Secretary for Law v Kaibug Jimbun and Peter Korua

• Jurisdiction: Papua New Guinea
• Judge: Frost CJ, Prentice DCJ, Williams J
• Judgment Date: 02 July 1976
• Citation: [1976] PNGLR 288
• Court: Supreme Court
• Year: 1976
• Judgement Number: SC99

Supreme Court: Frost CJ, Prentice DCJ, Williams J

Judgment Delivered: 2 July 1976

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SECRETARY FOR LAW

V

KAIBUG JIMBUN AND ANOTHER

Waigani

Frost CJ Prentice DCJ Williams J

30 June 1976

2 July 1976

CRIMINAL LAW — Sentences — Appeal against sentence — Application to increase sentence — Wilful murder — Co-offenders — Disparity of sentences between actual assailants and other participants — Sentences of 8 years substituted for those of 2 years 6 months.

The two respondents were arraigned on charges of wilful murder, with two other men, who were shown to have chopped a man to death with axes in their presence. All four were convicted of wilful murder and the two actually wielding the axes were each sentenced to 13 years imprisonment. The respondents were each sentenced to 2 years and 6 months imprisonment. On appeal brought by the Secretary for Law against inadequacy of sentence under s. 29 of the Supreme Court (Full Court) Act 1968 (and heard as though it had originated under s. 43 of the Supreme Court Act, 1975),

Held

(1) The evidence revealed a concerted action, a common intention and support and approval of a preconceived plan to attack, exhibited by the two respondents, such that it was difficult to distinguish their degrees of responsibility from the two axemen;

(2) Whilst accepting that it is common for allowance to be made for a somewhat lesser sentence given "watchmen" or "passive" participators than those given actual assailants, nothing in the age, degree of sophistication, education or tribal standing of the four accused would support such a differentiation between them in the circumstances;

(3) A gross inadequacy of sentence had been shown;

(4) Sentences, more closely approximate those of the two axemen should be imposed, though less close than might otherwise be considered because of the meagre details concerning the events preceding the attack.

(5) Sentences of 8 years imprisonment should be substituted for that of 2 years 6 months previously imposed.

Counsel

B. M. Ryan, for the appellant (Secretary for Law), referred to the following cases:

R. v. Pia-Afu, [1971-72] P.N.G.L.R. 393;

R. v. Harley, [1971-72] P.N.G.L.R. 399;

R. v. Radich, [1952] N.Z.L.R. 193;

R. v. Tovarula & Ors., [1973] P.N.G.L.R. 140;

R. v. Bulda Melin, [1973] P.N.G.L.R. 278;

R. v. Witrasep Binengim, [1975] P.N.G.L.R. 95;

R. v. Kuk Pum, [1974] P.N.G.L.R. 103;

Winugini Urugitaru v. The Queen, [1974] P.N.G.L.R. 283;

Wanosa & Ors. v. The Queen, [1971-72] P.N.G.L.R. 90; and

Secretary for Law v. Ulao Amantasi & Ors., [1975] P.N.G.L.R. 134.

W. J. Andrew, for the respondents, referred to the following cases:

Wanosa and Ors v. The Queen, [1971-72] P.N.G.L.R. 90;

Edwards v. Noble (1971), 125 C.L.R. 296;

R. v. Tiddy, [1969] S.A.S.R. 575;

R. v. Allan and Ors., [1963] 2 All E.R. 897 at p. 901;

R. v. Evans, [1973] 5 S.A.S.R. 183;

R. v. Tovarula and Ors., [1973] P.N.G.L.R. 140;

R. v. Potosi and Ors. (Unreported) Judgment No. 730 of 28 Feb., 1973; and

R. v. Lawlor, [1976] A.C.L.D. 082.

Cur. adv. vult.

2 July 1976

FROST CJ PRENTICE DCJ WILLIAMS J: Appeal was brought herein on 10th June, 1975 by the Secretary for Law under s. 29 of the Supreme Court (Full Court) Act 1968. The matter being a pending matter at Independence, was heard as though it had originated in this Court under s. 43 of the Supreme Court Act 1975.

On behalf of the appellant it is argued that the sentences of 2 years and 6 months for wilful murder imposed on each of the respondents by the trial judge in the pre-Independence Supreme Court at Mount Hagen on 1st May 1975, were inadequate.

The respondents were arraigned with two other...