Public Prosecutor v Aia Moroi [1985] PNGLR 78

• Jurisdiction: Papua New Guinea
• Judge: Kidu CJ, Bredmeyer J, Amet J
• Judgment Date: 01 April 1985
• Court: Supreme Court
• Citation: [1985] PNGLR 78
• Docket Number: Public Prosecutor v Apava Keru
• Year: 1985
• Judgement Number: SC289

Full Title: Public Prosecutor v Apava Keru; Public Prosecutor v Aia Moroi [1985] PNGLR 78

Supreme Court: Kidu CJ, Bredmeyer J, Amet J

Judgment Delivered: 1 April 1985

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

PUBLIC PROSECUTOR

V

APAVA KERU

AND

PUBLIC PROSECUTOR

V

AIA MOROI

Waigani

Kidu CJ Bredmeyer Amet JJ

26-27 April 1984

1 April 1985

CRIMINAL LAW — Sentence — Wilful murder — Payback killing — Mitigating factors — De facto provocation — Lack of sophistication — Custom of payback — Custom not to be recognised — Old age.

HUMAN RIGHTS — Right to life — "General principles of humanity" — Custom of payback contrary to — Constitution, s 35, Sch 2.1.

CONSTITUTIONAL LAW — Fundamental rights — Right to life — Custom of payback contrary to — Constitution, s 35.

CONSTITUTIONAL LAW — Custom — Recognition of — Repugnancy to general principles of humanity — Custom of payback not to be recognised — Constitution, Sch 2.1.

The two respondents, each aged about fifty years, were villagers from the Goilala area of the Central Province. The first respondent killed his daughter's de facto husband following an argument. The second respondent, who was the father of the de facto husband, killed the son of the first respondent by way of payback. His victim was entirely innocent and ignorant of the first murder. An effective sentence of six years was imposed in each case.

Held

(1) An offender's lack of sophistication is no longer a mitigating factor on sentence unless he comes from an area so remote that he does not know that there is a government with courts and police available to redress wrongs.

(2) The custom of payback is contrary to the "general principles of humanity" under the Constitution, Sch 2.1 and is contrary to the right to life guaranteed by the Constitution, s 35. A person who commits a payback murder in accordance with his custom is entitled to no reduction of sentence because of that custom.

(3) A person who commits a payback murder in accordance with his custom may be entitled to some reduction in sentence for de facto provocation.

(4) Old age is not generally a mitigating factor on sentence for murder.

(5) The first respondent should be sentenced to fifteen years imprisonment and the second respondent to life imprisonment.

Cases Cited

Acting Public Prosecutor v Uname Aumane [1980] PNGLR 510.

R v Iu Ketapi [1971-1972] P&NGLR 44.

R v Lakalyo Neak (Unreported judgment, N632 dated 21 July 1971).

Ure Hane v The State [1984] PNGLR 105.

Appeal

The Public Prosecutor appealed against sentences imposed by Los AJ on each respondent for wilful murder. The appeals were lodged on the basis that the sentences imposed were inadequate.

Counsel

L Gavara and V Noka, for the appellant in each case.

N Kirriwom, for the respondent Apava Keru.

S Lupalrea, for the respondent Aia Moroi.

Cur adv vult

29 March 1985

KIDU CJ BREDMEYER AMET JJ: These two appeals were argued on successive days before the same bench. There are many similarities between the two appeals and we have decided to, deal with both in the one judgment. The first respondent, Apava Keru, whom we shall call Apava, pleaded guilty to the wilful murder of Kava Aia on 29 March 1983 and was sentenced to imprisonment with bard labour for five years seven months by Los AJ. Apava had spent five months in custody pre-trial so the effective sentence was six years. The second respondent, Aia Moroi, pleaded guilty to the wilful murder of Aia Apouva on 30 March 1983 and was sentenced by Los AJ to imprisonment with hard labour for five years seven months which, together with a period of custody pre-trial, was an effective sentence of six years. The victim of each killing was the son of the other respondent. Thus the first respondent Apava killed the son of the second respondent Aia and, the next day, by way of payback, Aia killed Apava's son.

The Public Prosecutor has appealed pursuant to the Supreme Court Act (Ch No 37), s 24, against what he says was the inadequate sentence, effectively of six years imprisonment, imposed in each case. In order to consider these appeals we have to consider the circumstances of each offence and the personal circumstances of each offender. The first killing happened in this way. The first respondent's daughter lived with Andrew Kava Aia (the deceased). According to her she was "married" to him. She lived with him and got pregnant by him. Her father (the first respondent Apava) was upset by this relationship and took her back and, whilst living with her father, she gave birth to a child. On the day of the offence, Andrew Kava Aia came to Apava's village and house to claim or reclaim his "wife" and child. He took them away against the will of Apava. According to Apava's confession to the police, he followed them from a distance, following their footprints, and he did so with intent to kill Kava Aia. While Kava Aia an his wife and child were resting on the way, Apava came up behind Kava Aia who was sitting down facing away from him and killed him by two axe blows to the head. When asked by the police his reason for killing Kava Aia, Apava said it was because "Kava Aia and his father previously killed my four sons by sorcery so when I saw Kava Aia taking my daughter away I therefore followed them to kill Kava Aia". He was asked "Did you know it was wrong to kill a person?" He answered "I knew it was wrong but I killed him because I have nobody to help me, so when Kava Aia did that to my daughter I killed him". On the allocutus Apava had nothing to say and his counsel on his address on sentence made no mention of the sorcery deaths. He stressed rather that there was no marriage between the daughter and the deceased because no brideprice had been paid as was required by Goilala custom. Apava disapproved of the relationship and, when the deceased took the daughter back, Apava decided to kill him.

The personal particulars of Apava were that he was aged forty-five to fifty and came from Maini village in the Tapini District of the Central Province. Maini is about a day's walk from Tapini. He was married with three children and had no formal schooling. The Catholic Mission had been in the area since 1963. He had never been in paid employment.

As we have mentioned, the second offence was a payback murder for the first. The second respondent, Aia Moroi, whom we shall call Aia, comes from the same village as the first respondent. On the day of the first killing he was working in his village with others building a village court house. He heard that his son had been murdered by Apava Keru. He left that afternoon for Tapini to avenge the killing. He arrived at 10.00 or 11.00 pm at Peter Maia's house. Peter Maia was a relative or a wantok employed by the government as a clerk. Sleeping in his house were a number of relatives who had come on a visit from Maini village. Among them was Aia Apava the son of the first respondent Apava. The second respondent Aia had travelled fast and it is clear that no one in the house knew of the first murder and Aia did not tell them. The occupants were thus not afraid of Aia's presence. They thought it a normal visit. They invited him to sleep the night but he said that he preferred to sleep in his daughter's house which as nearby and he asked the young man, Aia Apava, to lead him to the house. The young man did so and, on the way, the second respondent Aia killed him while he was urinating, by two axe blows to the head. The victim was unarmed and unsuspecting. He did not know of the first murder by his father. In his confession to the police, Aia said that when he learnt of the death of his son, he set off for Tapini with his axe to commit a payback killing. At Tapini he went straight to Peter Maia's house with intent to kill Apava's son who was staying in that house.

The personal details of the second respondent Aia were similar to those of the first respondent. Aia was aged forty-five to fifty, a married man with six children. He had no formal schooling and had not had any paid employment. As we have said, he came from the same village as the first offender....