The State v Yapes Paege

• Jurisdiction: Papua New Guinea
• Citation: [1994] PNGLR 65
• Date: 24 June 1994
• Court: National Court
• Year: 1994

National Court: Woods J

Judgment Delivered: 24 June 1994

1 Criminal law—sentence—wilful murder—death penalty—when applicable—discretion of judge—whether worst case type—role of Public Prosecutor in sentencing

2 Words and phrases—"Discretion of judges" in wilful murder case—whether Criminal Code s19 affords sufficient discretion

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Woods J: Yapes Paege and Relya Tanda you have been found guilty of the wilful murder of Piari Loo on the 7 October 1992 near Laiagam. The murder happened in an ambush situation when the deceased came out of his house to investigate some disturbance and 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 s299 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 s19 of the Criminal Code and impose a term of years instead of death. This immediately implies that the penalty in s299 is not mandatory, there is some discretion. However this discretion under s19 cannot be an automatic moderation of the law. The application of s19 must require appropriate circumstances but it cannot mean there is a very wide discretion within the range of 1 year imprisonment to life imprisonment to death. Surely if there was this automatic wide range this would have been included in s299 itself. By putting it specially in s19 it suggests something special. Other aspects of s19 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 Code use the words "not exceeding ". These words are a clear...