Imiyo Wamela v The State [1982] PNGLR 269

• Jurisdiction: Papua New Guinea
• Judge: Kidu CJ, Andrew J, Pratt J
• Judgment Date: 26 April 1982
• Citation: [1982] PNGLR 269
• Court: Supreme Court
• Year: 1982
• Judgement Number: SC227

Full Title: Imiyo Wamela v The State [1982] PNGLR 269

Supreme Court: Kidu CJ, Andrew J, Pratt J

Judgment Delivered: 26 April 1982

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

IMIYO WAMELA

V

THE STATE

Waigani

Kidu CJ Andrew Pratt JJ

29-30 September 1981

26 April 1982

CRIMINAL LAW — Parties to offences — Counsellor or procurer — Whether can be convicted of more serious offence than principal — What constitutes counsellor — Criminal Code, s. 7Infra p. 271.1, s. 9Infra p. 272.2.

CRIMINAL LAW — Murder and infanticide — Principal offender pleading to infanticide — Counsellor convicted of wilful murder — Whether conviction for more serious offence than principal should stand — Criminal Code, s. 7Infra p. 271.3, s. 9Infra p. 272.4.

CRIMINAL LAW — Appeal against sentence — Disparity — Co-accused — Need for sentences to be comparable.

CRIMINAL LAW — Sentence — Matters of aggravation — Relevance — Where dispute as to — Need to prove matters of aggravation — Version of facts upon which court to act.

A counsellor or procurer may be convicted under s. 7 of the Criminal Code of a greater offence than the principal.

To constitute a person a counsellor or procurer under s. 7 the essential requirement is the committing of an offence: it need not be the offence for which the perpetrator or principal offender is subsequently convicted.

W had a relationship with his step-daughter from which a child was conceived. W informed his step-daughter that she must kill the child at birth which she did. Both were committed for trial for wilful murder; the step-daughter pleaded guilty to a charge of infanticide and was sentenced to ten months; W was convicted of wilful murder and sentenced to 10 years. On appeal by W against conviction and sentence;

Held

(1) W was properly convicted of wilful murder as a counsellor or procurer pursuant to s. 7 of the Criminal Code;

(2) the offence committed was unlawful killing which may be punished as wilful murder, murder, infanticide or manslaughter according to the individual circumstances: here the offence counselled was the offence executed, though circumstances personal to the perpetrator made her punishable for infanticide only;

(3) where sentences imposed on co-accused are to be viewed as so disparate as to require intervention they must also be comparable in the sense that the same offence is proved against both.

Wurramarbra v. The Queen (1979) 28 A.L.R. 176 applied;

(4) the sentences here being imposed in respect of different offences charged were not comparable and could not be considered for disparity;

(5) matters of aggravation should not be taken into account on sentence unless they are admitted or properly proved, either in the course of the trial, or after conviction and prior to sentence.

R. v. Kennedy (1979) 25 A.L.R. 367;

Law v. Deed [1970] S.A.S.R. 374 at pp. 377 to 378;

R. v. Tait (1979) 24 A.L.R. 473 at p. 483; and

Koniel Alar and Hosea Biu v. The State [1979] P.N.G.L.R. 300 at p. 307 followed;

(6) matters of aggravation, however, not having been properly proved, the version of the facts most favourable to W justified a sentence of five years' imprisonment only.

Cases Cited

Brennan v. The King (1936) 55 C.L.R. 253.

Koniel Alar and Hosea Biu v. The State [1979] P.N.G.L.R. 300.

Law v. Deed [1970] S.A.S.R. 374.

Matusevich v. The Queen (1977) 51 A.L.J.R. 657.

Murray v. The Queen [1962] Tas. S.R. 170.

R. v. Anthony [1965] 2 Q.B. 189.

R. v. Bainbridge [1960] 1 Q.B. 129.

R. v. Bourne (1952) 36 Cr. App. R. 125.

R. v. Cogan [1975] 3 W.L.R. 316.

R. v. Conroy and Conroy [1954] Crim. L.R. 141.

R. v. Hartley [1978] 2 N.Z.L.R. 199.

R. v. Kennedy (1979) 25 A.L.R. 367.

R. v. Martyr [1962] Qd. R. 398.

R. v. Quick [1973] Q.B. 910.

R. v. Richards [1973] 3 All E.R. 1088.

R. v. Solomon [1959] Qd. R. 123.

R. v. Tait (1979) 24 A.L.R. 473.

R. v. Yigwai and Aku [1963] P. & N.G.L.R. 40.

Remillard v. R. (1921) 59 D.L.R. 340.

Schultz v. Pettitt (1980) 25 S.A.S.R. 427.

Stuart v. The Queen (1974) 134 C.L.R. 426.

Wurramarbra v. The Queen (1979) 28 A.L.R. 176.

Appeal

This was an appeal against conviction and sentence on a charge of wilful murder where the accused had been charged as a counsellor under s. 7 of the Criminal Code.

Counsel

C. Bruce and M. Doiwa, for the appellant.

L. Gavara-Nanu, for the respondent.

Cur. adv. vult.

26 April 1982

KIDU CJ ANDREW PRATT JJ: In this case the appellant appeals against both his conviction and sentence by the National Court on 6th July, 1981, upon a charge of wilful murder for which he was sentenced to ten years' imprisonment with hard labour.

The appellant pleaded guilty to the charge. Briefly stated, the facts were that he had a relationship with his step-daughter from which a child was conceived. Thereafter he informed his step-daughter that she must kill the child at birth, his motive being apparently both shame for his actions and fear of repercussions from his fellow villagers. The child was killed by the step-daughter at birth.

It appears that they were both committed for trial upon the charge of wilful murder. However, the step-daughter pleaded guilty, at an earlier sitting of the court, to a charge of infanticide for which she received a sentence of ten months.

The grounds of appeal are as follows:

"Appeal against Conviction:

1. The conviction is wrong at law in that the Appellant (a counsellor) was convicted of a more serious offence than the co-offender — gabin hagigi (principal).

2. At law under section 7 of the Criminal Code an accessory cannot be convicted of a more serious offence than the principal.

Appeal against Sentence:

1. The disparity in the sentence imposed by the trial judge in the case of the co-offender Gabin Hagigi of ten months' imprisonment with light labour for infanticide and the sentence imposed on the appellant of ten years' imprisonment with hard labour for the offence of wilful murder.

2. The sentence in all the circumstances is manifestly excessive."

The lawfulness of the appellant's conviction for the crime of wilful murder by reason of his participation in counselling or procuring Gabin Hagigi to kill the child depends upon the interpretation and application of s. 7 and s. 9 of the Criminal Code, which are as follows:

7. PRINCIPAL OFFENDERS

(1) When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it:

(a) every person who actually does the act or makes the omission which constitutes the offence; or

(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence; or

(c) every person who aids another person in committing the offence; or

(d) any person who counsels or procures any other person to commit the offence.

In the fourth case he may be charged either with himself committing the offence or with counselling or procuring its commission.

A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence.

Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, the act or omission would have constituted an offence on his part, is guilty of an offence of the same kind, and is liable to the same punishment, as if he had himself done the act or made the omission; and he may be charged with himself doing the act or making the omission.

9. MODE OF EXECUTION IMMATERIAL

When a person counsels another to commit an offence, and an offence is actually committed after such counsel by the person to whom it is given, it is immaterial whether the offence actually committed is the same as that counselled or a different one, or whether the offence is committed in the way counselled, or in a different way, provided in either case that the facts constituting the offence actually committed are a probable consequence of carrying out the counsel.

In either case the person who gave the counsel is deemed to have counselled the other person to commit the offence actually committed by him.

It is clear that the appellant was convicted by virtue of s. 7 (d) of the Code, viz. that he counselled or procured another to commit the offence.

The problem of whether or not a counsellor or procurer may be convicted of a greater offence than the principal remains strangely bereft of authority. We have been able to find only two cases which refer directly to this point but in both cases the views expressed are strictly obiter. In R. v. Yigwai and Aku [1963] P. & N.G.L.R. 40 at pp. 43-44, Mann C.J. said as follows:

"I think, therefore, that the proper verdict is guilty of wilful murder in Yigwai's case.

In Aku's case, I have no doubt that the same verdict applies. Section 7 (d) of the Code directly covers Aku, and even if it did not, the last paragraph of...