

(4) (Per Kearney Dep. C.J., with whom Greville Smith J. and Kapi J. agreed.) An appellate court's consideration of a trial judge's sentencing discretion is not to be affected by the fact that the sentence is one of life imprisonment.

(5) (Andrew J. dissenting.) The sentence of life imprisonment for a payback murder where the victim was on trial for dangerous driving and was killed in the presence of the court whilst on a view, should stand.

Cases Cited

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

Avia Aihi v. The State [1981] P.N.G.L.R. 81.

Avia Aihi v. The State (No. 2) [1982] P.N.G.L.R. 44.

Goli Golu v. The State [1979] P.N.G.L.R. 653.

Peter Naibiri and Anor. v. The State (Unreported Supreme Court judgment S.C. 137 of 25th October, 1978).

R. v. Bryson (1974) 58 Cr. App. R. 464.

R. v. Hercules (1980) Crim. L.R. 596.

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

R. v. Iu Ketapi [1971-72] P.N.G.L.R. 44.

R. v. Lishman (1971) Crim. L.R. 548.

R. v. Picker (1970) 54 Cr. App. R. 330.

R. v. Radich (1954) Crim. L.R. 226.

R. v. Rose (1974) Crim. L.R. 226.

R. v. Rushby [1977] 1 N.S.W.L.R. 594.

R. v. Shannon (1979) 21 S.A.S.R. 442.

R. v. Wallis (Unreported decision of the Court of Criminal Appeal (New South Wales), 25th June, 1975).

R. v. Wheeldon (No. 2) (1978) 33 F.L.R. 409.

Re Rooney (No. 2) [1979] P.N.G.L.R. 448.

Shrubsole v. Rodriguez (1978) 18 S.A.S.R. 233.

Veen v. The Queen (1979) 53 A.L.J.R. 305.

William Norris v. The State [1979] P.N.G.L.R. 605.

Appeal

This was an appeal against a sentence of life imprisonment for murder.

Counsel

K. Wilson and S. Cox, for the appellant.

J. Byrne, for the respondent.

Cur. adv. vult.

5 March 1982

KIDU CJ: The appellant was sentenced to life imprisonment on 16th March, 1979 for the wilful murder of one Morris Modeda. Life imprisonment is the maximum penalty for that offence.

Morris Modeda was on trial for dangerous driving causing the death of the appellant's husband. On 11th September, 1978 the National Court (Prentice C.J.) went out to the scene of the alleged offence. It was whilst the court was viewing the scene that the appellant with others rushed the accused and the appellant managed to inflict on the deceased the fatal wounds.

The learned trial judge described her action thus:

"She used a knife with a blade about twelve inches long. The blade is razor-sharp, it has been sharpened to a point and resembles a dagger, except that it is sharp only on one side. With this knife she pursued the unfortunate Morris Modeda with great determination, plunged it deep into his back and drew it downwards before pulling it out thus causing an enormous wound which penetrated the right lung and made it collapse making it difficult for him to breathe. He died from loss of blood from this wound and the other complications I have mentioned. There can be no doubt that she intended to kill."

There is no doubt this was a pay-back killing by the appellant. Although others were involved the learned trial judge found that there was no pre-concerted plan by the appellant and the others to kill the deceased.

In her first record of interview on 12th September, 1978 she told the interviewing officer:

"... I ran to him and stabbed him on his back and he ran and I chased him and stabbed him again on his chest or stomach and he fell to the ground and Policemen grabbed me and they took the knife out of my hand and I went stood near jurge (Judge) and I spoke my language to jurge (Judge) but he did not hear me.

Q. What did you say to jurge in your language?

A. I said jurge my husband was killed by that man with the truck and later he went down pulled his head towards the direction to Bereina and today I payback for my husband."

It was submitted by counsel for the appellant that her part in the killing and the mitigating factors put before the trial judge should have taken the case out of the most serious kind of wilful murder category.

The factors referred to as mitigation were:

1. The appellant's grievance at the fact that the deceased had run over her husband and that she had been told by a witness that Modeda had turned around after he had run over her husband and ran over the body again.

2. The appellant was not allowed to attend the funeral and was secluded, as is the custom in her area.

3. The fact that the grievance that the appellant had was further exacerbated by the lengthy delays in relation to the committal proceedings. During this time the appellant had appeared on a number of occasions at the proceedings which had been adjourned without full explanation to her and also Modeda had gone off on holiday. She also heard talks that there was to be no case to answer and that no action would be taken. These delays kept reinforcing the appellant's belief that Modeda was going to be let off without any punishment.

4. The sense of grievance was further fuelled by the suspicion that her husband's death was more than an accident. This was the rumour in relation to the allegation that Modeda's wife had been pursuing the husband of the appellant.

5. The village custom in relation to widows is fairly severe on them. Only certain people are allowed to talk to them and they are treated in seclusion. This unfortunately would help to build up the sense of desperation.

6. At the scene it was quite an excitable situation and people had already started moving towards Modeda, for instance the old man who was apprehended by the police. From this the appellant moved in to kill Modeda and was in an excited state.

7. The appellant had pleaded guilty to the offence. She had accepted the seriousness of the offence and the fact that she would have to go to jail for it.

8. She has no previous convictions, and no history of any violent behaviour.

It was submitted that all of these matters should have been weighed by the trial judge against the other aspects of the offence. For instance, the fact that the person was killed while the court party was taking a view. It was submitted that when one looks at all of these matters together the offence then comes out of the most serious class of offences and is an offence which can be dealt with by the use of a determinate sentence.

It could be that from what the learned trial judge said on sentencing that he was not impressed by any factors put forward in mitigation. He said in sentencing her as follows:

"You, Avia Aihi, pleaded guilty, the other four pleaded not guilty. The other four have had a fair trial, a trial which lasted nearly a month. A trial in accordance with the law and the Constitution. You had the assistance of counsel at Government expense. These counsel have pressed, quite rightly, all four constitutional rights. They have pulled out all the stops as the saying goes.

This man, Morris Modeda, was also entitled to a fair trial. At the time he was killed he was being tried by no less a person than the Chief Justice. In the course of a trial, sketches, maps and photographs are used to give the court an idea of the scene of the crime, as we have done in this case. But sometimes sketches, plans, photographs are not enough and then the court visits the scene. That is what the Chief Justice did. The Chief Justice had adjourned the proceedings to the scene of the accident on the Bereina-Waima Road.

Right in the middle of the view, in the presence of the Chief Justice, in spite of an escort of thirteen...