The State v Yapes Paege and Relya Tanda

• Jurisdiction: Papua New Guinea
• Judge: Woods J
• Judgment Date: 24 June 1994
• Citation: [1994] PNGLR 65
• Court: National Court
• Year: 1994
• Judgement Number: N1234

National Court: Woods J

Judgment Delivered: 24 June 1994

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

YAPES PAEGE AND RELYA TANDA

Mount Hagen

Woods J

24 June 1994

CRIMINAL LAW — Sentence — Wilful murder — Death penalty — When applicable — Discretion of Judge — Whether worst case type — Role of Public Prosecutor in sentencing.

WORDS AND PHRASES — "Discretion of Judge" — Wilful murder — Whether s 19 Criminal Code affords sufficient discretion.

Facts

The accused were found guilty of wilful murder. The Judge reviewed the recent amendment of Criminal Code s 299, which provides the death sentence for wilful murder. Both the Public Solicitor and the Public Prosecutor urged the Court to use its discretion under Criminal Code s 19 and impose a prison sentence instead.

Held

1. While the killing is an example of disorder and disrespect for the sanctity and dignity of human life ... and, therefore, the death penalty provided for in s 299 of the Criminal Code could be considered, the Public Prosecutor's plea against the death penalty ought to be taken into account.

2. Section 597 of the Criminal Code determines that the final decision of the death penalty is in the government, through the National Executive Council.

3. This case is not the worst type case and, thus, the limited discretion under s 19 Criminal Code ought to be applied in favour of imprisonment.

4. Both men were sentenced to life imprisonment.

Cases Cited

Papua New Guinea cases cited

Aihi v The State (No 3) [1982] PNGLR 92.

Golu v The State [1979] PNGLR 653.

Hane v The State [1984] PNGLR 105.

R v Kilape (1973) unreported No 763.

Other case cited

Veen v R (1979) 53 ALJR 305; 143 CLR 458; 23 ALR 281.

Counsel

J Kesan and S Carter, for the State.

P Tusais, for the defendants.

24 June 1994

WOODS J: Yapes Paege and Relya Tanda, you have been found guilty of the wilful murder of Piari Loo on 7 October 1992 near Laiagam. The murder happened in an ambush situation, when the deceased came out of his house to investigate some disturbance. He was attacked by you two and chopped on the stomach so severely that he died in hospital from the injuries some weeks later.

The penalty laid down in Criminal Code s 299 for wilful murder is death. So, initially there is no range of sentence for this offence, such as is implied by the words "not exceeding", as used in the penalty section of many of the other provisions of the Criminal Code. And the Court must now be mindful of the fact that the Parliament brought in this penalty by deliberate consideration in 1992, so it is not as though it is a penalty that can be regarded or disregarded lightly. The Members of Parliament meant it.

Of course, Parliament has also said that the court can act under s 19 of the Criminal Code and impose a term of years instead of death. This immediately implies that the penalty in s 299 is not mandatory. There is some discretion. However, this discretion under s 19 cannot be an automatic moderation of the law. The application of s 19 must require appropriate circumstances, but it cannot mean there is a very wide discretion within the range of one year imprisonment to life imprisonment to death. Surely, if there was this automatic wide range, this would have been included in s 299 itself. By putting it specially in s 19, it suggests something special. Other aspects of s 19 are considered by Judges, such as where there is a plea of guilty, where there is a young offender, where there has been remorse and an attempt at compensation or paying back for the problem caused.

Generally, the application of punishment by the Court is a matter of applying a sentence within a range depending on the severity of the offence. Thus, as I have already referred to above, most penalty sections of the Criminal Code use the words "not exceeding". These words are a clear direction to make the punishment fit the severity of the crime. And, of course, most crimes do permit consideration of a range of severity. Thus, assaults and grievous bodily harm do have a range of severity of the actual injury caused. There can be degrees of rape, such as whether it is multiple pack rape or a single perpetrator, and also whether further bodily injury is caused in addition to the act itself. In stealing, there is the difference between the snatching of a few kina to the careful misappropriation of thousands of kina of public money over a period of time. There can even be degrees of manslaughter or, in layman's terms, "accidental killings", depending on the amount of culpability or recklessness, such as betweenan accidental kicking in the stomach or spleen and the knifing in a tavern brawl.

But how can wilful murder, after the clear statutory distinction of it from two other levels of unlawful killings — murder and manslaughter — lend itself to degree? There cannot be a more wilful murder. Oh, yes, there may be different levels of...