Secretary for Law v Witrasep Binengim

• Jurisdiction: Papua New Guinea
• Judge: Saldanha J:
• Judgment Date: 04 September 1975
• Citation: [1975] PNGLR 172
• Court: Supreme Court
• Year: 1975
• Judgement Number: FC83

Full Court: Prentice SPJ, Raine J, Saldanha J

Judgment Delivered: 4 September 1975

SECRETARY FOR LAW

V

WITRASEP BINENGIM

Port Moresby

Prentice SPJ Raine Saldanha JJ

29 August 1975

4 September 1975

CRIMINAL LAW — Sentences — Inadequacy of — Wilful murder as principal offender under s. 7 of Criminal Code — Sentencing of co-offenders — Co-offenders sentenced to fifteen years' and twelve years' imprisonment — Sentence of 9 years 6 months' imprisonment substituted for sentence of 2 years 6 months' imprisonment.

The respondent was charged with the wilful murder of her husband (a Pastor in the Baptist Church), as a principal offender under s. 7 (b) and (c) of the Criminal Code (Queensland adopted) the respondent taking no part in the actual killing which was performed by two men called Thomas and Tari. The respondent a young woman aged about 30 years with two children had been having an affair with Thomas and gave her consent to a proposal put forward by Thomas that he would murder her husband so that they could be free to marry; the respondent was not "primitive" and was fully aware that she had the power in village custom and in fact, to veto the killing and that the killing would not have proceeded without her consent. The co-offenders were sentenced to fifteen years' and twelve years' imprisonment and the respondent to two years and six months imprisonment, the trial judge taking into account 7 months in custody awaiting trial. On appeal against inadequacy of sentence,

Held

That the sentence was manifestly inadequate to the circumstances of the crime seen in the light of the respondent's background and a sentence of nine years and six months imprisonment should be substituted.

Discussion of the arguments for parity of sentencing where co-offenders involved.

Appeal

This was an appeal by the Secretary for Law pursuant to s. 29 of the Supreme Court (Full Court) Act 1968 on the ground of inadequacy of sentence.

Counsel

L. W. Roberts-Smith, for the appellant (Secretary for Law).

W. J Andrew and W. Kaputin, for the respondent.

Cur. adv. vult.

4 September 1975

PRENTICE SPJ: Mr. Secretary appeals herein under s. 29, Supreme Court (Full Court) Act 1968, on the ground of the inadequacy of a sentence imposed on the respondent following a conviction for wilful murder of her husband. His Honour the trial judge had found that the respondent by giving her consent to the proposed murder of her husband by one Thomas, was guilty as a principal offender under s. 7 (b) of the Criminal Code of the murder which ensuedEditorial note: Reported herein at p. 95.1; and he sentenced her to two years and six months' imprisonment. The sentence calculated with the period spent in custody awaiting trial would amount in all to a confinement of three years one month. Thomas, the man who strangled the respondent's husband, had previously been sentenced to fifteen years, and Tari his accomplice in the deed, to twelve years' imprisonment.

Initially during argument, counsel for Mr. Secretary seemed disposed to erect a submission that such a disparity of sentence could be shown between the punishment of Thomas and Tari on the one hand and that of the respondent on the other, as called in law for the appeal to be allowed. This if successful would have amounted to the establishment of the converse of the "sense of grievance" principle such as was discussed and applied in Winugini Urugitaru v. The Queen [1974] P.N.G.L.R. 283. Such a submission would involve substituting, as it were the "grievance" of the Secretary for Law at an inadequacy, for that of offenders in the decided cases claiming to have received excessive punishment. No case involving such a submission or set of facts could be cited; and after discussion I understood counsel to have worked a shift of emphasis in his submission. He ultimately contended for a manifest inadequacy of sentence which he endeavoured to illustrate by reference (inter alia) to the disparity shown between the setences.

The respondent and Thomas had for some time been lovers; and Thomas had suggested the murder of the respondent's husband. Apparently at first the woman did not agree; but ultimately at a point two months before the murder, again four weeks before, and apparently on the day itself, she gave her consent thereto.

In sentencing the respondent, the trial judge's only remarks were as follows:

"I shall take into account the minor role of the woman, the fact that she did not instigate the agreement, the possibility of payback and the consideration that she should not be imprisoned for such a period as to destroy the relationship with her children, and to a lesser extent, her remorse. Accused sentenced to imprisonment for two years and six months without hard labour."

Counsel submits that a reading of these remarks supports the inference that his Honour overlooked a number of matters, namely:

(1) that this was a case of wilful murder as a principal, for which the punishment yet on the statute books, is death;

(2) that fifteen and twelve years' imprisonment had been imposed upon her co-offenders;

(3) that she had provided a motive to...