Mauwe Antape v The State [1981] PNGLR 68

• Jurisdiction: Papua New Guinea
• Citation: [1981] PNGLR 68
• Date: 26 March 1981
• Court: Supreme Court
• Year: 1981

Full Title: Mauwe Antape v The State [1981] PNGLR 68

Supreme Court: Kearney DCJ, Pratt J, Miles J

Judgment Delivered: 26 March 1981

1 Criminal law—sentence—doing act to aid unlawful killing—s315 Criminal Code—no sentencing pattern for this crime—relevance of sentencing patterns in homicide cases—factors in sentencing—a heavy sentence is proper where intended killing takes advantage of and interferes with the administration of justice

2 CRIMINAL LAW Sentence—Doing act for purpose of aiding unlawful killing—No sentencing pattern—Relevance of sentencing patterns in homicide cases—Factors in sentencing—Interference with administration of justice—Heavy sentence called for—Proposed killing in precincts of court house—Term of four years' imprisonment upheld—Criminal Code, s315.

S315(1)(b) of the Criminal Code provides, that any person who "does or omits to do any act for the purpose of facilitating enabling or assisting the unlawful killing of another" is guilty of a crime and liable to imprisonment with hard labour for seven years, and s315(2) provides that it is immaterial that no person was in fact killed.

On an application for leave to appeal against a sentence of four years' imprisonment with hard labour for an offence under s315(1)(b), it appeared that the applicant had attended with his brother outside a court house at Kainantu, where a person who had allegedly caused the death of the brother's wife by unlawful acts of sorcery was to stand trial. The arrangements between the applicant and his brother were that the brother would kill the sorcerer and the applicant would protect the brother in the event of a payback attack by wantoks of the sorcerer. No person was in fact killed and the evidence fell short of an attempt to kill.

Held:

Allowing the application:

(1) it is proper for a heavy sentence to be imposed where an intended killing takes advantage of and interferes with the administration of justice.

Goli Golu v The State [1979] PNGLR 653 at 655, 663 referred to.

(2) Bearing in mind, inter alia, the lack of sentencing pattern for the particular offence, and the sentencing patterns in homicide cases, the sentence was not obviously excessive nor was it based on any erroneous principle.

Appeal.

This was an application for leave to appeal against sentence of four years' imprisonment with hard labour for the offence of doing an act for the purpose of assisting the unlawful killing of the person named in the indictment under s315(1)(b) of the Criminal Code.

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Kearney DCJ:

This was an application for leave to appeal against sentence. [Having heard the parties, the Court ruled that application for leave be refused, and stated that reasons would be published later. This we now do.]

I have had the benefit of reading the opinion of Miles J and respectfully agree with his Honour's reasons and conclusion. I would add a comment about the Criminal Code, s315.

The provision, I think, exists chiefly to enable "behind–the–scenes" persons who plan and organise payback killings to be...