Secretary for Law v Ulao Amantasi and 9 Others [1975] PNGLR 134

• Jurisdiction: Papua New Guinea
• Judge: Prentice SPJ, Raine J, Saldanha J
• Judgment Date: 01 August 1975
• Court: Supreme Court
• Citation: [1975] PNGLR 134
• Year: 1975
• Judgement Number: FC81

Full Title: Secretary for Law v Ulao Amantasi and 9 Others [1975] PNGLR 134

Full Court: Prentice SPJ, Raine J, Saldanha J

Judgment Delivered: 1 August 1975

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SECRETARY FOR LAW

V

ULAO AMANTASI AND OTHERS

Port Moresby

Prentice SPJ Raine Saldanha JJ

28 July 1975

1 August 1975

CRIMINAL LAW — Sentence — Murder — Relevant considerations — Murder of reputed sorcerer — Very primitive accused — Sociological factors pre-eminent — Sentences of 12 months' imprisonment taking into account 5 months in custody proper in circumstances.

CRIMINAL LAW — Appeal against sentence — Appeal by Secretary for Law against inadequacy of sentence should be confined to cases where sentence grossly inadequate — Supreme Court (Full Court) Act 1968, s. 29 (1).

Ten accused pleaded guilty to the murder of one Yamo and were each sentenced to twelve months' imprisonment, the trial judge taking into account five months in custody prior to trial. The trial judge found that the killing of Yamo, who was believed to be a sorcerer, and believed to have caused the death of eleven people from the area, was planned, that the accused were of the most primitive type to be found in the community with strong beliefs in the power of sorcery, and, in killing Yamo, were acting in the interest of preservation of their society, which numbered some one hundred people only.

On appeal by the Secretary for Law against the inadequacy of the sentence:

Held

(Per Prentice SPJ with whom Raine J agreed, Saldanha J dissenting) (1) In relation to sentencing this was a case where pre-eminently a consideration for survival and education of the group was that which should prevail over all other objects of punishment.

(2) The Courts in Papua New Guinea must still endeavour to carry out the task, as they have always done, of marrying the government sociological task to the imposition of the Criminal Code (Queensland adopted) by varying sentences for murders from the most severe to the notional.

(3) In all the circumstances the sentences were proper ones and the appeal should be dismissed.

Per curiam (per Raine J) The power of the Secretary for Law to appeal against sentence under s. 29 (1) of the Supreme Court (Full Court) Act 1968 is designed for cases where it is considered that a trial judge has imposed a grossly inadequate sentence, not where the Crown's view is that the judge might reasonably have awarded rather more.

Appeal

Ulao Amantasi and 9 others pleaded guilty to charges of murder of one Yamo, a reputed sorcerer. The trial judge imposed sentences of 12 months' imprisonment on each accused and took into account in each case five months in custody prior to trial. The Secretary for Law appealed pursuant to s. 29 (1) of the Supreme Court (Full Court) Act 1968, against the sentence imposed in each case upon the ground that the sentences were inadequate and insufficient.

Counsel

K. B. Egan, for the appellant (Secretary for Law).

C. F. Wall, for the respondents.

Cur. adv. vult.

1 August 1975

PRENTICE SPJ: This is an appeal by the Secretary for Law brought without leave under s. 29 (1) of the Supreme Court (Full Court) Act, on the ground of insufficiency of sentence. The learned trial judge imposed sentences of 12 months' imprisonment on each of the ten accused who pleaded guilty to the murder of one Yamo and had been in custody five months.

Mr. Secretary concedes that this was a case involving primitive men killing a reputed sorcerer; but submits that it was of the nature of an intentional payback killing, and that it was elaborately planned. He relies on R. v. Bulda Melin [1973] P.N.G.L.R. 278.1 as having established in effect that substantial gaol sentences are called for in all cases of wilful murder despite the primitiveness of the murderers.

It was submitted that Raine J in R. v. Ami Tabi & Ors. Unreported judgment of 21st March, 1973, Ambunti.2 regarded himself as constrained to apply Bulda Melin's case [1973] P.N.G.L.R. 278.3 in such a sense.

Sentencing policies in Papua, and latterly in Papua New Guinea, were built up along the lines described by Sir Hubert Murray in "Papua Today" (1924) at p. 85; and by Gore J in the Annual Report for Papua for 1930 (found in the "judgments" of this Court as No. 213). I have quoted from these sources in R. v. Peter Ivoro [1971-72] P. & N.G.L.R. 374.4. I have never known these principles to have been challenged or questioned in any way.

In deference to the submissions by the appellant, I have studied again the Full Court decision in Bulda Melin [1973] P.N.G.L.R. 278.5. With respect, I do not think it is authority for the proposition for which it has been cited. I do not think that it was even before their Honours' minds that a general change in sentencing policy in regard to all wilful murders was being effected; or that long-standing principles were being resiled from — particularly those by which the Court had regard to the social effect of multiple sentences on small communities. Indeed it is noteworthy that the Full Court expressly affirmed "that it is proper from the community point of view to have regard to the fact that the respondents all belong to the same small line the effective strength of which in able-bodied men is going to be drastically reduced for a number of years in consequence of the imprisonment of the respondents".

I recall that that judgment was written at a time when all Judges of the Court were concerned with the persistence, in the Highlands particularly, of payback murders between tribes and lines of tribes. About that time, the Judges were forming the conclusion that sentences for such crimes should be increased. It appears to me that in Bulda Melin's case [1973] P.N.G.L.R. 278.6 the Full Court was indicating that for payback murders a water-shed between comparative educational indulgence and severe deterrence of the Highlanders from a predilection for payback, had been reached. It was careful to say in the penultimate sentence of its judgment, "In the particular circumstances of this case we consider that the proper sentence in the case of the remaining eight respondents is imprisonment with hard labour for six years". It had earlier had reference to "the nature of the offence and the circumstances in which it was committed, the maximum punishment which may be imposed and the various considerations affecting the rspondents" in setting ten years as the proper punishment for the two leading offenders.

But in coming to those conclusions the Full Court specifically stated, "we would think that whilst it was no doubt correct to describe the respondents in the terms used by the learned trial judge their degree of primitiveness should not be regarded as comparable, for example, with that of people from very remote areas with only minimal contact with Administration officers".

The Ami Tabi Unreported judgment of 21st March, 1973.7 decision seems to me to be no more than a recognition by the trial judge therein that there were degrees of primitiveness which would cause punishment to be lightened to a greater or lesser extent and that he should apply the Full Court decision in that sense.

The Bulda Melin case [1973] P.N.G.L.R. 278.8 was one of line payback with intent, in what might be called the classic stone-age tradition. The shedding of one tribe's blood customarily demanded a reply in the shape of the shedding of blood of the offending line. Such cases have always been regarded as quite distinct and separate from those involving other kinds of murders such as wife or child killing, and notably the killing of sorcerers. It seems that in all Papua New Guinea societies the killing of an acknowledged sorcerer who has repeatedly been responsible for or has boasted of causing deaths, has been regarded as a benefit to society (unlike the payback which rebounds not on the offender personally but with cruel...