Mauwe Antape v The State [1981] PNGLR 68

• Jurisdiction: Papua New Guinea
• Judge: Kearney DCJ, Pratt J, Miles J
• Judgment Date: 26 March 1981
• Citation: [1981] PNGLR 68
• Court: Supreme Court
• Year: 1981
• Judgement Number: SC194

Full Title: Mauwe Antape v The State [1981] PNGLR 68

Supreme Court: Kearney DCJ, Pratt J, Miles J

Judgment Delivered: 26 March 1981

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

(S.C.A. NO. 20 OF 1980)

MAUWE ANTAPE

V

THE STATE

Waigani

Kearney DCJ Pratt J Miles J

26 November 1980

1 December 1980

26 March 1981

CRIMINAL LAW Sentence — Doing act for purpose of aiding unlawful killing — No sentencing pattern — Relevance of sentencing patterns in homicide cases — Factors in sentencing — Interference with administration of justice — Heavy sentence called for — Proposed killing in precincts of court house — Term of four years' imprisonment upheld — Criminal Code, s. 315.

Section 315 (1) (b) of the Criminal Code provides, that any person who "does or omits to do any act for the purpose of facilitating enabling or assisting the unlawful killing of another" is guilty of a crime and liable to imprisonment with hard labour for seven years, and s. 315 (2) provides that it is immaterial that no person was in fact killed.

On an application for leave to appeal against a sentence of four years' imprisonment with hard labour for an offence under s. 315 (1) (b), it appeared that the applicant had attended with his brother outside a court house at Kainantu, where a person who had allegedly caused the death of the brother's wife by unlawful acts of sorcery was to stand trial. The arrangements between the applicant and his brother were that the brother would kill the sorcerer and the applicant would protect the brother in the event of a payback attack by wantoks of the sorcerer. No person was in fact killed and the evidence fell short of an attempt to kill.

Held:

Allowing the application:

(1) it is proper for a heavy sentence to be imposed where an intended killing takes advantage of and interferes with the administration of justice.

Goli Golu v. The State [1979] P.N.G.L.R. 653, at pp. 655, 663 referred to.

(2) Bearing in mind, inter alia, the lack of sentencing pattern for the particular offence, and the sentencing patterns in homicide cases, the sentence was not obviously excessive nor was it based on any erroneous principle.

Appeal.

This was an application for leave to appeal against sentence of four years' imprisonment with hard labour for the offence of doing an act for the purpose of assisting the unlawful killing of the person named in the indictment under s. 315 (1) (b) of the Criminal Code.

Counsel:

K. Wilson, for the applicant (appellant).

J. Byrne, for the respondent.

Cur. adv. vult.

26 March 1981

KEARNEY DCJ: This was an application for leave to appeal against sentence. [Having heard the parties, the Court ruled that application for leave be refused, and stated that reasons would be published later. This we now do.]

I have had the benefit of reading the opinion of Miles J. and respectfully agree with his Honour's reasons and conclusion. I would add a comment about the Criminal Code, s. 315.

The provision, I think, exists chiefly to enable "behind-the-scenes" persons who plan and organize payback killings to be effectively prosecuted. It is directed to the pre-killing stage. The incidence of payback killing would be reduced if it were nipped in the bud by discouraging the planners; s. 316 is an adjunct to s. 315.

PRATT J: I agree with the views and conclusions expressed herein by the Deputy Chief Justice and Miles J. I have nothing to add.

MILES J: This is an application for leave to appeal against a sentence of four years' imprisonment with hard labour for an offence under s. 315 (1) (b) of the Criminal Code, namely doing an act for the purpose of assisting the unlawful killing of the person named in the indictment. No person was killed in fact and the evidence fell short of an attempt to kill. The offence provided for is an unusual one and apart from some obiter dicta in Porewa Wani v. The State [1979] P.N.G.L.R. 593.1, has not been the subject of any pronouncement in this Court. The section provides as follows:

"315 (1) Any person who —

...

(b) does or omits to do any act for the purpose of facilitating, enabling or assisting the unlawful killing of another,

is guilty of a crime.

Penalty: Imprisonment with hard labour for seven years."

As was suggested in argument, s. 315 seems to be directed towards the situation where the prosecution is unable to prove an attempt to kill, or an aiding under s. 7, or a conspiracy to murder under s. 313. The maximum term of imprisonment is seven years. As far as ascertained, s. 315 has no equivalent in similar legislation in other countries.

The facts in the present case are that the applicant and his brother both aged about twenty-six years and without education, lived in a village said to be half a day's walk from Kainantu. The brother's wife died. Her death was attributed to the actions of a local sorcerer. How widespread this belief was is not clear. An accused who commits an offence according to his own individual belief as to what is right or wrong, can expect less leniency than an offender who commits an act tolerated by a system of traditional values which is generally held in the community to which he belongs. The alleged act of sorcery was reported to the police (apparently by the brother) and the alleged sorcerer with two colleagues was to be brought before a court at Kainantu on 21st March, 1980. In the meantime, some older person of the applicant's clan or line successfully persuaded the brother that the sorcerer should be killed when he was in attendance at the court house. The brother enlisted the assistance of the applicant.

On the day in question the applicant and his brother, having sharpened their axes, took up positions outside the court house, the brother at the time of his apprehension being near the door. Although the axes were to some extent concealed, there was not much secret about it. Bystanders went to the police station nearby on more than one occasion to enlist police assistance and when the police eventually intervened, an axe was discovered in the applicant's bilum. The brother's axe was found in his shirt. In their statements to the police, it appears that the arrangements between the applicant and his brother were that the brother would kill the sorcerer and the applicant would protect the brother in the event of a payback attack on him by wantoks of the sorcerer. By his attendance on this understanding, the applicant ...