Papua New Guinea Law Reports - 1974
[1974] PNGLR 103
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
KUK PUM AND OTHERS
V
THE QUEEN
Port Moresby
Frost ACJ Clarkson Williams JJ
26 June 1974
1 July 1974
CRIMINAL LAW - Appeal against sentence - Application to reduce sentence - Payback killing - Attempted murder - Causing grievous bodily harm with intent.
Held
That in respect of a “payback” killing, sentences of eleven years four months and ten years four months’ imprisonment with hard labour for offences of attempted murder and causing grievous bodily harm with intent, respectively, should not be set aside as manifestly excessive, bearing in mind that past action by the courts has failed to check payback crimes, that the payback practice is now intruding into non-traditional relationships and that this extension must be discouraged.
Appeal
This was an application for leave to appeal against sentences imposed by the Supreme Court at Mount Hagen. Four of the appellants were convicted of attempted murder and sentenced to eleven years four months’ imprisonment with hard labour, and a fifth was convicted of the offence of causing grievous bodily harm with intent to cause it, and sentenced to ten years four months’ imprisonment with hard labour.
Counsel
W. J. Andrew, for the appellants.
C. F. Wall, for the respondent.
Cur. adv. vult.
1 July 1974
FROST ACJ CLARKSON WILLIAMS JJ: The five appellants seek leave to appeal against sentences imposed on them at the Mount Hagen sittings in August 1973. They had been jointly indicted for attempted murder and after trial four of them were convicted of this offence and the fifth, Kerua, of the offences of causing grievous bodily harm with intent to cause it. The maximum penalty for both offences is life imprisonment.
The four convicted of attempted murder were each sentenced to eleven years four months’ imprisonment with hard labour and Kerua to ten years four months’ imprisonment with hard labour.
It appears that the applicants live in a village near the Highlands Highway some ten or twelve miles out of Mount Hagen. They and others, heard that a relative of theirs had been killed by the operation of a bulldozer. They then gathered and ran to attack the person they took to be the driver of the bulldozer, Sam Morea.
There is no doubt that this mob, which included the applicants intended to kill Sam Morea and that the attack was pressed with considerable persistence. Sam Morea’s life was saved by the bravery of a bus driver, Waima, and two police constables who came to the scene.
Waima locked the hapless Sam in an iron shed and attempted to guard him. The mob pulled sheets of iron from the walls to continue the attack and despite strenuous resistance by the police constables chased and beat Sam with iron bars and stones when he attempted to escape. Efforts to beat him continued even after one of the constables threw himself upon Sam to protect him and ceased only when the applicants were persuaded by the constable to believe that the unconscious Sam was in fact dead.
Payback killing although still widely practised has been condemned again and again by judges of this Court. As the trial judge pointed out, punishment for this sort of offence has been increased in recent years. Notwithstanding this, payback attacks continued and are now extended, as in this case, to circumstances outside traditional living so as to endanger the safety of users of motor vehicles. The attacks occur haphazardly and irrespective of fault.
The trial judge said this was a very bad case. He noted that the evidence did not establish that the relative of the applicants was killed nor that the man attacked was clearly shown to have been the driver of the bulldozer although no doubt the applicants held an honest belief that he had been. Whether the driver or the injured man was at fault did not appear.
This was not a case where a vehicle ran down a relative in the applicant’s presence. Here, some time elapsed between the accident and the attack. The applicants lived near a busy highway frequented by vehicles and on which accidents inevitably occur.
The attack once commenced was pressed with great determination and in complete disregard of police resistance. It ceased only when the applicants thought the victim dead.
The trial judge took into account what is common knowledge that more severe punishment for this type of crime is favoured in responsible sections of the community.
There is no doubt that the sentences he imposed are stern. They are higher than other sentences in recent years for the same offence, although our attention was drawn to one sentence of ten years’ imprisonment for attempted murder. We should add that the sentences are probably higher than any of us would have imposed on our knowledge of the case and it was these considerations which concerned us at the hearing and led us to reserve for further consideration.
We are influenced by the facts that past action by this Court has apparently failed to check payback crimes, that the payback practice is now intruding into non-traditional relationships and that this extension must be discouraged and conclude that the sentences whilst high are in all the circumstances of the case not manifestly excessive.
The matter being one of importance we would grant leave to appeal but dismiss the appeals.
Leave to appeal granted. Appeals dismissed.
Solicitor for the appellants: G. R. Keenan, Acting Public Solicitor.
Solicitor for the respondent: P. J. Clay, Crown Solicitor.