Goli Golu v The State

• Jurisdiction: Papua New Guinea
• Judge: Wilson J:
• Judgment Date: 14 December 1979
• Citation: [1979] PNGLR 653
• Court: Supreme Court
• Year: 1979
• Judgement Number: SC172

Supreme Court: Raine DCJ, Kearney J, Wilson J

Judgment Delivered: 14 December 1979

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

GOLI GOLU

V

THE STATE

Waigani

Raine DCJ Kearney Wilson JJ

26 November 1979

14 December 1979

CRIMINAL LAW — Sentence — Principles of sentencing — Maximum penalty for worst type of offence — Punishment proportionate to gravity of offence — Life imprisonment — When appropriate on charge of wilful murder — Criminal Code, s. 309.

CRIMINAL LAW — Appeal against sentence — Appeal against severity — Wilful murder — Life imprisonment — Serious case — Killing in precincts of court — Life imprisonment to be reserved for worst type of case — Punishment to be proportionate to gravity of offence — Long fixed term sentence substituted — Criminal Code, s. 309.

Section 309 of the Criminal Code provides:

(1) Any person who commits the crime of wilful murder shall be liable to imprisonment with hard labour for life.

(2) Any person who commits the crime of murder shall be liable to imprisonment with hard labour for life.

On appeal against severity of a sentence of imprisonment with hard labour for life on a charge of wilful murder, the evidence revealed that the appellant (accused) a man with no previous convictions, had together with other clan members attended at the Kwikila court house where proceedings were to commence arising out of a riot between the appellant's and the victim's clans, and had in the vicinity of the court house and despite the presence of numerous police run down and stabbed the deceased a man he did not know other than as a member of an enemy clan. In his remarks on sentence, the trial judge, after referring to the prevalence of this type of offence near court houses or at or near police stations or in similar circumstances, stated that the sentence of life imprisonment "should be imposed both as retribution for the offence the accused has committed and to deter like minded offenders."

Held

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

(2) In sentencing, the basic principle to be observed is that the punishment to be awarded should be strictly proportionate to the gravity of the offence.

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

(3) In the circumstances the sentence of life imprisonment was out of reasonable proportion to the circumstances of the crime, for which a long fixed term sentence was appropriate.

(4) Accordingly the appeal against sentence should be allowed and an effective sentence of thirteen years' imprisonment with hard labour substituted.

Consideration by Wilson J. of the circumstances in which a sentence of life imprisonment is justified.

Appeal Against Sentence

This was an appeal against a sentence of life imprisonment imposed on a charge of wilful murder.

Counsel

N. Kila, for the appellant.

J. Karczewski, for the respondent.

Cur. adv. vult.

14 December 1979

RAINE DCJ: This is an appeal against a sentence of life imprisonment following a conviction for wilful murder. The appellant pleaded not guilty, relying on defences of provocation and self defence, but these were rejected by the learned trial judge in a lengthy and careful judgment. When sentencing the appellant his Honour said:

"It is true that the accused has no previous convictions but I take the most serious view of this case.

There have been a series of cases where accused persons have been attacked near the court house or at or near police stations or in similar circumstances.

It is true that the deceased was not an accused person but he had come to the court to attend the hearing of a case. It is the one place where he ought to have been secure. There were extra policemen on duty because they expected trouble and they had taken precautions to ensure that no weapons were brought into the precincts of the court house. In spite of this knives were smuggled in a small car into the parking area in front of the court house.

After this incident there have been a series of incidents where accused persons have been killed or injured near a court house or at a police station or in similar situations.

At Bereina an accused person who had been taken to view the scene was ambushed and killed (despite the presence of the Chief Justice, Sir William Prentice, and policemen who had been detailed to protect him).

At Banz a man who had killed a person in a car accident was forcibly taken out of the police cells and murdered.

At Kainantu an attempt was made to murder an accused person who was on his way to or from the court house.

This type of crime has reached proportions that make some members of the public think that there has been a complete breakdown in law and order — and the courts would be failing in their duty if they were not to impose deterrent sentences.

The maximum penalty is life imprisonment and I am of the opinion that this sentence should be imposed both as retribution for the offence the accused has committed and to deter like-minded offenders.

I sentence the accused to imprisonment for life."

The murder occurred at Kwikila court house where proceedings were to commence arising out of a riot between the appellant's and the deceased's lines. The police feared there would be trouble and were there in force to prevent it if possible.

It is abundantly clear that the appellant's line managed to smuggle knives into the town despite efforts by the police to prevent this and the appellant's line got their knives from a car parked in the vicinity of the court. It is perfectly clear that some sort of punitive action had been planned.

There are few court houses in the country that are anything like secure and judges, magistrates, counsel, prisoners and spectators can only rely on respect for the law and for the places where it is administered for their lives and safety. A court should be a haven. The same goes for parliament, or a church.

It will be seen from his Honour's judgment on sentence that these matters weighed very heavily on his mind. The learned judge devoted himself to this question of the obvious need for courts to be safe, and apart from acknowledging that the appellant had no prior convictions he dealt with no other considerations. His Honour gave three examples of rather similar incidents, and I see no reason for his not having done so, notwithstanding that they were subsequent in point of time to this killing. He was merely exemplifying the need for this sort of thing to be stamped out, and indicating that there must be a change of climate.

Mr. Kila cited R. v. Smith (1946) 63 W.N. (N.S.W.) 231.1 in support of his argument but it is clearly distinguishable, as is R. v. Huchison [1972] 1 W.L.R. 398; [1972] 1 All E.R. 936.2. Counsel also relied on R. v. Withers (1935) 25 Cr. App. R. 53.3. I really do not see that it has any application. There a Recorder passed a very serious sentence on a charge of receiving stolen property but the property received was of negligible value. Mackinnon J. said (the emphasis is mine) (1935) 25 Cr. App. R. 53, at p. 54.4:

"We have been told that there had been a considerable amount of warehousebreaking in Leicester at that time and that it was the policy of the Recorder to impose a sentence which might act as a deterrent to those who commit that class of crime. That is a proper consideration so long as it does not result in a convicted man being made the scape-goat of other people who have committed similar crimes but have not been caught and convicted."

Another of Mr. Kila's arguments was that there was a disparity between the appellant's sentence of life imprisonment and a subsequent effective sentence of ten years passed by the Chief Justice on one Raga Raga who was convicted of the wilful murder of this deceased on a s. 7 basis. He was not playing a passive role, he too was holding and waving a knife, he was running with the appellant, and he was at the feet of the deceased as he was put to death.

The most usual situation that arises in disparity cases is as described by me in Secretary for Law v. Witrasep Binengim [1975] P.N.G.L.R. 172, at p. 175.5 where I said:

"The situation often arises where Mr. Justice A. deals with one of a group of co-offenders one month, and Mr. Justice B. deals with the remainder subsequently. The second judge might feel that the first judge was lenient, but the principle is, so I believe, that the second judge, albeit rather unwillingly, ought to award much the same sentence as awarded earlier."

However, the situation can arise where a co-offender is dealt with before his comrade or comrades, and the latter, when dealt with later, receive far less punishment, such as might reasonably leave the first man dealt with with a sense of grievance. R. v. Pitson (1972) 56 Cr. App. R. 391.6 is an example of this.

Thus the argument is open, but does it succeed? In my opinion it does not, the discrepancy between the two sentences is not so great, in my opinion,...