Acting Public Prosecutor v Nitak Mangilonde Taganis of Tampitanis [1982] PNGLR 299

• Jurisdiction: Papua New Guinea
• Court: Supreme Court
• Citation: [1982] PNGLR 299
• Date: 28 July 1982
• Year: 1982

Full Title: Acting Public Prosecutor v Nitak Mangilonde Taganis of Tampitanis [1982] PNGLR 299

Supreme Court: Kidu CJ, Kapi DCJ, Pratt J

Judgment Delivered: 28 July 1982

1 Criminal law—appeal against sentence—consideration of taking into account customary compensation in homicide cases

2 CRIMINAL LAW—Sentence—Customary compensation—Relevance in homicide cases—As mitigating factor on sentence—Deduction of specific period not appropriate—Onus of proof of.

Customary compensation is a matter that may be taken into account on sentencing in homicide cases, (per Kidu DCJ and Pratt J), where such payment is considered relevant to sentence.

It is not, however, appropriate to deduct a specific period from the sentence imposed on account of the payment of customary compensation.

Where an accused relies on the payment of customary compensation as a mitigating factor on sentence he bears the onus of proving as a matter of fact the existence of such a custom.

R v Morse (1979) 23 SASR 98, Acting Public Prosecutor v Konis Haha [1981] PNGLR 205, Acting Public Prosecutor v Uname Aumane [1980] PNGLR 510 and R v Jim Kaupa (1973) No765 referred to

Appeal.

This was an appeal against sentence on the ground of inadequacy made pursuant to the Supreme Court Act, 1975, s23.

___________________________

Kidu CJ:

This is an appeal by the Public Prosecutor, under s23 of the Supreme Court Act 1975, against a sentence of two years nine months for murder.

The respondent is from the Kumalin Tribe of Enga Province and the deceased was from Yuli Tribe of the same Province.

Some time in 1979 Yuli and Aiyakani Tribes were at war. The respondent's father was walking through an area owned by the Yuli who mistook him for an Aiyakani and speared him. He was taken to hospital and died some time early in 1980.

Custom dictated that the respondent pay compensation to his uncles for the death of his father. The respondent and his line paid 183 pigs and K170 in cash. It seems that the compensation paid by the respondent and his line (Kumalin) was shared by the Aiyakani and the Yuli.

On 31 July 1980, the Aiyakani paid 75 pigs to the respondent and his line (Kumalin). This was accepted as adequate compensation for the respondent's father's death.

On 1 August 1980, the Kumalins went to receive compensation payment from the Yuli. (The respondent had given K35 to the deceased. The reason was that the deceased would either give a large pig in return or more money.) The deceased, however, offered only two small pigs to the respondent. He was not happy about this offer and raised the matter with the deceased whose reaction was one of "take it or leave it" "if you want to fight we'll fight". The respondent was angered by this. He picked up an axe and cut the deceased on the left shoulder blade. The deceased died from the wound he sustained.

For his death the respondent and his line paid the deceased's line 160 pigs and K1,102 in cash.

The learned trial judge in sentencing the respondent took into account various factors in mitigation including the compensation payment. He stated that if he were to penalize on the basis of deterrence alone " . . . the accused would well deserve a term of imprisonment according to the State Law, for four years." His Honour then commented on the compensation paid and said:

"I cannot ignore payment of compensation and march merrily into imposing a sentence based on custodial deterrence alone. I would subtract one year from the term I would have imposed, on account of the compensation payment."

Apart from comment on other factors that should affect sentence, the learned trial judge took into account the two months the respondent had spent in custody awaiting trial and imposed a sentence of two years nine months.

In sentence appeals to this Court from the National Court by the State it is established that this Court will not interfere unless it is shown that the sentencing judge improperly exercised his...