Ure Hane v The State [1984] PNGLR 105

• Jurisdiction: Papua New Guinea
• Judge: Woods J:
• Judgment Date: 28 May 1984
• Citation: [1984] PNGLR 105
• Court: Supreme Court
• Year: 1984
• Judgement Number: SC270

Full Title: Ure Hane v The State [1984] PNGLR 105

Supreme Court: Bredmeyer J, McDermott J, Woods J

Judgment Delivered: 28 May 1984

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

URE HANE

V

THE STATE

Waigani

Bredmeyer McDermott Woods JJ

5 March 1984

28 May 1984

CRIMINAL LAW — Appeal against sentence — Wilful murder — Maximum sentence imposed — Whether worst type of case — Categorisation of offence — Appeal allowed — Substitution of 15 years — Criminal Code (Ch. No. 262) s. 299.

A twenty-three-year-old lawyer working in the office of the public prosecutor murdered his de facto wife in his office after everyone had left for the day by stabbing her with two knives at least thirty times: he then reported the matter to the police and pleaded guilty to a charge of wilful murder. In mitigation of sentence he pleaded inter alia, good character, inability to cope with the demands made upon him to meet traditional obligations in relation to his marriage and provocation. The trial judge found that the case could be categorised as amongst the "worst type" of cases and imposed a sentence of life imprisonment.

On appeal against sentence:

Held

(1) When considering whether or not the maximum penalty of life imprisonment should be imposed for wilful murder, the court should, insofar as the law allows, categorise those "worst type" cases for which the penalty of life imprisonment should be reserved and then determine whether the particular offender comes within that category: the crime must warrant the penalty not the offender.

(2) In finding that the murder was amongst the "worst type" of cases the trial judge had misdirected himself on principles of sentencing and had imposed a sentence which was manifestly excessive.

(3) The appeal should be allowed and a sentence of fifteen years imprisonment substituted.

Discussion of appropriate categorisation of the offence of wilful murder.

Cases Cited

Acting Public Prosecutor v. Uname Aumane [1980] P.N.G.L.R. 510.

Avia Aihi v. The State (No. 3) [1982] P.N.G.L.R. 92.

Goli Golu v. The State [1979] P.N.G.L.R. 633.

Hodgson (1967) 52 Cr. App. R. 113.

Peter Naibiri and Anor v. The State (Unreported judgment No. SC 137 of 1978 dated 25 October 1978).

Public Prosecutor v. Tom Ake [1978] P.N.G.L.R. 469.

R. v. Lu Kepati and Anor [1971-72] P. & N.G.L.R. 44.

R. v. Lakalyo Neak and Ors (Unreported judgment No. 632 of 1971).

R. v. Peter Ivoro [1971-72] P. & N.G.L.R. 374.

R. v. Peter Numa Kumangal and John Kaupa Kumangal (Unreported National Court judgment dated 16 October 1979).

R. v. Wheeldon (1978) 33 F.L.R. 409.

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

Skinner v. The King (1913) 16 C.L.R. 336.

State, The v. Kaupa Mogia (Unreported National Court judgment dated 22 September 1979).

Veen v. The Queen (1979) 143 C.L.R. 458; (1979) 23 A.L.R. 281.

Appeal

This was an appeal against a sentence of life imprisonment imposed by Kaputin A.J.:

Counsel

B. Narokobi, for the appellant.

P. Boyce, for the respondent.

Cur. adv. vult.

28 May 1984

BREDMEYER J: A person who commits wilful murder in Papua New Guinea is liable to be given life imprisonment (Criminal Code (Ch. No. 262), s. 299). It is not a mandatory sentence. In giving judges a discretion, Parliament must have intended that the maximum punishment of life imprisonment should be reserved for the worst kind of wilful murders. What are the worst classes of categories of wilful murder which should attract the heaviest penalty? Between 1966 and 1975 judges in Papua New Guinea had power to impose the death penalty for wilful murder but if they found "extenuating circumstances" could impose a life sentence or a term of years instead. The death penalty was only pronounced once in that period by a trial judge but his decision was reversed on appeal. Between 1 November 1975 and 1 April 1976 a mandatory life penalty was in force for wilful murder. Since then the maximum punishment allowable for wilful murder is life imprisonment. In practice since 1966, apart from the five months interregnum between 975-1976 already mentioned, judges in Papua New Guinea have been deciding whether to impose a life sentence or a term of years for the offence of wilful murder. In the 1960s the convictions for wilful murder averaged seventy-nine per year and since Independence they have averaged sixty per year. Judges have thus had considerable experience in Papua New Guinea in classifying murders as more or less serious, perhaps more so than in England and in the Australian States where mandatory life sentences are the norm. The Australian Capital Territory is a recent exception: see R. v. Wheeldon (1978) 33 F.L.R. 409.

The English Parliament by legislation in 1965 classified murders into more and less serious. The Murder (Abolition of Death Penalty) Act 1965 (Imp.) retained the death penalty as the maximum punishment for five kinds of capital murder as follows:

" (a) any murder done in the course or furtherance of theft;

(b) any murder by shooting or by causing an explosion;

(c) any murder done in the course or for the purpose of resisting or avoiding or preventing a lawful arrest, or of effecting or assisting an escape or rescue from legal custody;

(d) any murder of a police officer acting in the execution of his duty or of a person assisting a police officer so acting;

(e) in the case of a person who was a prisoner at the time when he did or was a party to the murder, any murder of a prison officer acting in the execution of his duty or a person assisting a prison officer so acting."

The Act expired in 1970. The sentence in England since 1965 for non-capital murders, and since 1970 for all murders, has been a mandatory one of life imprisonment. The English cases on when it is appropriate to impose a sentence of life imprisonment have been in relation to offences other than murder. One such leading case is Hodgson (1967) 52 Cr. App. R. 113 where a life sentence was upheld for convictions of rape and buggery and other assaults on women.

I believe that we can and should distill from our own experience — with some reference in passing to English and Australian experience — what are the most serious categories of wilful murder which merit the most severe punishment. I am aware that any list must necessarily be somewhat subjective. Sentencing is an art rather than a science and two judges applying the same principles to the same facts can reach a different appropriate sentence. I am aware too that any list must be somewhat open ended and flexible. New situations will arise, new kinds of murders will be committed; certain kinds of murders may become more or less prevalent or more or less serious. Papua New Guinea has not hitherto had many murders caused by firearms or explosives for example. Social values are changing and will change in Papua New Guinea and the judges' values change and will change. I hope, on matters of sentence, that judges' attitudes will change with and reflect the best of society's changing values. An example of changed attiudes on sentence can be seen in the Supreme Court's attitude to the wilful murder of a reputed sorcerer. In 1975 the Supreme Court upheld sentences of twelve months' imprisonment for such an offence, Secretary for Law v. Ulao Amantasi [1975] P.N.G.L.R. 134; in 1980 sentences of six years were imposed on similar offenders, Acting Public Prosecutor v. Uname Aumane [1980] P.N.G.L.R. 510.

The following is an attempt to list the most serious kinds of wilful murder.

(1) A wilful murder done in the course of committing a theft, a robbery, a break and enter, or a rape. This category is taken in part from the English Statute quoted. I consider it a particularly heinous crime for someone to commit a break and enter and, if accosted by the householder or someone else, to kill him. I consider it is particularly heinous for someone to commit a robbery, say a highway robbery, and in the course of it, to kill the victim. Likewise for someone to commit a rape and then, in order to escape detection, to murder the victim. I am unable to give any pertinent Papua New Guinean examples except perhaps The State v. Kaupa Mogia (Unreported National Court judgment dated 22 September 1979) in which the accused was given twenty years' imprisonment for the wilful murder of a householder committed in the course of a break and enter.

(2) A wilful murder of a policeman or a prison warder acting in the execution of his duty.

(3) A wilful murder done in the course of or for the purpose of resisting, avoiding or preventing lawful arrest or in effecting or assisting in an escape from lawful custody.

These two categories can be considered together. Again they are taken from the English Statute quoted. A pertinent local example in Peter Naibiri and Anor v. The State (Unreported judgment No. S.C. 137 dated 25 October 1978). In that case two youths aged seventeen and nineteen committed a break and enter, escaped in a stolen car, were pursued by police in a high speed chase...